"Illllllilli:: iiinuiiiiiiiHHli iii.iiiiiiiiiiilcuil.ii'^ 'il i "Nliiillllllliiili"'' lj:i!iiillii[iiiiH||i|iii||(miiiii!ii|ii(iii iiriliiilriMilillMliniilnli,ilr!t(h|(||,i|||i|||iil|li(ll|illli|iii nlliilUlii Mllillllll' (Snrnrll ICam ^rljnol ICtbrary Digitized by Microsoft® 'i#^%: Digitized by Microsoft® This book was digitized by Microsoft Corporation in cooperation witli Cornell University Libraries, 2007. You may use and print this copy in limited quantity for your personal purposes, but may not distribute or provide access to it (or modified or partial versions of it) for revenue-generating or other commercial purposes. Digitized by Microsoft® HALL'S ESSAY ON THE RIGHTS OF THE CROWN AND THE PRIVILEGES OF THE SUBJECT 3n tl)e ^ea ^l)ores of tl)e iaealm. SECOND EDITION, REVISED AND CORRECTED, TOGETHER WITH EXTENSIVE ANNOTATIONS, AND REFERENCES TO THE LATER AUTHORITIES IN ENGLAND, IRELAND, SCOTLAND, AND THE UNITED STATES. By Richard Loveland I^oveland, OF THE INNER TEMPLE, BARRISTER-AT-LAW. WITH AN APPENDIX, CONTAINING I.— Lord Chief Justice Hale's "De Jure Maris.'' II. — The Case of Dickens z'. Shaw. III. — Mr. Serjeant Merewether's Speech. IV. — Forms in use by the Board of Trade. LONDON : STEVENS & HAYNES, ILato ^ubliiSljeus, BELL YARD, TEMPLE BAR. Digitized S^Mcrosoft® CHISWICK PRES5 :— PRINTED BY WHITTINGHAM AND WILKINS, TOOKS COURT, CHANCERY LANE. Digitized by Microsoft® hl^M I^^Bjil^^^^™r'^JMiiiiWK .p, '■^-^ ^ ^^ ^^91 ^ ^^^^»^ 1 m ^ PREFACE TO SECOND EDITION. I HIS edition of an " Essay on the Rights of the Crown in the Sea Shore/' by ROBERT Gream Hall, of Lincoln's Inn, Barrister- at-Law, (which was first published in 1830,) contains the whole of the original text, with annotations and references to the later cases which have been decided in the English, Scotch, Irish, and American courts. These notes are distinguished from those of the first edition by being placed within brackets. With a view of materially increasing the usefulness of the work, and facilitating references, numerous errors occurring in the original have been corrected, and an Appendix has been added, containing Lord Chief Justice Hale's well known " De Jure Maris," the case of Dickens v. Shaw, and (by kind permission of H. A. Merewether, Esq., Q. C,) Mr. Serjeant Merewether's speech in the Court of Chancery, Dec. 8, 1849, upon the claim of the Commis- sioners of the Woods and Forests to the sea shore and the Digitized by Microsoft® vi Preface. soil and bed of tidal harbours and navigable rivers ; also certain Forms in common use by the Board of Trade in dealing with the interests of the Crown in such property. Should this edition of a work (which for a long period has been out of print and with difficulty procured), prove an assistance to those engaged in cases relating to the foreshores of the country, the editor will be fully compen- sated for the time and trouble expended upon it. Temple, February, 1875. Digitized by Microsoft® INTRODUCTION. HE following Essay is published with no other pretensions than as collecting, from the text writers and decided cases, the prin- cipal points of law upon the subject ; with a commentary upon such of them as would seem to have been rather loosely laid down by the authorities. It is a subject which, as matter of dispute or discussion, does not, from the nature of things, often come before the Courts of Westminster for judicial decision ; (although it has, of late, been more frequently canvassed than usual ;) it is, however, a topic by no means unimportant or unin- teresting, as affecting both public and private rights. It is remarkable, that the principal authority, generally quoted and rehed upon, is the " Treatise de Jure Maris," published, some time ago, by Mr. Hargrave, in a collection of Law Tracts, from a MS. ascribed by him, upon apparently suf- ficient grounds, to Lord Hale. Even this authority is com- prised in the preliminary chapter of that Treatise, the prin- Digitized by Microsoft® viii Introduction. cipal design of which regarded the Ports and Customs. How far the work was considered, by Lord Hale himself, as sufficiently revised for publication, does not appear. It is, no doubt, a valuable present to the profession, and in deference to its generally admitted authority, the Treatise in question has been made the basis of the following Essay. Lincoln's Inn, 8, New Square, January i6, 1830. Digitized by Microsoft® SUMMARY OF CONTENTS. Hall's Essay. HE principal points of law discussed therein are these : — Page I. That the dominion and ownership of the British Seas, and of the creeks, bays, arms, ports, and tide-rivers thereof, are vested, by our law, in the Crown . . 1-7 That this ownership includes aquam et sobimj both the water, its products and uses, and the land or soil under the water ibid. That such ownership includes the shore, as far as the reach of the high-water mark of the [medium high tide between the springs and the neaps] 9 That the land subject to spring tides, and high spring tides, is no part of the sea, or sea-shore ; but belongs to the title and ownership of the /«mzy&-»za 10-13 That by grant from the Crown, a subject may have a lawful ownership of a certain portion of the sea, its creeks, bays, arms, ports, or tide-rivers, and of the shores thereof, tarn aqucB quam soli 6, 14 But that such grants must have a date anterior to the statutes restraining the alienation of Crovm lands . . . 106, 107 That no distinction exists at law, between the title or proofs of title to such land covered with water, and the title to terra firma . ........ 14 That where the ownership claimed by a subject in any such districtns maris, or tide-river, or shore, cannot be proved by the production of the grant, such ownership can no otherwise be established than by adverse possession, under the Statutes of Limitation ... . 22-26 Digitized by Microsoft® X Summary of Contents. Page 9. That such ownership cannot be supported by " prescription," properly so called, against the King, and never could, at any period, be so supported under the feudal law . 16, 21-31 10. That the proofs of title, where the grant itself is not forth- coming, to such districtiis maris aut littoris must be faris materia with those required to prove title to inland estates 32, 33 11. That proof, by prescriptive evidence, of a right to a fran- chise, liberty, or easement in or out of the soil, is no sufficient evidence of title to the freehold and inheritance of the land itself, whether such land be terra firma or pars maris 39 12. And consequently, that the ownership of a several fishery, or of the franchises of wreck, of flotsan, jetsan, and ligan, or of royal fish, or of ports, or the liberty of digging for sand, or shells, &c., will not be sufficient to establish an absolute ownership over the soil itself, where such rights are enjoyed against the Crown .... 20,55-65,71-77,78-103 13. And, therefore, neither the express grant of a franchise, or liberty, nor " prescription" for such (which supposes a grant) can be construed to include the soil, or freehold, against the Crown, by implication, or presumption 20, 65, 103 14. That "alluvion," properly so called, belongs to the owner- ship of the freehold of the adjacent terra Jinrta, subject to such interests in others as such ownership is liable to . 108-128 15. That "derelict" land, properly so called, belongs to the Crown, as land suddenly and by manifest marks left by the sea 128-135 16. That islands produced out of the British Seas, and the creeks, bays, arms, ports, and tide-rivers thereof, belong, like derelict land, to the Crown 140 17. Unless the soil under the water out of which such islands are produced, previously belonged to a subject .... ibid. 18. That the title of a subject to the soil of a districtiis maris, viz. to the soil of any creek, bay, arm, port, or tide-river, or to the shore, in no substantial respect differs from a title to terra firma 32, 34 19. That it is more for the public advantage that the owner- ship of subjects should be limited to the terra firma j and consequently, that by the rule of law, as well as of public policy, claims set up to tracts of sea, or of ports, or tide- rivers, or of the shore, ought not to be favoured against the Crown 104, 220 20. As to the general right to use the shore for bathing . 156-186 Digitized by Microsoft® Summary of Contents. xi Page 21. As to the public right to dig for sand, shells, &c., on the shore 186-217 22. Remarks on the case of Dickens w. Shaw . . . 217-220 II. Hale's (C. J.) De Jure Maris ... . App. i-xliii III. The Case of Dickens v. Shaw .... App. xlv-lxviii IV. Mr. Serjeant Merewether's Speech in the Court of Chancery, Dec. 8, 1849, upon the Claim of the Commissioners of Woods and Forests to the Sea Shore, and the Soil and Bed of Tidal Harbours and Navigable Rivers ; the nature and extent of the Claim, and its effects upon such Property App. Ixix-cvii V. Forms used by the Board of Trade relating TO the Rights of the Crown in the Sea Shore App. cix-cxxv Index cxxvii Digitized by Microsoft® Digitized by Microsoft® TABLE OF CASES. The references in Roman numerals are to pages in the Appendix. BBOT of Benedict Hulme, Case of „ Ramsay, Case of. „ Peterborough, Case of „ St. Austin, Case of „ Tichfend, Case of Adams v. Frothingham Alcock V. Cooke Allen V. Donelly . Alston's Estate, In re Anglfisea, Marquis of, v. Hatherton, Lord Anonymous . Arnold v. Munday Ashworth v. Brown Attorney- General v. Chamberlaine „ „ V. Chambers V. Cleaver V. Farmen , V. Hanmer V. Johnson V. Jones . V. London (Mayor, &c,, of) V. Lonsdale V. Matthias V. Parmeter V. Rees V. Richards V. Roll (Sir Samuel), and others (of Cornwall) v. St. Aubyns 3,9; Page . 57, xvii, Ixxxiii 1 1 8, xxvi, Ixxxvii 119, xxvi, Ixxxvi xi, Ixxxvi xviii, Ixxxi . 112 . 81 • 47 15,46 '3, 15, I 43: 41 186 50 99 09, no. III • 45 7, 104 . 18 • 43 . 18 S, Ixxv 44, 45, 99 197, 202 45, xcv • 99 45, 168 . xxiv xcviii, cvi Digitized by Microsoft® XIV Table of Cases. Attorney-General v. Terry „ „ V. Turner Aubrey v. Fisher . Badger v. South Yorkshire Railway Company Bagott V. Orr . . 13, 41, 46, 96, 105, i Bailey v. Appleyard Ball V. Herbert Banks v. Ogden . Banne River, Case of Barnes v. Mawson Baron of Barclay's Case Barry v. Arnaud . Barwick v. Matthews Beaufort (Duke of) v. Swansea (Mayor) Belfast Dock Act, In re Benedict Hall v. Mason Benedict Hulme, Abbot of, Case of Benest v. Pipon Benett v. Costar . ... Bickett V. Morris . . . . Blakemore v. Glamorgan Canal Company Bland v. Lipscombe Blewitt V. Tregonning . Blundell v. Caterall Bodenham v. Hill . Bridger v. Richardson Bridges v. Highton Bridgwater (Duke of). Trustees v. Bootle-cum-Linacre Brooke v. Spering „ V. Chadbourne . Brown v. Mallett . „ V. Perkins . Bullstrode v. Hall . Burnell v. Bishop of Bath and Wells Buszard v. Capel . Page 44 104 IS9 48 67, 175, 181, 186, 207 . . . 36 , 161, 163, 176, 215 . 112 20, 41, 65, V, xciv . 103 84, 152, xiii, xxxii . 81 . 201 15, 78, 82, 100, civ 15, 18, 162 . 86 57, xvii, Ixxxiii 16, 26, 92, ciii . . . 46 44,99 . 45 196, 202 ■ 37, 197 3, 13, 105, 156, 176, be, ci Ixx 45, 192 88 15 ci 45 43 xcvii 130 34 Calmady v. Rowe Carlisle (Mayor of) v. Graham Carter v. Murcot ... Chad V. Tilsed Chalk V. Wyatt . Chapman v. Kimball . Child V. Starr Digitized by Microsoft® 15, 18, 78, 82, 96, 100 ■ ' • 51 3, 41, 46, S3, 77 50, ci . 198 13, 93 4, 163 Table of Cases. XV Child V. Winwood . . . . Christ Church, Canterbury, Prior of, Case of Clowes V. Beck ... Colchester (Mayor of) v. Brooke , Commonwealth v. Bilderback „ V. Charlestown . „ V. Chapin . Coningshed, Prior of, Case of Constable, Sir Henry, Case of . . i „ Sir John, Case of. „ V. Nicholson Cornfield v. Coryell Cortelyou v. Van Brunt Cowper (Earl) v. Baker Crichton v. Collery • 103 . 138, xxxii . 198 3.43,44. SI. 140 • 44 13, 48 • 72 xvi S, 29, Tl, 82, xxiv, xli, xciii . xciii • 197, 198 . i86 . 61 . 198 SI Day v. Day . Delaware and Maryland Railway Company v. Stump Den V. East New Jersey . . . . Devonshire (Duke of) v. Hodnett „ „ V. Smith . Dewell V. Sanders 48 . 48 4 51,72 • 72 72 Dickens v. Shaw 19, 20, 21, 40, 78, 81, 91, 92, 94, 108, 170, 175, 173, 179, 181, 182, 184, 186, 208, 209, xlv Diggs V. Hamond . Ixxxvii Doe V. Thomas . ... Donegall (Marquis of) z/. Lord Templemore . . . .15 Duberly v. Page 195 Dunstan v. Tresider ... . ... 201 Dunwich v. Sterry . 41, 81 Dyce V. Hay (Lady J.) .... 198 East Haven v. Hemingway . Edgar v. Special Commissioners for English Fisheries Edleston v. Crossley Eduljee Byramjee, Ex parte . Emans v. TumbuU Embleton v. Brown .... Evans v. Rees ... Exeter (Mayor of) v. Warren Feather v. Reg Fife (Earl of) v. Woods and Forests Commissioners Fitzpatrick v. Robinson • 45 • 50 • 45 . 106 93, 109 16,47 . 88 ■ 135 21 22 37 Digitized by Microsoft® XVI Table of Cases, Fitzwalter's (Lord) Case Fleet v. Hegeman .... Ford V. Lacey Foreman v. Free Fishers of Whitstable Fowler v. Sanders Free Fishers of Whitstable v. Gann Freery v. Cook Page 41, 42, 49, 53, 56, 85 186 128 18 72 7 68 Gammell v. Commissioners of Woods and Forests Gann v. Free Fishers of Whitstable Gateward's Case .... . . Georgetown v. Alexandria Canal Company . Gifford V. Lord Yarborough . Gould V. Carter . . . . Gray v. Bond . . . • Grimstead v. Mario w . ... Hacchesham Case . . . . Haight V. Keokuk .... Hall w. Whillis Hamilton v. Donegall (Marquis of) Hammond v. Digges .... Hamond v. Pearson Hancock -v. York Railway Company Hanmer v. Chance Hart V. Hill Harvey v. Lyme Regis (Mayor of) Hayes v. Bridges . Healy v. Thome . . . . Heron, Sir Edward, Case of. Holford V. Bailey . . . . „ V. George ... HoUis V. Goldfinch Hopkins' Academy, Trustees of, v. Dickenson Home V. Mackenzie Howard v. Ingersole Howe V. Stowell .... Hoyle V. McCunn Hudson V. McRae Hull and Selby Railway Company, In re ■ 193 3> 43, 70 199, 212 45 . 128 • 44 176, cii . 202 xii, Ixxxii 21 . 186 49, 5°, 72 78, xxiv 45 43 24 93 lo 35, 49, 50, 76 15, 18, 19,92 12, ix, xxiii • 50, SI, 69 • 70 48, 75, loi 141 109, 112, 13 163 93 176 202 119, 120, 129 Ipswich Dock Company v. St. Peter's, Ipswich (Overseers of), 6, 16, 89 Ipswich (Inhabitants of) v. Brown ... .61, 174 Iseham's Case . . . ... 202 Digitized by Microsoft® Table of Cases. xvii Pasre Jackson v. Halstead 66 Jenkins v. Harvey ........ 37, 135 Jersey Case xxxvii Johnson v. Barrett xcvi „ V. Wyard 197 Jones V. Soulard 141 KiNLOCK V. Neville 48 Kinnersley v. Orpe 88 La Plaisance Bay Harbour Company w. City of Monroe . . 21 Leaconfield v. Lonsdale 70,72 Ledyard v. Ten Eyck 48 Legge V. Boyd 81 Le Strange 7/. Rowe IS) 18, 100, 198 Little V. Wingfield 47, 50 Lloyd V. Jones 196, 202 Lockwood V. Wood 202 Lord V. Sydney Commissioners . . . . . . .21 Lord Advocate v. Graham 22 „ V. Hamilton 3 Lowe V. Govett 10, 13, 92 Macalister v. Campbell 18 McCannon v. Sinclair 16, 89 Mace V. Philcox 156, 186 Macfarlin v. Essex County 203 Macmanus v. Carmichael 4, 21 Macnamara v. Higgins 197, 199, 207 Malcolmson v. O'Dea . . . . 3, 4, 42, 48, 50, 68, 72, 87, 88 Maldon v. Woolvet (Mayor of) 192 Mannall v. Fisher . . . . • 50 Marshall v. UUeswater Steam Navigation Company, 4, 42, 55, 59, 62, 66 Martin v. Waddell 186, civ Melvin v. Whiting 61, 68, 203 Memphis (Corporation of) v. Overton 49 Menzies v. Breadalbane 99, 168 Middleton v. Pritchard 4, 49, 141 Miles V. Rose 4 Moore v. Griffin 93 Moulton V. Wilby 70 Monmouth Canal Company v. Hill 48 Municipality No. 2 v. Orleans Cotton Press . . . .110 Murgatroyd v. Robinson 23 Digitized by mcrosoft® xviii Table of Cases. Page Murphy v. Ryan 4, 37, 42 Murray z/. Sermon 112 Neville, Case of Sir Henry .... 79, 83, xxv, Ixxxv New Orleans w. United States 112 Nicholson v. Williams I35, 198 Norbury v. Kitchen 43; 45 Northumberland (Duke of) v. Houghton 5^ O'Neill v. Allen 47, 5° Orford (Mayor of) v. Richardson 41, 49, 52 Outram v. Morewood 39 Oxenden v. Palmer 198 Pad WICK V. Knight i97 Palmer v. Rouse 81 Parker v. Cutler 186 Parnaby v. Lancashire Canal Company 45 Parrett Navigation Company v. Robins 45 Partheriche v. Mason 62 Pauline, The 81 Peake v. Tucker 67 Peck V. Lockwood 186 People V. Canal Appraisers 4, 21, 141 Perley w. Langley 197, 203 Perrott v. Bryant 16, 89 Peterborough, Abbot of, Case of .... 119, xxvi, Ixxxvi Peyroux w. Howard 13 Phillips V. Rhodes 93 Philpot's Case x, xcv, cvii Pierse v. Lord Fauconberg 48 Pitts V. Kingsbridge Highway Board .... 197, 198, 206 Plymouth and Sutton Poole, Case of . . 138, 146, xxxii, xcviii Pollard's Lessee v. Hagan 4 Port of Toppesham, Case of. . . 57, 137, 145, xviii, xxxii, bcxx Post V. Munn 43 „ V. Pearsall 197, 202 Prior de Coningshed,'Case of xvi „ of Christ Church, Canterbury 138, xxxii „ of Stoke xvi „ of Tinmouth x, btxxi Race v. Ward 197 Ramsey, Abbot of. Case of 118, xxvi, Ixxxvii Digitized by Microsoft® Table of Cases. XIX 'f) Pagham Rawstorne v. Backhouse Rebeckah, The R. V. Bedfordshire (Inhabitants o: „ V. Betts „ V. Commissioners of Sewers in „ V. Ellis .... „ V. Forty-nine Casks of Brandy „ ■z/. Gee .... „ V. Landulph (Inhabitants of) „ V. London (Mayor of) „ V. Montague „ V. Musson. „ V. O'Connell and others . „ V. Oldsworth . „ V. Pagham Commissioners „ V. Randall „ V. Russell .... „ v. Smith .... „ V. Stimpson „ -v. Tindall .... ,, V. Trafford „ V. Two Casks of Tallow . „ V. Ward .... „ V. Watts .... „ V. Yarborough, Lord. „ V. York, Archbishop of . River Banne, Case of . „ Severn, Case of . „ Thames, Case of . Rogers v. Allen „ V. Brenton „ V. Jones RoUe V. Whyte Rose V. Graves Rowe V. Brenton „ V. Granite Bridge Corporation Rumney (Corporation of) Case of St. Austin, Abbot of, Case of . Sale V. Pratt Saulet V. Sheperd . . ' . Scratton v. Brown. . . ' 13. Seebkristo v. East India Company Selby V. Robinson . . Digitized by Microsoft® 43: 19, 32, 81 45, Page . 70 21 • 39 • 45 • 99, 167 76, 82, 89, 90 21, 81, 103 16 16 21 4,75 16 Ixx 131 99, 167 • 45 44,45 13, xxxii, c • 3,47 . 140 99, 169 . 81 99, 169, ciii 87, • 45 [3, 109, 120 — 128, 130 106 65, V, xciv 20, 41, ' „ , 84, xiii, xxxii X, Ixxxiv, xcv, cvii 49,90 197, 262 48 70 45, xcix 4, 13 129 93 xi, Ixxxvi I 197, 203 . 112 89, 149, cii III 202 XX Table of Cases. Page Severn River, Case of 84, xiii, xxxii Seymour v. Lord Courtney "° Shakespear v. Peppin '95 Shinberge's Case xiii, xxxii, Ixxvi Shuttleworth v. Le Fleming 23, 49, 50, 67, 68 Simpson v. Dendy 1°' Smart v. Dundee (Council of) 99i m Smith V. Kemp 41, 67 „ V. Stair (Earl of) 10, 1 3, 99 Somerset (Duke of), v. Fogwell 20, 62, 76 „ „ V. France 89 Stanley v. White I03 Stevens v. Paterson and Newark Railway Company ... 4 Stewart v. Greenock Harbour Trustees 1 1 1 Stoke, Prior of. Case of xvi Stone V. Augusta 163 Storer v. Freeman 4^ Stuart w. Clark's Lessee 141 Sutherland (Duchess of) v. Watson 3 Sutton Marsh, Case of I3ij xi, xxiv, xxviii Sutton V. Buck 80 Swans, Case of civ Talbot v. Lewis 81 Taylor v. Perry loi Thames River, Case of x Tichfend, Abbot of, Case of xviii, Ixxxi Tinmouth, Prior of. Case of x, Ixxxi Tisdall V. Parnell 88 Todd ^z. Dunlop 99j m Toppesham Case 57) 137) '45) xviii, xxxii, Ixxx Treat v. Lord 48 Trematon Case 138, 146, xxxii, xcviii Tyrwhitt v. Wynne 91, loi Upton v. Dawkins 67 Vanhaesdanke's Case 12, ix, xxiii Vaughan v. De Winton loi Walton-cum-Trimley Manor, 7« r^ IS) 88 Wandsford, Lady, Case of 12, ix Ward V. Cress well 41, 174 Warren v. Matthews 41, 46, 54 Digitized by Microsoft® Table of Cases. xxi Pago Waterloo Bridge Proprietors v. Cull i6 Waters v. Lilley 202, 203 Webb V. Bird 23 Wedderburn v. Paterson 141 Weekly v. Wildman 202 Weld V. Hornby 72 Wenman v. Mackenzie 88 White V. Crisp 43, 45 „ V. Phillips 43 Whitstable Fishers v. Foreman 43 Wild V. Holt loi Wilkinson v. Proud 23 WiUiams v. Blackwall 43, 70 „ V. Wilcox 3, 43, 69, 70, 140 WiUingale v. Maitland 198 Winch V. Thames Conservators 48 Yarborough, Lord, Case of . . . 13, 109, 120 — 128, 130 Zetland (Earl of) v. Glover Incorporation of Perth . . .141 Digitized by Microsoft® Digitized by Microsoft® AN ESSAY ON THE RIGHTS OF THE CROWN IN THE SEA-SHORES OF THE REALM, Etc. Of the Kings Title to the British Seas. §HE British Seas, sometimes called the Four The British Seas, are those which encompass the coasts ^Ing'sTitle ^ of England, Scotland, and Ireland. To the therein, west they not only include the sea between Great Britain and Ireland, but extend over the Atlantic Ocean, which washes the western coasts of Ireland : this western part of our sea is subdivided ; for, so much as runs between England and Ireland is called St. George's Channel, or the Irish Sea; and the sea on the west coast of Scotland is sometimes named the Caledonian, Deucaledonian, or Scottish Sea, and sometimes the North Sea. To the east we have the German Ocean, which is bounded principally by the opposite coasts of Germany, and the United Provinces (now Belgium) ; lastly, to the south there is the British Channel, or Sea, which runs along the B Digitized by Microsoft® 2 Of the Kings Title to the British Seas. French coast, and, comprehending the Bay of Biscay, ends with the northern coast of Spain, {a) Over the British seas, the King of England claims an absolute dominion and ownership, as Lord Paramount, against all the world. Whatever opinions foreign nations may entertain in regard to the validity of such claim, yet the subjects of the King of England do, by the common law of the realm, acknowledge and declare it to be his ancient and indisputable right, (b) This dominion and ownership over the British seas, vested by our law in the King, is not confined to the mere usufruct of the water, and the maritime jurisdiction, but it includes the very fundum or soil at the bottom of the sea. "The sea is the King's proper inheritance," (c) and he is " Lord of the Great Waste," both land and water ; " tarn " aquce quant soli." Selden, {d) in his celebrated treatise on the Dominion of the Seas, would seem to contemplate this ownership of the King, as combining both jurisdiction and ownership ; the one, indeed, would seem to involve the other, if Selden's doctrine to its full extent be admitted. There are eminent writers upon natural and upon national law, who have controverted Selden's doctrines, and have denied the King of England's exclusive dominion, and con- sequently his ownership over the British seas ; but however this may be, and probably will ever continue, vexata qucestio between such writers, we know that the writers on the common and municipal law of England, as well as the {a) Hargrave's notes to Co. Litt. 107, b. being a summary of the i Ch. 2d Book of Mr. Selden's Mare Clausum. [Woolrych, pp. 4, 5. Jer- wood's dissertation on Rights of Sea-Shore, p. 13.] (b) I Roll. ab. 528, 1.15. 2R0II. ab. i68andi7o,lines42and43. 3 Leo. 73. Co. Litt. 107 and 260 b. Callis 39. 2 MoUoy, 207, 9th ed. Black. Com. 264. Hale, De Jure Maris, Appendix, post, vii. and xv., and see the cases cited post on the Fisheries, which admit this to be settled law. [Woolrych, p. 433.] ic) Dav. Rep. n-Di&^i^^^mtH^'^^ 4i. {a) Mare Clausum, Lib. 2. Ch. 22 and 24. of the tides. Of the Kings Title to the British Seas. 3 decisions of our judicial courts, all speak the same lan- guage, and appropriate the dominion of the British seas tam aqua quam soli, to the King, (e) This dominion not only extends over the open seas, but it incUides all also over all creeks, arms of the sea, havens, ports, and tide- arm^of the rivers, as far as the reach of the tide, around the coasts of ^'^^^ '^^^ '^'^^^- rivers, as far the kmgdom. All waters, in short, which communicate as in the read with the sea, and are within the flux and reflux of its tides, are part and parcel of the sea itself, and subject, in all respects, to the like ownership. This is abundantly proved by the cases hereinafter referred to, where the public right of fishing in the creeks, arms of the sea, havens, ports, tide- rivers, &c., of the kingdom has been, in many instances, established upon the principle that they are part of the sea, and of the King's dominion, and as such, liable to the common law right of the subject to fish therein ; of which right we shall, in a future page, take notice. (/) (i) [Angell on Tide Waters, p. 3.] (/) [The soil of the sea, estuaries, and navigable rivers, within the British dominions, was originally in the Crown, and remains so still, except in those cases where it can be proved to have legally passed into the hands of private persons. Phear on Rights ofWater, p. 41. See Malcolmson v. O'Dea 10 H. of L. cases 593 ; R. v. Stimpson 32 L. J. M. C. 208 ; Att.-Gen. v. Chambers per Alderson, B., 4 De G. M. and G. 206 ; S. C. 23 L. J. Chan. 665 ; Blundell v. Caterall per Bayley, J., 5 B. and Aid. 304 ; Carter v. Murcot 4 Burr 2164 ; but subject to the right of passage over them, see Gann v. Free Fishers of Whitstable Co. II H. of L. cases 192 ; S. C. 20 C. B. N. S. I and 35 L. J. C. P. 29; Colchester, Mayor of, v. Brooke 7 Q. B. 339 ; S. C. 9 Jur. 1090. In England it is held to be the property reserved to the sovereign ; but in Scotland it is presumed to be granted as part and pertinent of the ad- jacent lands, under the burthen of the Crown's right as trustee for the public uses. Bell on Law of Scotland, Sth edit. 251. See Duchess of Sutherland v. Watson 6 Macph. 199, Jan. 1868. The doubt which seems to have existed, as to the ownership of the soil of navigable rivers (see Williams v. Wilcox 8 Ad. and E. 333), is now set at rest by Lord St. Leonards, in the case of The Lord Advocate v. Hamilton I McQueen (H. L.) 46 ; where he advised the House of Lords that, " With respect to the questionOi^iizbdi^ /WaamsitflSOted as to the rights 4 Of the Kings Title to the British Seas. Lord Hale, in the treatise ascribed to him,(^) aptly com- pares the King's property in the sea and tide-rivers, creeks, &c., to the ownership of lords of manors in the common or waste lands of the manor. The soil and freehold of the of the Crown to the alveus or bed of a river, it really admits of no dis- pute ; beyond all doubt the soil and bed of a river (w^e are nowr speak- ing of navigable rivers only) belongs to the Crown." As to the soil of a lake, see Marshall v. Steam Navigation Co., 3 B. and S. 732 ; Bell's Principles on Law of Scotland, 651 ; Phear, p. 13. A x\m ex \%primd facie navigable in which the tide ebbs and flows : Murphy v. Ryan, 2 Ir. R. C. L. 143; see also Malcolmson ?/. O'Dea 10 H. of L. cases 618, per Willes, J. ; Rex V. Montague 4 B. & C. 598 ; Miles v. Rose 5 Taunton, 705 ; Woolrych on Waters, pp. 40, 41 1 ; Schulte's Aquatic Rights, p. 128. This question has occupied the attention of the Courts in America more than in this country, owing to the large rivers there, which are non-tidal, though for many miles navigable ; and while some of their Courts have held that tides are necessary to make a river navigable in law, others have held navigability in fact to be navigability in law. See McManus v. Carmichael 3 Iowa 1-52 ; Middleton v. Pritchard 3 Scam, (in.) 510; Rowez'. Granite Bridge Corporation, 38 Mass. (21 Pick.) 344, 347 ; People v. Canal Appraisers, 33 New York (6 Tiffany) 461, 500 : Pol- lard's Lessee v. Hagan,4 Miss. (3 How.) 212 ; Child v. Starr,4 Hill (N.Y.) 369; Den V. East New Jersey, 15 Howard, U. S. Sup. Ct. Rep. 426 ; and remarks in Stevens v. Paterson and Newark Railway Company, 34 New Jersey Law (5 Vroom) R. 532 ; Angell on Tide Waters, pp. 38 & 76 ; Angell on Watercourses, 6 edit. p. 730 ; Houck on Navigable Rivers, p. 26, et seq. The management of the rights and interests, belonging to the Crown, in the shores and bed of the sea, and the rivers of the United Kingdom, as far as the tide flows, was by 29 and 30 Vict. c. 62, s. 7, transferred from the Commissioners of the Woods and Forests to the Board of Trade in the following terms : — " From and immediately after " the thirty-first day of December, one thousand eight hundred and " sixty-six, all such parts and rights and interests as then belong to " her Majesty in the right of the- Crown of and in the shore and bed " of the sea, and of every channel, creek, bay, estuary, and of every " navigable river of the United Kingdom, as far up the same as the tide " flows (and which are hereinafter for brevity called the foreshore) " except as in this Act provided, shall, subject to the provisions of this " Act, and subject also to such public and other rights as by law exist " in, over, or affecting the foreshore, or any part thereof, be and the " same are hereby transferred from the management of the Commis- " sioners of the Woods and Forests to, and thenceforth the same shall " be under, the management of the Board of Trade." And the duties Digitized by Microsoft® Of the Kings Title to the British Seas. 5 waste belong to the lord, but subject to certain rights of the manorial tenants ; such as common of pasture, piscary, turbary, ways, &c., claimed and enjoyed by them, by the custom of the manor, in and out of such waste lands. So of the Board with respect to the foreshore and bed of the sea are, inter alia, to protect the Crown's rights, to ascertain in what parts of the coast the Crown has parted with its rights, in what parts tire rights of the Crown are undoubted, and in what parts the title is doubtful ; to prevent encroachments on the foreshore, to protect navigation and other public interests, and to sell, lease, or license the use of and otherwise deal with the soil, where expedient so to do, under the powers contained in lo Geo. 4, c. 50 ; 2 and 3 Will. 4, c. i and 112 ; 3 and 4 Will. 4, c. 69 ; 5 Vict. c. I ; 8 and 9 Vict. c. 99 ; 14 and 15 Vict. c. 42 ; 15 and 16 Vict. c. 62 ; 16 and 17 Vict. c. 56; and 29 and 30 Vict. c. 62 (see Forms, post. Appendix cix.) The 10 Geo. 4, c. 50, s. 60, enables the Treasury to grant their consent for a class of cases, instead of in each individual case, and by the 62nd section of the same Act, the necessity of a survey is dispensed with in cases where the land is obviously not worth a survey ; the 16 and 17 Vict. c. 56, s. 5 gives power, with the consent of certain authorities, to compromise and settle disputed claims ; and the 29 and 30 Vict. c. 62, s. II dispenses with the neces- sity of any consent to compromises. See also Board of Trade Arbitra- tions, &c., Act 37 and 38 Vict. c. 40.] {g) De Jure Maris, Appendix, post, vii. [Mr. Serjeant Merewether in a case of the Att.-Gen. v. London Mayor and Corporation (see Appendix, p. Ixxv.), speaking of the authorship of this work, says, " I have now to advert to a treatise, " which I am well assured has led to much misconception respecting " this supposed principle of law (Rights of the Crown to the Sea- " Shore, &c.) It is a treatise familiarly called Lord Hale's, but I have " every reason for thinking, as far as regards the book published by " Mr. Hargrave, that it is not Lord Hale's ; at least, I would venture " so far as to say that there is no sound reason for assuming that it is " so ;" but see remarks of Mr. Jerwood in his Dissertation, pp. 32 and 45, which was published shortly after the Serjeant's speech, and was written with special reference thereto ; also Phear, p. 47, note m ; Black's report on the Manor of Tranmere, p. xxx. An American writer goes so far as to say that, " deprived of Lord Hale's name, the Law " as laid down in the treatise referred to, in relation to rivers, would " hardly ever have been recognized in this country ; it was the name " of that great jurist that dazzled our judges, and caused some of them " to disregard the plainest principles of common reason." Houck on Navigable Rivers, p. iS^/feed/^y M/crosoft® 6 Of the Kings Title to the British Seas. the king is lord of the great waste of the sea, subject to certain beneficial rights and privileges of fishing, naviga- tion, &c., immemorially enjoyed by his subjects therein, by the custom of the realm, which is the common law. ih) The title of the King of England to the land or soil aqua maris cooperta, is similar to his ancient title to all the terra firma in his dominions, as the first and original pro- prietor and lord paramount. It is a fundamental principle of our laws of property in land, that all the lands in the realm belonged originally to the King ; and, according to the feudal principles of our ancient laws of tenure, the land- owners of England are, to this day, tenants to the King, holding their lands of him, as their lord paramount. That part of the land which the King and his ancestors have never granted out to the subject, remains to the King, as his demesnes, in absolute ownership, ii) The terra firma of England has become, almost entirely, the property (by grant and tenure) of the subject ; but the terra aqua maris cooperta still remains to the King in wide and barren owner- ship, (k) Some rare and antique instances may indeed be found of actual grants, by Kings of England, of certain portions of land under the sea, i. e. of both sea and land, to a certain ex- tent. These grants have been made in such places where some creek or bay has afforded the means of exclusive possession. Thus, the tract ascribed to Lord Hale, and before quoted, recites a grant of King Canute "de terra insula Thanet, tam in terra quam in mari et littore ;" {I) and another of William the First, "Abbati Sancti Augustini de {h) [See the case of the Ipswich Dock Co. v. Overseers of St. Peter's, Ipswich, 7 B. and S. 344, and remarks of Blackburn, J., therein. Angell on Tide Waters, p. 24. De Jure Maris, Appendix, post, viii.] {i) Madd. Formulare Anglicarum, 202. {k) De Jure Maris, Appendix, post, xi.-xxvi. (/) De Jure Maris, ^^?ftfiflfet;^«SP,ss^ Of the King s Title to the British Seas. 7 totd terri Estanofe, et totttm littus tisque medietatem aquce;" and the author of the tract adds, " If the King will grant lands adjacent to the sea, together with a thousand acres of land covered by the sea adjoining, such grant will pass the soil itself; and if there should be a recess of the sea, leaving such a quantity of land dry, it will belong to the grantee." Qm) Callis, («) in his book on Sewers, says, " I take it, it is very " disputable whether grounds, before they be relinquished " by the sea, may be gained by charter and grant from the " Crown ; T suppose they may." But if such grounds could not be gained by charter or grant, it would seem to follow that they could not be claimed \>y prescription ; for nothing can be prescribed for, which could not have had a lawful beginning by grant : Callis, however, in the very same place, says, "A subject cannot have the grounds to the low " water-mark, but by custom or prescription ;" and he adds, that "the subject may have the grounds of the sea, to the " low water-mark, and that no custom can extend the " ownership of a subject further!' if) But he adduces no authority, and there seems no sufficient reason why pre- scription or custom should not give title, as well to a specific portion of sea, or of a creek or arm of the sea, as of the shore. The true question is, whether prescription or custom will give title to either. But of this more hereafter. Having stated the law to be that the king is absolute owner of the ground or soil under the surface of those seas which are within, or parcel of, the British dominions ; — let {in) [De Jure Maris, Appendix, post, xv.] {11) Callis on Sewers, p. 53 ; [but see Free Fishers of Whitstable v. Gann 11 C. B. n. s. 387, and remarks of Erie, C. J., and Lord Chelms- ford in the same case 11 H. L. 218 ; see also Schulte's Aquatic Rights, 110; Angell on Tide Waters, 286; and the case of Att.-Gen. v. Farmen, 2 Levinz, 171.] {0) Callis on Sewers, p. 53. Digitized by Microsoft® ea-bottom. ilerra firma. 8 Limits of the Sea-shore. us proceed to distinguish the Hnes drawn by the law, between the terra firma, the sea-bottom, and the sea-shore. The waters of the sea, being liable to fluctuation, some- times rise above and overflow the land, and at other times retire from and leave the land dry. These fluctuations of the waters are of two different characters ; they are either periodical and according to the regular course of natural causes and effects : or, 2ndly, extraoi'dinary fluctuations, such as happen irregularly and rarely. The periodical and regu- lar fluctuations are called the tides ; and are thus distin- guished from extraordinary inundations, and floods, as well as from sudden and unusual recessions or derelictions of the sea. The manner, extent, and permanency of these changes will be found to govern and determine the owner- ship of the soil affected ; and our inquiry, therefore, will be directed to ascertain how far these changes in the natural character of the locus in quo will, in the consider- ation and judgment of law, alter or affect the pre-existing title. In legal, as well as common parlance and intendment, the sea-bottom is that soil which is " semper aquA maris co- operta^' and never known to become dry by changes of the surface of the sea. But with regard to the " terra firma^' or dryland, although, in common speech, it imports land wholly exempt from the action of any of the tides, yet it would seem that the legal terra firma ranges down to the ordinary high-water mark. In the Roman law, the shore extended " quatenus hybernus fluctus maximus excurrit," a boundary line equivalent, as it would seem, to the limits of our high spring tides. But with us it has been long settled, that tJiat portion only of the land adjacent to the sea, which is alter- nately covered and left dry by the ordinary flux and reflux of the tides is, in legal intendment, the sca-shorc ; although the word shore^^^^l^-^.'^-^^y^mow parlance, a somewhat Limits of the Sea-shore. ' g more extensive meaning, (/) taking in all that extensive belt of waste ground or strand of sand, shingles, and rock, which encircles the British Isles, liable to the action of everj/ kind of tide, and of which a part, next the land, is seldom covered by the water, even at the highest spring tides. But, in fact, no more of this unreclaimed tract is, at law, sea-shore, than that portion which lies between the Jiigh-water and low- zvater mark, at ordinary tides. (§') (/) Callis, pp. 54 and 55, in his book on Sewers, makes a distinction between coast and shore : " coast," says he, " certainly contains both sea and banks ; " but he tells us, that " shore at every full sea is covered by the vi'aters." He also quotes the Gospel of St. Matthev?, c. 13, v. 2, where our Saviour "went into a boat, and sat, and all the multitude stood on the shore/' and Callis thence learnedly infers, " that the shore " was the dry-land quia they ' stood thereon,' and it was a great quan- " tity of ground, for thereon stood a multitude ; and it was near the " brink of the water, because they heard Jesus speak unto them out of the ship," — a mode of proving a legal argument, not so much followed now, as in the quaint times in which the learned reader on Sewers lived and argued. We may observe, however, that as it was a lake, without tides, on which Jesus embarked, it could not, properly, be said to have a " shore," according to our legal understanding of that term ; it had '' ripani" but not " littus." [See also Angell on Tide Waters, p. 67.] {q) [This point has been finally decided, by the case of the Att.- Gen. V. Chambers, 4 De G. M. & G. 206 ; in which Ld; Ch. Cran- worth was assisted by Maule, J., and Alderson, B. " The principle," says his lordship, " which gives the shore to the Crown is, that it is " land not capable of ordinary cultivation or occupation, and so is in the " nature of unappropriated soil. Lord Hale gives as his reason for " thinking, that lands only covered by the high spring tides do not belong " to the Crown, that such lands are for themost part dry'and manoriable ; " and taking this passage as the only authority at all capable of guiding " us, the reasonable conclusion is, that the Crown's right is limited to " land, which is, for the most part, not dry or manoriable. The learned " judges whose assistance I had in this very obscure question, point out " that the limit indicating such land is the hne of the medium high tide " between the springs and the neaps ; all land below that line is, more " often than not, covered at high water, and so may justly be said, in the " language of Lord Hale, to be covered by the ordinary flux of the sea. " This cannot be said of any land above that line ; and I therefore con- " cur with the able opinion of the judges,whose valuable assistance I had Digitized by Microsoft® 1 6 Tides. The law takes notice of three kinds of tides : (r) — 1st. The high spring tides, which are the fluxes of the sea at those tides which happen at the two equinoctials. 2nd. The spring tides, which happen twice every month at the full and change of the moon. 3rd. The neap, or ordinary tides, which happen between the full and change of the moon, twice in the twenty-four hours. In one book (s) it is said that the lands overflowed by spring tides are called sea-greens, and they have been supposed to be inter regalia, in England ; but in Scotland they are private property. In the marshy districts and fens along the coasts of the sea, creeks, and tide-rivers, the lands which are subject to the action of the spring tides, are of considerable extent and value, and by no means so barren and unprofitable as the ordinary sea-shore or strand. These marshes, indeed, are in many places " manoriable," as Lord Hale expresses it, — and the right to embank and enclose them against the effects of the high spring and spring tides, and reduce them to a completely cultivable state, is of no small importance to the lords of adjacent manors, and the owners of the adjacent terra firma. In Dyer 326, and 2 Roll. Abr. p. 170, pi. 13, the following quotation is given, " 22 lib. Ass. Ca. 93, de '' alhivione,accrescentia et inundatione maris seuflmninis subito " in thinking that the medium hne must be treated as bounding the " right of the Crown." In Lowe v. Govett, 3 B. and Ad. 863, it was held that where land Was covered by the high water of the ordinary spring tides, but not by the medium tides, in the absence of proof as to acts of ownership, the soil must be presumed to have belonged to the owner of the adjoining estate, and not to the Crown. As to when goods are said to be " landed," see Harvey v. Lyme Regis, Mayor of, 4 L. R. Ex. 260.] {r) [De Jure Maris, Appendix, post, xxiii. See also Smith v. Earl of Stair, 6 Bell's App. Cases, 487.] (j) Bell's Scotch /J^iJiffe^g^M/crosoft® spring Tides. 1 1 " et extraordinarie per vehementes tempestates, et qtMndo per " naturales et ordinarios fluxus maximos {viz. spring tides) " qui fiunt bis quolibet mense, differentia magna est."(t) Here, it seems the spring tides (fluxus maximos) are termed " naturales et ordinarios," being the same terms as also used for the neap tides. They are " natural," and periodical, but certainly not " ordinary," compared with neap tides. Callis, also, would seem, though incorrectly, to consider spring tides as ordinary tides. "It is certain," says he, " that, at spring tides, the sea useth to overflow the marshes " in Lincolnshire and Norfolk, and returneth within a short " spaceagain; these being «i'2/a/andi2««2/ia:/,be not accounted " grounds left or gained from the sea ; so, because the " marshes and sands in Lincolnshire be overflown every " twelve hours, and then dry again, they are not accounted " grounds left or gained from the sea, because the sea hath " daily her recourse thereon."(«) But, if the spring tides are deemed ordinary tides, and the marshes subject to the spring tides are not accounted grounds gained from the sea, then such marshes might seem to be "partes maris, et marisci," and to belong to the king. Callis, however, does not expressly so state the law ; and the inference afforded by the case in Dyer,(7;) as will appear by reference, is contra, and more in favour of the subject, and against the King's title; for the "magna differentia" there allued to, is this ; viz. that all sudden and unusual in- undations, which totally deface all the land-marks, will con- vert such inundated land into sea-bottom and sea-shore, and, as such, it will belong to the King ; but that the more regular and periodical inundations of the spring tides, do not, by overflowing the lands, change their legal land-marks and {t) Dyer 326, Roll. Abr. 2, p. 170, 1. 43. {u) Callis on Sewers, p. 50. {v) See supra. Digitized by Microsoft® 12 High Spring Tides. Springtides Ownership, nor, consequently, convert them, for the King's not "ordi- . ,.ri naiy " tides. benefit, mto sea-bottom or sea-shore ; and if they are not sea, or sea-shore, they must be part of the terra firma ad- joining. Relatively speaking, it would seem that the spring tides, though periodical, can scarcely be denominated " ordi- nary" when there are other tides which take place daily, and more regularly, viz. the neap tides. Besides, the land subject to spring tides, is, for the greater part of the year, dry land. As to soil sub- Wherefore, as the authorities almost uniformly describe spring and the " shore," as that which lies within the " ordinary flux and springtides. reflux of the tides," it would seem to be most correct to consider the soil which is subject to the " high spring tides," and the "spring tides" as part of the adjoining terra firma, and belonging to the same title ; and that, when such tides have ceased to act, the soil returns to the owner of the adjoining land. " That this is law," says Lord Hale, {x) " in " regard to kigk spring tides, is admitted on all hands, but " with regard to the spring tides, some hold that common " right speaks for the subject ; unless the King hath a pre- " scription, or usage, to entitle the Crown ; for this is not " properly littus maris. And, therefore, it hath been held, " that where the King makes his title to land, as littiis maris, " or parcella littoris marini, it is not sufficient for him to " make ic appear to be overflowed by spring tides of this " kind ; p. 8, Car. i, in Camera Scacarii, in the case of " Vanhaesdanke for lands in Norfolk ; and so I have heard " it was held p. — , 15 Car. B. R. Sir Edward Heron's case, " and Trin. 17 Car. 2, in the case of the Lady Wansford for " a town called the Cowes, in the Isle of Wight." In Ap- pendix, post, ix. he says more decidedly, "the King's title is only to lands that are usually overflowed at ordinary tides." Upon the whole, it may be regarded as good law at {x) ©S/gM<*/MMte;o*f5^ndix, post, xxiii. Siiore. 1 3 this day, that the terra firma, and right of the subject, in Terra firma respect of title and ownership, extends beyond the Hnes of subject to high the high spring tides and springtides, and down to the edge of ^P™g ^"d , t, 1 ■ r , . ^ , ,. springtides. tne high-water mark of the ordinary or tieap tides ; and that the Scotch and EngHsh Law are, in this respect, the same.(jK) Below this ordinary high-water mark, down to the low- The shore, or water mark, i.e. between the ordinary high and low-water ^^""^• marks, lies the shore or littus maris. This shore, throughout the coasts of England, as well of the sea, as of creeks and tide-rivers, doth, de jure communi, belong to the King, (z) Is the King's. In this respect, as matter of title, it would seem to be part of the fundum, or sea-bottom, which, as before said, belongs also to the king. " Our Common law of England," says Callis,(«) " doth much surpass in reason either the Imperial (y) [See Att.-Gen. v. Chambers, 4 De G. M. and G. 206 ; Lowe v. Govett, 3 B. and Ad. 863 ; Smith v. Earl of Stair, 6 Bell, App. Cases, 487. Observations attributed to Lord Brougham, and note q ante, p. 9.] {s) See pp. 2 and 41 for authorities; most of the cases relating to the king's ownership of the sea, and to the rights of fishing, either ex- pre'ssly or impliedly admit the king's ownership in the shore. See particularly the cases of Bagott v. Orr. 2 Bos. and Pul. 472 ; Blundell v. Catterall, 5 Barn and Aid. 268, Dav. Rep. 55; and the King v. Smith and others, 2 Dougl. 441, as to the shore of tide-rivers. [It was urged in this case, that the river Thames above London Bridge was not " navigable," although it was flowing and reflowing, inasmuch as the tide beyond that limit tvas occasioned by the pressure and accu- mulation backward of fresh water ; but the distinction attempted was, by Lord Mansfield, pronounced new and inadmissible ; it was taken for granted, however, that the water was salt, the case stating that the Thames was navigable. In Home v. Mackenzie, 6 CI. and Fin. 628, the question was, what was to be considered " river" and what '' sea," and the direction was " that the thing to be looked for was the fact of " the absence or prevalence of the fresh water, though strongly impreg- " nated with salt;" this was, however, held to be bad. See as to owner- ship of shore in America, Commonwealth v. Charlestown, 18 Mass. (i Pick.) R. 180 ; Chapman v. Kimball, 9 Conn. R. 40 ; Peyroux v. Howard, 7 Peters (U. S. Sup. Ct.) R. 324; Rowei/. Granite Bridge Corp.,' 38 Mass (21 Pick.) 344, 347.] See also the cases of the King v. Lord Yar- borough, 3 B. and C. 91, and Scratton v. Brown, 4 B. and C. 485. (a) Callis on Sewers, 55. Digitized by Microsoft® H Kings Title to the Shore, " or the Civil law, for (by our law) it is said Rex in ea habet '^ proprietatem, sed populus habet usuin ibidem necessariiim." Of the title which a sub- iect or cor- porate body of subjects may have in a por- tion of sea- shore or sea. Title to any part of the shore must be proved and supported as inland titles Grants of the sea-shore by the King. As all the land of England, whether terra finna, sea- shore, or sea-bottom, belonged originally (according to our laws of tenure) to the King ; and as the ownership of a subject, in or over any part of it, could only be derived by grant from or through the King, it might seem to follow that every claim of the subject, or of a Corporate body of subjects, to any part of the sea-shore, or of the shores of tide-rivers, must be supported by precisely the same evi- dence of title as a claim to any inland estate, as against the 'King's prima facie title. Nor does it appear how the King's right and claim to the sea-shore, or shore of tide-rivers, or any part thereof, can be rebutted by any other kind of evi- dence than that which would be called for by our courts of law in a case of inland title. It is presumed that the sea-shore IS legally and technically speaking "land" as is the adjacent terra firma, in all cases of disputed title between the King and a subject, and between subject and subject. The Kings of England have frequently, and from the most ancient times, exercised their right of ownership in the sea-shore, by making grants thereof to the subject, accompanying grants of the terra firma adjoining, and by similar forms of grant. Thus the King might grant a manor {b) " cum littore maris adjacente," and the shore itself will pass, though in gross, and itot parcel of the manor. He might also grant a manor, or land contiguous to the sea, cum maritimis incrementis, and that will pass the "jus allu- vionis," i.e. land left by the retirement of the sea." Thus, King John granted to the Abbot de Bello Loco, " alveum " super quem Abbatia fundata est, a vado de Hartford cum " fluctu maris in ascendendo et descendendo inter utramque 111 and Grants of Shore. 15 " ripam."(<7) So William I. granted, "Abbati sancti Augus- " tini de tota terra Estanore et totum littus usque medie- " tatem aquae." (<^) Such also was the grant of Canute, quoted before ; {e) and the muniments of title to many- manors on the sea-coasts, will probably furnish similar express grants of the littiis, or sea-shore, together with the manors themselves. In Sir Henry Constable's Case (/) it is said, " that it was resolved by the whole Court that the " soil on which the sea flows and ebbs, {g) i. e. between the " high-water mark and low-water mark, may be parcel of the " manor of a subject." (Ji) Indeed, there is no doubt but that The shore , may be made a subject may be owner of a portion or tract of shore, by the subject of ancient charter or grajtt from the Crown. express gran . {c) lb. XV. [d) lb. XV. {e) P. 6 ante, and see also 4 Inst, for two other instances. Even Grotius admits that there 7)iay be private ownership in some creek, or small part of the sea, or tide-river, although he founds such ownership on " primary occupation." Grotius, Mare Lib. ch. 5 and 7. (/) S Co. 107. {g) 2 Roll. Abr. 170 ; Dyer, 326 ; Scratton w. Brown, 4B. and C. 485. {h) [Continuous acts of ownership exercised by the grantee upon the sea-shore between high and low-water mark may be called in aid to prove the shore to be parcel of a manor : Calmady v. Rowe, 6 C. B. 861 ; and see Att.-Gen. v. Jones, 33 L. J. Exch. 249 ; Walton cum Trimley manor z« re 28 L. T. N. S. 12 ; S. C. 21 W. R. 475 ; Healy v. Thorne, 4 Ir. Com. Law R. 495; i?t re Belfast Dock Act, i Ir. Eq. R. 128; Le Strange v. Rowe, 4 F. and F. 1048; Donegal!, Marquis of, v. Lord Templemore, 9 Ir. Com. Law Rep. 374. And modern usage is admissible in evidence to show that such sea-shore was part of the manor; Beaufort, Duke of, v. Swansea, Mayor of, 3 Exch. 413; Dickens v. Shaw, Appendix, post, xlv. ; also Jerwood, p. 74. Juries may presume an ancient lost grant from the Crown, from long-con- tinued acts of ownership etercised by the adjoining proprietor on the sea-shore: see in re Belfast Dock Act, I Ir. Eq. R. 128; Att.-Gen. V. Chambers, 4 De G. and Jo. 55 ; 7?^ Alston's Estate 5 W. R. 189 S. C. 28 L. T. 337; and cases cited in Taylor on Evidence, 6th edit. vol. i. p. 144, et seq. As the shore, says Hale, C. J., Appendix xxiv., may be parcel of a manor, so it may be parcel of a vill or parish ; see Calmady V. Rowe, 6 C. B. 880 ; hut, primd fade, it is extra parochial : see Duke of Bridgwater's Trustees v. Bootle, 7 B. and S. 348 ; S. C. 2 L. R. O. Digitized by Microsoft® The question vhether a title fco the sea- shore can be supported by Prescription considered. 1 6 Of Title to the Shore by Prescription. But it is also laid down, in the tract ascribed to Lord Hale,(2) as well as by Callis,— that a title to the soil, as well at the bottom of the sea, as upon the sea-shore, may be acquired and possessed by the subject by " Prescription." The doctrine of the Treatise is, that there are two ways by which a subject may acquire a right to such soil or shore ; I St. By the King's Charter or Grant. 2nd. By custom or prescription, {k) Callis, (/) indeed, goes so far as to say that " a subject cannot have the ground to the low-water mark, " but by custom and prescription." But in this he is clearly wrong. As the ownership claimed by a subject to any portion of the sea-shore is in opposition to and in derogation of the King's primd facie title, it will be proper in this place to consider, with attention, the grounds upon which the King's subjects are supposed to found their titles to any part of the sea-shore when claimed by them against the King's ancient right and dominion. Neither good policy, nor public utility will, it is conceived, incline towards the claim of the individual subject ; and it may be presumed that, the exclusive ownership of the. sea-shore, or of any of the creeks, or arms of the sea, or of the ports or tide-rivers, or any part of them, ought, whenever set up by a subject, to B. 4; Ipswich Dock Company v. Overseers of St. Peter's, Ipswich, 7 B. and S. 310 ; R. v. Gee, i E. and E. 1068 ; Reg. v. Musson, 8 E. and B. 900 ; but see 31 and yi Vict. c. 122, s. 27; and further, as to public and private rivers, McCannon v. Sinclair, 2 E. and E. 53, S. C. 5 Jur. N. S. 1302 ; see also Proprietors of Waterloo Bridge v. Cull, 5 Jur. 1288 ; Perrott v. Bryant, 2 Y. and C. 61 ; Rex v. Landulph inhab. of, i Mood and R. 393. Still the shores of the sea and beds of navigable rivers are part of the adjoining counties, and justices have power to convict persons charged with fishing in such waters, where there is a private right of fishery, Embleton v. Brown, 6 Jur. N. S. 1298.] (z) [See Jerwood, p. 45, and Serj. Merewether's Speech, Appendix, post, Ixxiv.] {k) [See Appendix, post, xv. See Benest v. Pipon, i Knapp, 60.] (/) CaUis, Sewers, 53. Digitized by Microsoft® Rights of Lords of Manors to the Shore. 1 7 be regarded and construed stricto Jure, — in favour of the Crown, pro bono publico. It has already been premised, that the terra fir-ma of England has become, almost entirely, transferred to and vested in the King's subjects, by grants from him. Without adverting to obsolete modes of tenure, and division of pro- perty, it will suffice to explain further that, as against the King, the subject holds his landed estate under two general Two principal ,.._., ,. ... kinds often- I denommations of title, according to the two most prevailing ures, manors I divisions of landed property, viz. into manors, which are ^" '^^'^ ° tracts of freehold land, accompanied by peculiar rights and privileges ; and naked freeholds, or freehold lands, unac- companied by any such manorial rights and privileges. Copyholders are mere tenants of the lord of a manor. As, however, claims set up to portions of the sea-shore, and to the shores of tide-rivers, are almost invariably made by lords of manors, in right of their manors, it will sim- plify our subject, and answer every useful purpose, if we discuss the question of right and title to the " shore," chiefly with reference to the ownership claimed therein by lords of adjacent manors. We have already shown that any of the King's subjects, As to the whether lords of manors, or riot, may have a right and of'nmnors'to''' property in portions of the sea-shore, by ancient express *s sea-shore. grant from the King. (;«) With regard to claims founded on Grants, grants of manors, it need only be remarked, that the title to the " shore " will depend wholly upon the construction of the metes and bounds of the grant. Thus, if the boun- dary be expressed to be " down to the sea " or " bounded on one side by the sea," or any similar phrase, it is pre- sumed the ordinary high-water mark must be deemed the intended line, and not the low-water mark, for the whole (jri) P. 15, ante. Digitized by Microsoft® 1 8 Rights of Lords of Manors to the Shore. manor on le sea-coast ices not neces- llarily include le shore. shore is " quasi pars maris ; " or, as Bracton expresses it, "quasi maris accessoria." («) But, if the boundary hne be expressed to be " down to the low-water mark," or extend to any ascertainable line beyond low-water mark, this will be tantamount to a grant of the sea-shore. So, if the grant extend to any known and distinct limits within the sea, or tide-river — as " usque filum aqua;," or " medietatem aqus," &c. In fact, the land granted, whether situate upon the coast or inland, is co-extensive with the words of grant, and no more.((3) If a manor on the coast be granted by the same form of words as is used to grant an inland manor, nothing but terra firma would pass by such grant ; no part of the " sea- shore" would be included in such grant. In a former page (/) we are told, that the King might grant a manor, " cum littore maris adjacente," and the shore will pass, though in gross, and not parcel of the manor. So that it is evident a («) Lib. I, cap. 2, and lib. 2, cap. 12. (p) [A patent of James the First granted the priory of Holmpatrickand also the four Islands to the priory belonging, to wit the island called Shen- nick, &c., and the patent used the large general words, granting wreck of the sea, flotsam, jetsam, &c. and all the appurtenances to the priory belonging. It was held that these words, coupled with the proof of enjoyment for 70 years of the foreshore, by letting to tenants to take seaweed, &c., were sufficient evidence to support a finding that the shore passed under the grant, Healy v. Thome, 4 Ir. C. L. R. 495, and the soil of the shore between high and low-water mark may pass under the term "waste" in a grant, Att.-Gen. v. Hanmer, 27 L. J. Ch. 837, S. C. 4 Jur. N. S. 751 ; see Scratton v. Brown, 4 B. and C. 485, per Bayley, J., and Att.-Gen. v. Jones, 33 L. J. Ex. 249 ; or " ripa," in re Belfast Dock Act, i Ir. R. Eq. 128, 139, or" anchorage, &c.," see Fore- man V. Free Fishers of Whitstable, 4 L. R. E. and I. App. 266, 2 L. R. C. P. 688 ; Le Strange v. Rowe, 4 F. and F. 1048, Calmady v. Rowe, 6 C. B. 861 ; also under other terms, Macalister v. Campbell, 15 D. B. and M. Session-Court, 490. As between the Crown and the Duthy of Corn- wall, all mines between high and low -water mark, in the county of Corn- wall are by 21 and 22 Vict. c. 109, vested in the Prince of Wales, as part of the soil and territorial possession of the Duchy, see Phear, p. 49.] (/) P. 14, ante. ^ Digitized by Microsoft® Franchises of Wreck. 19 sea-coast manor does not necessarily, by reason of its loca- lity, include the shore within the precincts.{q) Some grants of manors on the coast may include, expressly, not only the "shore" but also wreck, and royal fish, flotsarn. Sec, and a separate fishery ; others may comprise the shore, but none of these liberties, profits, or franchises ; and others may contain all these, or one of these privileges only, and no grant of the shore at all. (r) It is agreed on all hands that wreck, or royal fish, are Inlikemai (under the technical denomination of franchises) separate not necessi and peculiar' species of property, in the hands of subjects, and in':!"^!^ the distinct from the property of the soil. If, therefore, one wreck, royi species of property be expressly granted, and another kind clearly omitted, it would seem to be contrary to the ordi- nary and acknowledged rules of construction to presume, or infer, a grant of that one which is omitted, unless it be so essential to the enjoyment of the other, as to render the implication or inference, in common sense, necessary. It is equally agreed, on all hands, that one man may have the soil of the shore ; another man the franchise of wreck ; another the liberty, or profit a prendre, of a private fishery, &c., and all this may be upon the same line of coast, and on the same spot of shore. " The property in such land " [the shore] " is prima facie in the Crown. It may, how- " ever, be in a subject ; and different rights, in that descrip- " tion of property, may be vested in a subject, according to " the terms of grant. The King may have granted to a " subject the soil itself, or the privilege of fishing, &c." Per Bayley, J. in Scratton v. Brown, 4 B. and C. 485. {q) Noil a nuda terrarum quse oceano pulsantur occupatione, sed ab ipso maris usu ejusmodi private ; Seld. lib. 2, cap. 2 ; i.e. the absolute private use of it for all purposes, and not one, or two only, — and that excluding all other persons. See post, p. 84. (r) [See Dickens v. Shaw, Appendix, post, pp. xlvii., Ixiv. Healy v. Thome, 4 Ir. R. C. L. 495. See post, 82.] Digitized by Microsoft® 20 Franchises of Wreck. These rights and titles, therefore, it would seem, are not, in respect of their subject matter, dependent upon each other, or necessarily linked together. The grant of the sea-shore down to low-water mark, is one thing ; and the grant of wreck is another thing ; nor does it appear ever to have been established that the possession of the franchises of Wreck, or of Royal Fish, by an express grant, totidem verbis, conferred also a title to the shore itself. The rule, " exfressum facit cessare taciturn" applies as strongly to such form of grant, as to any other form. Neither is it necessary to the full enjoyment of all, or any of these grants of wreck, separalis piscarice, &c., that the soil of the shore should accompany them ; it is clear that the King, or a subject under him, may retain the soil, subject and without prejudice to such usufructuary rights, vested in some other individual. It would seem, therefore, too much to contend that an express grant of any one, or more of these " franchises," will per se carry the soil of the "sea-shore ; "(s) and it should be remembered, that the King's grants to a subject are, by the rule of law, to be construed strictly, and in the King's favour, and more by the letter thereof, than a grant from one subject to another ; in which case the grant is construed most in favour of the grantee, {i) (s) [" The privileges of ' wreck ' and ' royal fish ' have been separated " from the other incidents, which would attach to ownership of the shore, " and vested in the Crown as distinct incorporeal rights. This fact is of " no importance, while both the property of the shore, and the owner- " ship of these rights, remain in the hands of the Crown ; but when a " subject has established a claim by grant to either of them, it often " requires to be remembered that there is no mere implication or pre- " sumption to carry the other with it." Phear, p. 52. See also Dickens V. Shaw, Appendix, post, p. xlv.] {t) In Dav. Rep. 55, it is distinctly laid down, that "the grant of the king passes nothing by implication." — The great case of the fishery of the river Banna, Ireland. In the Duke of Somerset v. Fogwell, this doctrine is distinctly recognized by Mr. Justice Bayley, who says, " in Digitized by Microsoft® Prescription as giving Title to the Shore. 21 Our next enquiry is, whether a Lord of a Manor or any Enquiry other subject, or a Corporation Sole or Aggregate, may J[tig to^any also acquire an ownership in the sea-shore, by pi'escription. P^''' °^ '^^ sc3.~siiors C( The learned writer already quoted (Lord Hale), clearly be acquired] alludes to that kind of prescription, or usage, which sup- tion." ^^ "I ports such franchises and usufructuary rights, liberties, and profits, as were just now mentioned, viz. wreck, royal fish, separate fishery, &c., the immemorial use and enjoyment whereof will, per se, support a title to them, (u) It may be concluded from some of our best authori- " grants from the Crown, nothing passes unless the intention is mani- " fast that it should pass ;" 5 B. and C. 875 ; Jerwood, 60. [In Feather v. R., 6 B. and S. 283, S. C. 35, L. J. Q. B. 204, and 12 L. T. N. S. 1 14, Cockburn, C. J. says, " It is established on the best " authority, that in construing grants from the Crown a different rule " of construction prevails from that by which grants from one subject " to another are to be construed. In a grant from one subject to " another, every intendment is to be made against the grantor, and in " favour of the grantee, in order to give full effect to the grant ; but in " grants from the Crown, an opposite rule of construction prevails. " Nothing passes except that which is expressed, or which is matter " of necessary and unavoidable intendment, in order to give effect to " the plain and undoubted intention of the grant ; and in no species '' of grant does this rule of construction more especially obtain than in " grants which emanate from, and operate in derogation of, the prero- " gative of the Crown ;" and he then cites the language of Lord Stowell in the case of the Rebeckah. i Ch. Rob. 227, 230. The rule in England, that a grant from the Crown is strongly con- strued against the grantee (Feather v. Reg. 6 B. and S. 283 ; Lord v. Commissioners of Sydney, 12 Moore, P. C. 496 ; R. v. London, mayor of, iCr. M. and R. 12; R. ■?/. 49 casks of brandy, 3 Hag. Adm. R. 271 ; and Forsyth's Constitutional Law, 175), applies to grants from the United States. "All public grants," says Chan. Manning, "are to " be strictly construed, and nothing passes under them by impli- " cation ;" La Plaisance Bay Harbour Co. v. City of Monroe, Walker's Chan. R. 155; McManus v. Carmichael, 3 Iowa, 1-53; Haight v. Keokuk, city of, 4 Iowa, 200 ; People v. Canal Appraisers, 33 N. Y. (6 Tiffany), 461. In Iowa the Supreme Court expressed similar views. An additional reason for the rule mentioned is, that the United States Government holds all the public lands ^s a mere trustee ; see McManus V. Carmichael supraJ] {u) See Dickens v. Sha\< 2 2 Prescription as giving Title to the Shore. ties,(;ir) that a title to " land" or freeholds corporeal cannot be supported by prescription. The words of Blackstone are, " no prescription can give a title to lands, and other corpo- " real substances, of which more certain evidence (of title) " can be had \"{y) and he states this more certain evidence to be " corporeal seizin and inheritance." Now, there are-two grounds of title to land : — 1st. By Grant. 2nd. By what is called adverse possession, founded on the Statutes of Limitation. A title by "adverse possession," under the Statutes of Limitation, is, indeed, sometimes spoken of as held by " prescription ;" but at common law, as at present understood, " prescription alone, it is conceived, confers no title to freehold land. In the Scotch law,(.s') positive prescrip- tion is said to be " the acquisition of property, by the pos- " sessor's continuing his possession for the time which the " law has declared sufficient for that purpose." Negative " is the loss or omission of a right, by neglecting to follow " it forth, or use it during the whole time limited by the " law."(ia;) Erskine's Principles, p. 372. In the French Code it is laid down, " la prescription est un moyen d'acqudrir ou " de se libdrer par un certain laps de temps, et sous les " conditions determin^es par la loi." And this " moyen d'acqu^rir" is applied to lands, as well as to incorporeal rights. But when, in our law, the word is used in its tech- nical sense, it does not correctly apply to a title to freehold lands or corporeal hereditaments. {x) 2 Koll, Abr. 264, 1. 3. Co. Litt. 48 a, 113 b, 114 b, 195 b. Vin. Abr. title, Prescription. {y) 2 Blac. Com. 264, and see Doct. and Stu. Dial. i. cap. 8, Finch 132, and see note to Com. Dig. title Franchise, where it is said, "land cannot be claimed by prescription." Hammond's Ed. — The text there, from Co. Litt. 114 b, has only relation to a "tenant in common," and see p. 52 post, and accord. Litt. Sect. 310. {z) See Ld. Advocate v. Graham, 7 D. B. M. 183. {a) [See Napier on Prescription, p. 650. Earl of Fife v. Woods and Forests Co. 11 D. B. M/se8^£&&ytMJIrtoe*i^ "negative" runs against the Crown.] Prescription as giving Title to the Shore. 23 Adverse possession of land without the aid of statute law, is no title ; but prescription, as a title to incorporeal rights, is everything without statute law.(<5) In prescription for a customary privilege, immemorial usage is allowed to raise the presumption of an ancient grant, {c) But as to land, (1^) [See 2 and 3 Will. 4, cap. 71. The right to a given substratum of coal lying under a certain close is a right to land, and cannot be claimed by prescription ; but a right to take coal in another's land may be ; Wilkinson v. Proud, 1 1 M. and W. 33 ; see Phear, p. 68, n. It has been held that negative easements are not within the Prescrip- tion Act, which only deals with easements which are used in and upon the servient tenement, and are capable of interruption by the owner of the servient tenement. Neither can prescription apply to a right which has been expressly prohibited by statute, unless the grant be pre- sumed to have been made before such statute was passed ; nor can such right be claimed against the public, if it directly operate as a nuisance to a public right or franchise. Webb v. Bird, 10 C. B. N. S. 268 ; 31 L. J. C. P. 335 ; Murgatroyd v. Robinson, 7 E. and B. 391, 26 L. J. Q. B. 233.] (c) " The several modes of establishing an old title by pleading a " lost grant, &c., often proved insufficient to meet cases of real " hardship," says Mr. Phear. " For instance, enjoyment might have " been sufficiently long and adverse to render a disturbance of it " most unjust, and yet it might be possible for the opposing party to " defeat the pleas, by showing that its actual commencement was in- " consistent with them ; or, even if the enjoyment necessary for sup- " porting the plea were proved, circumstances adverse to the legal " inception of the right might be shown, notwithstanding that the pre- " sent enjoyment ought, in all justice, to be entirely unaffected by " them. The statute 2 and 3 Will. 4, c. 71, known as the Prescrip- " tion Act, offers a remedy for some of these cases." Phear, p. 83. [In Shuttleworth v. Le Fleming, 19 C. B. N. S. 687 ; S. C. 34, L. J. C. P. 309. To a declaration in trespass for breaking and entering the plaintiff's close and landing fishing nets there, the defendant, amongst other things, pleaded, that the land was part of the shore of an inland lake, and that he, and all his ancestors, for sixty years before the suit, enjoyed as of right and without interruption a free fishery in the said water, with the right of landing their nets on the shore, &c., and to these pleas the plaintiff demurred. In delivering judgment, Montague Smith, J., said : — " The demurrer raises the question whether the rights " so pleaded to belong to the plaintiff in gross, are within the Prescrip- " tion Act, 2 and 3 Will. 4, c. 71. The construction of the statute « on this point is not frgf^f^^prg ^:^%'^}^l^^^ although the question' 24 Prescription as giving Title to the Shore. whether there was or was not an ancient grant, is imma- terial to the effect of the statute ; for the statute may be a bar to the " best title in the world/' and confirm the worst against all presumption. The common law was peculiarly strict in all questions of title to the freehold, and realty. But upon questions of minor right, — as upon the enjoyment of some petty con- venience, or benefit derived from the land, — it was not so " has arisen in the courts, it has not been decided. We are now called " upon to determine it ; and upon consideration of all the provisions " of the Act, we are led to the conclusion that rights claimed in gross " are not within it. The fifth section gives the key to the true con- " struction of the Act. It professes to enact forms of pleading appli- " cable to all rights within the Act theretofore claimed to have existed " from time immemorial, which forms it declares shall, in such cases, " be sufficient. Those forms have clearly relation to rights which are " appurtenant to the land, and to such rights only. The whole prin- " ciple of the pleading assumes a dominant tenement, and an enjoy- " ment as of rights by the occupier of it. The proof must, of course, " follow and support the pleading. It is obvious that rights claimed " in gross cannot be so pleaded or proved." See also Gale on Ease- ments, 151. By sect, i of the Act, claims to right of common and other profits (J prendre are not to be defeated after thirty years' enjoyment, by showing only that such right was first taken or enjoyed at any time prior to such period ; and when such right shall have been so taken for sixty years it shall be deemed absolute and indefeasible, unless it had been taken by consent of agreement. And by sect. 2, in cases of claims of right of way or other easements, the periods are twenty and forty years. " It may be remarked," says Mr. Phear, " that in making use of this Act whenever the mere alle- " gation of right, and not immemorial usage, was originally sufficient, " the general issue will render everything under this Act available to " rebut it ; but when the allegation of immemorial usage was neces- " sary, the user given by the Act must be alleged, and the general " issue will only traverse that ; other defences must be pleaded spe- " cially. It may be added that claims under this Act may be made " in respect of enjoyment by the occupiers of land without alleging the " right of the owner of the fee ; " but although by sect. 6 no presump- tion in favour of the claims is to be derived from a user short of thirty years, the statute does not take from such shorter user its weight as collateral evidence of aj^CTn^ty ^H^mw^ Chance, 11 Jur. N. S. 397, S. C. 32, L. J. Chan. 413.J Prescription as giving Title to the Shore. 2 5 strict ; such claims, therefore, as a right of way, a right to fish, or a right to dig turf, or a right to pasture cattle, were allowed, upon the proof of a continued acquiescence on the part of the owners of the soil, for a time beyond memory of man. " Not that the Court believes" (as Mr. Butler (^) well observes) " that any actual grant of such right once existed ; " but upon the general political principle of quiet- ing possessions, (i) But immemorial usage alone, without the aid of statute law, will not, it is conceived, raise a title to land at this time of day ; and especially not against the Crown. What- ever may have been the " old law," as explained by Bracton,(_/) and Coke,(^) previously to the statute of Merton (20 Hen. 3), yet, from the time of that statute, title to land by length of time of possession, or, as Bracton borrows it from the civil law, " usucaptio" has depended upon statute law. Whether, under the feudal system, " usucaptio " was ever a valid ground of title to land, as between subject and subject, we need not stop long, in this place, to inquire ; our inquiry being into the effect of such act against the Crown. It is said that, previously to the statute of Merton, " what " length of time was necessary to give such right [to land,] " was not defined by the law, but was left to the discretion " of the Justices ;'\]i) and it would seem to have been fixed by those Justices of whose discretion in this matter we have the earliest record, that no " seizin could be alleged " by the demandant in a real action, but from the time of " Hen. I." This discretion of the Justices has, it is con- sidered, ceased since the stat. of Merton, as regards title to the freehold and inheritance of lands, (z) id) See his note Co. Litt. 261 a. (e) Taylor on Evidence, 6 edit. p. 146. (/) Lib. 2, fo. 51, 52. {g) I Inst. 114 b. {h) Reeve's Engl. Law^ toI. i.^.^Q^j^ (0 [See Angell on TiaePWafer?, p 279, Thear 77.] 26 Prescription as giving Title to the Shore. It is to be noted, however, that neither the " discretion of the Justices," anterior to the statute law, nor the statute law itself, for a long period after the stat. of Merton, enabled a subject to make title to land, " by length of time of pos- session," against the Crown. The maxim " nulltmi tempus occurrit Regi " prevailed, until a period much later than the stat. of Merton. Against the King, therefore, as it would seem, " prescrip- tion " or " usucaptio " did not, by our common or feudal law, give title to lands ; and, consequently, it is contended, not to lands of the Crown covered by the sea, or upon the sea-shore, (k) It is by the statute law atone, without any reference to the "old law" of prescription between subject and subject (whatever that law might have been), that adverse possession will, by lapse of time, prevail against the King's original and paramount title. These statutes are comparatively recent, so far as they affect the Crown ; and are not founded upon any principle or right of prescriptiorf against the Crown, known to have prevailed in our feudal system of laws prior to those statutes. (/) Since the statute of Merton, therefore, as regards the law between subject and subject ; and both before and since that and subsequent statutes, as regards the law between the Crown and a subject, there has existed and still exists a sufficiently marked distinction between " prescription " for certain usages or rights, and title to land under the statutes of limitation. Mr. Butler, in his annotations (;«) on Co. Litt, has touched upon this part of our subject, but would seem to have adopted the doctrine of Lord Hale, in regard to titles to the "sea-shore," and to have considered such titles as capable of being made good by prescription. He first {K) [Sed vide Benest v. Pipon, i Knapp 68 ] (/) [21 Jac. I, c. 2 ; 9 Geo. 3, c. 16 ; and 24 and 25 Vict. c. 62.] \m) Butler's NoSfel'^esCdylki*ttos6*%. n. 205. Prescription as giving Title to the Shore. 27 explains'the distinction between titles, founded in common right, which is an ownership conferred by mere act of law, and titles acquired by the act of the party, and which are in derogation of such common right. " In inquiries," says he, " of this kind, where it is said that a person is entitled " to the right or property in question, by common right, but " that it may belong to another, it is intended to say, that " the right or property in question is, by common law, " annexed to the particular capacity of the party, or to " some property of which he is owner ; yet, that it is not so " inseparably or inalienably annexed to this capacity or " ownership, but that the party may transfer it to another. " So that in all these cases, the presumption is in favour of " him to whom the right or property is said to belong by " common right ; yet this does not exclude the possibility " of its belonging to another. To another, therefore, it may " belong ; but if he claim it, he must prove his title to it. " On the other hand, the party to whom it belongs o{ com- " mon right is under no obligation of showing his title to it ; " to him, in the intendment of the law, it belongs till there " is proof of the contrary. To exemplify this doctrine, the " lord of a manor is lord of the soil of the manor of common " right ; («) that is, if it be admitted or proved that he is lord " of the manor, his right to the soil necessarily follows so far " that it is not incumbent on him to produce any proof " of it. He may, therefore, of common right, dig for gravel, " unless it is to the prejudice of his tenants. But this right " is not inseparable or unalienable from the seignory. The " lord may grant it (i.e. the right to dig gravel) to the " tenants ; to the tenants, therefore, it may belong. But if " they claim it, it is incumbent on them to prove their title («) The word '' manor" includes the soil, as " omne niajus continet in se minus,"— ytt are they sep.arable. ' ' Digitized by Microsoft® 28 Prescription as giving Title to the Shore. " to it. There are two ways of doing this, — one by showing " the grant from the lord, the other hy prescription ; that is, " by proving an immemorial usage of it, which, in the eye " of the law, always presupposes a grant. Now, prescrip- " tion is shown by producing repeated and unequivocal " instances of the immemorial usage or exercise of the " right contended for ; the tenants, therefore, in the case " we have mentioned, if they cannot produce the original " grant, must, to make out their title to dig for gravel, " produce repeated and unequivocal instances of their hav- " ing done it immemorially. If they do this, they esta- " blish their title to the right in question. But, though the " lord is not called upon in the first instance to prove his " title ; yet, when it is claimed by others, he may disprove " their claim by showing he has done acts inconsistent with " it. Thus, if, on the one hand, the tenants can prove, by " repeated instances, that they have exercised the right in " question of digging for gravel, the lord may, on the other " hand, show that in all, or a considerable number of these " instances, the parties have been presented at his court, or " otherwise punished for the acts in question, and this may " destroy the effect of the evidence in their favour, arising " from the instances adduced by them. In the same man- " ner, the lord may show that they have dug only in one " particular spot of the waste, at particular times, or for a •' particular purpose ; by this he may circumscribe their " right as to the place, time, and manner of its enjoyment. " It should also be observed, that though it is said that pre- " scription presupposes a grant, and non-user presuppo'ses a " release, it is not that, strictly speaking, the courts always, " in these cases, really believe that such a grant, or such a " release, is actually executed ; but because for the sake of " the general principle of quieting possessions, they will not " permit them to h&^m.m&^W^^^ long dormant, and Prescription as giving Title to the Shore. 29 " therefore determine in the same manner as they would " determine if the very instrument of grant or release were " produced." The learned writer then goes on to say (quoting from Lord Hale), " as to the soil between high and " low-water mark at ordinary tides, this, of common right, ' belongs to the King. It may, however, belong to a subject " by grant ox prescriptioit. Sometimes it is parcel of the " adjacent manor : sometimes of the adjacent vill, or parish: " sometimes it belongs to a subject in gross ;" "still, how- " ever," says Mr. Butler, " it belongs of common right to " the King ; it is therefore incumbent on the subject to " prove his right. This may be done by producing the "grant. Hale, ib. ch. 4, 5, 6.(0) Sir Henry Constable's case, " 5 Rep. 107. But as it is part of the possessions of the " Cxawn.,jure coronce, it does not pass by general words, and " therefore to establish a right to it under the grant, it must " contain such words as either expressly, or by necessary " implication, convey the soil. If the grant cannot be pro- " duced, it can no otherwise be proved than by ' prescrip- " tion,' that is, as we observed before, by repeated unequi- " vocal and immemorial usage. As to ports, there is a " very material and important distinction between the/f««- " chise of a port and the property of its soil. As to the " franchise ; by the common law, a port is the only place " where a subject is permitted to unlade customable goods. " This privilege constitutes what is called the franchise of a " port. To create the franchise of a port is part of the royal " prerogative. But this does not in anywise affect the pro- " perty of the soil!' " It may be considered as a striking " instance of the respect of the law of England for private " property, that though it entrusts the King with the pre- " rogative of originating ports, and though the use of the " adjacent soil is essentially necessary to the existence of a (0) [Appendix, post, pp. vii. xiv. xxiii.] Digitized by Microsoft® 30 Prescription as giving Title to the Shore. " port, the law does not permit the King to take any part of " the soil from the owner ; so that, if the soil is not the pro- " perty of the King, it is necessary to secure the property of " the shore beforehand, for the purposes of the port.(/) The " franchise belongs to the King of common right, but by " charter or prescription, it may be, and frequently is, the " right of the subject. The soil generally belongs to the " owner of the port ; but it is going too far to say that " it belongs to him of common right. The mere grant of a " port would not, in a modern charter,(^) pass the soil ; but "perhaps it would be sufficient in an ancient charter to pass " it, if no evidence to the contrary could be shown ; and it " certainly would be considered as sufficient to pass it in an " ancient charter, if accompanied with the additional cir- " cumstance of immemorial usage." The learned anno- tator then adds : — " Having thus shown to whom the soil of " the shore and of ports belong by common right, it remains " to state succinctly the nature of the evidence by which " the right to it may be proved to exist in another, (r) It !' may be done by showing that he, and those under whom " he claims, have immemorially, frequently, and without " restriction to any part of the soil, dug gravel, (s) fetched " away seaweed or sand, or embanked against the sea. If " it be claimed to be part of a manor, the right of common- " age for the cattle of the lord and the tenants ; the prose- (/) This renders it the more necessary to preserve the King's right to the shore, and to be strict in the proofs of title against him. (7) It is said in Comyn's Dig. title Navigation (from i Rol. ab. 528), that a grant oia.port "is not good, for a subject cannot have it." As to the soil, indeed, no modern grant can be made of it by the king, by reason of the statutes against the alienation of crown lands. (r) Hale, De Jure Maris, Appendix, post, xxiv. xxv. (s) Yet copyholders do not acquire a right to the soil by proving an immemorial custom to dig gravel or sand. Why, therefore, should such act, by a lord of a manor, in the shore, raise a title in him, against the king, to the ownership of the shore ? Digitized by Microsoft® Prescription as giving Title to the Shore. 31 " cution and punishment of purprestures in the court of a " manor ; its being included in the perambulations, and " every other act by which the right to the soil of inland pro- " perty is established, maybe given in evidence in support of _" it. The right to wreck of the sea, or royal fish by pre- " scription infra maneriuin, is a strong presumption for the " shore's being a parcel of the manor. Lord Hale's expres- " sion is very strong ; perchance (says his lordship), the shore " is parcel almost of all such manors a.s by prescription " have royal fish or wrecks of the sea within their manors. " But it should be observed, that though wreck is frequently " parcel of a manor, it is a royal franchise, and belongs of " common right to the Crown. But hy grant or prescription " it may, and, in fact, frequently does belong to . a subject, " sometimes in gross, but oftener as parcel of his manor, " parish, or vill, adjacent to the sea." Mr. Butler, in the foregoing note, adopts the doctrine of Mr. Butler's the treatise he quotes, that a title to the soil of the sea-shore the'prooft of may be founded on prescription. He tells us also, that the '''^^ to the -' jr 1 ownership of same evidence which is allowed to establish inland title, the sea-shore, , , , . . r • ^ • r 1 Considered. tnay be adduced m support of titles to portions of the sea- shore ; but he does not say that such evidence, and no other, MUST, be adduced. On the contrary, we find that wreck. Rights and royal fish, a separate fishery, right of digging sand, ISc. are ^u^^Jf^^^^ also adduced as good evidence of title to the land or soil imply or con- . ... , , . , . . , fer a title to itself. This, however, it will be admitted, is not evidence the soil of in- which would support a title to inland property. ^^ '^^ ^'^' Common of pasture, of turbary, of piscary estovers, rights of digging brick earth, or marl, and rights of way, in manors, are rights analogous to those of wreck, separate fishery, and digging of sand, &c. on the shore, and yet none of these analogous rights are allowed to give title to ^"^lefesln the soil. Neither can the form or mode of pleading a title *•= sea-shore ... havenogreater to these incorporeal rights or privileges, be used m pleading effect. Digitized by Microsoft® 32 What shall be evidence of Title a title to land. Wreck, and a right of way, are both founded on the like grounds of title, viz. either grant or prescription, which prescription is, in substance, evidence or proof of usage, or custom, beyond memory of man, and which usage raises the presumption of an ancient grant of such privileges.(^) Now, we have it laid down, as before quoted, that a title to land, i. e. freehold estate, cannot be founded on " pre- scription." («) Are we then to conclude that the land or soil on the sea-shore is not, in legal intendment, or consideration, " land'" ? It is apprehended that no distinction whatever exists in legal construction, between the land on the shore, and land in theinterior. Accordingly, in Scrattonz'. 'Brown,(v) the "shore" is expressly regarded, by the Court, as "land," in all its technical attributes, as a corporeal hereditament held by tenure, and as a " moveable freehold." The Court said, " where the grantee has a freehold in that which the " Crown grants, his freehold shifts as the sea recedes or en- " croaches." There can be no difficulty in agreeing with Mr. Butler, that those acts which are evidence of title to inland estates, are equally available to prove a title to the land on the shore. Thus, for instance, if I inclose a piece of waste land in the interior, and cultivate it, this is an act prima facie denoting title ; so, if I inclose by an embankment a piece of the sea-shore ; for these are both actual taking seizin and possession of the land. If I can prove such seizin for a period of sixty years, in regard to such piece of land, whether on the coast or inland, the statute law confirms my title to such piece of land. Land on the coast, as well as land in the interior, may equally be acquired by adverse possession, and the statutes of limitation. When possession of land is taken adversely to the king's ownership, or to if) [See now 2 and 3 Will. 4, c. 71, and ante, p. 23, note b.'^ {u) Ante, p. 22. {v) 4 B. and C. 485. Digitized by Microsoft® to the Sea-shore. 33 the ownership of a subject, the law requires that there should be some manifest act or acts of the party demonstrating an intention to assume the territorial ownership of the locus in quo. The intrusion or disseizin must be such as the statute may recognize as the substantial territorial acquisition which it (the statute) was intended to act upon and confirm. The statute was not passed for the purpose of confirming a partial ownership in the land ; such as a right to dig marl, or to pasture cattle, but the droit droit, or absolute owner- ship. Such, therefore, ought to be the positive and un- equivocal nature of the possession taken. There is no difficulty in admitting a title to a districtiis maris, under an express grant from the Crown. But there seems some diffi- culty in determining what acts shall be considered suffi- ciently forcible and exclusive to oust the King's ownership in a certain districtus maris, still continuing open to the action of the tides. Every attempt of this kind is a wrong ; and the less intitled to aid from the law, as being a wrong against the Crown. How far certain acts, more equivocal, but less difficult than are required in inland titles, will be held sufficient evidence of ouster and possession, in cases of districti maris, against the king, is not very clearly settled ; i but that there are acts sufficient to constitute seizin at law | of certain portions of land covered by the sea, as so much i land, seems to be allowed by the books. If this be so, it The sea-shorl will a fortiori be admitted that the sea-shore is land, and seizin, in laJ capable of grant and conveyance (for it has been granted, i and conveyed) from one person to another, like other lands ; ] and it must therefore follow, that such shore is capable of I seizin in law ; and it will also be admitted that portions of the sea-shore are capable of being taken such exclusive pos- session of, as, under the statutes of limitation, will ulti- mately make a good title. This forcible and exclusive possession of a portion of the sea-shore may be taken ad- DigitizeS^by Microsoft® ;nant. 34 The Shore cannot be appendmit to a Manor versely to another individual, which is a disseizen ; or against the King, which is an intrusion ; and such disseizen or in- trusion, may, after sixty years, by virtue of the statutes of Hmitation, work a good title to the disseizor, or intruder. The sea-shore, therefore, does not seem to be that species of property which, in its nature, requires from the indul- gence of the law, a more relaxed, and less certain evidence of title than inland property. There is no necessity for our law to admit other evidence of title to the shore, than it calls for in regard to inland estate, rescription Lord Coke(.r) tells us, that "prescription is regularly the jrngsappend- another of things appendant or appurtenant ;" {y) and he then It or appur- proceeds to distinguish between what may, and what may not be appendant or appurtenant ; from which an inference is clearly deducible that "land" cannot be appendant or ap- purtenant to land, (z) "A thing, corporeal," says he, " can- (x) Co. Litt. 121 b., 122 a. (jc) " Concerning things appendant or appurtenant, two things are im- " plied ; first, that prescription (which regularly is the mother thereof) " doth not make anything appendant or appurtenant, unless the thing " appendant or appurtenant agree, in quaUty and nature, to the thing " whereunto it is appendant or appurtenant ; as a thing corporeal, can- " not properly be appendant to a thing corporeal, nor a thing incorpo- " real to a thing incorporeal. But things incorporeal, which lie in grant, " as advowsons, villeins, commons, and the like, may be appendant to "things corporeal, as a manor, house, or lands, or things corporeal to " things incorporeal, as lands to an office. But yet, as hath been said, " they must agree in nature and quality, for common of turbary, or es- " tovers, cannot be appendant, or appurtenant to ta?td, but to a house, " to be spent there. Secondly, That nothing can be properly appendant or " appurtenant to anything, unless the principal or superior thing be of " perpetual subsistence, and continuance ; for example, an advowson, " that is said to be appendant to a manor, is in rei veritate appendant to " the demesnes of the manor, which are of perpetual subsistence, and not " to rents or services, which are subject to extinguishment and destruc- " tion." Co. Litt. 121 b, 122 a. {z) It has been expressly decided, that " land cannot be appurtenant to land." Buszard and others v. Capel and another, 8 B. and C. 141. In this case it hac^e^n/^gn^bj:^ajgy, in a special verdict, "that by as Prescriptive Rights may be. 35 not be appendant to a thing corporeal." («) But if the shore be land, then the shore cannot be appendant or appurtenant to adjacent land, or manors, or be prescribed for as such. The phrase ''parcel of," signifies "pars totius" and denotes that the thing is an integral part, and homogeneous. But if wreck be appendant, and yet be allowed to carry the shore with it, then the shore is in effect appendant, but according \ to Lord Coke, this cannot be. It may be further observed Distinction (as marking the distinction between things which may, and things whicli things which may not be prescribed for) that spiritual per- thmgs^whicli sons may, and regularly d.o prescribe for tithes, because they '"^y "favigation. The use of the sea, as a great high way, for the trans- portation of merchandise, or any other purpose for which Lib. 2, ch. I. Here it is observable that Bracton makes no dis- tinction between those parts of rivers which are, and those which are not, within the flux and reflux of the tides. The pubhc right does not seem to extend above the tides. See accord. Lord Fitzwalter's case, Per Hale, C. J. l Mod. 105. Dav. 57 [and Hall's Profits k Prendre, 307. Murphy v. Ryan, 2 Ir. C. L. R. 143. Taylor's Evidence, part i, cap. 5, p. 133, 6th edit] (/) [See Sea Fishery Act, 31 and 32 Vict. c. 45.] ill) [" When the soil of the shore, as is generally the case, is in the " Crown, the rights of the public in the sea, and tidal waters, such as " fishing and navigation, &c., are 'natural rights,' accruing to them as " cestui que trustent in possession ; but that when a private individual " holds the shore, such of these rights as remain to the public have " become, strictly speaking, ' easements.' However, in the latter case, " the private owner cannot have a more advantageous position than his <' grantor the Crown, and must therefore be subject to all public rights, " unless he can prove an immemorial title to exemption. Hence, in all " cases, the rights of the public in the sea and its shore -^xe. primd facie, " and must be treated as ' natural rights' ; while those of a private indi- '■ vidual, whether his claim extends to territorial possession or not, can " rest upon no other foundation than the strict construction of a grant." Phear, p. 52. See Malcolmson v. O'Dea, 10 House of Lords Cases, 593 ; Marshall v. Ulleswater Steam Navigation Co. 3 B. and S. 732 ; Murphy V. Ryan, ^IttSshy^ii^h® Public Right of fishing in the Sea. 43 its waters can be usefully navigated, is also a liberty or privilege belonging of common right to the people of Eng- land, by the same title as the fishery, (w) {v) [The right of navigation^belongs by law to all the subjects of the realm, and is paramount to the right of fishing ; where a part of the sea coast or shore, being the property of the Crown, and giving jus privatuin to the King, is granted to a subject for uses, or to be enjoyed so as to be detrimental to the jus publicum therein, such grant is void as to such parts as are open to such objection, if acted upon so as to effect nuisances by working injury to the public right, or it is a grant which does not divest the Crown, or invest the grantee ; Att.-Gen. v- Parmeter, 10 Price, 378-412 ; Att.-Gen. v. Johnson, 2 Wils. 87. The right to anchor is a necessary part of the right to navigate ; this right never could have been interfered with by grant from the Crown, but evidence of mere immemorial usage will not support a claim to dues for anchorage, and it cannot exist merely in respect of the use of the soil, it must be founded on proof that the soil of the claimant was originally within the precincts of a port or harbour, or that some service, or aid to navigation, was rendered by the owner of the soil, who claims the dues. Gann v. Free Fishers of Whitstable, 11 House of Lords Cases, 192 ; Whitstable Fishers v. Foreman, L. R. 2 C. P. 688 ; 4 E. and I. app. 266 ; see as to the public right of navigation Att.- Gen. V. Lonsdale, 7 L. R. Eq. 377 ; Colchester, mayor of, v. Brooke, 7 Q. B. 339 ; Williams v. Wilcox, 8 Ad. and E. 329 ; R. -v. Ward, 4 A. and E. 384 ; also WiUiams v. Blackwall, 32 L. J. Ex. 174 ; Post v. Munn, I Souths (New Jersey) R. 61 ; Angell on Tide Waters, p. 80 ; Houck, 146 ; Phear, 53 ; Angell on Watercourses, 554. [If property be placed in the channel of a public navigable river, so as to create a public nuisance, a person navigating is not justified in damaging such property by running his vessel against it, if he has room to pass without so doing, for an individual cannot abate a nuisance, if he is no otherwise injured by it than as one of the public (Colchester, mayor of, v. Brooke, 7 Q. B. 339 ; Brown v. Perkins, 12 Gray 89, 101-102) ; and therefore the fact that such property was a nuisance is no excuse for running upon it negligently : and there is no right to erect a weir which shall obstruct part of the stream. Williams V. Wilcox, supra ; see as to other obstructions, Norbury v. Kitchen, 1 5 L. T. N. S. SOI ; White v. Phillips, 33 L. J. C. P. 33 ; White v. Crisp, 10 Ex. 312 ; Hancock v. York Railway Co. 10 C. B. 348; Att.-Gen. V. Johnson, 2 Wils. C. C. 87. The liberty of passage on a public navigable river is not suspended, when the tide is too low for vessels to float. The public right in this respect includes all such rights as, with relation to the circumstances of each river, are necessary for the convenient passage of vessels along the channel. It is therefore, no Digitized by Iwicrosoft® 44 Public Right of fishing in the Sea. Vreck and But wreck, and royal fish, are royal franchises, belonging Dyal fish. J I J exclusively to the King, by the prerogative of the Crown, or to individuals, deriving them, as an exclusive private excess, if a vessel, which cannot reach her place of destination in a single tide, remains aground till the tide serves ; although, by custom or agreement, a fine may be payable to the lord of the soil for such grounding. Colchester, mayor of, v. Brooke, 7 Q. B. 339. [A riparian proprietor has no greater right to use the alveus of a tidal than a non-tidal river, and therefore cannot construct a jetty so as to injure the property of others or interfere with navigation. Att.-Gen. v. Lonsdale, L. R. 7 Eq. 377. See also Bickett v. Morris, I L. R. Sc. App. 47, and Angell on Tide Waters, p. 95. [In the Att.-Gen. v. Terry, L. R. 9, Chan. Appeals, 423, a wharf owner drove piles into the bed of a river extending the wharf so as to occupy 3 ft. out of a breadth of about 60 ft. available for navigation. It was held that this was such an obstruction as would be restrained at the suit of a municipal corporation empowered by Act of Parliament to remove obstructions. [In the court below, the Master of the Rolls held that an owner of land at the side of a public navigable river has no right to erect on the bed of the river, for the benefit of his own trade, any structure, whether any actual obstruction to the navigation of the river will or will not be thereby occasioned ; and any benefit to his own trade is too remote to be held for the advantage of the public generally, and so to justify the erection. See American cases, Gould v. Carter, 9 Humph. (Tenn.) 369 ; Commonwealth v. Bilderback, 2 Pars. (Penn.) 447. [No amount of collateral benefit, resulting from any manner of ob- struction to the local community, can divest it of its character of a nuisance, an abridgment of the right of navigation can only be justified when the erection is productive of a greater public benefit. R. V. Russell, 6 B. and C. 566. This case was a trial by indictment for a nuisance by erecting staiths in a river, and the jury were directed to acquit the defendant if they thought that the abridgment of the right of passage, occasioned by such erections, was for a public purpose, and produced a public benefit, and if the erections were in a reasonable situation, and a reasonable space was left for the passage of vessels on the river. The judge pointed out to the jury that by means of the staiths, coals were supplied at a cheaper rate, and in a better condition, than they otherwise would be, which was a public benefit. It was held by Bailey and Holroyd, J. J., that the direction was proper, but Lord Tenterden, C. J., dissented therefrom, he being of opinion that the price and condition of coals were points not properly to be takeno^j;gg9qjj?j(j0aJ^^n the question raised by the Piiblic Right of fishing in the Sea. 45 possession from the Crown. For the present we will con- fine our view to the fishery. indictment, and that the question to have been taken was, whether the navigation and passage of vessels on a navigable river vs^ere injured by the erections in question. See R. v. Ward, 4 A. and E. 384. [But it is not necessary that any interruption of, or interference with, the public rights should amount to a nuisance, Reg. v. Belts, 16 Q. B. 1022; 19 L.J. Q. B. 501 ; R. W.Ward, 4 A. andE. 384; Gates v. Blencoe, 2 Dana (Ken.), 158 ; that is a. question for the jury, Reg. v. Randall, Cas. and M. 496 ; R. v. Russell, 3 E. and B. 942. As to the abate- ment by injunction, &c., where an individual has sustained damage different from and independent of that which is sustained by the rest of the public, see Bridges v. Highton, 11 L. T. N. S. 653 ; Rose v. Groves, 6 Sc. N. R. 653 ; Edleston v. Crossley, 18 L. T. N. S. 15 ; Norbury w. Kitchen, 18 L. T. N. S. 501 ; Blakemore 7/. Glamorganshire Canal Co. I My. and K. 1 54 ; Att.-Gen. 1/. Richards, 2 Anst. 603 ; Att.-Gen. v. Cleaver, 18 Ves. 211 ; Att.-Gen. v. Lonsdale, 7 L. R. Eq. 377 ; and see remarks of Chancellor Kent in 2 John, ch. 382, and Georgetown v. Alexandria Canal Co. 12 Peters (U. S.) 91. By the customary law of Connecticut, a riparian has the right of soil between high and low water mark, so as to enable him to construct wharves ; but before the soil had been so reclaimed, the right of fishing on the flats remains common. E. Haven v. Hemingway, 7 Connect. R. 186. See Angell on Watercourses, p. 743. [In Brown v. Mallett, 5 C. B. 599, which was an action against an owner of a vessel sunk by accident, for injuries received by another vessel coming in contact therewith, Maule, J., laid down the following principles : — That it is the duty of a person using a navigable river with a vessel of which he is possessed, and has the control and management, to use reasonable skill and care to prevent mischief to others, and the liability is the same whether his vessel be in motion or stationary, floating or aground, under water or above it, and this liability may be transferred with the transfer of the possession and control to another person, and on the abandonment of such posses- sion, control, and management, the liability also ceases. See also Hamond v. Pearson, i Campb. 515 ; but it is also clear from Rex V. Watts, 2 Esp. 675 — "that from an unavoidable accident pro- " ducing the wreck of a vessel, an indictment cannot be preferred " against the owner for not removing the impediment to navigation " which it creates. There is no reason for throwing on the owner any " special share in the consequence of what may be considered as a- " misfortune, both to him and to the public." See White v. Crisp, 10 Ex. 312 ; Parrett Navigation Co. v. Robins, 10 M. and W. 593 ; Parnaby v. Lancaster Canal Co. 1 1 A. and E. 223 ; 19 Digitized by Microsoft® 46 Public Right of fishing in the Sea. Public fishery. The public right, {x) or common of piscary, {y) claimed and allowed by the common law to the people of England in the sea, extends, not only over the open sea, but over all bays, creeks, ports, havens, arms of the sea, and tide-rivers, up to the reach of the tide, {s) and also, as it would seem, over and upon the sea-shore itself, for such kinds of fish as are usually caught upon the rocks, and sands of the coast, (a) But in some cases, statute law has set bounds to the exer- cise of this right, in respect of seasons, particular kinds of fish, and manner of fishing, {b) There are also other ex- cepted cases; viz. where private individuals, (c) or Corporate bodies, claim and enjoy a separate fishery, in some par- Geo. 2, c. 22, s. 3 ; 54 Geo. 3, c. 159, s. 19; and 10 and 11 Vict. c. 27. [The Board of Trade is enabled, by the various powers contained in The Railways Consolidation Act, 8 and 9 Vict. c. 20, s. 17 ; The Harbours, Docks, and Piers Clauses Act, 10 Vict. c. 27, s. 12 ; The Harbours Transfer Act, 25 and 26 Vict. c. 69, and the Railways Clause Act, 26 and 27 Vict. c. 92, ss. 13 to 19, to protect the foreshore from being injuriously affected by the construction of such works, as to which these statutes refer, and in the case of Bills for all such works, the Board of Trade take care to see that these Acts are incor- porated.] {x) In Anonymous, 6 Mod. 73, it is said, that the King's grant could not bar the public of their right to fish, and as it is a rule that nothing can be prescribed for which might not have a lawful commencement hj grant, it would follow, that no such thing as a separate fishery in the sea, or tide-rivers, could exist if this were good authority. But, 6 Mod. 73 is clearly not law, so far as regards ajicient grants, and was overruled in Carter v. Murcot, 4 Burr. 2163. The doctrine of 6 Mod. 73 is also held (as to the sea) in 2 Com. 431, and is supported in a note (see this note cited in p. 53 post) to Carter v. Murcot. At this day the King cannot, by grant, abridge the general public right, nor has any such right existed in the Crown since Magna Charta. {y) [See Benett v. Costar, 8 Taunt. 183, i B. and B. 465, sc.J (z) See the cases cited p. 41, ante. {a) Bagott V. Orr, 2 Bos. and Pul. 472. (b) [See Woolrych, p. 85, et seq^ (c) Dav. Rep. 57 a. Carter v. Murcot, 4 Burr. 2163 ; Warren v. Mat- thews, I Salk. 357 j Hale, De Jure Maris, cap. 5. Appendix, post, xiv. Digitized by Microsoft® Public Right of fishing in the Sea. 47 ticular places, in derogation and exclusion of the general right. (^) This divides the right of fishery into " communis pis- caria," or the public common of piscary mentioned above, and the several, or private fishery belonging to particular Several or owners, and excluding all other persons. The several ^"™ e s ery fishery is claimed and enjoyed by prescription, or ancient usage, presupposing a grant, or by express grant from the Crown, anterior to Magna Charta. {e) {d) [" This public right is an established principle, and whether the " opinion of those writers, who class this right among the jura regalia, " be preferred, or that, on the other hand, of those who hold the right to " be jus ptiblicum vel coimnune, it is nevertheless certain that, primd '■^ facie, the liberty in question is general." Woolrych, pp. 76, 85 ; Angell on Water Courses, p. 73. And where there is reasonable evidence to show that the question of title raised by a defendant is bond fide, the jurisdiction of magistrates is at end. R. v. Stimpson, 32 L. J. M. C. 208; but see Embleton v. Brown, 6 Jur. N. S. 1298. "As a public " right, belonging to the people, it prima facie vests in the Crown ; " but such legal investment does not diminish the right, or counteract " its exertion." Schulte, p. 1 5.] {e) [In Allen v. Donelly, 5 Ir. C. L. Rep. 229, the petitioner claimed an exclusive right of fishing in an arm of the sea, and a public navigable river, and the petitioner prayed that he might be quieted in possession by an injunction. The respondent relied on the general common law right of fishery in the sea, but it was held that the Court had jurisdiction to entertain such a suit, and the petitioner need not , be left exclusively to his common law remedy. In O'Neill v. Allen, 9 Ir. C. L. R. 132, the plaintiff in support of a claim to a several fishery in the open sea, proved an adventurer's certificate of the year 1666, acts of ownership by parties unconnected with the person found entitled to the fishery by the certificate, were proved from 1668 to 1701. No such act was proved from that date to 1798, but from 1798 to 1857 there was undisturbed user by the O'Neill family, from whom the plaintiff derived. It was held that a several fishery was rightly found, that the granting of a patent subsequently to 1668 might have been presumed ; but that 17 and 18 Car. 2, c. 2, rendered such presumption unnecessary. Whether a several fishery is such a franchise as can be lost by non-user was not decided, but if it were, the absence of evidence of user from 1701 to 1799, did not amount to proof of non- user. See also Little v. Wingfield, 8 Ir. C. L. Rep. 279 ; and 11 Ir. Digitized by Microsoft® 48 Public Right of fishing in the Sea. As the public right of fishery cannot be enjoyed without making use of the sea-shore for egress and regress, and for other essential conveniences which the fishery requires in order to be carried on with effect, the use of the sea-shore, {f) C. L. Rep. 63 ; Malcolmson v. O'Dea, 10 House of Lords Cases, 593. And, in the United States, the right of fishery may be granted by the States in the navigable waters in their borders, to individuals, provided the free use of the waters for purposes of navigation and commercial intercourse be not interrupted ; i Kent Com. 489 ; Rogers v. Jones, I Wend. 237. An exclusive right, however, must be shown, and if it can be shown, it may be exercised exclusively, though the presumption is against it, unless a prescriptive right, or express legislative grant, can be given in evidence ; for such right shall not be presumed, but the contrary, primd facie. Schulte, 70. See Commonwealth v. Charles- town, 18 Mass. (i Pick.) Rep. 1 80; Storer v. Freeman, 6 Mass. R. 435 ; Delaware and Maryland Railway Co. v. Stump, 8 Gill and J. (Md.) 479 ; Day v. Day, 4 Ind. 262. See also Angell on Watercourses, p. 70, 6th edit. (/) We do not speak here of the " ripa" or bank, which is adjacent terra firma, but of the sea-shore only. But for all reasonable purposes of safety and convenience in fishing, and navigation, the ripa, or immediate terra firma, is, by common right, subject to the free egress and regress of the public. Bro. Abr. Tit. Custom, pi. 46. But this does not extend to any permanetit appropriation of such ripam. Nor will it authorise towing-paths to be made. Ball v. Herbert, 3 T. R. 253. Towing is not navigation, properly so called. But, it seems, towing- paths, and other modes of moving, raising, and securing vessels, and fishing-boats, &c. upon the adjacent terra firma, may well be acquired and enjoyed by usage, or prescription, as a local easement, S. C. [In this case, Kenyon, C. J., said he remembered when the case of Pierse v. Lord Fauconberg, I Burr. 292, was sent to that Court from the Court of Chancery, and it was then the current opinion in West- minster Hall, that the right of towing depended on usage, without which it could not exist. See Winch v. Conservators of Thames, 7 L. R. C. P. 458 ; S. C. 41 L. J. C. P. 241 ; Badger v. 8. Y. R. Co. I E. and E. 347 ; Monmouth Canal Co. v. Hill, 4 H. and N. 427 ; Kinlock v. Nevile, 6 M. and W. 795 ; HoUis v. Gold- finch, I B. and C. 205 ; Angell on Water Courses, 6th edit. 740, on Tide Waters, 176 ; Woolrych, 164 ; Brown v. Chadbourne, 31 Maine, 23, 26; Treat v. Lord, 42 Maine, 552, 563; Ledyard v. Ten Eyck, 36 Barb. 102. The supreme Court of Illinois, and that of Tennessee, have, however, decided agreeably to the civil law, that the right of navigation is not limited to the bare privilege of floating upon the Digitized by Microsoft® Several or Private Fishery. 49 for all purposes essential to the enjoyment of the right of fishery, necessarily accompanies such right. But it is quite clear that the public use of the shore, for the public exercise of the fishery, does not impeach the Kings owner- ship or property in the soil itself, (g) Wherefore, the King remains owner of the shore, liable to such use of it by his subjects, as their ancient common of piscary therein, and in the waters around it, naturally calls for ; and this would seem to include a public right of way to and fro over the sea-shore. A several or private fishery(/2) is claimed, not only against Several fish- the King's original right, but against the general public "^' right of the subject. It may be either in gross, (i) i.e. an In gross, absolute personal right, or privilege attaching to the indi- vidual, or Corporate body of individuals (as many Religious Houses formerly had) ; or it may be appendant or appur- Or appendar tenant to manors ; and thisij) not only in navigable rivers, nant^^""^^" and arms of the sea, but in creeks, ports and havens ; and in certain known limits in the open sea, contiguous to the shore. In 2 Com. 431, the contrary is held, as to the sea ; but in 4 T. R. 437, Mayor of Orford v. Richardson, where both a several, and a free fishery were prescribed for. Lord Kenyon said, " there can be no doubt but that there may be z.pre- river, but included the right to land, and to fasten to the shore, as the exigences of navigation may require ; and that such was a burthen upon the owner of the land, which he must bear as a part of the public easement. Middleton w. Pritchard, 3 Scam. (111.) R. 520 ; Corp. of Memphis v. Overton, 3 Yerg. (Tenn.) R. 390. I^g) See Lord Fitzwalter's Case, i Mod. 106 ; Dickens v. Shaw, Appendix, xlvii. (h) See post, further, on this kind of fishery, [and Phear, p. 64.] (z) [Shuttleworth v. Le Fleming, 19 C. B. N. S. 687.] (7 ) De Jure Maris, Appendix, post, xv. [see Hayes v. Bridges, i Ridg. L. and S. 390 ; Hamilton v. Donegall, Marquis of, 3 Ridg. 311 ; Rogers V. Allen, I Camp. 39] E Digitized by Microsoft® 50 Several Fishery and " scriptive right in a subject to a several fishery in an arm " of the sea." (^) Fishing, in practice, may be of two kinds, viz. i. with nets, hooks, or other moveable apparatus ; 2.. or by means {k) [A several fishery passes under the words "all the salmon fisheries, pyke, eyle, and other fishings of and in the river," Ashworth v. Brown, 7 Ir. Jur. O. S. 315, Q. B. ; and a " free fishery" priind facie means a " several fishery," per Willes, J. in Shuttleworth v. Le Fleming, 19 C. B. 697. The definition of a several fishery in 13 and 14 Vict. c. 88, s. I, is "all fisheries lawfully possessed and enjoyed as such, under any title whatever, being a good and valid title at law, exclusively of the public, by any person or persons, whether in navigable waters, or in non-navigable, and whether the soil covered by such waters be vested in such persons or in any other persons." In Holford "u. Bailey, 13 Q. B. 426, the words " sole and exclusive" were held to be equivalent, at all events after verdict, to a " several fishery." Undis- turbed possession of the right for sixty years and upwards is some evidence to entitle the jury to presume a legal grant. Little tj. Wingfield, 8 Ir. C. L. Rep. 279, also 1 1 Ir. C. L. R. 63. See also 2 and 3 Will. 4, c. 71, s. I ; evidence of a continuous practice for upwards of sixty years, wholly unresisted, for a corporation to grant licenses to fish in a navigable tidal river, and to obstruct and warn those who fish without a license is sufficient evidence for a jury to conclude that the corpora- tion was owner of a free fishery : Mannall v. Fisher, 5 C. B. N. S. 856 ; see Malcolmson v. O'Dea, 10 H. L. cases 593 ; O'Neill v. Allen, 9 Irish C. L. Rep. 132; Chad v, Tilsed, 2 B. and B. 403. But al- though long exclusive enjoyment of a right to a several fishery in a public navigable river, is sufficient primA facie evidence, upon which to presume that the Crown had granted a separate right before Magna Charta, yet the omission of all mention of the right in any probably true inventory, taken since that period, of all the possessions of the then alleged owner, of that right, or any reasonable ground for con- sidering that the user had not been exclusive, but in common with other persons, may be sufficient to negative such presumption ; even if a fishery may pass as appurtenant to land — see Hayes v. Bridges, 1 Ridg. L. and S. 390 ; Hamilton v. Donegall, Marquis of, 3 Ridg. su- it cannot be appendant to a several pasture ; Edgar v. Special Com- missioners for English Fisheries, 23 L. T. N. S. 732, C. P. A corpo- ration which had an immemorial right to an oyster fishery in a navigable river, became in 1740, by the ouster of several of its mem- bers, unable to continue, or to carry on the management of the fishery. In 1763, the corporation was re-incorporated by charter, under the old name, and the chag:|r^ra^^^^(^^^d and restored all fisheries, &c. Public Fishery distingtdshed. 51 of wears, (/) stakes, orfixed enclosures or fishing places. Now, it is obvious, that the public right of fishing cannot be carried on by the latter modes, since an enclosure by one person excludes others. Fishing with nets, hooks, &c. may, according to the As to fishitij^ treatise De Jure Maris, be " either as a liberty, without the ""''^^ "^"' *' " soil ; or arise by reason of (;«) or in concomitance with " the soil itself, and the proprietorship of it." Now, as the public cannot claim the soil under the sea or of the shore There having been no actual dissolution, the fishery never passed to the Crown ; and though the corporation had granted a license to certain persons to dredge, &c., this did not operate as a demise of the fishery, so as to put the corporation out of possession ; Colchester, mayor of, •V. Brooke, 7 Q.B. 339. And where a several fishery is legally granted before Magna Charta, it does not merge by forfeiture to the Crown : Northumberland, Duke of, v. Houghton, 5 L. R. Ex. 127. Where the Crown grants by patent the soil and bottom and a several fishery in a navigable river, and enjoyment under that patent was shown, it was held to be evidence that the Crown was seized in fee at the time of making the grant, but the several fishery must have been created before Magna Charta, if so it can be granted afterwards : Devonshire, Duke of, V. Hodnett, I Hud. and Bro. 323 ; as to the law of several fisheries in America, see Houck, p. 137, et seq. [Trespass lies for breaking and entering the " several " or " sole and exclusive " fishery of one person over the soil of another and disturbing the fish : Holford v. Bailey, 13 Q. B.426 ; 18 L.J. Q. B. 109, Ex. Cham. If the locus in quo is an arm of the sea, and yet a several fishery be claimed, it is not sufficient in answer to such plea, simply to deny the public right, but the plaintiff is bound to set up his exclusive claim in a replication : Crichton v. CoUery, 19 W. R. 107, Ir. Exch. [Where a several fishery exists in a tidal river, the waters of which have permanently receded from one channel and flow in another, it cannot be followed from the old to the new channel : Carlisle, mayor of, V. Graham, 4 L. R. Ex. 361 ; 38 L.J. Ex. 226, S. C] (/) See De Jure Maris, Appendix, post, xviii. for numerous instances of these wears. (wz) Sedq. By reason of? for the mere ownership of the soil does not exclude the public right of fishing in the sea, even when the King is such owner ; therefore, the mere ownership of the soil in a subject, is not, per se, a sufficient ground for an exclusive private fishery in the sea, or tide-rivers. Digitized by Microsoft® 52 Whether a Several Fishery itself, i)\& public fishing of the subject is a floating liberty of fishery, with nets, hooks, &c. ; whereas the several, or private fishery, may be claimed, either as an individual personal right of fishing with nets, hooks, &c. in loco, the soil or shore whereof belongs to the King or to any private subject ; or it may be claimed as appendant, or appurte- nant to the ownership of the adjoining manor, or freehold. The public fishery and private fishery are incompatible («) with each other. So also is a right to fish with nets, hooks, &c. (moveable machinery) incompatible with a fixed fishery. No fishery with nets, hooks, &c. can be enjoyed by the public, or even by one person, in a place where another enjoys a private right to make wears and enclo- sures ; and yet both these kinds of fishing may be enjoyed in waters, the shore and soil of which belong to another ; nor can such owner of the soil or shore prevent the other from exercising his paramount right to fish. Thus, all the subjects of the Realm have a right to fish in the sea or any creek thereof, or in a tide-river, the shore and soil of which place of fishing belong to the King, or to the lord of the manor. Or the lord of the manor alone, may have a separate fishery, not only exclusive of his manorial tenants, but also of all other persons ; or some other individual may have a separate fishery, exclusive of the lord, and all other persons, or 3^ free fishery in common with the lord. ivate fishery As the private or several fishery alone, gives colour of ring colour title to the sea-shore, or soil itself, it will be necessary for ''shore ^^ "^^ ^° consider this private right more minutely. That the ownership of the sea-shore, or the soil under (n) In the case of Mayor of Orford v. Richardson, 4 T. R. 437, BuUer, J. said, " one party is to prove that this is an arm of the sea, in which, '^ primd facie, every subject hath a right to fish ; the other is to esta- " blish a prescriptive right which destroys the general right." Digitized by Microsoft® gives Title to the Shore. 53 the sea to any given distance, should include a right to fish, seems reasonable enough ; and, accordingly, the King's general right of ownership to the shore and sea-bottom, doubtless entitles him to fish, in common with his subjects. In like manner, if the King have conferred such ownership of any part of the shore on a subject (as on a lord of a manor), the general right of fishery does not exclude the lord.(^) But the mere ownership of the shore, whether possessed by the King, or by a lord of a manor, will not entitle the owner to establish a separate fishery, and ex- clude the public. In fact, the mere ownership of the soil The owner- will not, it would seem, confer or include a right to a sepa- soil'o°f the^ rate fishery in the sea or tide-rivers, whether by nets and g^°[t^/°^^\"' lines, or by wears and enclosures. (/) The right to exclude owner to ... establish an the public can only be supported by prescription, i. e. by exclusive evidence of immemorial usage. A several and exclusive '^^^^T- fishery, ■ immemorially enjoyed by an individual subject, or a corporate body, will exclude the public right. The common law gives stability to a right thus immemorially enjoyed ; and although the public may claim a preference, where the usage is doubtful, yet, where the usage is proved to have existed on the side of the individual, and to have been acquiesced in by the public, time out of mind, the public will be excluded, precisely as if such private fishery had been granted by the King himself, to the individual.(^) (0) If a man claim to have " communiam piscariam," or " liberam piscariam," the owner of the soil shall fish there. Co. Litt. 122 a. (/) " In case of z. private river, the lord's having the soil is good evi- " dence to prove that he has the right of fishing, and it puts the proof " on them that claim lilieram piscariam f " but in case of a river that " flows and reflows, and is an arm of the sea, Xhsre,primd facie, it is " common to all, and if any will appropriate the privilege to himself, " it lies on his side."— Per Hale, Ch. J. [in Lord Fitzwalter's case] i Mod. 105. {g) In a note to Carter v. Murcot, 4 Burr. 2165, the following remarks are made upon the doctrine of separate fisheries. " Accord- Digitized by Microsoft® 54 Ownership of Shore does not include a It seems certain that the mere ownership of the soil will not exclude the public, or authorise the owner to exclude the public fishery ; for no subject can take more than the King had to grant, out of the shore or sea-bottom, and therefore the grantee must have taken his grant, subject to the public common right of piscary, to which the sea and sea-shore were liable, even in the King's hands. There- fore, although the ownership of the soil may afford some colour, or pretext to the claim of the individual to a private or several fishery, yet, unless such owner, and the former " ing to some authorities, every navigable river, as far as the sea " flows and reflows, is an arm of the sea, and it may perhaps not " be unreasonable to admit such property may be by prescri-p- " Hon, in some such navigable river ; but in the sea or in such '' rivers as have free communication with the sea, where the catching " of fish cannot diminish the stock, more than it could in the sea, " the right which the subjects confessedly have, to fish there, ought " not to be suffered to be restrained, either by pre5Cription,'ox by the " King's grant ; for it is a principle incontestable, that all customs, " prescriptions, and royal charters, that are either contrary to reason, " or the good of the commonwealth, are void ; and it is apparent that " all such restrictions are against both, and are injurious to the public " in hindering a large supply of fish, as well as a means of livelihood " to many particular persons, without any benefit to the public, or to " any but monopolists, and inhancers of the price of fish ; but in rivers " not having a free communication with the sea, the case is quite " different ; for if the fishery there is made private property, the same " would be preserved, and produce more, than if all persons were " allowed to fish there, for by that means the breed would be in a " manner destroyed, as is the case in many rivers not supplied by the " sea." No modern grant can be made by the King of a separate, or free fishery in the sea, or on the sea-coast, or z'« navigable rivers. Since the time of fienry II. all grants from the crown of this kind of fishery have been contrary to statute* law, viz. Magna Charta, and the Charter of Henry III. and subsequent Acts of Parliament ; and there- fore, if a grant be produced, it must be dated so far back ; the conse- quence is, that these kind of fisheries are always prescribed for. An ancient grant was put in, in the case of Warren v. Matthews, I Salk. 357, and probably others maybe found, particularly to ancient Abbeys. * See 2 Bl. Com. 39. Digitized by Microsoft® Several Fishery, nor the Fishery the Shore. 55 owners of such soil, have immemorially excluded the public, by means of a separate fishery, prescribed for, and proved, or founded in express ancient grant, the public right will prevail. It is not, therefore, the ownership of the soil, but imme- morial usage or prescription, and ancient grant, which sup- port the several and -exclusive fishery ; and if so, then, it Nor does an seems singular to hold (as Lord Hale seems to do), that a £sher^"%g several fishery by means of wears, or fixed stakes, &c., " is t^e to the the very soil itself :"{r) i.e. that such kind^of fishery zz.'o., per se, be sufficient to confer a title to the soil itself. For, if the ownership of the soil will not confer an exclusive fishery (which in the eye of the law is a minor right, and rather an adjunct to the soil), why should the mere right to fish confer a greater, and in the eye of the law a more valued right, to land itself, thus making the greater an adjunct to the less 1 This is reversing the law rule, " majus dignum continet et trahit ad se minus dignum!' Why is it not enough to construe it a separate fishery, of the kind proved according to the prescription .■■ Why should the mode of fishing, which is varied according to the kind of fish, their habits and haunts, be construed into an owner- ship of the soil .'' A right to catch fish by nets or wears, is still, in either case, no more than a mere right of fishery. Why should the owner of the land around be deprived of the soil where the private fishery was once enjoyed by another, but which has ceased, by the permanent drying up of the waters .' is) The doctrine that the ownership of the soil affords a pre- sumption in favour of a separate right oi fishery, does not | involve the same consequences of law, as saying, that a (r) De Jure Maris, Appendix, post, xvi. (j) Co. Litt. 4 b. [See Marshall v. Ulleswater Steam Navigation Co. 3 B. and S. 732, 748 ; 6 B. and S. 570, S. C. and post, p. 66, n.] Digitized by Microsoft® 56 Ownership of Shore does not include a separate fishery gives a right to the soil, for this involves the question of title to land, and the form or mode of sup- porting that title. To say that if I prescribe for, and prove a separate fishery, I thereby gain the ownership of the soil, is as much as to hold that I may prescribe for an owner- ship in the soil ; i.e. that a title to land, or fee simple estate, may be supported by prescription ; a doctrine denied by some of our best autho.rities.(0 It is also remarkable that, when we get beyond reach of the tides, and the river is no longer pars maris, the doctrine is, that the ownership of the adjoining land, is good presumptive evidence that such owner has the exclusive right of fishing,— per Lord Hale, Ch. J. in Lord Fitzwalter's case, i Mod. 105 ;— but as soon as we get within the flux and reflux of the tides, the doctrine is reversed, and the ownership of a private fishery, is said to be good presumptive evidence of title to the soil itself This, in itself, seems singular doctrine. A freehold, or title to land, is one right and thing, and a fishery is another, and the rights and titles to these several things are not supported in like manner. A fishery, as well as any other franchise, liberty, profit or easement (as a right of road or way over another man's ground, or a right to pasture cattle on the manorial waste or common) may, as before explained, either be founded on express grant, or prescriptive usage ; whereas, a title to land must be founded either on express grant, or on what is called " adverse possession ; " which is not what our common law intends by "prescription." It is remarkable, that the cases of separate fisheries, cited in the treatise ascribed to Lord Hale, Appendix xviii. et seq., by way of authority that a separate fishery carries the soil, do all use the term piscaria, which signifies merely a fishery ; and not one assumes an ownership of the soil, in (t) Co. Lit. 1 14 b. Digitized by Microsoft® Several Fishery, nor the Fishery the Shore. 57 virtue of the " piscaria," even where it is claimed as " sepa- ralis.'' In some cases the " piscaria " and the sea-shore are mentioned separately ; thus, " the Earls of Devon had, not " only the port of Toppesham, but the record tells us, that " the Partus et Piscaria, et mariscus (u) (marsh) de Toppes- " ham spectant Amicise Comitissae Devon."(-a^) The only plausible instance adduced by the learned writer to prove that a separate fishery includes the ownership of the soil, does not seem, upon examination, to support such doc- trine. " Trin. 10, Ed. 2. B. R. Rot. 83, Norfolchiae.— The abbot " of Benedict Hulm,(jj') impleads divers, for fishing in riparia " quae se extendit a ponte de Wroxam, usque quendam " locum vocatum Blackdam. Pending the suit, the King's " Attorney came in, and alledged for the King, quod " prsedicta riparia est brachium maris, quae se extendit in " salsum mare, et est riparia Domini Regis salsa fluens, ubi " naves, et battelli, veniunt et applicant extra magnum " mare carcati et discarcati quiete, absque tolneta, seu " custuma aliqua dando, et est communis piscaria quibus- " cumque ; et dicit quod presentatum fuit, in ultimo itinere, " coram Solomone de Roffa, et Sociis Justiciariis itineran- " tibus in comitatu isto, quod prsedecessor praedicti Abbatis " fecit purpresturam super dominum regem in riparia prae- " dicta, gurgites plantando in eadem, et appropriando sibi *' prsedictam piscariam tenendo tanquam separalem ; per " quod consideratum fuit, quod gurgites illae amoverentur, " et quod prsedicta aqua remaneret communis piscaria. Et " petit quod nunc procedatur ad aliquam inquisitionem " inde capiendam quousque praefati justiciarii super recordo {u) De Jure Maris, Appendix, post, xviii. See also Ixxx. ix) " Mariscus " will pass the soil. Co. Litt. 4 b. But " Piscaria '' will not. (y) Case of the Abbot of Benedict Hulm, quoted from De Jure Maris, Appendix, post, xvii. et seq. See also Ixxxiii. Digitized by Microsoft® 58 •• Ownership of Shore does not include a " et processu prsedictis certiorentur. Thereupon search is " granted, and the record certified ; and afterwards, a pro- " cedendo was obtained ; and issue being joined, it was " found for the Abbot, and judgment and execution given " against the defendants for the damages ; viz. ;£'200." " Upon which record," says the learned writer, " these " things are observable : — " 1st. That, de communi jure, the right of such arms of " the sea belongs to the King. " 2nd. That yet, in such arms of the sea, the subjects in " general have, priniA facie, a common of fishery, as in the " main sea. " 3rd. That yet, a subject may have a separate right of " fishing, exclusive of the King, and of the common right " of the subject. " 4th. That in this case, the right of the Abbot to have " a several fishing, was not a bare right, hberty, or profit " apreitdre ; but the right of the very water, and soilitself ; " for ke made wears in it!' With deference, however, to such eminent authority, it does not seem very observable, upon this record, that the Abbot had the right of the " water, and soil itself," because he made wears in it.(^') Nothing more, in fact, appears, than that the Abbot by making wears, claimed to \\2ive: piscariam tanquain separalem (a private fishery), which, on trial, was allowed against the King, who claimed the fishery in favour of all his subjects as an open right, (a) That separate {z) [Jerwood, p. 54.] {a) P. 34, Ed. I. B. R. Rot. 14 Kancia Prior de Coningshed impla- citat Abbatim de Ferneys pro prostratione Gurgitis in aqui de Ulver- stone. Defendant justified, because each end of the wear was fastened upon the abbot's land. The abbot replies, quod Wilhelmus de Lan- caster Dominus de Kendal dedit praedecessori domus sua prsedicta aqiiam et piscariam ex utraque parte ejusdem quantum impetus maris fluxit et refluxit. ^^^g^lj5,){^^3^eated as a mere fishery. Vide Several Fishery, nor the Fishery the Shore. 59 fisheries, by means of water sluices, wears, &c., may, and frequently do, belong to subjects in right of their manors, and as appendant to their manors, &c., there can be no doubt, for these may be prescribed for. That the soil where these separate fisheries are, may be "parcel of" {b) a manor (i.e. within the boundaries and parcel, as the other lands within the manor are parcel) is also admitted. — In the principal creeks and tide-rivers of England, and in the flat and marshy districts upon the coasts, these fisheries, some with, and some without the soil, are not unfrequent. But, it does not follow, that because they may be good in point of title by prescription, as fisheries, they confer also a title to the soil itself, without other evidences. Lord Coke, in his Com. on Litt. 4 b, says, " if a man be " seized of a river, and by deed do grant, ' separalem " piscariam ' in the same, and maketh livery of seizin, " ' secundum formam chartae,' the soil doth not pass, for " the grantor may take water there, and if the river become " dry he may take the benefit of the soil ; for there passed " to the grantee but a particular right. For the same " reason, if a man grant ' aquam suam! the soil shall not " pass, but the pischary within the water passeth. And " land covered with water shall be demanded by the name " of so many acres ' aqua coopertas,' whereby it appeareth " that they are distinct things."(<:) There certainly exists a difference of opinion amongst the authorities, as to whether a "separate fishery" neces- Rastall's Entries, trespass in pischary, pi. 4. Prescription for several fishing, in aquS. maritima fluente et refluente in seizonabili tempore cum 7 stallis separatis separalis piscarice fixis pro retibus. Vide de Jure Maris, Appendix xvi. (b) The phrase "parcel of" does not seem synonymous with " appen- dant " or " appurtenant." ic) [See Marshall v. Ulleswater Steam Navigation Co. 3 B. and S. 747, per Cockburn, C. J. and post, p. 66, n.] Digitized by Microsoft® 6o Separate Fishery on the Shore does Mr. Har- sarily, and per se, includes the soil or not. This question is fhat a'sepMate ^bly Considered by Mr. Hargrave in a note to Co. Litt. fishery does 132 a, note 7,(d) and he concludes in the negative. After not give title 1 >\ 1 - u ■ to the soil. quoting a passage in i Inst. 122, relative to this subject, as follows : " A man may prescribe to have separalem piscariam " in such a water, and the owner of the soil shall not fish " there ; but if he claim to have communiam piscariam, or " liberam piscariam, the owner of the soil shall fish there," Mr. Hargrave observes, "According to this passage, owner- " ship of the soil is not necessarily included in a several " fishery, and common of fishery and free fishery are the " same thing." He then refers to Judge Blackstone's doc- trine, who lays it down, " that the ownership of soil is essen- " tial to a several fishery ; and that a free fishery difl'ers " both from several fishery and cotmnon of fishery : from the " former, by being confined to a public river, and not " necessarily comprehending the soil : from the latter by " being exclusive." 2 Black. Com. 8 Ed. 39. Mr. Hargrave replies to this : " We doubt whether this distinction may " not be, in a great degree, questionable, i. In respect to a " several fishery, — where is the inconsistency in granting " the sole right of fishing, with a reservation of the soil, " and its other profits ">. Bracton expressly takes notice " of such a grant ; for his words are, that one may ' servi- " ' tutem imponere fundo suo quod quis possit piscari cum " ' eo, et ita in communi, vel quod alius per se ex toto.' " Brae. fo. 208 b. There are also numerous other authori- " ties for it ; the old books of entries agreeing that one may " prescribe for a several fishery against the owner of the " soil ; to which should be added the three cases of Eliza- " beth, cited by Lord Coke. See Lib. Intrat. 162 b, 163 a, " Rast, Entr. 597 b, and the books cited under the letter d, " in fol. 4, B, and under m here, and the cases referred to ('') ^m^zeim'&foiSs^ Litt. 122 a, note 7. not necessarily include the Soil. 6i " under the * on the other side. Nor do we understand " why a several piscary should not exist without the soil, as " well as a several pasture,(^) as to which latter we have " already shown the doctrine to be settled, supra, n. 6. " The chief reasons which occur against Lord Coke seem " to be these : — Several writs, never applicable except to " the soil, lie for a piscary ; such as a precipe quod reddat, " monstraverunt de rationabilibus divisis, and trespass, " which latter writ is particularly insisted on by Lord Ch. " J. Holt ; Dav. 55 b; Hugh Coram. Orig. Wr. 11 W. Jo. "440; I Ventr. 122; 2 Salk. 367; Skinn. 6'j'j. Suum " liberum tenementum is a good plea to trespass for fishing " in a several piscary; 17 E. IV. 6 ; 18 E. IV. 4; 10 H. " VII. 24, 26, 28. The soil will pass, as it is said, by the " grant of a piscary; Plowd. 154. But all these objections " maybe repelled. The writs relied on will not always lie " for a piscary. Thus, if a praecipe quod reddat is brought " of a piscary in the water of another person, the writ is " bad, and a quod permittat is the proper remedy ; Fitz. " Abr. Briefe, 861 ; F. N. B. 23 i ; and note b of the 4to ed. " Besides, in the cases of actions for trespass in a several " piscary, or at least in some of them, the writ seems in " effect to state a several piscary in the plaintiff's own soil, " which therefore proves nothing as to the sense of several " piscary without further explanation ; Reg. B. R. Orig. 95 b; " Carth. 285 ; Skinn. 6'j'j. The plea liberum tenementum " may be replied to by prescribing for a several piscary. " See the books before cited, as to such a prescription. " Though \}!\e. grant of a piscary generally rm.y perhaps pass " the soil, yet it will not, if there are any words to denote a " different intention ; as where one seized of a river grants " a several fishery in it, which is the case put by Lord Coke {e) [See Melvin v. Whiting, 24 Mass. (7 Pick.) 79 ; Cortelyou v. Van Brundt, 2 John, ch. 357, 362 ; Ipswich v. Browne, Savile, 14.] Digitized by Microsoft® 62 Separate Fishery on the Shore does " in another place ; and much less will the soil pass when " there is an express reservation of it ; ante 4 b, and n. 2, " there. Hence, as it should seem, the arguments are short " of the purpose ; for, at the utmost, they only prove that a " several piscary is presumed to comprehend the soil, till " the contrary appears, which is perfectly consistent with " Lord Coke's position, that they may be in different per- " sons, and indeed appears to us tlu true doctrine on the •' subject:\f) Comments. But the doctrine thus noticed by Mr. Hargrave is not, as applied to the Crown, precisely the same as when applied between subject and subject ; nor is it the same when applied to the soil beyond or above the flux and reflux of the tides, as when applied to the soil upon the shores of the sea and tide-rivers. Admitting that a several fishery, in waters not subject to the tides, and, therefore, no part of the sea, may, between one subject and another, be made ground of presumption (where there is no proof to the contrary), that the soil goes with it (although from what is before said, p. S3 ^^ seq. a presumption of that kind does not seem neces- sary), it may be insisted, that between \h^flux and reflux of the tides, every such presumption is against the right of the Crown, and that implication is not to be made against the King. A very modern case would seem to justify this dis- tinction ; the case is that of the Duke of Somerset v. Fog- well, (^) in which letters patent of the 44th of Eliz. were given (/) In Partheriche v. Mason, 2 Chitty's Cases, temp. Mansfield, 661, Lord Kenyon is made to say, " there is no reason why a person may " not have a several fishery in alieno solo." But the Report adds, " sed " PER CURIAM, where a man has a several fishery, the presumption is, " that he has the soil ; that presumption is conclusive, if not opposed." But this was said of a fishery in a river not within the tides though navigable. Within the tides the presumption is always opposed hy the King's title ; see also Lofft. 364 ; [Marshall v. UUeswater Steam Navi- gation Co. 5 B. and S. 732 ; Hall's Profit k Prendre, p. 310, et seg.^ (g) [5 B. and C. 875 ; Marshall z/. UUeswater Steam Navigation Co. ; 6 B. and S. 570 ; ^a'^S^^WllW'^FKJ^i Prendre, p. 19, and post, p. 66. n.] not necessarily include the Soil. 63 in evidence, by which she granted to Edward Seymour, Esq., his heirs and assigns, "all those domain lands and " manors of Berry Pomeroy and Bridgetown Pomeroy, and " the castle of Berry Pomeroy, with all their rights, mem- " bers, liberties and appurtenances, in the county of Devon, •' then lately parcels of the lands, and possessions, and here- " ditaments of T. Pomeroy, Kt. ;" and after making use of general words to pass the lands, &c. and tithes of Berry, her majesty granted " all waters, fisheries, &c. to the afore- " said manors, castle, and premises, and to each and every " of them belonging, or appendant, known, accepted, held, " used, or reputed or deemed as part or parcel of the same " premises." There were also produced two fines, one levied in 2 Ed. VI., and the other in 2 and 3 William and Mary, of the manor, &c. " ac de separali piscarid de aqua de Dert." It was also proved that the present Duke and his ancestors had, since 1765, regularly received a rent for the fishery in the river Dart, which was a navigable and tide- river. In the course of the argument, the doctrine of Judge Blackstone " that ownership of the soil is essential to a several fishery," — and the contrary doctrine of Lord Coke, before quoted, (/z) and the argument of Mr. Hargrave in the text, were mentioned and commented on. The question, whether the words of the letters patent, " all waters, fish- eries, &c." and the words in the fines, " separalis piscaria," carried the soil, was not the principal question ; but was mooted in reference to the effect of a lease of the " separalis piscaria" made without deed. If the "separalis piscaria" were a territorial hereditament, including the soil, then such lease was good ; but if " separalis piscaria " were merely an incorporeal hereditament, then a grant by deed was necessary to vest such hereditament in the lessee. In the latter case; an action of trespass brought by the Duke, as plaintiff, was {K\ See p. 56, ante. Digitized by Microsoft® 64 Separate Fishery on the Shore does well brought ; but if the parol demise was good, then the action should have been brought in the name of the lessee. The Court decided that the fishery in question was not a territorial, but an incorporeal hereditament, and required a grant, by deed, to divest it from the Duke. Mr. Justice Bayley, in delivering the judgment of the Court, said, " No " conveyance of the right of fishing, or of the soil, was pro- " duced at the trial, but it appeared not to be an ordinary fish- " ing, resulting to the owner of the adjoining land in respect " of the land, bzit a fishery in a navigable river, where the " tide Jlows and reflows, and, therefore, in the nature of a " royal franchise, which Sir William Blackstone calls 2. free " fishery.(/) Such a franchise could not be created after " Magna Charta, but there was evidence in this case from " which its existence from time beyond legal memory might " be presumed." Then, after alluding to the words, " sepa- " ralis piscaria " in the fines, and quoting the words of Lord Coke, as just now quoted, (/^) the learned judge proceeds : " in " the case here put (that from Lord Coke),(/) the grant was " made by the owner of the soil, capable of granting it, and " yet a grant ' separalis piscariae,' followed up by livery, " which properly applies to a thing corporeal, did not convey " the soil, livery being made secundum, &c. If then a " fishery only is granted, nothing passes but a right to take " the fish, and to use such means as are necessary for that " purpose ; which is, in truth, nothing more than a Hberty •' to fish ; the grantee has no property in the water, none " in the soil. And this is a case where the grant is made " between subject and subject, and, consequently, is to be " construed against the grantor, a principle inapplicable to " grants made by the Crown, whereby nothing passes, ii) 2 Com. 39. {k) P. 56, ante. (/) But Lord Coke's case was not between the flux and reflux of the tides, or against the Kingj^^Wc|i^is^her|f^, a case d fortiori. not necessarily include the Soil. 65 " unless the intention that it should pass is manifest." After quoting the case of the river Banne, from Davis 55, in which there was a grant by letters patent from the Crown, of " omnia castra, messuagia, &c. piscarias, pisca- riones, aquas, aquariujn, cursus, &.C.," the learned judge pro- ceeds : " It was held that the fishery of the Banne did not " pass by the grant of the land adjoining, and by general " grant of all piscaries, &c. ; for that it was a royal fishery, " not appurtenant to the land, but a fishery in gross, and " was by itself part of the inheritance of the Crown ; and " that general words by the King would not pass such a " special royalty, which belongs to the Crown by preroga- " tive ; and it was further agreed, that the grant of the King " passes nothing by implication. It was contended in argu- " ment, that the owner of a several fishery must be pre- " sumed to be owner of the soil. That may be true, where " the terms of the grant under which he claims are un- " known \i.e. it is presumed, where he claims by prescrip- " tion] ; but when they appear, and are such as convey an " incorporeal hereditament only, the presumption is de- " stroyed." This last remark of the learned Judge may, however, be considered as applied to a case between sub- ject and subject, — not where a subject claims the soil against the King in right of a several fishery between the flux and reflux of the tides, — by prescription, or by " a grant, the terms of which are unknown ; " — for to presume the owner of such fishery to be owner of the soil, is taking the soil from the Crown, by a presumption not necessary. First, a grant from the Crown is presumed : — but of what 1 Of a separate fishery. But such grant, if produced, would not carry the soil : — why then should the presumed grant do so } — is it because the terms of it " are unknown" 1 This would be singular reasoning ; for we know that the doubtful terms of an actual grant by the Crown are construed strictly in Digitized by Wlicrosoft® 66 Free Fishery. favour of the Crown ; and yet we are told that a grant, the terms of which are so much more doubtful, as to be " un- known," may be construed most against the Crown. It is presumed that the words of the learned Judge, as well as of Mr. Hargrave, had reference only to " several fisheries " in waters not within the flux and reflux of the tides ; and even to that extent they both seem to speak with doubt, using the phrase " may be."(w?) With regard to a " free fishery," as distinguished from a " several fishery," Mr. Hargrave remarks, in continuation of the note before quoted, " Both parts of the description of a " 'free fishery' seem disputable, though, for the sake of dis- {tn) [In Marshall v. Ulleswater Steam Navigation Co., 3 B. and S. 732, 748 ; 6 B. and S. 570, Cockburn, Ch. J., says : " It is admitted " on all hands that a several fishery may exist independently of the " ownership of the soil in the bed of the water. Why then should such " a fishery be considered as carrying with it, in the absence of negative " proof, the property in the soil ? On the contrary, it seems to me that " there is every reason for holding the opposite way. The use of water " for the purpose of fishing is, when the fishery is united with the " ownership of the soil, a right incidental and accessory to the latter. " On a grant of the land, the water and the incidental and necessary " right of fishing would pass with it. If, then, the intention be to " convey the soil, why not convey the land at once, leaving the acces- " sory to follow ? Why grant the accessory that the principal may pass " incidentally ? Surely such a proceeding would be at once illogical '' and unlawyerlike, — the greater is justly said to comprehend the less, " but this is to make the converse of the proposition hold good. A " grant of land carries with it, as we all know, the mineral which may " be below the surface ; but whoever heard of a grant of the mineral " carrying with it the general ownership of the soil ? Why should a " different principle be applied to the grant of a fishery, — which may " be said to be a grant of that which is above the surface of the soil, as " a grant of the minerals is a grant of that which is below it? Nor " should it be forgotten that the opposite doctrine involves the startling ■' and manifest absurdity, that should the water be diverted by natural " causes, or become dry, the fishery, which was the primary and prin- " cipal object of the grant, would be gone, and the property in the soil, " which only passed incidentally, and as accessory to the grant of the " fishery, would remain." See Paterson's Fishery Laws, 65 ; and Jack- son V. Halstead, 5 Cowen, (N. Y.) 21.6.] ' ^ Digitized by Micitsoft® Free Fishery. 67 " tinction it might be more convenient to appropriate free ''fishery to the francliise of fishing m public rivers, by deri- " vation from the Crown ; and though in other countries it " may be so considered, yet, from the language of our " books, it seems as if our law practice had extended this " kind of fishery to all streams, whether private or public, " neither the Register nor other books professing any dis- " crimination. R. 95 b ; Fitzh. N. B. 88 g ; Fitzh. Abr. " Ass. 422 ; 4 E. 4, 28, 17 E. 4, 6 b, 7 a; 7 H. 7, 13 b; " Cro. Ch. 554; i Ventr. 122; 3 Mod. 97; Carth. 285; " Skinn. 6'j'j. Again, it is true that, in one case, the Court " held free fishery to import an exclusive right, equally with " several piscary, chiefly relying on the writs in the Reg. " 95 b, and the 43 E. 3, 24. But then this was only the " opinion of two Judges against one, who strenuously in- " sisted that the word ' libera,' ex vi termini, implied " ' common,' and that many judgments and precedents were " founded on Lord Coke's so construing it. Smith v. "Kemp, 2 Salk. 637; Carth. 285. That the dissenting " Judge was not only unwarranted in the latter part of his " assertion, appears from two determinations a little before " the case in question. See Upton and Dawkins, 3 Mod. " 97, and Peake and Tucker, cited in Carth, 286, in marg. " We may add to this, the three cases cited by Lord Coke " as of his own time ; and that there are passages in other "books which favour his distinction. See Cro. Ch. 554; " 17 E. 4, 6 b, 7 a; 7 H. VII. 13 b." The phrase "free fishery" {n) seems a technical phrase, answering to "free warren." Now, one or more individuals may have " free warren " in another man's land, and " free fishery " in a river of the soil of which another individual is owner. In a " free fishery," the owner of the soil is not {n) [See Shuttleworth v. Le Fleming, 19 C. B. 700, at ante p. 50.] Digitized by Microsoft® 68 Free Fishery. excluded, {o) But in " separalis piscaria" he may be. — Thus " separalis " is opposed to " libera," tanquam species genera- lis, to show that " no one else " (/) can share in the fishery. Thus A may prescribe for " libera piscaria," in the locus in quo, in common with B ; — and B prove that in such place, he, B, has "separalis piscaria," — which excludes A ; yet C may be owner of the soil. But " separalis piscaria " neces- sarily excludes C as well as A, whereas " libera piscaria " does not. Thus there is " libera piscaria," " separalis pis- caria," and _" communis piscaria," which latter is not 3. fran- chise like the former, but a common right, sui generis. But, " libera piscaria " being a "franchise," is, like "free warren," generally found where the soil is in another, and by no means involves, or carries with it the soil. It may be further observed that the word "separalis" seems to apply peculiarly to that kind of private fishery which is carried on by means of weares, and other artificial fixed apparatus, which being the labour of the individual, cannot be used by others, and like his nets, or the moveable apparatus, are his own property. This mode of fishing was (like the oppres- sive forest laws) ever obnoxious to our ancestors, but more especially as being obstructions to commerce and naviga- tion. ($') {6) Co. Litt. 122. [See Hall's Profit k Prendre, p. 312 ; Paterson, 46.] (/) See accord. 5 Burr. 2814, per Lord Mansfield, in Seymour v. Lord Courtney. In that case, also, the Court declined giving any opinion " whether a person can have a several fishery without being owner of " the soil." (j-) [A " free fishery," primd facie, means '' a several fishery," per Willis, J., in Shuttleworth v. Le Fleming, 19 C. B. 697. See Melvin v. Whiting, 24 Mass. (7 Pick.) R. 79 ; Freary v. Cook, 14 Mass. R. 488. In Malcolmson v. O'Dea, 10 H. of L. cases 593, Willes, J., says, " Some " discussion took place during the argument as to the proper name of " such a fishery, whether it ought not to have been called in the plead- " ings, following Blackstone, a ' free ' instead of a ' several ' fishery. " This is more of the confusion which the ambiguous use of the word " 'free' has o-ccasigj.e^j^§:gm^^s^|a^ as the year book, 7 H. 7 P. Exchisive Fisheries. 69 From the earliest times, it was no uncommon act of the Exclusive : legislature to destroy these weares and fixed fishing--places, dfscount^^' as nuisances to navigation. By Magna Charta it was de- "^"•^^'^ ^y clared, "omnes kidelli deponantur de cetero penitus per " Thamaesiam et Medwayam per totam Angliam, nisi per " costeram maris!' And this statute was seconded by others that were more effectual, viz. 25 Ed. III. c. 4, i H. IV. 12, and 12 Ed. IV. c. 7 ; and other subsequent statutes, whereby such weares and stake fisheries were abated from time to time ; not only in rivers, but along the sea coasts. " And, by force of this last statute," says Lord Hale, ■' weares, which were prejudicial to the passage of vessels, " were to be pulled down ; and accordingly it was done, in " many places."(r) And he adds, " The exception of weares " upon the sea-coasts [in Magna Charta], and likewise fre- " quent examples, some whereof are before mentioned, " make it appear that there might be such private interest, " not only in point of liberty, but in point of property, on " the sea-coast, and below the low-water mark ; for such " were regularly all weares. But, as by the statutes of "25 Ed. III. c. 4; 45 Ed. III. c. 2 ; i H. IV. c. 12; " 4 H. IV. c. 1 1 ; and other statutes, the erecting of new " weares, and ' inhancing ' (s) of old, is provided against, in " navigable rivers ; and by other statutes, particular provi- " fol. 13, down to the case of Holford v. Bailey, 13 Q. B. 444, where it " was clearly shown that the only substantial distinction is between an " exclusive right of fishery, usually called several ; sometimes free " (used in ' free warren '), and a right in common with others, usually " called ' common of fishery ;' sometimes ' free ' (used as in 'free port'). " The fishery in this case is sufficiently described as a several fishery, " which means an exclusive right to fish in a given place, either with " or without the property in the soil."] {r) [De Jure Maris, Appendix, xix.] (s) [This is supposed to be a mistranslation of lever, for levying or setting up : per Lord Denman in Williams ir. Wilcox, 8 A. and E. 335, corrected in the translation of stat. 45 Ed. III. c. 2 (recital).] Digitized by Microsoft® 70 Grant of a Several Fishery does not carry " sion is made against weares new or old, erected in parti- " cular ports, as in the port of Newcastle, by the statute of "21 H. L c. i8; in the port of Southampton, by the " statutes of II H. VII. c. S ; 14 H. VIII. c. 13 ; in the " rivers Ouse and Humber, by the statute of 23 H. VIII. " c. 18 ; in the river and port of Exeter, by the statute of "31 H. VIII. c. 4 ; in the river of Thames, by the statutes " of 4 H. VII. c. 15 ; 27 H. VIII. c. 18 ; 3 Jac. c. 20; " and divers others ; so, by the statute 3 Jac. c. 12, all new " weares erected upon the sea-shore, or in any haven, harbour, " or creek, or within five miles of the mouth of any haven " or creek, are prohibited, under a penalty." {t) (t) See De Jure Maris, Appendix xix. [All new fixed nets, not legally- existing in 1862, are illegal, and any person may destroy them : Williams V. Blackwall, 32 L. J. Ex. 174, S. C. 2 H. and C. 33, 9 Jur. N. S. 579, II W. R. 621 ; and L. T. N. S. 352 ; Moulton v. Wilby, 32 L. J. M. C. 164. A weir appurtenant to a fishery, obstructing the whole or part of a navigable river, is legal, if granted by the Crown before the commencement of the reign of Edward I., and such grant may be inferred from evidence of its having existed before that time. If the weir, when so first granted, obstruct the navigation of only a part of the river, it does not become illegal by the stream changing its bed, so that the weir obstructs the only navigable passage remaining. But where the Crown had no right to obstruct the whole passage of a navigable river, it had no right to erect a weir obstructing a part, except subject to the rights of the public ; and, therefore, in such a case, the weir would become illegal upon the rest of the river being so choked that there could be no passage elsewhere. Williams v. Wilcox, 3 N. and P. 606 ; 8 A. and E. 314. See Gann v. Whitstable Free Fishers, 11 H. L. c. 192 ; 35 L. J. C. P. 29 ; Rawstorne v. Backhouse, 3 L. R. C. P. 67 ; Holford v. George, 3 L. R. Q. B. 640, London Law Magazine, vol. 28, p. 325. The statute 12 Ed. 4, c. 7, relates to navig- able rivers only, and though weirs in navigable rivers are illegal unless they existed before the time of Edward I., such an easement might be acquired in private waters by grant from other riparian owners, or by enjoyment, or by any means by which such rights may be constituted. RoUe v. Whyte, 3 L. R. Q. B. 286. See Leconfield v. Lonsdale, 5 L. R. C. P. 657 ; Hall's Profit k Prendre, p. 308; Paterson's Fishery Laws, c. 4 ; and Jerwood, p. 83. As to salmon fisheries, see 24 and 25 Vict. c. 109 laiim^SplUi^bsSftiP^ ■' 36 Vict. c. 13.] the Shore, and is to be construed strictly. 71 It is further observed by the learned writer (Lord Hale), upon the above legislative acts, " that they did no way dis- " affirm the propriety, but only remove the annoyance ; and " though they prohibit the thing, yet they do admit that " there may be such an interest lodged in the subject, " though below the low-water mark, whereby a subject " may not only have a liberty, but a right or pi-opriety of " soii:\u) In reply to this, it is to be observed, that it does not ap- No inferen« pear how these statutes admit a weare or fishing sluice to (™^ against be sufficient evidence of a title to the soil, which is the weares, &c., that such inference intended by Lord Hale ; or that the weare is any- exclusive thing more than a mere fishery. They go no further than the soil. (2/) admitting the existence of such an interest, franchise, or liberty, as a "separalis piscaria," in a subject, to be exer- cised by means of weares, &c., so that in the exercise of such right, he be careful not to injure or interrupt other paramount general rights of the public. Not only is a separate or private fishery thus restrained ; but the owner- ship of the soil, even in the King himself, cannot be made a ground for obstructing the subjects in general, in the navigation of the seas or tide-rivers. Whether the obstruc- tion or nuisance be a weare, or a mere wall, it is equally a nuisance, if in prejudice of the jus ptiblicum ; for, as the learned author truly observes, (.r) " th.e jus privattim, that is "acquired to the subject hy grant, patent, ox prescription, "must not prejudice the jus- publicum, wherewith public " rivers and arms of the sea are afi"ected for public use." The frequent nuisances occasioned by the formation of weares, and fishing sluices (attested by the numerous sta- tutes in force against them), would warrant their being {u) Appendix, post, xix. and xx. (z/) [See Jerwood, p. 84.] (x) Appendix, post ; and see Com. Dig. Title Pleader, 3 M. 37. Digitized by Microsoft® 72 Grant of Several Fishery does not carry construed stricto jure,{y) and to include nothing more than the fishery. Nor is it desirable (in a public view) to afford to lords of manors any additional, or easier means of esta- blishing a title to the soil on the sea-shore, or the creeks, or arms of the sea, or in the public rivers, than is allowed to them in regard to terra firma titles ; especially, as such ownership is so capable of being perverted to the public annoyance. There may be a difference, too, very fairly taken, betwixt the grant of a separate fishery, in rivers, streams, and lakes, which are not connected by the tides with the sea, and there- fore not subject to the "jus publicum," and the grant of a separate fishery in parts of the sea, creeks, havens, or tide- rivers ; which grants, being to the prejudice of public rights and benefits, are, and ought to be, more strictly construed than in cases where there are no public rights to be sacrificed. In Weld V. Hornby,(5') the question was whether an ancient weare heretofore constructed of wicker work and brush-v/ood, might be converted into one of stone, and it was decided that it could not. Lord Ellenborough, C. J. said, " The erection of weares across rivers was reprobated in the " earliest periods of our law. They were considered as " public nuisances. The words of Magna Charta (ch. 23) " are, that all weares from henceforth shall be utterly pulled " down by Thames and Medway, and through all Eng- " land, &c. And this was followed up by subsequent acts " (vide 12 Ed. IV. c. 7), treating them as public nuisances, " forbidding the erection of new ones, or enhancing, strait- (j) See Dewell v. Sanders, Cro. Jac. 491, and Fowler v. Sanders, Cro. Jac. 446. {z) 7 East 195. [As to weirs, see Hamilton v. M. of Donegall, 3 Ridg. P. C. 267 ; Leconfield v. Lonsdale, 5 L. R. C. P. 694 ; D. of Devonshire v. Smith, Ale. and Nap. 442 ; Malcolmson v. O'Dea, 10 House of Lords C. 593 ; D. of Devonshire tj. Hodnett, i H. and Br. 332 ; Commonweal^^y^^C^g^i|^^22^gj|g^s. (5 Pick.) 199.] the Shore, and is to be construed strictly. 73 " ening, or enlarging of those which had aforetime existed. " I remember that the stalls erected in the river Eden, by " the late Lord Lonsdale, and the Corporation of Carlisle, " whereby all the fish were stopped in their passage up the " river,, were pronounced in this Court, on a motion for a " new trial, to be illegal, and a public nuisance. Now here " it appears that, previous to the erection qf this complete " stone weare, there had always been an escape for the fish " through and over the old brushwood weare, in which those " of the stream above had a right ; and it was not com- " petent for the defendant to bar them of it by making an " impervious wall of stone through which the fish could not " insinuate themselves, as it is well known they will through " a brushwood weare, and over which it is in evidence that " the fish could not pass, except in extraordinary times of " flood. And however twenty years' acquiescence may bind " parties whose private rights only are affected, yet the " public have an interest in the suppression of public " nuisances, though of longer standing. No objection, " however, of this sort can apply to the case, where the " action was commenced within twenty years after the " complete extension of the stone weare across the river, " by which, it is proved, that the plaintiff has been injured. " Then, however general the words of the ancient deeds " may be, they are to be construed, as Lord Coke says, " ' by evidence of the manner in which the thing has always " ' been possessed and used.' " Nothing is said in this case from which we can infer that the court considered the weare as giving title to the soil. It is treated throughout as a mere fishery. It will hardly be contended, that an express grant of a A shore of a " piscaria " without more words will pass the whole shore of^several° of a manor, which shore may be of several miles in extent; ™les in ex- and if the express grai^^^jji^git^^y^^g^ why should an 74 Grant of a Several Fishery does not carry implied, or presumed grant do so ? It is also singular law to hold, that a weare or fishing-place, which may cover only a few yards of shore, should give title to the whole shore, throughout the whole extent of the manor, which may be several miles along the coast, creek, or tide-river. Now, if we nowhere find a case in point, where the right to the soil on the shore, or under the sea, or an arm thereof, or a tide-river, is solely supported on the basis of a pre- scriptive right of fishery, either separate or common ; and, if we find this separate fishery frequently put down by statutes, as nuisances and encroachments on the jus publi- cum ; — and that these statutes nowhere notice the separate fishery, as conferring the soil itself, or otherwise than as a mere " piscaria " and nuisance ; — and if we likewise know that fisheries are, in legal title and intendment, mere fran- chises, and usufructuary liberties or privileges, and are, technically, a distinct species of property and ownership from the soil, and as such, founded either in express ancient grant, or on immemorial usage or prescription ; we may be allowed to doubt, whether either an ancient grant of, or a prescription for, any fishery, eo nomine, however private, will support a title to the soil itself. With respect to the express ancient grant, it does not appear how it could be construed to include the soil itself; for suppose the King to have granted, in some creek or arm of the sea, to W. S. the exclusive fishery thereof, by means of weares, stakes, &c., without any express words of grant of the soil itself, and the whole creek became sud- denly dry land, by the permanent retreat of the waters, it would not be consistent with the received rules of construc- tion, to construe such grant into a grant of the land. As well may it be said that the franchise oi free warren, or even a grant of common of pasture, or of turbary, or a right of way over or in jD^/iaiiS^, flifc/aEb^Jsolute disposal of such the Shore, and is to be construed strictly. 75 land, {a) It may plausibly be urged that an inclosure by means of a weare, or by stakes, &c., is a virtual appro- priation of the soil within it, because no one can make use of it without breaking such inclosure. But in answer to this it may be contended, that the weare or inclosure was made for no other purpose than to catch fish ; as to the land, the inclosure was not made eo intuitu. It is different from Distinction an embankment made expressly to secure land from the ^4™ and water. If the place where the weare stands should become '^'°- embank- '■ ment. dry land, the fishery is destroyed ; and that which was a lawful inclosure for catching fish, may be unlawful when used for asserting a title to grow corn there. The pre- scription is necessarily gone, when the subject matter of it, and the medium through which it was exercised, is de- stroyed ; when such a prescription, dependent upon the water, has ceased to exist, what is left to support a title to the dry land } The grantor of the franchise or liberty would seem to recover his exclusive dominion again, {p) If a weare were placed on the sea-shore, still, on the recess of the tide, the soil within may be of much use for ballastage, or for manure, building materials, &c. (c) without injury to ia) But Lord Coke tells us, " if a man grant to another to dig turves " in his land, and to carry them away at his will and pleasure, the land " shall not pass, because but part of the profit is given." Co. Litt. 4 b. Plowd. 154 is contra, and makes it carry the soil; — but the better opinion is with Coke. ib) See p. 59, ante, and see Co. Litt. 4 b ; and see accord, what is said per Bayley, J. in the case Rex v. Montague, 4 B. and C. 603, as to the ceasing of rights by natural causes. {c) See p. 59, ante, where it is said, that the owner of the soil, though he grant a separate fishery, " may take the water," and also " make profit of the soil when dry." In the case HoUis v. Goldfinch, i B. and C. 213, the ownership of four hatches or water sluices made on the banks of a canal was adduced as evidence of title to the soil of the banks ; on this evidence Lord Tenterden observes, " It is said that " the demise of the hatches imports that they belong to the lessor, and " that if thev do so, the bank to which those hatches are affixed must " " >• J- ' Digitized by Microsoft® 76 Grant of a Several Fishery does not carry the fishery ; and what should prevent him, who granted the fishery only, from claiming all the right and uses in the soil that are not inconsistent with his grant, and also the soil itself, when the fishery has ceased to exist by natural causes ? Indeed, if the law acknowledge a separate fishery as a distinct species of property, and rank it amongst fran- chises differing essentially both in title and estate from an inheritance and title to land, it is impossible to admit that the grant in question (which is one only of the many usu- fructs of the sea or sea-shore) can include the land itself.(^) As to prescription, the rule is, that it presupposes a grant ; but no other grant can be presupposed than such as is tantamount to the fishery prescribed for ; and if so, a pre- supposed grant of a separate fishery cannot reasonably go further than the actual grant of such fishery. As to other We will next proceed to consider, in their order, the wreck, &c. several other rights, franchises, and uses which arise from or are claimable in respect of the sea and sea-shore ; because the learned writer, in the treatise alluded to, in order to establish his doctrine, — that the sea-shore may belong to the subject by "prescription," as well as by charter or grant, — not only quotes the private fishery, but various other " also belong to him ; but that is a conclusion which by no means " follows, because, if they were necessary for the purpose of main- " taining the navigation of the river, the undertakers (of the canal) had " a right to place those hatches there, although they might not be " owners of the soil." (d) In a case in i M. and S. 666, the King v. Ellis, Bayley, J. ob- serves, " I should doubt very much if the grant of a fishery would " convey the soil, and everything underneath it, as all the minerals, " though I can conceive that it might pass so much of the soil as is " connected with the fishery." As this was a fishery with staked nets, q. Whether the right to drive stakes for that purpose is more than an easement? [See Duke of Somerset v. Fogwell, 5 B. and C. 875, per Bayley, J., and Hayes v. Bridges, i Ridg. L. and S. 420, per Finu- cane, J.] Digitized by Microsoft® the Shore, and is to be construed strictly. 77 franchises, rights, and usufructs, the enjoyment of which, by a subject, will, as he concludes, support a title to the And their soil of portions of the sea and sea-shore. Lord Hale says,(^) the soil. " It may not only belong to a subject, in gross, which pos- " sibly may suppose a grant before time of memory, but it " may be parcel of a manor." "And this,'' says he, "it is " agreed, S Reports, 107, Sir H. Constable's case,(/) and the if) [Appendix, post, xxiv.] (/) The words of this case are these : " It was resolved by the whole " court that the soil on which the sea flows and ebbs, sc. between the " high and low water mark, may h^ parcel of the manor of a subject," and Dyer, 326, b, is cited as accord. 2 Roll. Abr. 170 has also the same words. But this doctrine of Lord Coke may be freely admitted with- out admitting that " it may be parcel of the manor" \>y prescription y Lord Coke does not in the above resolution say that j the resolution in fact seems to be directed against the doctrine of the civil law writers, who hold that there can be no ownership in the " shore " at all. The phrase '' parcel of," signifies that when the subject has the shore, he has it as pars totitis, — as he holds the rest of the lands of the manor — and does not in any wise release him from proving it to be " parcel," by the same kind of evidence as is required for the title to all the other parcels of land in the manor. In a note to Carter v. Murcot, 4 Burr. 2165 it is said, " in i Sid. 149, prescription was admitted to be a title to " the soil of a river, within the flux and reflux of the sea, which is a " consequence from its being allowed in 5 Co. 107. 2 Roll. Abr. 170 " pi. 12, that it may by prescription be part.of a manor." But the word prescription is not to be found either in the resolution in 5 Co. 107, or in 2 Roll. Abr. 170 pi. 12. In Siderfin the words are, " and in this case " it was repeatedly affirmed, and denied by no one, that the soil of all " rivers (cy-haut), where there is fluxum et refluxum, is in the King, " and by no means (nemy — ) in the lords of manors, sans prescription," and no authority whatever is quoted. Callis also quotes Constable's case as an authority, " that a subject's manor may extend to low-water "mark \yj prescription!' See p. 55. Coke, however, upon his own authority, and not as giving the resolution of the court, — adds (alluding to a 'Case of replevin, Fitz. Replev. 41), " on which I observe three " things. I. That wreck may be claimed by prescription," [which is admitted.] " 2. That forasmuch as a ship cannot be wreck, scil. cast " on the land, but between the high-water and low-water mark, " thence it follows , that that was parcel of the manor," q.e.d., for according to this doctrine, prescription for a lesser thing, a mere franchise, viz. wreck, — gives title to a greater thing, viz. land, — and Digitized by Microsoft® 78 As io other Franchises which Lord Hale's doctrine, that wreck and royal fish raise a pre- sumption of ownership in the shore. Book of S E. 3, 3, cited accordingly. And according to this was the resolution cited, Dy. 316, to be between Hammond and Digges, p. 17, Eliz. ; — accordingly it was decreed in the Exchequer Chamber, p. 16, Car. inter. Attorney-General v. Sir Sam. Roll, Sir Rd. Buller, and Sir Thos. Arundell, per omnes Barones. And the evidences to prove this fact are commonly these ; constant and usual fetching gravel, and seaweed, and sea sand between the high-water and low-water mark,(^) and licensing others so to do ; enclosing and embanking against the sea, and enjoyment of what is so inned ; enjoyment of wrecks hap- pening upon the sands ; presentment and punishment of purprestures there, in the court of a manor; and such like ; " and he adds, " it not only may be parcel of a manor,(/2) but, de facto, it many times is so; 2ja A perchance it is parcel of almost all such manors as, by prescription, have royal fish, or wrecks within their manors. For, for the most part, wrecks and royal fish are not, and indeed cannot be well left above the high-water mark, unless it be at such extraordinary tides as overflow the land : but these are perquisites which happen between the high-water and low-water mark ; for the sea withdrawing at the ebb, leaves the wrecks upon the shore, (/) and also those greater fish which come under the denomination of royal fish. He, therefore, that hath wrecks of the sea or royal fish, by prescription infra manerium, it is a great presumption that the shore is part of the manor, or otherwise he could not have them. And consonant to this is the pleading in Sir that against the King. Besides, the conclusion is a non sequitur, for wreck may be cast upon the shore, and yet belong to one who has only the franchise. [See Jerwood, p. 57.] (^) [See Dickens v. Shaw, Appendix, post, Ivi.] [h) [Calmady -v. Rowe, 6 C. B. 861 ; Beaufort, Duke of, v. Swansea, 3 Exch. 413.] (z) [See Dickens v. Shaw, Appendix, post, li. Calmady v. Rowe 6 C, B. 861.] Digitized by Microsoft® ' do not carry the Shore. 79 , " Henry Neville's case, 5 E. 3, 3, and Rastall's Entries, 684, Pleading in " transcribed out of the record, M. 14. E. i. Rot. 432, where Neville's case. " an Abbot, prescribing for wreck belonging to his manor, " doth it in this form : — Ipseque et omnes prsedecessores " sui Abbates Monasterii prjedicti, et dominii ejusdem " manerii, per totum tempus prsedictum, habuerunt et " habere consueverunt, ratione manerii prsedicti, omnimodo " bona wreccata super mare, et ut wreccum super teri'am " projecta, per costeram maris, in quodam loco, ubi mare, " secundum cursum suum pro tempore fluxit et refluxit, a " quodam loco vocato M. in parochia de L. &c." And in the following plea an Abbot prescribes to have " Wreccum " maris infraik) praecinctum manerii, sive dominii sui pro- " jectum, et Flotsan maris infra praecinctum manerii de- " veniens ; quodque praedictum dolium vini fuit wreccum " maris, per mare projectum, super littus maris apud S. " infra precinctum manerii sive dominii illius."(/) We may collect from the foregoing quotations (ni) that Comments on the learned writer considers not only a separate fishery, by wears, stakes, &c., but also a right to royal fish, to wrecks, to flotsan, jetsan, and ligan, and lastly, a usage to dig and carry away sand, seaweed, &c., or to make embankments [k) Mr. Hargrave, in a note to Co. Litt. 107 A. n. 11 5, observes upon this word, that on many occasions it may be of importance thoroughly to understand the phrase i7ifra, or, as according to classical style it ought to be, intra ; and he construes infra quatuor maria to mean intra quatuor maria. In like manner, in the abbot's plea, infra was used for intra, although infra praecinctum manerii means, according to ordinary construction, below, and not within the precincts of the manor. Lord Coke uses the word intra, and not infra. " Intra quatuor maria," within the four seas ; " extra quatuor maria," beyond the four seas: 260 b, Co. Litt. But in his third Inst. 113, he uses the phrase, " infra corpus comitatus " for " intra corpus comitatus ; " and in Constable's case he uses " infra prKcinct. manerii " for " intra." [See Jerwood, 59.] (/) [De Jure Maris, Appendix, post, xxv. and post, p. 83.] \m) See also Mr. Butler's N. to Co. Lit. 261 A. n. 205. Digitized by Microsoft® 8o Royal Fish, Wreck, &c. are Royal fish. Wreck. Flotsan, &c. and inclosures of portions of the shore, may all be adduced (by prescription) in support of a title to the land or soil of the shore itself («) He does not say that all these are neces- sary together : we may infer, indeed, from his language, that all of them are not necessary to raise an absolute title_ to the ownership of the sea-shore itself; but he does not inform us whether any one, or more, of them will suffice, or which of them is essential. Now, with regard to the franchise of royal fish (which are whale, sturgeon, and porpoise), this is reckoned by Blackstone («?) inter regalia, and one of the King's ordinary branches of revenue, and one of the flowers of the Crown. Those fish are claimed on account of " their superior excel- " lence," according to Blackstone, who vouches for the royal taste, not in right of the sea-shore, but by royal prerogative, and from the most remote antiquity. Whether thrown on shore, or caught in the sea, or on the coast, they are the property of the King, not of the catcher, even in a private fishery. (/) In like manner wreck (when no owner can be found) is part of the King's ordinary revenue, in right of his royal prerogative, and is a flower of the Crown. So also flotsan, jetsan, and ligan, are perquisites of the Crown. These royal rights and franchises are not claimed by the Crown as part of or appurtenant to the ownership of the sea-shore, nor enjoyed in virtue of such ownership. They belong to the Crown in virtue of the royal prerogative.{q) They are regarded as " mdlius bona," and allotted to the King by the law, for («) De Jure Maris, Appendix, post, xxiv. (o) Blackstone's Com. vol. i. p. 289, 13111 ed. {p) Black, vol. i. p. 290. [See Paterson's Fishery Laws, 24 and 165 ; Stewart on Fishery Rights, Scot. p. 46.] (^ Bracton, 2 Vent. 188, and 5 Co. 108, Constable's case ; Sutton v. Buck, 2 Taunt. 311, et ante, p. 40. Digitized by Microsoft® Franchises which do not carry the Shore. 8i want of other ownership. The King might grant them, or any one of them, to a subject, zvithout any grant of the shore, (f) So, he might grant the wreck to one person, and royal fish to another, and the shore itself to a third person, (j) There are not wanting instances where lords of manors AH or any of on the coast are possessed of, and can prescribe for, both may be and these royal franchises, or but one of them, and yet have ^'ith'ourany^'' never had or claimed the ownership of the shore itself if) "ght to the shore. Wreck and royal fish are no part of the realty ; they may These rights indeed be prescribed for by the lord of the adjacent manor, f^e reaSy!^ and may be and commonly are attached as franchises to the manors on the sea coast ; but still they are prescribed for on the ground of immemorial usage, or are proved by (f) And see Scratton v. Brown, 4 B. and C. 485. (j) Anon. 6 Mod. R. 149. if) [The grantee of "wreck" has a special property in all'goods stranded within his hberty, and may maintain trespass against a wrongdoer for taking them away, though such goods were part of a cargo of a ship from which some persons escaped alive to land, and though the owners within the prescribed time claimed and identified them, and before any seizure on behalf of grantee (Dunwich bailiffs v. Sterry, i B. and Ad. 831) ; but to constitute wreck the goods must have touched the ground (Pauline, 2 Rob. Adm. R. 358), though they need not have been left dry : Rex v. Forty-nine Casks of Brandy, 3 Hag. 257 ; see also R. v. Two Casks of Tallow, ibid. 294. But if timber is found without an apparent owner, having broken away from its fastenings and drifted out to sea, it is not " wreck" within 17 and 18 Vict. c. 104, s. 458, so as to entitle the finders to salvage in respect of their services : Palmer v. Rouse, 27 L. J. Exch. 137 ; 3 H. and N. 505, S. C. "Wreck" will not pass under general words : Alcockz'. Cooke, 2 M. and P. 625. See further, ante, p. 40, and Dickens v. Shaw, Appendix xlv. ; Talbot v. Lewis, 6 C. and P. 603 ; the Pauline, 2 Rob. Adm. p. 358 ; Phear, p. 52, and note in p. 99 ; Angell, on Tide Waters, 289, &c. Goods thrown on the - shore by the violence of the waves are " wreck " within the provisions of 3 and 4 Will. 4, c. 52, s. 50 ; Legge v. Boyd, i C.B. 92 ; S. C. 14 L. T c. P. 183 ; see also Barry v. Arnaud, 10 A. and E. 646. Disputed title to" wreck "by 17 and 18 Vict. c. 104, s. 472, may be decided by two justices in the same manner in which disputes as to salvage are therein directed to be determined, and by the same Act the Board of Trade has power on behalf of the Crown to purchase rights to wreck, sect. 474.] Digitize by Microsoft® Wreck im- plies egress md regress to »et it, but not ;lie riglit to Ihe sliore itself. 82 Royal Fish, Wreck, &c. are express grant, and are not claimed in right of (ratione) the ownership of the sea-shore. It is nowhere said, nor could it be intended, that a mere grant of so many acres of sea- shore, or sea bottom from the King, would pass, inclusive, the royal franchises of wreck and royal fish ; and yet these might seem to be more reasonably attached to the shore than the shore attached to them ; and if the rule " acces- sorium non ducit sed sequitur simm principale " be appli- cable at all, it were much more reasonable to hold that the ownership of the soil is evidence of the franchises before mentioned (which, however, it is not), than that these rights, or any of them, are proof of title to the shore. It is diffi- cult to conceive how all or any one of these rights, together or separate, can confer a different title to a different thing, viz. the soil. I may obtain the royal fish from the King, and wreck from another man to whom the King once granted it; I may prescribe for my title to one, and pro- duce an express grant of the other, and yet the soil of the shore remain where it was. {li) I may prescribe for all these rights, but that is not prescribing for or proving another right ; each right must be supported on its own title ; nor does it appear why the prescribing for wreck should confer a title to the soil, more than prescribing for wreck should confer a title to a separate fishery, or to royal fish, which clearly it will not do. As to the observation that " a right to wreck or to royal " fish cannot be well had above high-water mark, for the " sea withdrawing at the ebb, leaves the wreck or royal " fish upon the shore, and consequently that he who hath " wreck of the sea, or royal fish, by prescription, infra " manerium, it is a great presumption that the shore is part " of the manor, as otherwise he could not have them," {pc) lu) See p. 19, ante..,. , , ... .^^ (.r) Constable's fef§'^o'^'?2S°>e J ure Maris, Appendix, post Franchises which do not carry the Shore. 83 — it may be replied, that this does not seem to be a neces- sary consequence ; for wreck, or royal fish, may clearly be granted, /^r se, without the shore; so far as the shore is essential to the enjoyment of the franchise, it will be sub- ject to egress and regress for that purpose ; {y) nor does it appear what should prevent the grantee from claiming the wreck, or royal fish, although the shore may remain with the King ; it is not necessary, in order to make the grant of wreck perfect, that more should be conceded than egress and regress. (^) Now, if it be not necessary, that in order to enjoy the wreck, the grantee should be owner of the soil of the shore, no presumption necessarily follows that he is such owner. If I have common of pasture upon the waste lands of a manor, I must go upon the waste for the purpose of pas- turing my cattle, and yet no presumption of ownership of the soil is raised on that account. The pleadings in Neville's case, {a) quoted by the learned writer, do not set up any title to the shore. Sir H. Neville merely claims wreck, ratione manerii, i.e. wreck in right of, or as appur- tenant to the manor, and passing with the manor into the hands of all owners for the time being of the manor, but nothing is said as asserting a claim to the shore, ratione wrecci. {b) The other authority, of the abbot's plea,(i:) assumes the The abbot's wreck and flotsan to be infra, or (according to Mr. Har- dered.°"^' grave) intra prsecinctum manerii, and it asserts the " dolium vini " to have been cast " super littus maris, apicd S. infra praecinctum manerii sive dominii illius."(^) It may be agreed XXV. R. V. Ellis, I M. and S. 662. See Calmadyw. Rowe, 6 C. B. 861, and Beaufort, Duke of, v. Swansea, Mayor of, 3 Exch. 418.] {y) 6 Mod. R. 149. {z) [See Appendix, post, p. Ixvi.] {a) 5 E. 3, 3, P- 79. ante. {b) [Jerwood, pp. 54, 5S- Serj. Merewether's speech. Appendix, post, Ixxxv 1 {c) p. 79, ante. ^/g^^f t^^«A^'^™=°«® 84 Case of the River Severn. that the abbot considered the shore as within the precincts ; although the next antecedent is the locus in quo, viz. S. — which locus the plea states to be within the manor. But admitting the plea to intend that the shore, as well as the place S., was within the precincts, yet he was not pre- scribing for or claiming a title to anything else but wreck and flotsan ; and he certainly did not claim or prescribe for the shore in virtue of his title to the wreck. The shore might or might not be his, and within the boundary of his manor ; (e) but nothing appears to show that it was his because the wreck was his ; or that his prescription for the wreck was allowed evidence of a title to the shore ; the shore was not in dispute at all. The form of plea, in both these cases, does not show a title to the shore in right of the wreck. Nor is it necessary to show a title to the shore, in order to prove a title to wreck. ;ase of Barons It is proper here to notice a case, which is cited at con- he son of the siderable length in the treatise ascribed to Lord Hale,(/) and iver Severn, -^^hich appears to be the only case cited by him from which the doctrine now under consideration seems to derive any material support. The learned writer quotes it as a case with the decision of which he was personally familiar. " In Scaccario, Car. upon the prosecution of Sir " Sackville Crow, there was an information against Mr. " John Smith, farmer of the Lord Barclay, setting forth " that the river of the Severn was an arm of the sea, flow- " ing and reflowing with salt water, and was part of the " ports of Gloucester and Bristol, and that the river had " left about 300 acres of ground, near Shinbridge, and " therefore they belonged to the King, by his prerogative. " Upon not guilty pleaded, the trial was at the Exchequer " bar, and by a very substantial jury of gentry and others " of great value." I \ c- J Digitized by.MjcrQsoft® {e) See accord, p. 19, ante. (/) De Jure Maris, Appendix, post, xxxii. Case of the River Severn. 85 " Upon the evidence," proceeds his Lordship, " it did " appear, from unquestionable proof, that Severn, in the " place in question, was an arm of the sea, flowed and re- " flowed with salt water ; was within and part of the ports " of Bristol and Gloucester ; and that within tinie of " memory these were lands newly gained and inned from " the Severn ; and that the very channel of the river did, " within the time of memory, run in that very place where the " land in question lies ; and that the Severn had deserted it, " and the channel did then run above a mile towards the "west."(^^) On the other side, the defendant, claiming under the title of the Loi'd Barclay, alleged these matters, whereupon to ground his defence, viz. : — " 1st. That the barons of Barclay were, from the time " of Henry the 2d, owners of the great manor of Barclay." " 2d. That the river of the Severn, usque filum aquse, " was, time out of memory, parcel of that manor." "3d. That, by the constant custom of the country, the " filum aquas of the river of Severn was the common boun- " dary of the manors on either side of the river." " When the state of the evidence was opened, it was " insisted upon that the river in question was an arm of " the sea, a royal river, (Jt) and a member of the King's port, " and therefore lay not in prescription to be part of a manor. " But the Court overruled that exception, and admitted " that even such a river, though it be the King's in point " of interest, pri7na facie, yet it may be \yY prescription and " usage time out of mind parcel of a manor.". {g) In Lord Fitzwalter's case, i Mod. io6. Hale, Ch. J. says, " In the ' Severn there are particular restraints, as gurgites, &c., but the soil " belongs to the lord on either side, and a special sort of fishery " belongs to him likewise, but the common sort of fishery is common " to all." — And in some other place the Severn is said to be '' an un- ruly river," often changing its channel. (Ji) So of the Thames. g^gm^'A^y^ifrosoft® 86 Case of the River Severn. " Thereupon the defendant went to the proofs, and insisted " upon many badges of pi-operty or ownership, as (viz.)" " That the lords of the manors adjacent to this river, and "particularly those of that manor, had all royal fish, taken "within the river opposite to their manors usque filum " aqujE." " That they had the sole right of salmon fishing." " That they had all wrecks cast between high-water and " low- water mark." " That the lords of the manors adjacent had ancient rocks " or fishing-places, and wears, or such as were of that nature, " within the very channel." " That they had from time to time granted these fishing- " places, some by lease, some by copy of court roll, at their " several manors, by the names of ' rocks,' wears, statcJies, " boraches, putts, {i) and that they were constantly enjoyed, and " rent paid by those copyholders and leaseholders." (z) These four last are all artificial apparatus for taking the fish, as their names import. Gurges, which is sometimes translated " weare," is a natural formation in the river, and, by Lord Coke, is said to be " a deep pit of water, a gors, or gulfe, and consisteth of water and " LAND, and by that name the soil shall pass." Co. Litt. 5 b. He takes no notice of " weares," as a fishery, nor of the other words in the text. Callis, 255, tells us, that the "kidelli," mentioned in Magna Charta, are ''weares," and yet, by stat. 25 Ed. 3, c. 4, "all mills, weares, '' stanks, stakes, and kiddels which were set in the time of King Edward " (grandfather of Edw. 3.), and after, whereby ships and boats were "disturbed, should he. pulled down." In stat. 12 Henry 4th, weares and fishgarths are mentioned together as nuisances, and in a case Benedict Hall v. Mason, quoted by Callis, 262, a weare and fish- guard are put together, and mentioned as " having been letten by the late Queen (Eliz.) at yearly rents, with the profits of fishing." This weare, which was stated to have been built of timber and stone, was demolished as a nuisance. According to Plowd. 154, " by the grant of " a pool, the soil and wear shall pass, because it is included in the " word ; for by one book a formedon lies de gurgite." Here the '■^ soil" and " wear'' are distinguished.* Ld. Coke, however, translates " stag- DigitizedlDy IWcrb^ft® Case of the River Several. 87 " That by common tradition and reputation the manors " on either side Severn were bounded one against another by " the filum aquae, and divers ancient depositions produced, "wherein it was accordingly sworn by very many ancient " witnesses." " That the increases happening by the rehction of the " river were constantly enjoyed by the lords adjacent." " These," says the learned writer, " and many other badges, " were opened, and were most effectually made good by " most authentical evidences and witnesses. But before the " defendant had gone through one half of his evidence, the " Court, and the King's Attorney-General, Sir John Banks, " and the rest of the King's Counsel, were so well satisfied " with the defendant's title, that they moved the defendant " to consent to withdraw a juror, which, though he were " very unwilling, yet, at the earnest desire of the Court and " the King's Counsel, he did agree thereunto. So that " matter rested in peace, and the lands, being of the yearly " value of ;^200 and better, are enjoyed by the Lord Bar- ' clay and his farmers, quietly, and without the least pre- " tence of question, to this day." By this report of the case it is made to appear, that the Comments 01 Court declared that the soil of such a river (i. e. the Severn, Barons of Ba a tide-river and arm of the sea) may, by prescription and ^^' usage time out of mind, be parcel of a manor. No grant whatever of the soil of the river to the Barons appears to have been produced on the trial. The great manor of Barclay, as it would seem, was admitted to belong to the Barons ; the title to the manor, therefore, was not disputed : num, a pool," and " gurges, a deep pit of water," but says nothing of the weare, which, in fact, may be constructed in a marsh or lake, stag- num (pool), gurges (pit of water), or in the river course, or on the sea- shore. So, the word " sea-grounds " will, it seems, pass a portion of sea-shore. — Scratton v. Brown, 4 B. and C. 485, [and see Malcolmson V. O'Dea, 10 House of Lords cases, 593.] Digitized by Microsoft® 88 Case of the River Severn. the true question was, whether such manor comprised or included within its limits the soil of the river or not. Now this was a mere question of boundaries of a manor, the ownership of which was not disputed. This manor was asserted to extend usque filuni aquce ; and whether it did or did not extend so far, was the question, {k) Two distinct kinds of evidence were adduced to prove a title to the soil ; the first kind was that which has been just now controverted; viz. that the Barons, owners of the manor, had immemo- rially enjoyed the franchises and liberties of wreck, royal fish, and separate fisheries, by wears, borachias, &c. The other kind of evidence was such as has, in later times, been admitted to support titles to inland estates ; viz. copyhold grants, (/) leases, and taking rents, &c., surveys, records, terriers, and evidence of old witnesses, and ancient deposi- tions to the boundaries of the manor. (?«) These, in the ab- sence of the grant, are admitted as evidence of boundaries , to inland estate. But mere reputation, or common tradi- tion, will not alone, it is conceived, be sufficient to support a title to the freehold. («) So, perhaps, the evidence to the ik) [Jerwood, p. 48.] (/) See 2 T. R. 53 ; 4 T. R. 514, 669 ; 10 East, 206 ; 14 East, 331 ; 2 Roll Ab. 186, pi. 5. [Ancient leases are good evidence, showing the ancient state of possession ; entries on court rolls of fines and pre- sentments, Walton cum Trimley Manor, 21 W. R. 475 S. C. ; 28 L. T. N. S. 12 ; bills and answers in Chancery between parties litigating the title, Malcolmson v. O'Dea, 10 House of Lords cases, 593 ; see also Tis- dall V. Parnell,"i4 Ir. C. L. Rep. 23 ; verdicts in former actions, and an award, where the party or his predecessors were privy to it, Wenman V. Mackenzie, 5 E. and B. 447 ; Evans v. Rees, 10 A. and E. 151 ; Kinnersley v. Orpe, 2 Douglas, 517 ; but an unauthenticated M.S. re- port of a trial 140 years back, of an action of trespass, and of the charge of the Ld. Ch. Baron (which was received in the Court below) is a document which ought not to be admitted in evidence : Bridges v. Highton, II L. T. 653.] {m) I Maule and Sel. 81, and 687,689. Doe w. Thomas, 14 East, 323. («) See p. 39, ante, nor does the question, as to what kind of evidence shall be admitted to prove the " boundaries of a manor," or that a Digitized by Microsoft® Case of the River Severn. 89 custom of the country, as to boundaries, " affecting a whole district of manors," may have been good evidence in this case, {o) The custom, however, of one manor is not evidence of the custom of another. (/) It is admitted, that a man may be owner of a definite tract of sea, or river, if it be capable of demarcation ; but yet the required evidence of the boundary Hne, {q) whether of old terra firnia, or of land covered with water, is legally and technically stricter than when an easement is claimed by prescription, founded on usage. If it be admitted (as it was in the principal case) that a man is owner of the Great Manor of B. such manor must have its boundaries and limits, both on the land side and on the water ; and it is competent for me to prove, by evidence, those limits, and witnesses are in such case admissible evidence. Lord Hale tells us, (cap. 6.) " That the shore may not only be parcel " of a manor, but also of a vill or parish ; and the evidence " for that will be, usual perambnlations, common repntatioit, " known 7netes and divisions, and the like, if) Now all this is " evidence to boundaries ; but 'wreck ' or 'a fishery' is no "evidence to boundaries.'' The evidence ought to establish such acts, on the part of the claimant and his ancestors, as far back as the statutes of limitation require, as are in their nature the most effectual particular close is part of an estate, appear yet to be fully settled. See also Phillipp's Evidence, [loth edit. vol. i. p. 170.] (p) R. V. Ellis, I Maul and Sel. 662, per Ld. EUenborough. (/) D. of Somerset t". France, I Strah. 658, and cases cited in Phillipp's Ev. loth edit. vol. i. p. 497. [Jerwood, p. 48. Anglesea, marquis of, v. Hatherton, Lord, 10 M. andW. 218 S. C. 12, L. J. Exch. 57.] {q) It is the practice to "beacon out " the limits of appropriated por- tions of shore, or sea-grounds ; and these " beacons " are evidences of boundaries. See Scratton v. Brown, 4 B. and C. 485, [Calmady v. Rowe, 6C. B. 881.] if) But see p. 39, ante, [and McCannon v. Sinclair, 5 Jur. N. S. 1022 ; Ipswich Dock Commissioners w. Overseers of St. Peter's, Ipswich, 7 B. and S. 310. See Perrott v. Bryant, 2 Y. and C. 61, et ante, p. 15.] Digitized by Microsoft® 90 Case of the River Severn. for acquiring and retaining the possession of the land. These acts must be eo intuitu, having for their express and manifest object the seizin and possession of it. These acts must also have been continued for the time required by the statutes of limitation. At the time the foregoing case was • tried, the ancient time of Richard I. was the period of limitation, and it is expressly stated, that the Barons of Barclay had held the manor from the time of Richard I., nor was this controverted. The evidence went to prove that, during all the time they were lords of the manor, the Barons had made a series of copyhold grants of various portions of the disputed soil, and leases also, which were overt acts (j) of ownership ; and the evi- dence as to boundaries went as far back as living testimony could go. We are not informed what part of the evidence adduced in this case prevailed most with the Court ; we know which would do so in a case of inland title at the present day ; and our object is, to separate from this mass of evidence that which was valid from that which was not. This case, indeed, presents a precedent for those to follow, who, without a grant, have to make good a similar claim ; for every kind of evidence (except the " taking sand ") which could give colour of title to the soil was amassed upon the trial ; but it does not inform us whether all this evidence was necessary, or if not all, what part of it was essential in establishing the title to the bed of the river, if) In other cases, therefore, where but one, two, or three of these proofs are adduced, we are left to the principles of the common law to determine whether such proof be legal evidence or is) See accord. Rogers, and others, v. Allen, i Camp. 309 ; and see 5 T. R. 412. it) But see Lord Ellenborough's comments on this case in the King V. Ellis, I M and S. 662^. ... ..... ^^ ' Digitized by Microsoft® terra firma. Case of the River Severn. 91 not ; as, for instance, whether wreck, or royal fish (and on the sea-coasts these are the most common attributes of manors), will alone, without more substantial evidence, sup- port a title to the sea-shore, or to soil under the sea. (ii) With regard to ten'a firma, there is no difficulty as to the Nature of the nature of the acts required to testify seizin and possession, to give title to These are such as occupation, and taking possession or seizin, inclosing, letting, {pc) and taking rent, cultivating and making profit of the soil, land-marks, perambulations, and other acts which savour of ownership, i.e. which common sense acknowledges as acts of appropriation and occupation, and which naturally flow from continued and exclusive possession ; and these acts must have continued for the period required by the statutes of limitation. It may be a question what other acts, besides those just noticed, shall be said to attest an appropriation and personal possession of the soil under the water, in a tract of sea or sea-shore, whilst it continues sea or sea-shore. There must be something in the acts themselves evidencing the "animus habendi, possidendi, et appropriandi," — not the usufruct of the water merely, — liiLt of the soil itself under it. iji) The acts of ownership must not be more appropriate to the water than to the land. They ought to savour of the land itself, and be the natural result of the personal and exclusive occupation of the soil itself The animus piscandi, or wreccum capiendi, is not animus solum appropriandi. Acts of fishing, continually used, do at last establish a right to fish in future ; and this is embodied by our law into a " fishery," a technical and distinct species of property and ownership. Why should those acts go further.' That iu) [See remarks on case of Dickens v. Shaw, post.] (x) But see Tyrwhitt v. Wynn, 2 Barn, and Aid. 554. i^y) See Appendix, Post^^- Jj, ^^ ^.^^„^„^ 92 As to Digging for Sand, &c. which those acts savoured most of they were allowed to give a title to, viz. a fishery ; and by the same reasoning, that only which savoured most of the soil, ought to give a title to that soil ; that which savours most of one kind of pro- perty and ownership, can hardly be said to savour most of another kind of property and ownership. The usufruct of the water vanishes with the water, (.?) and where both usufruct and water are gone, it seems singular to construe such usu- fructuary right, now no more, into proof of a new species of ownership in the land, and that in derogation and to the ousting of the King's original property in such land. With regard to the " constant and usual fetching of sea- " sand, seaweed, and gravel, between the high-water and " low-water mark, and licensing others so to do ; («) and em- " banking against the sea, and enjoyment of what is so " inned ; " these, it must be admitted, are all acts likely to be done by the owners of the soil ; and they afford colour, that he who does these acts is such owner : but these acts may be usurpations or intrusions on the King's ownership, and prima facie are so. (J?) {£) See 4 Rep. 88. and Co. Litt. 4 b. (fl) [See case of Dickens v. Shaw, Appendix, post, p. li.] {b) [The lord of the manor cannot acquire an exclusive right to cut -'seaweed below water-mark, unless by grant from the King, or such long and undisturbed enjoyment, as to give him a title by prescription. .The sea is the property of the King and so is the land beneath, except 'such part as is capable of being occupied without prejudice to naviga- tion, and of which a subject has either a grant from the King, or has exclusively used for so long a time as to confer on him a title by pre- scription : Benest v. Pipon, i Knapp Rep. 68. Nor is there at common law a general right in the public of entering on the sea-shore to take seaweed even between high-water and low-water mark : see Howe v. Stowell, I Alcock and Nap. 348 ; Healy v. Thorne, 4 Ir. C. L. R. 495 ; for Scotch cases see Paterson's Compendium of English and Scotch Law, p. 6. But seaweed thrown up by extraordinary tides belongs to the riparian proprietor upon whose land it is thrown : Lowe v. Govett, 3 B. and Ad. R.^ffP^^i^^rf^fffffSi's treatise. Appendix, post, xxiv. being Evidence of the Title to the Shore. 93 As to the right of digging for sand, the authorities show that this may, and often does exist, without conferring any title whatever to the land ; for similar rights are exercised by the tenants in the wastes of a lord's manor, and yet the tenants have no title to the soil ; but such rights are mere profits a prendre. A custom to dig sand or seaweed is analogous to the customary right of digging turf, or brick earth, or sand, or coal, or minerals, in the waste lands of a manor, by the cus- tomary tenants. Such custom is good, but it does not raise any title to the land ; it is a mere usufructuary liberty, or right of commonage in the lord's waste, supported by express grant, or by usage and prescription. It further appears, that a single individual may possess similar rights, exclusive of all others, in alieno solo, (c) But if this be so, then there is only one instance in which seaweed is mentioned, where he says " the shore may be part and parcel of a manor, and the evidences " to prove this fact are constant and usual fetching of seaweed, &c." " This passage,'' says Angell, "would seem to indicate that the learned " author considered the public to be, prima facie, entitled to seaweed. " For if he had not so considered it, then the circumstance of its being " exclusively taken by the lord of the manor, could not be received as a " proof of his adverse right of property in the shore." [In Howe v. Stowell, i Alcock and Nap. 348, which was an action of trespass for breaking and entering the plaintiffs close, a plea of justification that the close was the sea-shore, and that all the subjects of the King had the right to enter and carry away the seaweed left by the tide, and that the defendant being such subject entered, was held to be bad. [For law in America see Emans v. Turnbull, 2 John's (N.Y.) R.p. 314, Kent, C.J. ; Chapman v. Kimball, 9 Connect. R. 38 ; 3 Kent, Com. 522 ; Philips v. Rhodes, 48 Mass. (7 Met.) R. 322 ; Moore -v. Griffin, 9 Shep. (Me.) R. 350 ; Sale v. Pratt, 36 Mass. (19 Pick.) R. 191.] {c) " If a man grant to another to dig turves in his land, and to carry " them at his will and pleasure, the land shall not pass, because but " part of the profit is given." Co. Litt. 4 b. So " If a vcian prescribe " or allege a custom to have and enjoy solum vesturam terrce, from such " a day to such a day, hereby the owner of the soil shall be excluded to '' pasture or feed there : so he may prescribe to have separalem pastu- " ram, or separalem piscariam, and exclude the owner of the soil from " pasturing or fishing tiK^t/iedQ)^.mmss>m>a.. 94 As to Digging for Sand, &c. it would seem that a custom (local at least) to dig sand or seaweed in the great waste of the shore might be prescribed for (as in the analogous cases), without its conferring a title to the shore itself The statute of 7 James I. c. 18, id') after reciting or taking notice that, " Whereas the sea-sand, by " long trial and experience, hath been found to be very " profitable for the bettering of land, and especially for the " increase of corn and tillage within the counties of Devon " and Cornwall, where the most part of the inhabitants have " not commonly used any other manure for the bettering of " their arable grounds and pastures ; notwithstanding divers " having lands adjoining to the sea-coast there, have of late " interrupted the bargemen and such others as have used " of \h.€\x free wills and pleasures to fetch the said sea-sand, " to take the same under the full sea-mark, as they have " heretofore icsed to do, unless they make composition with " them at such rates as they themselves set down, though " they have very small or no damage or loss thereby, to the " great decay and hinderance of husbandry and tillage, " within the said counties ; " — enacts — " That it shall and " may be lawful to, and for all persons whatsoever resident " and dwellifig vjith.m the said counties of Devon and Corn- " wall, to fetch and take sea-sand at all places under the full " sea-mark, where the same is or shall be cast by the sea, " for the bettering of their land, and for the increase of corn " and tillage, at their wills and pleasures. II. And that it " shall and may be also lawful to and for all bargemen and " boatmen, and all other carriers of sea-sand of the said " counties, that shall fetch or take sand as aforesaid, to land " and cast out of their boats and barges such sand as they " shall so fetch or take at such places as sand hath at any " time within the space of fifty years last past been used by " such bargemen and boatmen to be lajided and cast ; and (d) [Seepost,247, i^g^^^/Wja^iSoBS^'-P- '■ case ofDickens v. Shaw.] being Evidence of the Title to the Shore. 95 ' also to fetch and carry the same by and through such ' ways as now be and by the space of twenty years last ' past have been used for the carrying and fetching thereof, ' paying for the taking, casting out and landing of every ' barge-load, boat-load, or sack of the said sand upon the ' grounds of any man, such duties as heretofore, within the ' said time of fifty years, have been used and accustomed ' to be paid for the same, and for passage by and through ' the said ways, such duties as have usually been paid by ' the space of twenty years, and in such manner and form ' as the same, within the said several times, have respectively ' been used and accustomed to be paid. And in such ' places where certain usual duties have not been paid, but ' uncertain compositions have from time to time been made by agreement with the owner of the soil there, to yield ' such reasonable compositions as, by agreement with the ' said owners, shall from time to time be made." ( the Shore. loi yet reduced to possession, but daily under the dominion of the sea, is thus presumed to belong to him who has neither possession nor grant to plead. But it appears, that this kind of evidence in regard to boundaries is admitted in some cases of inland title, as well as in titles to the sea- shore. The case of HoUis v. Goldfinch (Ji) turns partly upon this point. It was there contended, that certain acts of owner- ship exercised by proprietors of canal shares on other parts of the bank of the canal, were evidence of ownership of a particular spot in question. The Court, indeed, there held, that the plaintiff was not " at liberty to go into evidence " of the exercise of acts of ownership on other parts of the " bank, but ought to have been confined to evidence of acts " done on the particular spot in question!' See also Tyr- whitt V. Wynn, 2 B. and Aid. 554. But Mr. Justice Bayley's comment, in Hollis v. Goldfinch, on another case (Stanley V. White, 14 East, 332), would seem to draw a distinction as to the cases in which such evidence aliunde shall or shall not be admitted. " In all those cases," observes the learned Judge (Bayley), " where evidence of acts done in one spot " have been held admissible, in order to show a right in " another spot, a reasonable probability has been previously " made out, that the whole land had been formerly in one " owner, and had been all subject to one and the same " burden. The decided cases proceed on the ground of " tmity of ownership or character between the spot in ques- " tion, and other places with respect to which the acts of " ownership given in evidence are adduced. Now, in the " present case, there was no such unity of ownership or " character established, for the acts of ownership are exer- {k) Hollis v. Goldfinch, i B. and C. 20;. [See Vaughan v. De Win- ton, 15 W. R. 1 145 ; Simpson v. Dendy, 8 C. B. N. S. 433 ; Taylor v. Perry, I M. and G. 605 ; Wild v. Holt, 9 M. and W. 673.] Digitized by Microsoft® I02 As to such Franchises and Acts " cised on different parts of a bank of a new cut which, in " all probability, passed through the lands of many different "persons" Mr. Justice Best also said, "The question be- " tween the parties in this case was, to whom the right of " soil in the bank belonged ? Now how was that question " to be decided ? In the first place by title deeds, which " must clearly relate to the locus iti quo, or no inference " whatever can be drawn from them. If title deeds cannot " be produced, the next best evidence is possession ; but " then it will be the possession of the loctis in quo. In this " case there was no evidence of possession. The only other " evidence must be acts of ownership : (/) now acts of owner- " ship can only prove that which would be better proved " by title deeds or possession. Acts of ownership when " submitted to, are analogous to admissions or declarations " by the party submitting to them, that the party exer- " cising them has a right so to do, and that he is therefore " the owner of the property upon which they are exercised. " The declaration of A, -wfho is in possession of land, that " B is the owner of that land, is evidence in favour of B, " and against A, as to that particular portion of land ; but " it is no evidence that B is the owner of the adjoining " land, which is occupied by another person, unless, in- " deed, A and the holders of the adjoining land all held " by one and the same title. Generally speaking, there- " fore, acts of ownership submitted to by the holder of one " portion of land cannot be any evidence that the person " exercising them has any right to the adjoining land. Be- (/) i. e. Acts of ownership manifesting the animus possidendi, of the locus itself, and not a mere animus of taking or using some one parti- cular profit, or easement. Actu externo opus est, unde occupatio potest intelligi. Seld. Mar. Clau. lib. 2, c. 2. — " Usus" et " occupatio" are not the same, as profits a prendre show ; — the " usus," if it have the import of " occupatio " or " possessio," must imply the usufruct in an absolute exclusive sense. Digitized by Microsoft® as will 7tot give Title to the Shore. 103 " sides, one landholder might, from goodnature or other " causes, permit acts which others would refuse ; or he " might lose his rights by negligence. It would be ex- " tremely hard, therefore, to construe the implied acknow- " ledgment, arising from acts of ownership exercised over " the lands of A, to be received as evidence of an acknow- " ledgment of a similar right over the land of B, who has " never submitted to any acts of the kind." (;«) The above doctrine of the learned Judge (Bay ley) seems to apply strongly to the acts of ownership alluded to in the shore of a manor ; and it may be concluded that embankments, and intakings of portions of the shore, immemorially, repeatedly, and uninterruptedly exercised by the lord, or his grantees, will establish a presumption in favour of the lord, against the Crown. But it is not to be forgotten, that as the King's The King's grants are always construed strictly, so presumptions of this f,^^^ '^^^^a.^ kind are only to be admitted against the Crown on strong 'v^'^^- evidence, more especially in a case in which public utility sides with the Crown, as, indeed, is always assumed. (7^) If what has been urged be well founded, the conclusion Conclusion to be drawn is, — that neither a fishery, nor a right to wreck, the before" nor the franchise of royal fish, nor, perhaps, the usage or mentioned custom of digging of sea-weed, shells, or sand, ought to "ses of the 1 r 1 1 1 1 1 ■ r 1 shore will support a claim to the actual freehold and ownership of the give title to soil of any tract of sea, or sea-shore, bounding a manor, — ' ^ ^™ " so long as it retains the character of sea-shore,— where pre- sumption arising from the more decisive acts of ownership of intaking and granting the soil itself, and the present- ment and punishment of purprestures are wanting. All {in) See Stanleys. White, 14 East. 332 ; Barnes v. Mawson, I Maule and Selw. 77 ; Child v. Winwood, i Taunt. 208. («) [Rex V. 49 casks of Brandy, 3 Hag. Adm. R. 271 ; see also ante, p. 20 ; and Forsyth's Constitutional Law, p. 175, et ante, pp. 21 (note), 65, and post io6.j Digitized by Microsoft® I04 Doctrine of the Civil Law Writers snch. franchises and liberties are distinct from the ownership of the soil, both in essence, in title, and in technical cha- racter ; and the enjoyment of such rights does not, by any necessary presumption, involve the seizin and ownership of the soil in which they are exercised. And if this be not the case, between subject and subject, a fortiori it ought not to be against the King's ownership and title. It may be here also noted, that Lord Hale himself, in one part of his work (see De Jure Maris, Appendix, post, xxix.), lays it down as law, that aistom " cannot entitle the subject to relicted lands, or make such lands part of a manor." If so, it may, perhaps, be reasonably contended, that the en- joyment of mere customary privileges in the shore cannot " entitle the subject to the lands of such shore, or make " such lands part of the manor." (^) Neither would there seem to be better ground in point of policy than at law for thus taking, by means of presump- tion alone, the ownership of the sea-shore from the King, and transferring it to individuals, whose private gains and petty profits may create frequent public inconvenience and illiberal extortion. In a commercial country, such as England, the free and unrestricted use of the sea-shore is of national importance, and no encouragement ought to be given to claims which have a tendency materially to interfere with the national welfare, and they ought therefore to be treated strictojure. It is well known, that by the Roman law the sea-shore was common to all, and incapable of ownership, even in the Emperor. " Littorum quoque usus publicus jure gentium " est, sicut ipsius maris ; — proprietas autem eorum potest " intelligi millius esse ; sed ejusdem juris esse cujus et (p) [See Att.-Gen. v. Turner, 2 Mod. 107 ; Att.-Gen. v. Farmen, 2 Lev. 171 ; Callis, 48, 53.] Digitized by Microsoft® on the Ownership of the Shore. 105 " mare, et quae subjacent mari, terra vel arena." (/) So also, Grotius (q) holds, that a man cannot have any property in the" shores and sands of the sea ; these are all incapable of improvement, and can only be exhausted by the only uses •to which they can be applied ; viz. of supplying fish and sand. And even our own early law writers did not hesitate to hold nearly the same doctrine as part of our own law. " Naturali vero jure," says Bracton, (r) " communia sunt Bracton's " omnia hasc, — aqua profluens, aer et mare, et littora maris, " quasi maris accessoria. Nemo enim ad littora maris " accedere prohibetur, dum tamen a villis et sedificiis " abstineat, quia littora sunt de jure gentium communia, " sicut et mare." But he does not add the remainder of the sentence from the civil law, viz. " proprietas autem eorum potest intelligi nullius esse," — by which it may be inferred, that he did not mean to deny that the " owner- ship" (such as it was) rested with the King, asserting only that the " tisiis" was common to all, as that of the sea was ; — and so far he will be found essentially right ; — for the uses to which the sea is applicable, and also common to all, are " navigation " and " fishing," — and for these uses the shore is acknowledged to be equally applicable and common. Other common uses of the shore have been of late claimed on behalf of the public, viz. for the purpose of bathing in the sea, {s) and for digging and carrying away sand, shells, stones, and weed, for agricultural and building purposes, {t) The value and utility of these rights to the public, entitle them to the fullest consideration before the law is to be deemed settled against these enjoyments. (/) Inst. Lib. 2 tit. i sect. 5, lib. ii. sect. 2, c. 3. {q) Grot, de Jur. Bell. ac. Pac. {r) Bracton, lib. ii. fol. 7, sect. 5. (j) Blundell v. Catterall, S B. and Aid. 268. (/) Bagott V. Orr, 2 Bos and Pul. 472. See these cases fully con- sidered hereafter. Digitized by Microsoft® io6 The Shore, as Crown Land, lienation of rown lands ohibited. It might seem most desirable that the shore should re- main vested in the King, whose policy it would be to leave it open to his subjects for useful purposes, and to be, as it were, the trustee thereof for the public use and benefit. (z/) There was a time when the Crown could grant away to the subject the royal demesnes and landed possessions at pleasure ; but now, by statute law, (x) such royal grants are prohibited, and the Crown lands cannot be so aliened. So much, therefore, of the sea-shore as has not been actually aliened by grant, and bestowed on lords of manors and other subjects, still remains vested in the Crown, incapable of alienation. A King of England cannot be insensible of the value of this property,' for it concerns, through him, the public advantage ; and it is not going too far to say that the Crown ought, upon all occasions, to evince great jealousy in the preservation of this right against the en- croachments of particular individuals, and to require the strictest proof of their exclusive ownerships, whensoever claimed. The law itself protects the property of the Crown with greater jealousy and strictness than the property of the subject. The rule, as before stated, being that the King's grants shall be construed strictly, and with a leaning in his favour as against the grantee ; {y) but that, as between subject and subject, the grant shall be construed most in favour of the grantee and against the grantor. But to support a title to the sea-shore in favour of the subject {ti) [See remarks on case of Dickens v. Shaw, post.] (x) [i Anne, ch. 7, sec. 5. Ruff ed. See Doe, d. R. v. York, Arch- bishop of, 14 Q. B. 8i. [Although the Crown may not of its own authority part with any portion of Us prerogatives, yet, where the Crown has acted under the authority of Parliament, it may part with them : Eduljee Byramjee «;ir parte, 5 Moore, P. C. C. 294 ; S. C. 3 Moo. Ind. app. 468.] (j/) Bro. Abr. Tit. Patent, pi. 62. [See Jerwood, p. 125 et ante, pp. 20, 65, 103.] Digitized by Microsoft® not now capable of being aliened. 107 against the Crown, upon "presumption" drawn from the enjoyment of a prescriptive right, — is to open a wide door to individual claims against Crown lands. The King's right is 3i JUS publicum, and it is not the rule of our Courts of Justice to assert or favour the jus privatum against the jus publicum ; on the contrary, the jus privatum is to be tried strictissimo jure, whenever it offends or may offend against tlie public good or public rights, (z) An express grant of so much sea-shore from the King, made at a time when such grants were not prohibited by statute law, cannot, of course, be set aside. But, as the other lands of the Crown cannot be taken from the Crown by a claim or presumption founded on prescription, and the sea-shore is as much land of the Crown as any other land in its possession, — there seems to be no better ground for admitting mere prescription to prevail in the one case than in the other ; nor has a single case or decision presented itself wherein the learned writer of the treatise so much referred to has been confirmed in his doctrine, that a title to a prescriptive franchise, liberty, or easement, derivable from the sea or sea-shore, will, by presumption or construc- tion of law, support a title to land ; nor can it possibly do so, if the doctrine quoted in a former page(rt) be law, viz. that prescription alone cannot give title to lands, because of lands more certain evidence of title may be had ; viz. by grant ; — or by adverse possession during the period pre- scribed by the statutes of limitation. But although it may be deemed an object of no small Public rights importance to protect the right of the Crown to the sea- favourably. shore, against the encroachments of individuals ; yet, where a claim is made on behalf of the public, and the King's {z) [See remarks on the case of Dickens v. Shaw, post.] (a) P. 22, ante. Digitized by Microsoft® io8 As to Alluvion right is opposed to the general right of the subject, the Courts of Law, which favour liberty, and have an anxious regard for public rights, and presume the King himself to be personally interested in the public good, will protect the claims of the public to the utmost verge of the law.(i5) The ownership of the shore, as between the public and the King, has been settled in favour of the King ; but, as before observed, this ownership is, and has been imme- morially, liable to certain general rights of egress and regress, for fishing, trading, and other uses claimed and used by his subjects. These rights are variously modified, promoted, or restrained by the common law, and by numerous acts of parliament relating to the fisheries, the revenues, and the public safety, but a statement of which is not within the limited scope of our subject. ls to derelict Let US now proceed to inquire how the law stands with ion.^" * "" regard to tracts of dry land adjoining the shore which are deserted by the sea, and become terra firma by new forma- tion, and usually are interposed between the old terra firma and the ordinary high-water mark of the shore. It is for the most part barren and waste, but in some places (particularly in low and marshy districts) capable of pas- turage and cultivation. This soil embraces not only that which is always dry, but that also which is subject to high spring tides and extraordinary inundations. It is all deemed land gained from the sea. (.:) Land gained from the sea is of three kinds : I St. Per alluvionem, alluvion, or land washed up by the sea. 2nd. Per relictionem, derelict land, or land left dry by the shrinking or retirement of the sea. {b) [See Dickens v. Shaw, Appendix, post, Ixiv.] (c) De Jure Maris, ch. iv. sec. 2 ; Appendix, post, xi. and ch. vi. ; Appendix, post, x5v^.^jg,J^^.^g^^,^nd 11 ante. and Derelict Land. 109 3rd. Per insulse productionem, i.e. islands and islets gradually or suddenly formed out of the sea, or at the mouths of rivers, &c. {d) The law on this part of the subject is laid down by Blackstone, {e) in these words : " As to lands gained from Alluvion. " the sea either by alluvion, i. e. by the washing up of sand " or earth, so as in time to make terra firmd ; or by derelic- " Hon, as when the sea shrinks back below the usual water {d) De Jure Maris, Appendix, post, xiv. xxxv. ; Callis, 43. {e) 2 Black. Com. 261. [In Att.-Gen. v. Chambers, 4 De G. and J. 55, Lord Chelmsford, referring to the passage in Blackstone, says, " I am not quite satisfied that the principle 'de minimis non curat lex' " is the correct explanation of the rule on this subject ; because, al- " though the additions may be small and insignificant in their progress, " yet, after a lapse of time, by little and little a very large increase may " have taken place which it would not be beneath the law to notice ; " and of which if the party who has the right to it can clearly show that " it formerly belonged to him, he ought not to be deprived. I am " rather disposed to adopt the reason assigned for the rule by Baron " Aldefson, in the case of the Hull and Selby Railway Company, 5 M. " and W. 327, — viz. 'That which cannot be perceived in its progress is " taken to be as if it never had existed at all ;' and, as Lord Abinger " said, in the same case, ' The principle,' as to gradual accretion, ' is " 'founded on the necessity which exists for some such rule of law for " ' the permanent protection and adjustment of property. It must be " ' always borne in mind that the owner of lands does not derive benefit " ' alone, but may suffer loss from the operation of this rule ; for if the " ' sea gradually steals upon the land, he loses so much of his -property, " ' which is thus silently transferred by the law to the proprietor of the " ' sea-shore.' If this be the true ground of the rule, it seems difficult " to understand why similar effects, produced by a party's lawful use " of his own land, should be subject to a different law ; and still more " so if these effects are the result of operations upon neighbouring lands " of another proprietor : whatever may be the nature and character of " these operations, they ought not to affect a rule which applies to a re- " suit and not to the manner of its production. Of course, an exception " must always be made of cases when the operations upon the party's " own land are not only calculated, but can be shown to have been in- " tended, to produce this gradual acquisition of the sea-shore, however " difficult such proof of intention may be." See Rex v. Lord Yar- borough, 2 Bligh. N. R. 162 ; Emans v. Turnbull, 2 John's (N.Y.) R. 313 ; Angell on Tide Waters, p. 250.] Digitized by Microsoft® no As to Alluvion " mark, in these cases the law is held to be, that if this " gain be by little and little, by small and imperceptible " degrees, it shall go to the owner of the land adjoining, for " 'de minimis non curat lex ;' but if the alluvion or dere- " liction be sudden and considerable, the land shall go to " the King, as lord of the sea." His authorities are, Bracton, lib. ii. c. 2; Callis on Sewers, 48, 53 ; 2 Roll. Abr. 170 ; Dy. 326. (/) The words of Bracton are,(^) " Item quod per alluvionem " agro tuo flumen adjecit,jure gentium tibi acquiritur. Est " autem alluvio latens incrementum, et per alluvionem adjici " dicitur, quod ita paulatim adjicitur, quod intelligere non " possis quo momento temporis adjiciatur, &c. si autem non " sit latens incrementum, contrarium erit." Lord Hale (k) observes upon these words, " Bracton follows the civil law " in this and some other following places ; and yet, even " according to this, the common law doth regularly hold at " this day between party and party." And he further observes: "This jus alluvionis is, de jure communi, by the " law of England, the King's ; viz. if by any marks or " measures it can be known what is so gained, and if the " gain be so insensible and indiscernible by any limits or " marks, that it cannot be known, idem est non esse et non " apparere, as well in maritime increases as in the increases " by inland rivers." (i) (/) And see note to Dyer, 326 ; [and American Case Municipality No. 2 V. Orleans Cotton Press, 18 Louis R. 122.] {£■) Lib. ii. ch. 2. (A) Appendix, post, xxvi. (z) [In the Att.-Gen. v. Chambers, supra, Lord Chelmsford, after quot- ing this passage, said : " Lord Hale clearly limits the law of gradual " accretions to the cases where the boundaries of the sea-shore and " adjoining land are so undistinguishable, that it is impossible to dis- " cover the slow and gradual changes which are from time to time " accruing, and where, at the end of a long period, it is evident that " there has been a considerable gain from the shore, yet the exact " amount of it, fronsj^fSzggiBJ;. ipjfcftsaa^gmark of the original boundary and Derelict Land. 1 1 1 Although the doctrine is laid down by Bracton and Lord Hale upon the word "alluvia" yet there is no doubt that Blackstone is right in applying it also to gradual and imper- ceptible derelictions of the waters ; in both cases the owner Belong to th( of the soil adjoining is entitled by common law, for the adjacent land reasons given by these writers ; viz. " de minimis non curat lex," — "idem est non esse etnon apparere ;" and because it is in compensation for land either actually or in danger of being lost. (/&) Blackstone (/) says, that the soil so gained by the owner extends to " the USUAL water mark ;" he does not explain what is the usual water mark, whether the high or low water mark; but from what is already said, it is clear that the usual -wditex mark is the high-water mark.(;«) " line, cannot be determined. But where the limits are clear and " defined, and the exact space between these limits and the new high- " water line can be clearly shown, although from day to day, or even from " week to week, the progress of the accretion is not discernible, why " should a rule be applied which is grounded upon a reason which has " no existence in the particular case ?" See also Stewart v. Greenock Harbour Trustees, 4 Scot. Session Cases, 283, 3rd series.] {k) Callis, 48. {/) Black, vol. 2, p. 261. (jn) P. 9, ante et seq. [The materials accumulated from mining or manufacturing operations upon lands bordering the sea, or upon a public river, where there has been a gradual silting up of rubbish, slate, or other material, either upon the lands where the mines or manufactories are situated, or upon the neighbouring property, would seem to be subject to the ordinary rule, for the title to alluvion arising from artificial causes does not differ, as to the rights of the landowners, from the title to alluvion arising from natural causes, where the artificial causes arise from a fair use of the land adjoining the sea-shore, and not from acts done with a view to the acquisition of the shore : Att.-Gen. v. Chambers, 4 De G. and J. 55 ; Seebkisto v. East India Co. 10 Moo. P. C. C. 140. But it has been decided, that the grantee of premises situate on the shore has no right to follow the sea, or take the land acquired from it, where a corporation had a right to the whole territory of the burgh vested in them by charter : see Todd v. Dunlop, 2 Rob. Sc. App. 333 ; Smart v. Dundee, Corp. of, 8 Bro. P. C. 199. In America, wherever tide-waters flow, alluvion goes to the proprietor of the adjoining land, as in this country, and upon the same principle : New Orleans v. Digitized by Microsoft® 112 As to what Ownership of the adjoining AThat owner- Now, the Owner here intended is the absolute owner of 5'djacent land freehold ; it cannot mean a leaseholder or copyholder, for Uuvion'°&*^ these are not looked upon by the law in the light of land- owners. If, therefore, the lord of the adjoining manor claim at all, he must claim in respect of his freehold, and he has the freehold, — 1st. Of the demesnes; i.e. the freehold lands in his own occupation. 2nd. Of the copyhold tenements; i.e. subject to the copyholder's interest. 3rd. Of the waste: i.e. subject to the tenant's right of commonage, &c. And by consequence, if either the demesnes, the copy- hold, or waste, constitute the land immediately adjoining, the lord, as freeholder, will be entitled to the alluvion soil on the coast, as far as high-water mark. By the same rule, any owner oi \hQ free/told of the land immediately adjoin- ing to and in boundary limited by the sea, will be entitled as far as high-water mark ; and if the lord of the manor part with his freehold to another, in any spot of land adjoining to the coast, such person, it is conceived, acquires all " alluvion," properly so called, from the sea. As to the demesnes, or lands in the lord's own hands, viz. which are neither copyhold nor waste, such land being his own absolute freehold, clearly entitles him to the ad- joining alluvial land gained gradually and imperceptibly United States, 10 Peters, 717 ; Banks v. Ogden, 2 Wallace, 67 ; Saulet V. Sheperd, 4 Wallace, 502 ; Murray v. Sermon, i Hawks, N. C. Rep. 56 ; Adams v. Frothingham, 3 Mass. R. 352 ; Angell on Watercourses, 6th ed. p. 52 ; On Tide Waters, 249 ; Phear, 43 ; Houck, 147. [And, on the other hand, if the sea, or an arm of the sea, by gradual and imperceptible progress, encroach upon the land of a subject, the land thereby covered with water belongs to the Crown : In re, Hull • and Selby V.ailvisc^igiiMl ajad^/Wosjijajg)] Land entitles to Alluvion, &c. 113 from the sea, as part of such demesnes ; and on this point no more need be said. But his freehold title in the copy- As to the hold tenements, and in the wastes, is subject to certain rntee!t°th*^ rights and interests, which require further consideration: loi^^ofa ' manor gams and it may be contended, in alluvion 1st. That if the adjoining land be a copyhold tenement, to^copyhoi^ and its boundary is no otherwise limited than by the sea, '^"™^"'' then the copyholder acquires the same right to the alluvion and the copy- as he had in the copyhold adjoining, and may claim to esftherein"''' hold such new soil as copyhold, and part of his old tene- ment ; and, 2nd. That if the adjoining land be waste land of the As to the manor, then all the copyholders have the same rights of tenante, wLr common, &c. in the alluvion or new soil, that they had in f"'^^ alluvion ■'is part of the such waste land adjoining, and ^s if it were part of such wastes. waste. As to the first point, viz. the copyholder's right, it must As to the be very much a question depending upon the description ri^'t in reTpec of the "tenement" in the court rolls of the manor. If the o^l^is tene- ment. tenement, to which the copyholder has been admitted, ex- tend, either expressly or by fair implication, to the sea, or expressly or by implication to high-water mark, then it may be contended that the new alluvial soil is part of the copyhold tenement adjoining ; but if the boundary of the tenement be fixed, on the side of the sea, to a particular demarcation, other than that made by the water mark for the time being, and short of it, then all beyond that line of demarcation is clearly no part of his tenement, and must either be part of the demesnes or of the waste. If the lord set up a claim to the alluvion against the As to the . copyholder, when the adjoining land is copyhold, it must opposed to be in respect of his interest in the land adjoining, which jjo^^'g°?/" is a freehold interest, subject to a copyhold interest. He cannot claim it as part of his own private demesnes, be- DigiMzed by Microsoft® 114 Derelict Land properly so called. cause he cannot show the adjoining land to -be such, it being copyhold ; nor can he claim it as part of the waste, because the adjoining land is copyhold, and not waste land. Next, suppose him to claim the alluvion as part of the adjoining waste, by the same reasoning as last used, the new soil being adjacent to the waste, is part of it, and subject to all the rights claimable in or out of the old waste, and by consequence to the local customs, com- mons, &c. (if any) alleged or prescribed for by the tenants in respect of such waste. Having stated, that in regard to the new alluvial soil gradually heaped up and deposited at and above the edge of high-water mark, the lord, if possessed absolutely of the adjoining land, is entitled t9 such new soil, absolutely ; but if only of the freehold of the copyhold tenement, then sub- ject to such copyhold interest ; and if only of the wastes, then subject to the customary rights of the tenants for commonage, &c. in such waste. — It may be further ob- served, that land gradually and imperceptibly left " PER RECESSUM MARIS " is subject to the same kind of claim, both in respect of the person, the form, and the substance, as the alluvion or soil heaped up " PER PROJECTIONEM MARIS," and may, in like manner, assume the character of freehold demesnes, copyhold, or waste, according to the nature of the soil adjacent, [n) The gradual and insensible retreat of the sea is, however, generally the effect of its own action by the heaping up of allu- vial soil, beach, or sand; and the land thus acquired may rather be said to have been gained per alluvionem or pro- jectionem, than per recessum or relictionem maris. Thus it is observed by Lord Hale, that " there is no alluvion without some kind of reliction, for the sea shuts out itself." («) [See Phear, 43. Hunt. 24.] Digitized by Microsoft® Lakes and Marshes gained from the Sea. 1 1 5 When, therefore we speak of land acquired "per alluvi- onem," we may be understood to mean all imperceptible additions made by the sea to the adjacent soil ; and when we speak of " derelict " land, we intend thereby land stid- The word denfy, and by evident marks and bounds, left and become unda^stood t dry land. There may indeed be some cases wherein it is ™port sudds •' and percept! matter of doubt whether the acquest ought to be deemed We gains fro insensible and gradual, or sudden and manifest. Such ,,,, ,, ' . ° whether im cases must be left to the common sense and judgment perceptible < e 1 • 11 r- 1 -1 "°' n>ust be 01 the jury, and the nature of the evidence, always remem- left to the hexing prima facie and jure coinm.uni, the land gained is the ■'"'^" King's, since it was clearly his so long as it remained sea- bottom, and it is only not given to him, in the case in question, because of the difficulty of drawing the line, and the unwillingness of the common law (in respect of its own dignity and the liberty of the subject) to be too nice in trifles, " de minimis non curat lex." In marshy districts, however, a case might occur of some Large acques nicety; viz. where the sea gradually heaps up a bar to in°marshy^^ itself across a marshy arm or inlet of the sea : the commu- districts, by •' gi'adual exclu nication between the sea and the inlet becoming gradually sion of the less, until at last the entrance is quite blocked up, and the marshe™ "^ inlet becomes a lake or pond, which also is capable of being ^^^^' P°"'^5' drained, or gradually drains itself Such an acquest from the sea may sometimes be of considerable ejctent and value. Now, if the lord of the adjoining manor can establish no title to the soil, as and when it was covered with water, the only question will be, whether it is a gradual and insensible or sudden and distinct acquest from the sea. On the part As to the of the King it may be insisted that, until the sea was finally thSfin."^ ' shut out, so much, at least, as was "aqua cooperta," con- tinued part of the sea-bottom, and as such belonged to the King ; and, consequently, that until the hour that the communication was shut out by the action of the last tide Digitized by Microsoft® Ii6 As to Lakes and Marshes ; to the dm of the Eer of the cent soil ein. or storm, all the land covered with water was the King's ; that the final exclusion of the sea was not a gradual but sudden effect, and that immediately thereupon the lake and its soil became, to the then edge of the still water, the King's own, and relieved from the common law rights of fishing, &c. That all subsequent diminution of the water by evaporation and drainage, natural or artificial, was for the benefit of the King, whether such drainage be gradual and imperceptible or not. It may also be insisted, that it is not the gradual or slow operation of nature in point of time, but the small and imperceptible nature of the daily addition of soil which governs the title in favour of the subject ; and consequently, where the acquisition is not of that character, the reason for the rule against the King's right does not exist ; and these, it is considered, are the grounds which would decide the case in favour of the Crown. On the side of the owner of the adjoining soil, it may, however, be urged, that at least so much of the dry soil as had been added to his adjacent land, by the gradual and insen- sible decrease of the water, from the gradual closing of the communication with the sea and decrease of tide, beromes de die in diem his own "jure alluvionis," and that the King's claim can extend no farther than to that portion which is proved to have been subject to the tide at the time of the final exclusion of the sea. It may also be urged, with some plausibility, that the lake or pond which remains after the sea has shut out itself by a bar,— has become, in the eye of the law, " land," — i.e. z«-land, aqua cooperta; and that its gradual formation into a still water lake or pond, was tantamount to a gradual dereHction of so much land, i.e. an imperceptible addition, from time to time, of so much lake or pond of still water ; and inasmuch as a lake or pond, surrc^n4|§^b)(;,.J:he,^nd, is merely land in con- gained ffom the Sea. 1 1 7 struction of law, so this, having become imperceptibly sur- rounded by land, and cut off from the sea by its own action, has imperceptibly become so much additional soil to the adjacent old terra firma. But the answer to this is, that so long as any communication continues open with the sea and its tides, the whole soil which the water covers must have the same character in point of title, and be treated as " pars maris." Such peculiar cases as these must depend on the circumstances in evidence, and upon the point " an graduatim an non ? " A question determi- nable only by evidence, and the judgment and common sense of the Judge and Jury. The inquiry is a question at common law, between the King and the subject, on a matter of fact ; the law being already well known and established, and as the fact may be found, the land will be disposed of by the law ; viz. if it be a gradual and imper- ceptible acquest, to the subject ; if otherwise, then to the King. The evidence on both sides will be deduced from eyesight and hearsay testimony, natural or artificial land marks, perambulations, records, and written documents, tending to show whether the events and alterations which have happened are of a nature to be rightly deemed sudden and distinct, or gradual and too minute to be distinguished by ordinary observation. It is not, indeed, either the sudden or the gradual nature it is not the of the event which governs the law, but the perceptible or ff^the^time,] imperceptible nature of the acquisition; and therefore the ^"'j^jg'^^^ direction of the evidence will be to show the greater or less of the addi- .,,.,, tion, which degree of distinctness and certamty with which the quantum favours the of soil claimed can be ascertained to have accrued within ^^J^'^'- time of memory. Whatever reason and common sense denominates imperceptible and indefinable, or which, even if perceptible and definable, is still too minute and value- less to appear worthy ^f^ej^y/l^u^ or separate owner- Lmsey'scase. ii8 Of Title to Alluvion ship, will be deemed part of the adjoining soil, and, as it were, to have grown out of it. In all other cases the King's right will attach, (p) Lord Hale observes, that custom may, in the case of alluvion, "give the jus alluvionis to the land whereunto it accrues." (/) But if the/zw alluvionis be a general com- mon law right, it does not appear how it can be given by " custom," unless the word be used in the sense of the " general custom of the realm," which is the common law. The following cases are quoted by him. jj)bot of " Communia (^) Trin. 43 E. 3, Rot. 1 3, in Scaccario, which is that very record which is cited by Dyer, 326, out of the book of Ramsey. Process went out against the Abbot of Ramsey, ad ostendendam causam, quare 60 acrse marisci in manum Regis non debent sesiri,, quas Abbas appropriavit sibi et domui suae, sine licentia Regis, super quodam generali commissione de terris a Rege concelatis et detentis. Abbas respondit, quod ipse tenet manerium de Brancaster, quod scituatur est juxta mare, et quod est ibidem quidam mariscus, qui aliquando per influxus maris minoratur, aliquando per defluxus maris augetur, absque hoc quod appropriavit sibi prout per praesentationem prae- dictam supponitur. And issue joined, and verdict given for the Abbot, by Nisi Prius, before one of the Barons. " Et judicium, qu6d eat sine die, salvo semper jure Regis." The learned writer hereupon subjoins, " though there were " a verdict upon the issue, whether appropriavit an non, " yet it is plain that the title stood upon that which the " Abbot alleged by way of increment. And note, here is " no custom at all alleged ; but it seems he relied upon the " common right of his case, as that he suffered the loss, so he (0) [See Houck, 154, et seq,] {p) Appendix, post, xxvi. {q) The Abbot of Ramsey's case, De Jure Maris, Appendix, post, xxvi., see also, postjflliBiiSuJiy iiy M/crosoft® and land Derelict. 1 1 9 " should enjoy the benefit, even by the' bare cotnmon law, in " case of alluvion." {f) The next case is stated, by Lord Hale, as follows : — Abbot of " M. 23, E. 3, B. R. Rot. 26. Lincolnia. The Abbot of Peter- ^^^""""'^ " borough (j) was questioned at the King's suit for acquiring " 30 acras marisci in Gostrerkill, licentia Regis non obtenta. " The Abbot pleaded, qu6d per consnetudinem patria est, " et a tempore quo, &c., extitit usurpatum, qu6d omnes et " singuli domini, maneria terras seu tenementa super cos- " teram maris habentes, particulariter habebunt marettum " et sabulonem, per fluxus et refluxus maris, secundum " majus et minus, prope tenementa sua projecta. Et dicit, " qu6d ipse habet quoddam manerium in eadem villi, unde " plures terrse sunt adjacentes costerse maris, et sic habet " per fluxus et refluxus maris circiter 300 acras maretti " terras suas adjacentes, et per temporis incrementum se- " cundum patrice consitetudinem ; et absque hoc qu6d ipse " perquisivit, &c. And upon issue joined it depended many ".years before the issue was tried. But afterwards, P. 41. " E. 3, B. R. Rot. 28, Lincolnia, Rex, viz. given, qu6d se- " cundum consuetudinem patrice, domini maneriorum prope " mare adjacentium habebunt marettum et sabulonem per " fluxus et refluxus maris per temporis incrementum ad " terras suas costerse adjacentes projecta, &c. Ideo Abbas " sine die." Lord Hale then proceeds to observe, " ist. " Here is custom laid, and he relies not barely upon the " case without it. 2d. In this case it was per incrementum " temporis et per mare projecta. It is not a sudden relic- " tion or recessus maris. And though there is no alluvio " without some kind of reliction, for the sea shuts out itself, (r) [See Woolrych, p. 445 ; Jerwood, 56. Re Hull and Selby Rail- way, 5 M. and W. 331.] (s) Abbot of Peterborough's case, Appendix, post, xxvi. [See also, post, Ixxxvi.] Digitized by Microsoft® I20 Of Title to Alluvion " yet the denomination is taken from that which predomi- " nates. It is an acquest per projectionem, not per reces- " sum or relictionem. 3d. That such an acquisition Hes in " custom and prescription, and it hath a reasonable intend- " ment, because these secret and gradual increases of the " land adjoining cedunt solo tanquam majus principali ; and " so by custom it becomes a perquisite to the land, as it " does in all cases of this nature by the civil law." It must be concluded that the " consuetudinem patriae " is to be interpreted " the custom of the realm," which is the common law. It does not appear how a local custom of this kind can exist, as contradistinguished from the common right ; for, by common right, imperceptible alluvions or derehctions belong to the owner of the adjacent freehold, throughout the coasts of England. The words " secundum majus et minus," and " incremen- tum temporis," put this case upon precisely the same ground as the former one. All other writers agree that such a right as the one claimed and established in both these cases, is a common law right, and if so, it cannot correctly be pleaded as a local custom ; and at this day, beyond doubt, it is quite enough to rely barely upon the common law, acting upon the evidence of the gradual and insensible acquisition. The foregoing doctrine regarding " alluvion " was very fully argued and considered in the recent case of the King V. Lord Yarborough.(^) This was a record transmitted from the petty bag office into the Court of King's Bench, which sets forth an inqui- sition taken at Cleathorps, in the county ol Lincoln, on the 1 2th day of November, 1818, by which, amongst other things, it was found that there is a certain piece of land, {f) 3 B. and C. 91 [in error 2 Bligh, N. S. 147, S. C. s Bing. 163. See Houck, 148 ; Jerwood, 90 ; Woolrych, 444 ; in re Hull and Selby Rail- way Co. 5 M. and \%^MJc/ by Microsoft® and land Derelict. 121 being salt marsh, lying near or adjoining to the parish or lordship of North Cotes, in the said county, which piece of land is bounded towards the south and south-west by the sea-wall or sea-bank of the said lordship of North Cotes, and towards the north-west by part of the sea-wall or sea- bank of certain lands in the lordship of Titney, and on all other parts by the sea, and contain by estimation 453 acres or thereabouts, and is of the annual value of 43-. an acre, and was in times past covered with the water of the sea, but is now and has been for several years past by the sea left, and is not covered with water, except at high tides, when the sea doth flow to the said sea-walls or sea-banks ; which said piece of land, from the time of such dereliction, hitherto has been and still is unoccupied, but the herbage thereof has been from time to time eaten and consumed by the cattle and sheep belonging to divers tenants or occu- piers of lands situate within the said parish of North Cotes. And the inquisition then stated, that the said piece of land, together with other lands therein specified, the commis- sioners had taken and caused to be seized into the hands of our said lord the King. To this inquisition the defend- ant filed a traverse, which (after craving oyer of the com- missioners' return and inquisition, and admitting the boun- daries, quantity, and value of the land in question, and that the same piece of land is now and has been for several years past not covered with water, except at high tides, when the sea doth flow to the said sea-wall or sea-bank) states, that " from time whereof the memory of man " runneth not to the contrary, there hath been and still is " a certain manor called or known by the name of the " manor of North Thoreshy cum North Cotes, situate in the " parish of North Cotes aforesaid, in the said county of " Lincoln, and that the defendant, long before the respec- " tive days of issuing the commission and finding the inqui- Vigitized by Microsoft® 122 Of Title to Alluvion The King v. " sition, to wlt, on, &c., was seized in his demesne as of fee, LoM Yarbo- „ r i • t r ^ rough. of and in the manor of North Tlwresby cum North Cotes, " and the demesne lands thereof, and that the same piece " of land heretofore, to wit, on the ist day of January, 1300, " and on divers other days and times between that day " and the day of the finding the inquisition, by the slow, " gradual, and imperceptibie projection, alluvion, subsidence, " and accretion of ooze, soil, sand, and matter, being slowly, " gradually, and by imperceptible increase in long time cast " up, deposited, and settled by and from the flux and reflux of " the tide and waves of the sea in, upon, and against the out- " side and extremity of the demesne lands of the same manor, " hath been formed, and hath settled, grown, and accrued " upon and against and unto the said demesne lands of the " same manor, and the same and every portion thereof, " when and as the same hath so there been formed, settled, " grown, and accrued, hath thereupon and thereby at those " times respectively in that behalf above mentioned, forth- " with become and been, and from the same several times " respectively have and hath continued to be, and still are " and is part and parcel of the said demesne lands of the " same manor, and the several owners and proprietors of " the same manor for the time being during all the time " aforesaid, until the time of the seizin of the defendant as " aforesaid, and defendant, during the time he hath been " so as aforesaid seized of and in the said manor, from the " time of the formation and accretion of the same piece of " land and every part thereof respectively, continually, " until the time of the finding of the inquisition respectively, " were and was seized in their and his demesne as of fee, " of and in the same piece of land and every part thereof, " when and as the same hath so been formed and accrued " as aforesaid, as and for part and parcel of the demesne " lands of th^^i^^fg^^^f^gj-^^Without this, that the said and land Derelict. 123 " piece of land in the plea mentioned, and in the inquisi- " tion last above mentioned, or any part or parcel thereof, " was or now is by the sea left, in the manner and form as " in the inquisition is above supposed and found." — The replication of the Attorney General traversed part of the inducement to the defendant's traverse, as follows : " With- " out this, that the said piece of land in the inquisition " lastly mentioned, being the piece of land before described, " at the times in the said plea mentioned, by the slow, " gradual, and imperceptible projection, alluvion, subsi- " dence, and accretion of ooze, soil, sand, and other matter, " being slowly, gradually, and by imperceptible increase in " long time, cast up, deposited, and settled by and from " the flux and reflux of the tide, and waves of the sea in, " upon, and against the outside and extremity of the " demesne land of the same manor, hath been formed, and " hath settled, grown, and accrued upon and against and " unto the said demesne lands of the same manor, in " manner and form as the defendant hath above in his plea " in that behalf alleged ;" and the defendant in his rejoinder took issue upon that fact. — The replication then took issue on the defendant's traverse, " that the said piece of land, in " the plea of defendant mentioned, was and now is by the " sea left, in manner and form as in the inquisition is above " supposed and found ;" and thereupon also the defendant joined issue. These issues were tried at the then last assizes for the county of Derby, before Park, J., and a ver- dict found for the defendant. A rule nisi having been obtained to show cause why a new trial should not be had, the Court directed, at the time of showing cause against the rule, that the facts proved at the trial should be stated in a special case for the opinion of the Court, and that if judgment should be given for the King upon such case, the verdict obtained for the defendant should be set aside and Digitized by Microsoft® 124 Of Title to Alluvion a new trial had ; and if judgment should be given for the defendant upon such case judgment should be entered for the defendant upon the verdict. The case was as follows : The land in question consists of 450 acres of salt marsh c^&di fittees, being the land covered with herbage, which, at the time of taking the inquisition set forth in the plead- ings, lay between the sea-wall and the sea opposite to North Cotes, in the county of Lincoln. It was proved that this land had been formed in the course of time by means of ooze, warp, silt, sludge, and soil carried down by the Humher, and deposited and cast up by the flux and reflux of the sea, upon and against the adjacent land, whereby the land has been enlarged and increased, and the sea has receded. The matter thus deposited is at first soft and sludgy, but in the course of five or six years grows firm, and then produces herbage. With respect to the degree or rate of growth and increase of the land, the evidence pro- duced on the part of the Crown was as follows : — The first witness proved that the sea had receded in parts 140 or 150 yards within twenty-six or twenty-seven years, and that within the last four years he could see that it had receded much' in parts, but could not say how much ; and in parts he believed that it had not receded at all. The alteration, he said, had been slow and gradual, and he could not per- ceive the growth as it went on, though he could see there had been an increase in twenty-six or twenty-seven years of 140 or 150 yards, and that it had certainly receded since he measured the land the year before. The second witness proved, that in fifteen years there had been an increase of the fittees on the outside of the sea-wall ; in some parts from 100 to 150 yards; that it grows a little from year to year. That within the last five years there had been a visible increase in some parts during that period, of from thirty to fiftyDn?«6ar^/y A*faa)feo*fee gradual increase is not and land Derelict. 125 perceptible to the eye at the moment. The third witness said, there had been some small increase in every year ; and the fourth witness said, the swarth increased every year very gradually, and that perhaps it had gathered a quarter of a mile in breadth in some places within his recollection, or during the last fifty-four or fifty-five years, and in some places it had gathered nothing. It was proved that the ground between the sea-wall above mentioned and another sea-wall still more remote from the sea, appeared to have been covered over with the sea formerly. The judgment of the Court was delivered by Lord Ten- judgment of terden, after the Court had heard Counsel and taken time to corisider. "Upon this case the only question for the " judgment of the Court is, whether the evidence given at ". the trial was such as to justify the verdict of the jury upon " the issues joined. Whether the pleadings have been cor- " rectly framed on either side, or what may be the legal " consequence and effect of the verdict, supposing it to " stand, are points now before us. I notice this, because " some part of the argument at the bar was more properly " applicable to a matter of law upon admitted facts, than " to the question whether particular issues are maintained " by the evidence ; or, in other words, whether particular " facts are found to exist. " The second issue upon the record arises upon a traverse Distinction be- " of the matter found by the inquisition. The matter thus {alfd and"^^ "^ " found is, that the land now claimed by the Crown was in alluvion. " times past covered with the water of the sea, but is now, " and has been for several years left by the sea. Now, the " distinction between land derelict, or left by the sea, " acquiring a new character in consequence of the mere " subsidence and absence of the salt water, and land gained " by alluvion or projection of extraneous matter, whereby " the sea is excluded and prevented from overflowing it, is Digitized by Microsoft® 126 Of Title to Alluvion The King v. " easily intelligible in fact, and recognized as law by all the Lord Yarbo- •, ,^ • • , , . t t i • , • • rough. authorities on the subject. Upon the evidence it is very " plain, that the land in question is of the latter description, " and therefore the issue joined upon this point was pro- " perly found for the defendant. " The principal question arose upon the first issue, and " it is, as I have before intimated, merely a question of " fact. The defendant has pleaded, that the land in ques- " tion, by the slow, gradual, and imperceptible projection, " alluvion, subsidence, and accretion of ooze, soil, sand, and " other matter, being slowly, gradually, and by imperceptible " increase, in long time cast up, deposited, and settled by and " from the flux and reflux of the tide and water of the sea, " in, upon, and against the outside and extremity of the " demesne lands of the manor, hath been formed, and hath " been settled, grown, and accrued upon, against, and unto " the said demesne lands. This allegation has been denied " on the part of the Crown, and an issue taken upon it. " The allegation regards only the manner in which the " land has been formed : it contains nothing as to the " result of its formation, nothing as to the practicability of " ascertaining, after its formation, by any marks or limits, " or quantity previously existing and known, or by " measure to commence and be taken from such marks, or " with reference to such quantity, how much is now land " that once was sea. It is clear upon the evidence, that the " land has been formed slowly and gradually in the way " mentioned in the plea. The argument was upon the " word 'imperceptibly;' and for the Crown, two passages " were cited from Sir Matthew Hale's treatise, De Jure " Maris, wherein that very learned writer speaks of land " gained by alluvion, as belonging generally to the Crown, " unless the gain be so insensible that it cannot be by any " 'means, according to the words of one of the passages, or ' Digiffi:ed by Microsoft® ^ ^ ' and land Derelict. 127 " by any limits or marks, according to the words of the " other passage, found that the sea was there ; idem est " non esse et non apparere. In these passages, however, " Sir Matthew Hale is speaking of the legal consequence " of such an accretion, and does not explain what ought to " be considered as accretion insensible or imperceptible in " itself, but considers that as being insensible, of which it " cannot be said with certainty that the sea ever was there. " An accretion extremely minute, so minute as to be im- " perceptible, even by known antecedent marks or limits, " at the end of four or five years, may become, by gradual " increase, perceptible by such marks " or limits at the end " of a century, or even of forty or fifty years. For it is to " be remembered, that if the limit on one side be land, or " something growing or placed thereon, as a tree, a house, " or a bank, the limit on the other side will be the sea, " which rises to a height varying almost at every tide, and " of which the variations do not depend merely upon the " ordinary course of nature, at fixed and ascertained " periods, but in part also upon the strength and direction " of the wind, which are different almost from day to day. " And, therefore, these passages from the work of Sir " Matthew Hale are not properly applicable to this ques- " tion ; and considering the word ' imperceptible' in this Meaning of " issue as connected with the words ' slow and gradual,' we "impercepti- " think it must be understood as expressive only of the port's the waw- " manner of the accretion, as the other words undoubtedly «^ of the accretion. " are, and as meaning imperceptible in its progress, not " imperceptible after a long lapse of time ; and taking this " to be the meaning of the word ' imperceptible,' the only " remaining point is, whether the accretion of this land " might properly, upon the evidence, be considered by the " jury as imperceptible. No one witness has said that it " could be perceived, either in its progress or at the end of Digitized by Microsoft® 128 Of Title to Alluvion Lord^afbo- " ^ '^^^^ o"" ^ month. One witness, who appears twice to rough. " have measured the land, says, that within the last four ".years he could see that the sea had receded, but he could " not say how much ; the same witness said, that it cer- " tainly had receded since he measured it last year, but he " did not say how much ; and, according to his evidence, " the gain in a period of twenty-six or twenty-seven years, " was on the average about five yards and a half in a " year. Another witness speaks of a gain of from lOO to " 1 50 yards in fifteen years ; a much greater increase than " that mentioned by the first witness ; and this second wit- " ness adds, that during the last five years there had been " a visible increase in some parts of from thirty to fifty " yards. Upon the evidence of this witness, it is to be " observed that he speaks very loosely, the difference " between 100 and 150 in fifteen years, and between thirty " and fifty in five years, being very great. The third " witness said, there had been some small increase in every " year. The fourth witness said, the swarth increases every " year very gradually, and perhaps it had gathered a " quarter of a mile in breadth in some places within his " recollection, or during the last fifty-four or fifty-five " years, and in some places it had gathered nothing. And " this was the whole evidence on the subject. We think " the jury might, from this evidence, very reasonably find " that the increase had not only been slow and gradual, " but also imperceptible, according to the sense in which, " as I have before said, we- think that word ought to be " understood ; and, consequently, we are of opinion, that a " new trial ought not to be granted, and the rule, therefore, " must be discharged."(?^) (li) A judgment of the House of Lords has since been reported [in the case of Gifford v. Lord Yarborough, 5 Bing. Rep. C. P. p. 163, by which this decision of the Court of K. B. has been confirmed, and see Ford v. Lac^Sf^^^d^™??^ and land Derelict. 129 It remains to be observed, that with regard to derelict As to sudden land left by any sudden and violent shrinking or retreat of lictions of the sea, whether upon the open coasts, or in creeks or arms '^"'^' or inlets of the sea, it uniformly belongs to the King, and may be claimed by him at any time within the period fixed by the statutes of limitation. That, also, must be regarded in the nature of derelict land, and as vesting in the Crown, which, although not suddenly left by or gained from the sea, is nevertheless, upon the evidence, perceptible in its acquisi- tion and increase, in quantity and limits not to be mistaken by ordinary observation. In a note to Vaillant, ed. of Dyer, {x) p. 326 b, it is said, "the Prince [King] shall have all lands left by or gained " from the sea. I have seen and perused a treatise thereon "and therein many examples of Romney Marsh and " Bromhill, in Kent, of which there are farmers to the " King ; and there is vouched a memorandum they came " to an agreement with the Lord the King. Trin. 43 Ed. " 3, Rot. 13, ex parte of the Treasurer's Remembrancer. " If the sea-marks are gone, so that it cannot be known if if the sea. " ever there was land there, the land gained from the sea ^vered by " belongs to the King. But if the sea cover the land at '^^^/.j^j^^ ^i " flux of the sea, 4nd retreat at the reflux so that the sea- remains to • 1 r 1 • '^^ original " marks are known, if such land be gamed from the sea, it owner, or "belongs to the owner." 8th Eliz., Corporation of Rumney's theTat^ts"' case. This is an addition to Dyer, by the Editor, from gone. Dyer's own notes. So Lord Hale lays it down, (y) that " if " a subject hath land adjoining the sea, and the violence of " the sea swallow it up, but so that there be yet reasonable " marks to continue the notice of it, or though the marks " be defaced, yet if by situation and extent of quantity, and {x) Dyer, 326 b. (y) [Appendix, post, xii. and Re Hull and Selby Railway Company, 5 M. and W. 331.] Digitized by Microsoft® 130 Of Title to Alluvion iecovery of " bounding Upon the firm land, the same can be known, rra^firmTbut " though the sea leave the land again, or it be by art and ace flooded. << industry regained, the subject doth not lose his property ; " and accordingly it was held by Cooke and Foster, M. 7 "Jac. C. B. though the inundation continue forty years." For which he cites Dy. ub. sup. and " a notable case of an overflowing by the Thames," Rot. Pari. 8 E. 2. M. 23. Burnell v. the Bishop of Bath and Wells. C^') CalHs(«) also, in his book on sewers, puts this case : " The sea overflows a "field where divers men's grounds lie promiscuously, and " there continueth so long, that the same is accounted par- " eel of the sea ; and then after many years^ the sea goes " back and leaves the same, but the grounds are so defaced "as the bounds thereof be clean extinct, and grown out of "knowledge, it may be that the King shall have those ■' grounds ; yet in histories I find that Nilus every year so "overflows the grounds adjoining, that their bounds are " defaced thereby, yet they are able to set them out by the '' art of geometry." At this day it may be concluded that the former ownership may be identified by mensuration, so that if the sea suddenly swallow up ten acres, and after several years leave twenty acres dry, the ten acres may be reclaimed by admeasurement, but then the locality must be proved. As soon as it is found by inquisition of ofiice to be land derelict, the King's title attaches by the common law. " This accession of land," says Lord Hale, {b) " in this eminent and " sudden manner, by the recess of the sea, doth not come " under the former title of alluvio, or increase per projec- " tioneni ; and therefore, if an information of an intrusion (z) Vin. Abr. title Prerogative, B, a, 2. Com. Dig. title Prerogative, D. 62. (a) Callis, p. 51. (b) De Jure Maris, Appendix, post, xxvii. ; R. v. Lord Yarborough, 2 Bligh N. S. 162. " Digitized by Microsoft® and land Derelict. 1 3 1 " be laid for so much land relict per mare, it is no good de- " fence against the King to make title per consuetudinem " patrice to the marettum, or sabulonem per mare projectinn ; " for it is an acquest of another nature." And this was ac- cordingly adjudged, H. 12, Car. Rot. 48, in the case of the King against Oldsworth and others, for Sutton Marsh, in Scaccario. And in that case it was likewise held and adjudged that lands acquired per relictionem maris are not prescribable as part of a manor, or as belonging to the sub- ject ; for that were to prescribe, in effect, that the narrow Derelict %\ seas to the coast of France or Denmark were part of a prescriptiol manor. In that case the information, plea, and judgment, were in substance as followeth: viz. "Qu6d cum 7,000 acrse " marisci salsi vocati Sutton Marsh jacentes et existentes "juxta Sutton Long in comitatu prsedicto, videlicet, inter " Sutton Long et mare ad refluxum ejusdem, fuissent parcella " littoris marini, ac ad refluxus maris naturales et ordinarios " aquis salsis et marinis inundatse : cumque eadem 7,000 " acrae marisci salsi nuper a mari undae inundatae fuissent, " fuissent relictse." Then the information sets forth a grant by King James, under the great seal, to Peter Ashton and others, and a regrant by them by a deed inroUed to the King, and that Michael Oldsworth, &c. intruded. The de- fendant, Oldsworth, came in, and as to part, pleaded as tenant, viz. "Qu6d bene et verum est, quod prsedictae " 7,000 acrs marisci salsi vocati Sutton Marsh, jacentes et " existentes juxta Sutton Long ; viz. inter Sutton Long et " mare ad refluxum ejusdem, fuerunt parcellse littoris marini, " et ad refluxus maris naturales et ordinarios aquis salsis " inundatae, et a mari relictse prout per informationem. But " he further saith the King was seized, in right of the duchy " of the manor of Sutton, et quod plures terrae dicti manerii " ante relictionem dictse costerae maris adjacebant ; et quod " consuetiido patrice est et a tempore quo, &c. quod domini Digitized by Microsofi® 132 Of Title to Alluvion " manerlorum, terrarum, seu tenementorum super costeram "maris adjacentium, particulariter habebunt marettum et " sabulonem per fluxum et refluxum maris secundiim majus " et minus prope terras seu tenementa sua projectum sive " relictum ; quodque et praedictas 7,000 acrse marisci salsi ad " terram prsdictam parcellam manerii de Sutton adjacent, " et per fluxus et refluxus maris relictse fuerunt k mari, et "projectae ad terram prsedictam parcellam manerii de " Sutton praedicti, ratione cujus relictionis praedictas dominus " rex fuit seisitus, &c. de prasdictis 7,000 acris in jure duca- " tus, &c." And then he entitles himself by a grant under the duchy seal, and traverseth what he had not confessed. Upon this there was a demurrer and judgment for the King, upon solemn argument, and principally upon this reason, that custom cannot entitle the subject to relicted lands, or make it part of a manor ;(c) and it differed from the case of the Abbot of Peterborough before cited, for there it was only project, but here, relict is added to the plea, that it might answer the information ; though the plea in the Abbot of Peterborough's case was the precedent by which the plea was drawn, and with which it agreed, saving the addition of relict. " And yet the true reason of it is, because the soil [once] " under the water, must needs be of the same propriety as it is " [was"] when covered with the water. If the soil of the sea, " while it is covered with water, be the King's, it cannot " become the subject's, because the water hath left it. " But in the case of alluvio maris it is otherwise, because (c) This deserves notice. In a former page (85) we have seen, that Lord Hale considers prescription and usage time out of mind, to be sufficient to establish the ownership of the lord of a manor to the bed of the river Severn, as parcel thereof along a large extent of coast, and to the derelict land there, which, it seems, is often considerable. There is some discrepancy between the doctrine here laid down and that above alluded to. [See mll^Wm^^, 12, 25, et ante, p. 104.] and land Derelict. 133 " the accession and addition of the land by the sea to the " dry land gradually, is a kind of perquisite, and an acces- " sion to the land ; and therefore, in case of private rivers, " it seems by the very course of the common law such a " gradual increase, cedit solo adjacenti ; and though it " may be doubtful whether it be so ex jure communi, in " case of the King, yet doubtless it gives a reasonableness " and facility for such right of alluvio to be acquired by " custom ; for although in every acquest per alluvionem " there be a reliction, or rather exclusion of the sea, yet it " is not a recess of the sea, nor properly a reliction." Lord Hale then adds, " But this is to be carried along with us " in the case of recessus, or relictio maris, vel brachii " ejusdem ; that where the land, as it stood covered with " water, did by particular usage or prescription {d) belong to " a subject, there the recessus maris, so far as the subject's " particular interest went while it was covered with water, — " so far the recessus maris vel brachii ejusdem belongs to " the same subject." " The King of England hath the propriety as well as " jurisdiction of the narrow seas ; for he is in a capacity of " acquiring the narrow and adjacent sea to his dominion, " by a kind of possession which is not compatible to a " subject, and accordingly regularly the King hath that '• propriety in the sea, but a subject hath not, nor indeed " can have, that property in the sea, through a whole tract " of it, that the King hath ; because, without a regular " power, he cannot possibly possess it. But though a sub- {d) But, according to this doctrine, derelict land jnay be virtually prescribed for (a position denied ante p. 131). — For if a man may- prescribe for 1,000 acres of sea and the soil under it, the soil, whether wet or dry, is equally prescribed for. Here also, there seems a dis- crepancy in his Lordship's doctrine. There seems no reason why portions of land under the sea may be prescribed for, and portions of land suddenly left dry, not Digitized by Microsoft® 134 Of Title to Alhivion " ject cannot acquire the interest of the narrow seas, yet he " may by tisa£-e and prescription acquire an interest in so " much of the sea as he may reasonably possess ; v'yl. of a " districtus maris, (^) a place in the sea between such points, " or a particular part contiguous to the shore, or a port or " creek or arm of the sea. These may be possessed by a " subject, and prescribed in point of interest, both of the " water and the soil itself, covered with the water, within " such a precinct ; for these are manoriable, and may be " entirely possessed by a subject." The learned writer then alludes to title by prescription : — " The Civilians tell us truly, nihil prcescribitur nisi qiwd " possidetur. The King may prescribe the property of the " narrow seas, because he may possess them by his navies " and power. A subject cannot ; but a subject may possess " a navigable river or creek, or arm of the sea; — because " these may lie within the extent of his possession and " acquest." " The consequence," says he, " of this is, that the soil " relinquished by such arms of the sea, ports, or creeks,-— " nay, though they should be wholly dried or stopped up, " yet such soil would belong to the owner or proprietor of " that arm of the sea, or river, or creek, for here is not any " new acquest by the reliction, but the soil covered with " water was the subject's before, and also the water itself (e) Along the coast, therefore, where none of these inlets or districts are found, the land under the water cannot, at all events, be prescribed for, being too open and indefinable, and, therefore, the shore, in such places, is not prescribable, even if a "districtus maris" may be, although neither the one nor the other would seem correctly to lie in prescription. It is difficult, also, to say what the quantity of sea is that a subject "may reasonably Tposstss ;" that which the King has actually granted, we may suppose the subject may reasonably possess ; but what line shall be drawn as to the quantity or extent of sea a subject shall be allowed to clSfgJf/igc/'fcpVWsBrqitttei".' and land Derelict. 135 " that covered it ; and it is so now that it is dried up, or " hath relinquished its channel, or part of it."(/) " And such an acquest of a propriety in an arm or creek As to the " of the sea may be as well within the precincts of a port, 5o!nn°portl " as without ; and that though the King, or some subject " hath the port, in point of franchise or privilege, {g) For, " although the soil of all creeks and navigable rivers, espe- " daily within ports, do originally belong to the King, in " point of propriety, as well as in point of franchise, yet the " subject may have so great and clear a possession of the " soil lying under the water of that port, that it may belong " to a subject in point of interest or propriety of the soil, " though he have or have not the port in point of fran- " chise ; {K) and consequently, if the sea should relinquish " the channel, or creek, or arm of the sea within such a " port, it might and would belong to that subject who had " the propriety of the soil, and water before it were so " relicted." " And this is an exception out of that generality, possi- {f) Callis, p. 5 1, seems to deny this doctrine, as if the change pro- duced a change of title ; but there can be no difficulty in agreeing with the doctrine laid down in the text, supposing the title to the soil when covered with water to have been good. {g) If the port has never been out of the hands of the Crown, and is an ancient port, q. if it be possible for the subject to be owner of •its soil? {K) Also, Since it is the King's undoubted right to originate new ports, and since he is also prima facie absolute owner of the sea- bottom and sea-shore, q. is it possible that the courts of law can allow a Lord of a Manor to make title to so essential a part of the new port as the soil (which may be of great extent), on mere prescriptive evidence ? The shore within the precinct of ports, often extends several miles along the coast. A title interfering with the prerogative of originating new ports, ought not to be favoured. [As to the creation of new ports, see Nicholson v. Williams, 6 L. R., Q. B. 632 ; 40 L. J, N. S., M. C. 159, S. C. ; Jenkins v. Harvey, i C. M. and R. 877 ; Exeter, mayor of, v. Warren, 5 Q. B. 773 ; 8 Jur. 441, S. C. ; 9 and 10 Vict. c. 102, s. 14 ; 16 and 17 Vict. c. 107, s. 9, and Houck 185.] Digitized by Microsoft® 136 As to the Soil of Ports. " bly, that (errcs relictce per mare may not be prescribed. " But a certain creek, arm of the sea, or districtus maris, " viay be prescribed in point of interest ; and by way of " consequence or concomitance, the land relicted there, " according to the extent of such a precinct as was so pre- " scribed, will belong to the former owner of such districtus " maris. But otherwise it would be, if such prescription, " before the reliction, extended only to a liberty, or profit " d prendre, or jurisdiction only within that precinct ; as " liberty of free fishing, admiralty jurisdiction, or the juris- " diction of a leet or hundred, or other court ; for such may " extend to an arm of the sea, as appears by 8 E. 2, Co- " ronae, for these are not any acquests of the interest of the " water and soil, but leave it as it found it." {i) " Therefore, the discovery of the extent of the prescrip- " tion or usage, whether it extend to the soil or not, rests " upon such evidence of facts as may justly satisfy the " court and jury concerning the interests of the soil." The learned author then proceeds to observe : — 1st. " That a subject may, by usage or prescription, be " owner or proprietor of such an arm of the sea, creek, or " particular portion of the sea contiguous to the shore, as is " not a public port or haven, and consequently if that part " be left dry, per recessum vel abstractionem maris, that " will belong to that subject that had such antecedent pro- " priety when it was covered with water." " This will appear by a review of those cases that are in " the precedent chapter concerning the right of fishing in " the sea, many of which instances make it appear that there " may be a right of propriety in the soil aqui cooperti, and (z) This seems to contradict the doctrine of the same writer quoted and controverted in former pages of this tract. For if such rights, when prescribed for, leave the water and soil where they found them, and are not acquests of the water or soil, they ought not to be con- strued into evidence of ^M'i&iMS^ The answer is, ^ly prescription ; and yet it is insisted that he cannot prescribe for dereHct (r) See ante, pp. 132 and 104. ('') P- 133, ^^^igitized by Microsoft® (s) See accord. Dyer, 326. (te) P. 134, ante. as to the Soil of Ports. 143 land at all 1 Surely this is in effect prescribing for the very- same land. It may be fairly urged, that if land under the water may be prescribed for, against the King's prima facie title, the same land when left dry may or rather must also be prescribed for, — because " it must needs be of the same propriety as it was when covered with water." Suppose I have always claimed (but without having any Example. actual grant to show) the ownership of a certain districtus maris, and have never had the title questioned, and it suddenly becomes dry land ; can I prescribe that it was mine when under water, and thus acquire a title to it .' If I can do so, this is virtually prescribing for the derelict land. The law of England, however, makes no distinction between land covered and land not covered with water ; both are " land',' technically speaking ; and therefore, it seems a contradiction in terms to say that land covered with water can be prescribed for, and land relict cannot. Undoubtedly, if the subject had no legal ownership in the soil under the water, against the King's title, such subject can have no better title to it when it is relict and dry. This, however, does not explain why land covered with the sea may be prescribed for, and the same land left un- covered may not. Indeed, according to what has been before urged, neither the one nor the other can be made good, in point of title, by prescription ; both being merely land, and therefore not lying in prescription. The doctrine that if, by prescription, a man " hath q. whether " portum maris de S. in ordinary presumption he hath not f^ the fran- " only the franchise, but the very water and soil itself chiseofaport, will carry the " within the port," rests also on doubtful ground, if the soil? author's distinction be sound, viz. that the port ox franchise, and the soil, do not necessarily go together : "the franchise " of a port,'' says he, " is a different thing from the pro- " priety of the soil, and so the franchise of a port may be Digitized by Microsoft® 144 Doctrine of Lord Hah " in a subject, and the soil in tiie King or some other." (x) Now, if this be the case, it does not appear why they should, in ordinary presumption, go together under one word, partus. The learned writer doubts (j/) whether the express grant of a port would, at his time of day, without more words, carry the soil ; but conceives that an ancient grant of the port, coupled with ancient usage, would carry the soil. All grants of ports are now to be deemed ancient grants ; no modern grants (at least including the soil) can be made : are we then to construe every ancient grant of a port, without more words, as giving inclusively a title to the soil ? Undoubtedly, if the mere prescription for a port will carry not only the franchise, but the soil, by reason that "portus" is quid aggregatum, (z) like a manor, then indeed there can be no just reason why the word " portus," in a grant, should not also have the effect mentioned. Whether the But, it may be asked, why in any case should the mere tus " in a °^' word " Portus " carry the soil, as well as the franchise, if grant will ^.jjg gQjj j^jjj] j-j^g franchise are (as they are stated to be) pass the soil ^ ■' ' as well as fran- separate Ownerships, and capable of being possessed by different persons, and are sometimes so held ? The fran- chise should rather be deemed an adjunct to the soil, than the soil to the franchise, and yet it is nowhere said that the ownership of the soil carries the franchise. It is not intended to be denied that one person may have 6otk; but it may be doubted whether the word " Portus " will, in any case, carry more than the franchise ; and consequently it is presumed that the grant must contain sufficient words of grant of the soil. It would be singular, in such a case, to allow the soil to be prescribed for, when the port only is actually granted ; and if an express grant of the port, with- out more words, will not carry the soil, it is difficult to {x) Seep. 135, ante. {y) Ibid. {z) Ibid. Digitized by Microsofi® chise ? as to the Soil of Ports. 145 admit that the mere prescription for a port will give the soil also. Prescription, or presumption, ought not to give more than the express grant (supposed to have had existence) would have given ; especially against the Crown. («) There can be no good reason of policy for thus con- struing the grant beyond its letter, or conferring the soil of a port on a subject by presumption or prescription. Where the port had better have been, the soil may as well remain. There can be no occasion to strain points of legal doctrine, the effect of which will be to deprive the King of that which was vested in him for the good of the public. The cases quoted by Lord Hale, in support of this doctrine, do not seem to warrant the conclusions drawn from them. Thus we find the words of the first case, " Partus et pis- " caria et mariscus de Toppesham spectant ad Comitissam " Devon," are deemed sufficient to prove that not only the franchise of the port, but the soil of the port also belonged to her. Now, the " piscaria " is not the soil of the port ; nor is the " mariscus " adjoining, the soil of the port ; and therefore all that the words per se, give, is the franchise of the port, the fishery, and the adjacent marsh ; and the word " port,'' even in his own admission, may, or may not, carry the soil. Nothing appears to warrant a construction beyond the franchise, the fishery, and the adjacent marsh ; yet, in a subsequent part of his work, (d) he draws similar conclusions more fully from this case ; where, after quoting the case of the port of Toppesham in the same short form as above, he adds, — it appears, " 1st. That the Earls of Devon had the propriety of the " soil of the port by prescription ; for they had all the " profits that arise by reason of the property of the soil ; (a) [Jerwood, p. 50.] {b) [Appendix, post, xxxii. and De Portibus, p. 55.] Digitized by Mhrosoft® 146 Doctrine of Lord Hale "viz. "Cc^Q fishery and the salt marsh, which possibly might " be an ' incrementum maritimum.' But upon this it may " be observed, that the salt marsh was adjoining, and " might well pass eo nomine ; and there is no more ground " for construing 'mariscus' into a grant of the soil of the "port, than for holding the grant of the 'portus' to be a " grant of the ' mariscus.' As for the ' piscaria,' it seems " impossible to convert that into a grant of the soil itself, " for a piscaria, it is admitted on all hands, often exists " independent of the soil, where the soil is clearly in the " King, or another ; this has been already shown. Besides, " the words ' spectant ad C, D,' prove nothing on the point " oi prescription. But he proceeds, — " 2nd. They had also the franchise of the port, by pre- scription, and all the incidents thereof, viz. 1. Applicatio navium, 2. Exoneratio navium, 3. Mercatum et venditio mercandisarum et per retail, 4. Victualling of mariners and ships, 5. Lodging and entertainment of mariners. " All which are privileges in a special manner belonging " to ports, and cannot be had without that liberty legally " vested." — All which may be true enough, and yet not prove the soil to pass by the word " portus." The next case cited by the same learned writer is that of Plymouth and Sutton Pool, (c) " P. 10. Ed. 3, B. R. Rot. " 73, dorso, it appears, that Willielmus Denlarena Comes " Surrey, had the port of Pool and anchorage and other " duties belonging to it." " It appeared among the charters of the Duchy of Corn- " wall, the transcripts whereof remain in the receipt of the " Exchequer, that Rogerus de Valletort-avantort, gave to {c) [De Portibus, p. 56 ; Jerwood, p. 63 ; Appendix, post, xxxii. and xcviii.] Digitized by Microsoft® as to the Soil of Ports. 147 " Richard King of the Romans and Earl of Cornwall, and " the heirs of his body, Castrum [castle] de Trematon, et 59 " feoda militum, in Cornwall et Devon, ad idem castrum " pertin. ac etiam manerium de Trematon, et villam de esse, " CUM AQUA." (d) " To this castle of Trematon belong a certain petty manor " called Sutton Vantort, and also the water and port of " Sutton; for so appears by the close roll, Claus. 17, E. 2, " m. 14, Sutton cum aqua et portu spectat ad castrum de " Trematon." " By the death of Edmond, his son, without issue, the " earldom and this castle came to the Crown. Possibly " Richard, Earl of Cornwall, after issue had, made some " alienation before the statute of Westminster, 2d, whereby " the reversion to the heirs of Vantort was barred." " The earldom of Cornwall and this castle of Trematon " descended to King Edward the 3d. He, by charter, in " parliament, grants the earldom of Cornwall to his eldest " son, ' et castrum et manerium de Trematon, cum villa de " Saltash, et parco ibidem cum aliis pertinentiis.' See the " Charter, 8 Rep. 8. The prince's case." " By this grant," says Lord Hale, " without any special " mention of the water or port as belonging to it, the port " and water of Sutton, now Plymouth, was annexed to the " duchy of Cornwall, for though the charter grants ' prisas " ' et custumas vinorum necdum proficua portuum nostro- " ' rum, intra eundem Comitatum Cornub. simul cum {d) Nothing passes by the word " aqua," save a fishery. " If," says Lord Coke, " a man grant aquam suam, the soil shall not pass, but " the piscary within the water passeth therewith." Co. Litt. 4 b. Plowd. 154, says, that by " aqua, a piscary shall pass ;" and he adds, that " by a grant of a piscary, the soil shall pass ;" by which it might be inferred that " aqua " will carry the soil. But in a former page it has been contended, under strong authority, that a grant of a "piscary " does not carry the soil. Digitized by Microsoft® 148 Doctrine of Lord Hale " ' wrecco maris, et balena, et sturgeono,' yet that did not " extend to the water of Sutton,{e) which was in Devon, but " it [the water] passed by the strength of its being parcel " of, and appendant to the castle of Trematon." " The town of Plymouth, which is indeed caput portus " from whence the port now takes its denomination, was not "part of Trematon, but built upon the manor of Stitton " Prior, and was incorporated, and its jurisdiction settled " by act of parliament. Rot. pari. 18 H. 6, n. 32, and con- " firmed by rot. pari. 3 E. 4, n. 45. But always in both, " whatever was parcel of Trematon was excepted ; and con- " sequently the haven [portus] itself (which was parcel of " Trematon) was not annexed thereby to Plymouth, but " stood upon the same foot of interest as before." " There lies adjacent to this town [of Plymouth], within " the barbican thereof, a .space of about thirty acres, which is " covered every tide with the sea, and ships ride there, and " come to unlade at the keys of Plymouth, commonly called " Sutton Poole ; for the interest of the soil of these thirty " acres, being parcel of the port, an information of intrusion " was, as directed out of the Exchequer chamber, preferred " against the Mayor and Commonalty of Plymouth. The " defendants pretended title to it as parcel of the town of " Plymouth, and showed usage to have had certain customs, " called land leave, terrage, &c. But these referred to the " shore rather than to the place in question.(/) They allege " that it was also within the limits of their charter, and that " they exercise jurisdiction of their courts there ; both " which were admitted. But it was insisted upon, on the " other side, that the soil itself zvas excepted, as parcel of the " castle of Trematon ; and it was showed that the King {c) But see last note. (/) Sad quaere, if it was regularly covered by the ordinary tides, this place was also shore ? _,. ... , , ... ^r^ •^ Digitized by Microsoft® as to the Soil of Ports. 149 " had used to have 'in right of his duchy in the place in " question, anchorage, basselage, fishing, and the rents of " fishers, and divers other port duties that savoured of the " soil ; as appears by divers accounts of the duchy ; divers " records mentioning Pola de Sutton was parcel of Tre- " maton ; several leases made by the King's progenitors of " aqua et Pola {g) de Sutton ; and some to the town itself, " or some in trust for them ; and divers other weighty " evidences for the propriety of the soil of Sutton Pool ; " being the very harbour itself, and belonging to Tre- " maton : and accordingly a verdict given for the King." The learned writer then adds, " I have mentioned this the " rather because, — " 1st. Here the very interest of the port, the water, and " soil, and port duties themselves, were claimed and re- " covered by the Crown, not upon any prerogative title ; " for if it had been so, it would have passed to the town " of Plymouth, being within the precincts of their incorpo- " ration, and grant ; and then the exception of Trematon " had not been available, but as parcel of and belonging to " a manor that was formerly a subject's." " 2nd. That the King, prima facie, hath a right to ports " of a royal franchise, yet the accession of this manor to the " Crown did not sever the interest of the port from the {g) Although, as before observed, " aqua " will not pass the soil (see note to p. 147, ante), yet the words " stagnum," or pola (forsan?), a pool,—" gurges," a deep pit of water,—" palus," and " mariscus," a marsh, will pass the soil, being quid aggregatiim, see Co. Litt. 4 b. So a " boilourie of salt," and " saliva," or " selda," both of which signify a salt pit. Co. Litt. ib. So also the word " marettum " signifies soil lying between the flux and reflux of the sea, and " you shall read," says Lord Coke, " that such a man perquisivit trescent acr. maretti." Co. Lit. 5 a. So also the word " sea-grounds " will pass a portion of shore. Scratton v. Brown, 4 B. and C. 485. And since there are so many words and phrases, capable of passing the shore in any given spot, to say nothing of the word " shore " (littus) itself, there seems less reason for giving to other words a forced or far-fetched import. Digitized by Microsoft® 1 50 Doctrine of Lord Hale " manor, no more than in case of a fair or market ap- " pendant by prescription ; for if, by the accession to the " Crown, it had been divided from the castle, or manor, " it could not have passed, without special words, to the " Prince, as it plainly did here. As the J>ort was dj/ pre- " scription parcel of the manor of Trematon, so it con- " tinued parcel, notwithstanding the accession thereof to " the Crown, by the death of the Earl of Cornwall without " issue ; and it passed, together with tlie castle, by the general " grant of it, as a leet or market, or any other parcel or " appendant ; and so, not like those flowers of the Crown " which are rendered disappendant by the accession to the " Crown, as waifs, strays, &c." Comments on With regard to this last cited case, the result undoubt- Plymouth and cdly was, that the King retained both the soil and the port Sutton Pool. Qf Sutton Vantort ; but it does not seem so clear that he retained it as appendant \>y prescription. As to the franchise of the port, it is not meant to deny that a franchise may be appendant to a manor by prescription ; but the case by no means proves that the soil of the sea, or an arm, or port thereof, may be in like manner appendant, by prescription, to a manor. It is to be remembered that tlu soil of the port belonged to the King, before it was a port, and does not appear to have ever been divested from the Crown at all ;{li) and even if his ancestors had granted it away as parcel of the land of the manor, yet when the whole fell again to Edward 3, he became possessed of the soil in his ancient title. His descendant, King Charles 2 (for whom the verdict was given),(2) was, in the present case, entitled to (h) The first grant quoted is that to the King of the Romans, and unless the soil in question was " pmxel of the castle and manor of Trematon," at the time of this grant, by metes and bounds, — (and nothing appears to show whether it was or was not), — it was still in the Crown, for the words " cnvi aqua " did not pass more than a fishery. Digitized by Microsoft® {i) Mich. 16 Ch. 2. in Scac. as to the Soil of Ports. 151 it in a double right, if possible ; for all that his ancestors had once granted away with Trematon and the manor, fell to him again by descent ; and if they had never granted the soil, then it was his ab origine. The town of Plymouth must have produced either the King's grant of the soil in question, or some tantamount evidence of right to it : and as they failed so to do, even on the disputed ground of prescription, the soil necessarily remained to the King, and the franchise of the port remained appendant to the manor. It does not appear that the evidence adduced on the King's side was necessary to his case, further than concerned the franchise, although it was also used to rebut the claim to the soil. The grant to the King of the Romans was of the castle and manor of Trematon, and the town, cum aqud [and " aqua " carried the fishery only], and the manor of Sutton Vantort, and also the water and port of Sutton Vantort, were admitted to belong to the castle; i.e. to be appendant to it. The castle, the manor, the town cujn aqua, all fell to King Edward by descent, and he, by a somewhat difTerent form, granted " castrum et manerium de Trematon " cum villa de Saltash et Parco ibidem cum aliis perti- " nentiis" without any mention of the port or aqua of Sutton Vantort. The town of Plymouth being built on another manor, viz. Sutton Prior, was no part either of the manor of Trematon or of the manor of Sutton Vantort ; and the soil in question was clearly part of the port or pool of Sutton Vantort, which was parcel of the greater, manor and castle of Trematon. {k) The charter of the town con- tained an express exception of whatsoever was parcel of the castle and manor of Trematon ; and therefore, clearly Sutton Vantort, both pool and manor, were doubly excepted ; first, if parcel of Trematon ; and secondly, from being within a different manor from Sutton Prior, viz. Sutton Vantort, {k) By the name of castle, one or more manors may pass. Co. Litt. ^ ., Digitized by Microsofi® 5 3.- 152 As to the Soil of Ports. which, at all events, was not belonging to Plymouth. If the pool and soil of Sutton Vantort did not pass by the grant of King Edward, as a less within a greater manor, then it remained in King Edward, and subsequently, by succession, vested in King Charles ; and if it did so pass to the Prince of Wales, then, through him, it came also to the Crown, and by the Crown it was excepted by the words of exception in the charter, so that quacunque, &c. the town of Plymouth had no title. But surely this is no evidence that land covered with the sea may be prescribed for. It was admitted on all sides that Sutton Vantort,(/) cum aqua et Portu, speetant ad [belong to] castrum de Trematon ; and it was clear that Trematon was excluded, totidem verbis, from the Town Charter, and was vested in the King. The King, therefore, did not prescribe at all, for he produced written evidences of his title, and had his original common law right besides. In fact, all that did not pass from the Crown by the original grant to the King of the Romans, in the first instance, was the King's soil by common law ; all that did pass by that grant came after- wards to King Edward, by descent ; and all that King Edward granted to the prince, and also all that did not pass in the grant to him, but was crown property ab origine, became ultimately vested in King Charles ; so that in him, at the time of the dispute, 'all title centered, save what the town possessed by their charter, and there it was not to be found. Lord Hale also cites in this place, in support of the same doctrine, the case of the Barons of Barclay (;«) already quoted ; but which case, if referred to, will not appear to establish the point, that he who prescribes for a tort thereby also acquires the soil of it ; for in that case the King was admitted to be owner of the franchises of the ports both of Bristol and Gloucester, within the precincts (/) [See Jerwood, p. 6i^i9iti^ifl!^yMmmW^KXc\^y's case, p. 84, ante. As to the Soil of Ports. 153 of which the land claimed by the Barons was situate, and yet the land was adjudged to the Barons, whilst the ports remained in the King. The King was, prima facie, the lawful proprietor of the soil, and was also the owner of the port ; and according to Lord Hale, the port and the soil ordinarily go together ; and yet, it seems, these badges of ownership were not sufficient to outweigh the claims of the Barons, specially proved, to the land. There seems to be this material difference when we speak Distinction of "Portus" in the crown, — and the same in a subject. "^p^rtus"ii In the crown, the soil and the port are ordinarily united, because the soil is the property of the crown by common law ; but it is not so in the case of a subject, whose right to the soil is adverse to the ownership of the King. It is matter of course that the soil belongs to the King, until the contrary be proved. So also the franchise of the port. But in the case of a subject, each of these distinct rights is set up against the King's prima facie acknowledged owner- ship, and it does not seem correct to take the one from the King by implication, because the other is substantiated against him. It is well known, that the portus often extends over several miles of shore, on both sides of the actual harbour, as happened in the last cited Barclay case ; and it would seem unreasonable to construe the word " Portus " into a title to such an extent of land, where the franchise alone will satisfy the word, and the franchise and land are fairly and technically distinguished from each other by the law itself. No other cases, save those quoted by the learned writer, present themselves to give colour to such construc- tion : and with regard to the cases or records alluded to, it is not too much to say, that from the manner in which they are reported, it is not easy to collect out of the mass of evidence adduced, what was, and what was not the true ground of the decision. Digitized by Microsoft® 1 54 Summary of the principal The principal points of law discussed in the foregoing pages are these : — 1. That the dominion and ownership of the British Seas, and of the creelcs, bays, arms, ports, and tide rivers thereof, are vested, by our law, in the Crown. 2. That this ownership includes aquam et solum j both the water, its products and uses, and the land or soil under the water. 3. That such ownership includes the shore, as far as the reach of the high-water mark of the [medium high tide between the springs and the neaps]. 4. That the land subject to spring tides, and high spring tides, is no part of the sea, or sea-shore ; but belongs to the title and owner- ship of the terra firma. 5. That by grant from the Crown, a subject may have a lawful owner- ship of a certain portion of the sea, its creeks, bays, arms, ports, or tide-rivers, and of the shores thereof, tarn aqua quain soli. 6. But that such grants must have a date anterior to the statutes re- straining the alienation of Crown lands. 7. That no distinction exists at law, between the title or proofs of title to such land covered with water, and the title to terra firma. 8. That where the ownership claimed by a subject in any such dis- trictus maris, or tide-river, or shore cannot be proved by the pro- duction of the grant, such ownership can no otherwise be esta- blished than by adverse possession, under the Statutes of Limi- tation. 9. That such ownership cannot be supported by " prescription," pro- perly so called, against the King, and never could, at any period, be so supported under the feudal law. 10. That the proofs of title, where the grant itself is not forthcoming, to such districtus ma7-is aut littoris must he parts materia with those required to prove title to inland estates. 11. That proof, by prescriptive evidence, of a right to a franchise, liberty, or easement in or out of the soil, is no sufficient evidence of title to the freehold and inheritance of the land itself, whether such land be terra firma ox pars maris. 12. And consequently, that the ownership of a several fishery, or of the franchises of wreck, of flotsan, jetsan, and ligan, or of royal fish, or of ports, or the liberty of digging for sand, or shells, &c., will not be sufficient to establish an absolute ownership over the soil itself, where such rights are enjoyed against the Crown. 13. And, therefore, nfeither the express g-rant of a franchise, or liberty, nor " prescription " for such (which supposes a grant) can be con- strued to include the soil, or freehold, against the Crown, by im- plication, or presuiBig)3^c/ t>y Microsoft® Points discussed. 155 14. That "alluvion," properly so called, belongs to the ownership of the freehold of the adjacent terra firma, subject to such interests in others as such ownership is liable to. 15. That "derelict" land, properly so called, belongs to the Crown, as land suddenly and by manifest marks left by the sea. 16. That islands produced out of the British Seas, and the creeks, bays, arms, ports, and tide-rivers thereof, belong, like derelict land, to the Crown. 17. Unless the soil under the water out of which such islands are pro- duced, previously belonged to a subject. 18. That the title of a subject to the soil of a districtus maris, viz. to the soil of any creek, bay, arm, port, or tide-river, or to the shore, in no substantial respect differs from a title to terra firma. 19. That it is more for the public advantage that the ownership of subjects should be limited to the terra firma; and consequently, that by the rule of law, as well as of public policy, claims set up to tracts of sea, or of ports, or tide-rivers, or of the shore, ought not to he favoured SLgSiinst the Crown. Digitized by Microsoft® SUPPLEMENTAL CHAPTER ON THE PUBLIC RIGHT TO USE THE SHORE FOR BATHING, AND FOR DIGGING AND TAKING SHELLS, SAND, Etc. As to the Right to use the Shore for Bathing. |HE general right to frequent the shore for sea- bathing was made the subject of legal ques- tion, for the first time, in the case of Blundell V. Caterall.(fl) The plaintiff, who resisted the right, " was the lord of the manor of Great " Crosby, which is bounded on the west by the river " Mersey, an arm of the sea." It is stated in the report of the case, " that as lord of the manor he was owner of the " shore, and had the exclusive right oi fishing thereon with " stake nets. The defendant was the servant at an hotel " erected in 1815, upon land in Great Crosby, fronting the " shore, and bounded by the high-water mark of the river " Mersey, the proprietors of which hotel kept Bathing " Machines for the use of persons resorting thither, and id) 5 Barn, and Aid. 268. [See Phear 47, and Mace v. Philcox, IS C. B. N. S. 600 iD^SSasjjftSi^^feters, 28.] Right to use the Shore for Bathing. 1 5 7 " who were driven by defendant in machines across the " shore into the sea for the purpose of bathing ; and the " defendant received a sum of money from the individuals " so bathings for the use of the machines, and for his ser- " vice and assistance. No bathing machines were ever used " upon the shore of Great Crosby before the establishment " of this hotel ; but it had been the custom for people to cross " it on foot for the ptirpose of bathing. There was also a " common highway for carriages along the shore, and it " was proved that various articles for market were occa- " sionally carted across the shore, although the more comnion " mode of conveyance for such things was by a canal, made " about forty years ago. The defendant contended for a " common lazv right for all the King's subjects to bathe on " the sea-shore, and to pass over it for that purpose on foot " and with horses and carriages." It was decided by three Decided in of the learned judges against one, (5) that no such general r'"J"'^f/ tj, right in the subject to frequent the shore, y^r the purpose of the public . . . have no com- batliing, existed, whether on foot or m carriages. mon law right This was the first case in which the public right to use ^^ sL^shore the sea and sea-shore for bathing, was ever judicially either Remarks on claimed or opposed, as was remarked by Mr. Justice Bayley. *^ "^j^?,"^ The case was very fully argued, and the judges gave their Caterall. opinions at considerable length. The learned counsel who argued against the right, opposed it on three several grounds. " First, from the silence of the authorities. Secondly, " because such a right was contrary to analogies. Thirdly, " because it was contrary to acknowledged and established "rights;" and the three judges, by whom the case was decided, seem to have been governed, principally, by the first and last of these several grounds of argument. It is to be observed, that the title of the lord of the Remarks con- manor to the absolute ownership of the shore itself was '™"^^- {b) Best, now Lord Wynford. Digitized by Microsoft® 158 As to the general Right to use supposed to be proved ; and not only the soil of the shore, but also " an exclusive right of fishing thereon with stake nets," was taken for granted to be the private property of the lord ; and, therefore, the particular question was not whether the shore was subject to such general customary right of bathing, but whether ^^ private ownership of such shore, coupled with an exclusive private fishery with stake nets, was subject to such general customary right of bathing. The Court, however, did not confine themselves to the narrow ground of the incompatibility of the bathing with carriages, or on foot, in a place where a private fishery with stake nets existed ; on the contrary, they decided upon the broad ground, that a general common law right did not exist at all, by ancient custom and usage, of frequenting the sea-shore for bathing. It was taken for granted, on all hands, that the original ownership of the shore is in the Crown ; and that even the King's ownership was subject to the common law rights of fishing and navigation ; and also, that the subject who became owner of the shore by the King's grant, was as liable as the King to those cus- tomary rights ; but it was denied that either the King's or a subject's ownership of the shore was subject to a like general common law usage of bathing. With regard to the silence of the books, the Court said, " that no trace of such a right was to be found in the " books.'' But it seems to have been admitted that " the books" were not the only authorities for or against such right ; for the Court also said, " that the existence or the " extent of the subject's right was to be collected in this, " as in other instances, from the manner in which the sea- " shores throughout the kingdom have been from time to " time immemorially used ; as well as from legal authorities." Now the silence of the books may, in some cases, be alleged to testify the ex^^^^f^jj^jj^^, and general acquiescence the Shore for Bathing. 159 in a right. The custom in question would seem to be a right of all others the least likely to become the subject of legal dispute. The silence of the books in respect of a custom so natural and universal, may be thought to make as much for as against the usage : (c) nor can the mere silence of the books be deemed a sufficient negative of a custom. If, in- deed, the practice of bathing has generally prevailed, time out of mind, throughout the realm, the silence of the books gives consent rather than denial. The right in question was a case of custom, and by the dicta of the judges themselves, we are permitted, in the absence of all book authority, another distinct ground for decision, viz. " immemorial usage," which is the very essence of the common law itself. It is not easy to point out a custom more universal, more Antiquity of natural, or more ancient on the sea-coasts not of England andlts xini- only, but of the whole world, than that of bathing. We ■^^rsahty. know that the natives of the British Islands have been from time immemorial famous for their skill and intrepidity in the art of swimming. The most barbarous and the most {c) It is admitted, that in some cases, " the silence of the books may be eloquence,'' as Lord EUenborough expressed it in Aubrey v. Fisher, lo East. 456. But that is where some singular custom differ- ing from, or opposite to the general custom, is set up, and no mention or allusion made in the books to the opposite and particular custom. Thus in the case alluded to, the general custom of the realm was that trees under twenty years' growth were, if cut, to be deemed underwood and titheable, but trees of twenty years' growth and upwards were deemed timber trees, and not titheable. A custom was set up in one cotcnty that if the tree did not contain ten feet of solid timber, it was underwood ; and his Lordship's remark was applied to this alleged custom, which was deemed not to be good accordingly. In the prin- cipal case the custom to bathe is general ; and a custom set up, in one district, of limiting the bathing to one class of persons, or to persons of a certain age, or to a certain hour, would be a singular exception to a general rule ; and if the books were silent about it, might well be denied. But it would be strange to construe the silence of the books into a denial of a custom which has actually existed universally and immemorially, and which, therefore, has always spoken for itself. Digitized by Microsoft® i6o As to the general Right to use Distinction between the custom as claimed in re- spect of the sea, &c., and inland waters. civilized nations in all parts of the globe have equally practised bathing and swimming. So far from the silence of our books being a good authority for the non-existence of this right, it would have been the more singular circum- stance of the two to have found the point in any way dis- puted. The constant enjoyment of this privilege for ages without dispute, would, it might be supposed, have proved sufficient to establish it as a common law right, similar to that of fishing in the sea. It is difficult, indeed, to imagine a general and public right of fishing in the sea, and on the shore, unaccompanied by a general right to bathe there. It is true, that if the natural instinct or habit of man to bathe be alone sufficient to establish such right, it would confer a right to bathe in rivers, streams, lakes, &c., which not being subject to the tides, are no part of the sea. But it is not the inclination alone, but the universal and habi- tual practice which is necessary to establish such a right ; due regard being also had to the nature of the ownership in the locus in quo. Rivers and lakes, &c. not subject to the tides, being no part of the sea, are no public highway, no " great waste," subject to public use for fishing, naviga- tion, &c. They are, by our law, private property to all intents and purposes. The analogy, therefore, does not fully hold ; but even in this case it may be doubted whether a custom, proved to have existed time out of mind, of bathing at a particular place, in any river or lake, by the inhabitants of the adjacent parish, town, or district, espe- cially where a common of piscary exists, may not be rea- sonably supported as an easement or liberty, on the same principle as a right of way. However this may be, the nature and degree of these habits amongst a maritime people, dwelling on the sea-coasts, and addicted to naviga- tion and fishing, are not to be considered on precisely the Digitized by Microsoft® the Shore for Bathing. 1 6 1 same footing as the habits of an inland people. We are, nationally, a maritime people, and general customs should be tried by the national habits and pursuits of such a people. In the case before us it was argued, that although no The text of express mention is made of bathing as a general common favourinnhe law right, yet the common right to frequent the shore "^'glit- {littus), without limitation of purpose (so that it be legal), is expressly asserted by Bracton. The learned judges, however, who decided the case, considered Bracton not only to have quoted, but to have interpolated this doctrine from the Civil law, and that the Civil law and our law do not agree. Mr. Justice Best (who dissented from the deci- sion of the Court) replies to this reasoning, " that Bracton " has not stated this right as civil law ; he has made it part " of his book ' de legibus et consuetudinibus Anglice.'" It appears, in fact, that the passage actually referred to and contradicted by the three learned judges, as being a mere transcript from the civil law, relates not to the sea-shore, but to the banks of rivers. There is a separate section in the Institutes relating to the sea-shore, which says, " LlT- " TORUM quoque usus publicus juris gentium est, sicut et " ipsius maris ;"{d) and this passage, nearly in the same words, Bracton has also;(^) although the learned judges commented on the text relating to river banks, viz. " Ripa- " rum etiam usus pubUcus est, jure gentium, sicut ipsius fluminis" (f) which, at this day, is certainly not deemed, in its fullest extent, good law.(^) The reasoning, therefore, seems to have been this, Bracton is wrong in his law that " RiPARUM usus communis est" &c. therefore, " littormn usus non est commmtis." But this is certainly a "non (d) Just. Inst. lib. ii. Tit. i, sect. S- (^) Bracton, lib. i. ch. 12, sect. 5. (/) Bracton, lib. i. ch. 12, sect. 6. (^) Ball V. Herbert, 3 T. R. 253. See ante 48 and post, pp. 176, n. 215. Digitigpd by Microsoft® i62 As to the general Right to use sequitur;" and although the Court, from authorities, proved Bracton to be wrong, to a certain extent, in his law re- specting particular uses made of banks of rivers (as for towage), yet no authorities were adduced showing that the " commtcnis usus " of the sea-shore for bathing is not a good custom. It has been before shown that Bracton does not copy or follow the civil law in certain points relating to the sea and sea-shore. For whereas the language of the Institute (Ji) is, " proprietas autent eorum potest intelligi nullius esse" the text of Bracton contains no such doctrine. Thus it is evident he did not merely copy the Institutes, since he has wholly omitted a most important sentence, which, as we have amply shown in former pages, is not law with us, whatever it might have been with the Romans. The ripa or bank, and the littus or shore, are not one and the same. The ripa is terra firma, and generally cultiv- able, and therefore damageable in its crops and produce. But the shore is covered twice every twenty-four hours by the " tide," and partakes of the nature of sea-bottom, and is by Lord Hale himself distinguished from "terra firma" and classed rather with sea-bottom. In legal parlance, indeed, shore, sea-bottom, and terra firma are all techni- cally land ; still, however, with this further technical dis- ^tinction, that a grant of so many acres of lattd, without more words, will include no more than the " ripam," and will not include the " littus," nor any portion of land covered with water, unless so specially described. Wherefore, it is evident that the two words, ripam and littus, are not quite identified with each other ; nor does a negative applied to a right claimed in respect of the one, necessarily touch or disaffirm a right claimed as to the other.(?) ih) Instit. lib. ii. tit. i, sect. 5. ii) [In the case of the Belfast Dock Act, i Ir. Eq. 139, the Master of the Rolls, in his ju^r^eny ap.^^^^C^nsel is perhaps right in stating the Shore for Bathing. 163 It may be safely admitted, that the banks of rivers not subject to the tides are not so open as Bracton represents, without admitting any mistake, to the same extent, as to the sea-shore. Few (if any) of our old law-writers are deemed better authority than Bracton ; and if we are to assume, that because he is wrong in one case, and the law is since altered in another, therefore, in a third and diffe- rent case he must also be wrong, what law-writer have we who can pass such an ordeal ? Mr. Justice Buller, in the case of Ball v. Herbert (/6) (which related to towage on the banks of a navigable river) (/), observes on the passage of Bracton, " riparum usus," &c., — " It plainly appears to have " been taken from Justinian, and is only part of the Civil " law ; and whether or not it has been adopted by the " Common law is to be seen by looking into our books, " and there it is not to be found." (;;z) But, it may be asked, what are "our books" if Bracton be not one? and if Bracton be not contradicted by other authorities or customs, he \s, prima facie, an acknowledged law-writer of authority. Now, as the books are totally silent in regard to bathing " that ' bank ' more properly refers to hard, dry land. This is so of " the word ' ripa,' according to the proposition in Hale's treatise ; but " the bank of the bay may include a sand-bank or mud-bank, though " alternately covered and uncovered by the flux and reflux of the sea, " and so be equivalent to ' shore.' The American courts have held " that a 'bank' of a river is that space of rising ground above low- " water mark, which is usually covered by high water, and the term, " when used to designate a precise line, may be somewhat vague and " indefinite :" Howard v. Ingersole, 17 Ala. U. S, 780; 13 How (U. S.) 426, per Curtis J.; Stone v. Augusta, 46 Maine, 127, 137. See also Child V. Starr, 4 Hill 369, per Cowen J. as to "Shore ;" Angell on Watercourses, p. 32, 6th edit.] {k) 3 T. R. 253, post, 176, n. (/) Quaere, tide river.' (ot) The judges, in the principal case, quoted the words of Judge Buller, as applicable to Bracton's doctrine relative to the sea-shore ; although they were not so applied by Judge Buller himself, but to banks of rivers. Digitized by Microsoft® 164 As to the general Right to use (which is one part of the " communis usus littorum "), and silent also as to several other common uses to which the shore may be applied, the authority of Bracton, as to the right of the public to make use of the sea-shore, might be deemed good authority for all such customary uses made of it as are uncontradicted by the books, and not incom- patible with other unquestionable rights, or the known laws of the land. There is nothing singular in the laws of two different nations agreeing in their permission of a custom so natural as bathing. The habit of bathing is as natural to a native of Britain as to a Roman ; much more so, indeed, if the effect of insular habits (and habit is second nature) be considered. It would have been more singular if the Civil and British laws had not agreed in throwing open the sea- shore for purposes of public use common to all mankind. The coincidence of phrase adopted in expressing such legal right, can be no sufficient ground for rejecting the law. The phrase may be borrowed, and yet speak the law of the land. If the law were as singular as the phrase, that might be a rational ground for doubting whether the law, as well as phrase, be not foreigtt ; but in a case where it is so natural that all nations should think, and act, and legis- late alike, it seems not reasonable to hold that the law is foreign because one of our jurists, writing in Latin, borrows a Latin phrase or sentence. Our early law writers wrote in the language of the Civil law, and not in their native tongue ; the language of the Civil law was the language of our Courts in early times, though the law itself might differ ; and many sentences in our early Latin writers might be pointed out, which lay down the undeniable Common law of England in the same words by which the Civil law expresses the same rule. Natural reason alone has made the Civil law and Common law to coincide in many points, without borrowiqggfffSS'/^^fefS^te'; and if the Latin tongue the' Shore for Bathing. 165 be used to declare both codes, what wonder if the like words and phrases of one and the same language be used to ex- press similar laws. There are several points of the Roman law, delivered by The Roman Bracton in the language of the Institutes, which are allowed c^™on7aw to be part of our Common law at this day, as Lord Hale ^^.^^ ™ =°"^« ... points, himself admits. It is clear that our law has either actually adopted the Civil law in some points, or has, from the nature of things, coincided with it. The only true question is, whether the matter in dispute be or be not a part of our laws and customs ? The Common law of England may adopt, and certainly has adopted, some detached portions of the Civil law ; and it is not strange or difficult to sup- pose both these systems of law to have agreed in sanction- ing a natural right and habit, coexistent with the earliest habits of the human race. Had the Roman law first de- clared that to bathe in the sea was not a common right, but must be asked or hired from the owner of the shore, and the English law had followed in the same words, it might then, indeed, be imagined that so strange a restraint in the law of England upon so natural a use of the sea-shore, ex- pressed in the words of the Roman law, was interpolated from that law. But as regards the point in question, it is a custom common to all nations, and foreign to none. To say that the law was borrowed, is to infer that the The custom custom did not exist before the time of borrowing. But receded rte will it be said that the shore was not as much frequented law both of ^ tngland and for bathing before that time as after f Men were used to Rome, bathe and swim long prior to the written codes of Rome or England. The custom preceded the law, and that which Roman law may have sanctioned by book, may have been already custom, i.e. Common law, in England. It must be admitted that our law and the Roman law do also dis- agree in some points respecting the use and property of the Digitized by Microsoft® 1 66 As to the general Right lo use sea-shore ; this was, at some length, proved by Mr. Justice Holroyd ; but this is no evidence that they do not agree in other points. They do agree in the common right of fish- ing; why may they not agree in the common right of bathing ? In those points wherein they differ, our books and Common law cause the difference ; but do our books and customs create any difference as to bathing i* It is ad- mitted that not one expression in our books is to be found contradictory to the common right to frequent the sea-shore for bathing; and that bathing is, and ever has been, a general custom and practice will hardly be denied ; for the habit is coeval at least with fishing and navigation, two acknowledged " communes nsus " of the sea-shore. The Court seem to have construed the words of Bracton, " commnnis ustis,'' in an extreme sense, viz. as denying all Ownership over the shore, even in the King. But it does not appear that the words were intended by Bracton to be understood further than as importing common rights of Usage, distinct from the "jus p7'oprietatis ;" nor is it neces- sary to interpret him to mean that the ownership of the soil was not (as now held to be) in the King. Indeed, we have just now shown that he wholly omits the doctrine of the Institutes, as regards the " proprietas^ He must, there- fore, be taken to have meant no more than that the shore was a public common, open to public resort, and convertible to vai'ious public uses, as is the sea. It is in every day's experience that the shore is open " to common use." It is difficult to say what other common uses the shore can be converted to by the public, besides those of a " highway for the exercise of the fisheries and navigation," " digging " of the soil for manure, and for materials for building, " ballast, &c.," and, lastly, " bathing." The first three of these uses are confirmed by the law ; and the digging and carrying away ss^/ze&fiy fffcraso^ht actually aflirmed by the Shore for Bathing. 167 Statute law to all the inhabitants of two of the largest maritime districts iji) in England, but has been disputed as a general right, {p) Thus the language of Bracton would seem to be warranted Uses of the alike by law and practice in every use to which the sea can shorT ^^^' be applied ; whilst one disputed instance (the digging of sand, &c.) will not apply to the sea, and therefore does not come strictly within his words, which are " siciit et ipsms maris." The sea is a public highway, — so also is the shore. The sea is subject to the public right of fishing and naviga- tion, — so also is the shore ; and to what other purposes is the sea applied, by common right, to which the shore has not been at least equally applied by common use, digging for sand, &c. not excepted ? So far, therefore, as relates to the " communis usus " (exclusive of the barren ownership of the soil) the text of Bracton is borne out by matter of fact. (/) Callis also, quoting from an old text-writer, says, (7/) Devon and Cornwall. See p. 94, ante. (0) In Bagott V. Orr. 2 Bos. and Pull. 472. {p) In the case, the King v. Commissioners of Sewers, for Pagham, Sussex, 8 B. and C. 355, it is laid down by the Court, " that every land- " owner exposed to the inroads of the sea, has a right to protect him- " self, and is justified in erecting such works as are necessary for that " purpose." This was said in regard to groynes, a kind of work which takes permanent possession of the soil, and is only effectual when con- structed upon the " shore." These groynes are piles of wood carried out from high-water mark, at right angles from the coast, towards the sea, across the " shore." The effect is to accumulate the beach and shingles on the one side into heaps, and which accumulation consti- tutes the protection sought for. The sea is thus made to shut out itself. This kind of work has, in many places on the coast, produced very extensive accumulations of beach, sand, &c., annexed to the ad- joining land, and has thus not vatrAy protected but added to the owner- ship of the land. How far the subject may assert a claim to the ownership of such soil, so recovered from the sea, may be judged from what has been already said, viz. that it will depend upon the gradual nature of the acquisition. But with regard to the right de- clared by the Court in the case above mentioned, it does not appear whether it was meant to be laid down as a general common law right, Digitized by Microsoft® 1 68 As to the general Right to use " Rex hahet proprietatem sed populus habet ustim ibidem necessaritcm." {q) The practice of bathing and swimming may justly be termed " necessary" to a maritime people. It is true the shore may be converted to other uses than those independent of the ownership of the " shore," or as a right inherent only in the ownership of the shore. Presuming the " shore" to belong to the Crown (as is to be presumed until the contrary be shown), the question is, whether all owners of lands on the coast have a right so to use the shore, such shore being the property of the King ? or whether the Court intended to apply the doctrine only to those who were owners of both the land and the " shore ? " Such works are, in fact, an embanking against the sea, and do not only protect the land from further inroads, but recover lost land from the sea. The question is of importance, as regards evidence of title to the '' shore ;" for if the right be general, and independent of the ownership of the shore, such acts cannot be evidence of private right to the shore. And if the ownership of the shore will alone give the right to do such acts, the ownership of the shore, in point of title, must have existed before any such act ; and if so, then such act can only be proved lawful by prov- ing a pre-existing title to the shore. If the title to the shore must be first proved to make any such act lawful, the title to the shore must be proved by evidence dehors the act itself. Presumption, in this case, is no good title against the Crown. Such acts as these, done by private individuals, are independent of acts done by Commissioners under the Statute of Sewers, 23 H. 8, ch. 5. It will hardly be held that the erection of one groyne, by the lord of the adjacent manor, will, after a lapse of twenty or more years, be per se sufficient evidence of title to the soil of the shore against the King. One or two groynes wiU often prove adequate to the protection of several miles of coast ; and even occasion very considerable additions to such extent of coast. If, how- ever, the right to erect such -works upon the shore beheld to be a general Common law right, it is no slight argument in favour of Bracton's doctrine. It may also be remarked, that if by the construc- tion of such works such rapid additions are obtained from the sea as the law will take notice of, they will belong to the Crown, unless those additions have been taken possession of by sufficient acts of owner- ship for the period of time required by the Statutes of Limitation, to negative the King's title. See p. 120, ante ; and 2 Anst. 614, Attor. Gen. V. Richards. [It is not competent for the proprietors of land on either side of a river to disturb the ordinary course of the stream to the prejudice of the opposite proprietor : Menzies v. Breadalbane, 3 the Shore for Bathing. 169 just mentioned, but not such as are in their nature open and common ; therefore, an appropriation or in-taking of it is not a " communis usus." Now, in the case of a common within a manor, it is well known that the lord of the manor is owner of the soil of the common ; but that the tenants have a certain " communis usus " of such common, so as to render the " soil " of comparatively trifling value to the lord. He cannot infringe upon the rights of the " commoners," by any in-taking or inclosure of the common. Why cannot this analogy serve for the sea-shore .'' The common uses to which it has generally and immemorially been applied by the public, might as reasonably be supported, as are similar uses of the soil of inland manors, so long as such uses are beneficial to the public ; and the ownership of the soil might be available only in cases where the " common rights" are not injured. The soil of the shore would seem to deserve no better protection on behalf of private owners, than the soil of a common within a manor ; on the contrary, a private ownership of the sea-shore, if asserted and acted upon, is very likely to prove a public nuisance ; and therefore de- serves no encouragement or support against any public uses which are laudable and JDeneficial, and have ancient usage in their favour. But the Court seem to have denied the conthtued and As to the immemorial custom of bathing on the sea-shore. Lord c'^sto^m of ^ Bli. N. S. 414 ; 3 W. & Shaw, 235. In Rex v. Trafford, i B. and Ad. i Lord Tenterden, distinguishing between a right to embank against the sea and against a river, says : " In the one case, if the works be success- " ful, the water is prevented from coming where, within time of memory " at least, it never had come ; in the other it is prevented from passing " in the way in which, when the occasion happened, it had been always " accustomed to pass." It is no defence to an indictment for a nuisance for embanking in the water-way, that although the work be in some degree a hindrance to navigation, it is advantageous in a greater degree, to other uses of the port : R. V. Ward, 4 A. and E. 384, ante, p. 99 ; and post, p. 179.] Digitized by Microsoft® bathing. 1 70 As to the general Right to use Tenterden declared, " that if the right exist now, it must " have existed at all times ; but we know" he adds, " that " sea-bathing was, until a time comparatively modern, a " matter of no frequent occurrence ;" and he adds, "that he " was not aware of any practice in this matter sufficiently " extensive or uniform to be the foundation of a judicial " decision." But, with great deference, it seems singular to deny the uniformity, universality, and frequent occurrence of bathing and swimming in the sea ; a practice known to exist habitually wherever man and sea-water are to be met with. There is not a village on the coast where the practice will not be found to have uniformly prevailed. Cleanliness, health, amusement, and utility, have all operated to make the custom general on the sea-coast. It is true that the manner of bathing in " machines," (f) (as his Lordship remarked) may not be either ancient or extremely uniform ; but the right, and the precise manner of exercising that right, are not the same questions. The right of bathing, and not the right of bathing in " machines" is the true question, and was, in fact, the question decided by the Court. It is another question whether the right of way to the sea be open for carriages in some particular spot of the ripam in regard to the private ownership there. If the public have a convenient approach to the shore, it is enough, without their being allowed to make as many ways as they please, and from mere caprice, over the grounds of others. That the public, in every parish, manor, &c. on the coasts, have a right to one or more convenient ways of approach to the shore, according to the wants, extent, and localities of the district, is not to be denied, since without this, fishing and navigation would be valueless. Nor is it sufficient that such way should be a mere foot-way ; and if it be a way for horses and carriages, and I thus have a right {r) See Dip^ggfeij'ii^JuBdysa&^endix, post, p. xlviii. the Shore for Bathing. 171 to drive down to and along the shore in a machine or carriage, to get into a boat to float on the sea, why may I not do so to get into the sea itself ? {s) The right of way to the sea was never yet contended to be a vaQve footway ; the same mode of approach to and from the sea as is allowed for fishing or embarkation, is all that is desired on behalf of bathing. As to denying the right to bathe, on the ground that the " machines" are a " modern invention," it may be thought that they are rather a recommendation than other- wise in support of a custom, which, in its more ancient practice, was not so decent, or so well adapted to modern refinement. But it was further declared, by Mr. Justice Holroyd, that As to bathing " such right of bathing is inconsistent with the nature of legelncoii-^' " permanent private property, as well as inconsistent with distent with '^ ^ jr jr .> ' private rights " the fishing on the sea-shore being also an exclusive right." Now, with regard to the sea-shore being private property, this does not seem to be a species of ownership worthy of being favoured either against the Crown or the public. It was also well and truly said, by the learned counsel for the defendant, " that no subject, claiming under the King, can claim a greater right than the King had in the shore ; " and the true question all along is, whether the King's ownership in the shore is not itself subject to this usage } The ownership of the Crown in the shore has always been subject to the public right of using it as a road for fishing The public and navigation. It is evidently not the sea alone, but the of ^^y over shore also which is subject to these two Common law rights. »». Suppose a village on the sea-coast, whose inhabitants never yet launched a boat, are the cottagers precluded from turning fishermen, and approaching and exercising on the shore their Common law right of fishery .' It would seem that the whole sea- coast of the realm is the place appropriated by " usage and necessity " to the public common of piscary. The right is attached to the person, to every individual of the public body. It is the birth-right of the subject, and he is not bound to exercise his right in one place more than another. All that he has to do is to pay regard to rights declared by the law paramount to his own ; but the mere ownership of the soil is no such private right as can bar \h.^ jus publi- cum of the fishery. Even the King's ownership of the soil Digitized by Microsoft® 1 74 ^s to the general Right to use is subject to such right, and the ownership of individuals derived from the Crown is not greater. It is said, by Mr. Justice Holroyd, " that it is not by the " Common law, nor by statute, lawful to come with, or land, " or ship customable goods in creeks or havens, or other places " out of ports, unless in cases of danger or necessity, nor fish, " or land other goods not customable, where the shore or " land adjoining is private property." (^) Undoubtedly, cus- tomable goods cannot lawfully be landed except in the ports assigned for their reception, and the payment of duties. The jus regiimi of the King, which entitles him to levy the customs, entitles him, as custos portiiu-m, to appoint the places for the landing and shipping of customable goods ; but it is difficult to consider the law as granting the public fishery, and yet denying the right to land the fish upon the ripani, as well as shore, so far as such temporary use of the ripam or of the shore is reasonably necessary ; such fish to be forthwith removed, and not left or marketed there, to cause permanent or unreasonable obstruction to the owner- ship of the soil. There can be no doubt whatever but that the public have a right to fish on the shore, although the soil thereof may (/) " If one has piscary in any water, he has no power to land with- out the assent of the tenants of the frank-tenement." Savil, xi. pi. 29, inhabitants of Ipswich v. Brown, 23 Eliz. See Vin. Abr. title Piscary, D. But the fishery here meant is a several or pnvate fishery. In Ward V. Cresswell, Willes 265, Vin. Abr., Piscary B, — Defendant in replevin, avows taking six boat oars (from boats hauled above high-water mark) as damage feasant, for that the place where was his freehold. Plaintiff pleads in bar of the avowry, — i. A common of fishery in the sea there, as appurtenant to certain tenements there, — 2. A liberty of landing and putting on shore their boats upon the place, for the use of the fishery. It was held that fishing in the sea, being matter of common right, a prescription for it, as appurtenant to a par- ticular township, is void. Accord : the plea in bar was held to be ill. Here the landing and putting up their boats (which was the damage) seems to have been regarded as part of the public right of fishery. Digifized by Microsoft® the Shore for Bathing. " 175 happen to be private property. To exclude the public there shore, as well must be proved a several fishery, as well as an ownership of ^^ °^ "^^ ^^' the soil. The public fishery extends over sea and shore, and there are many kinds of fish which can only be caught on the shore. The case of Bagot v. Orr, {ii) has expressly decided that the pubhc have a Common law right to take shellfish on the " shore," without reference to the person to whom the soil belongs ; and, it is presumed, the " fishery " includes all kinds of fish (royal fish excepted) wherever their haunts may be, whether in the great waste of the sea, or -y^^ -^vkXic no upon the shore. With regard to the fish taken at sea, it compellable k •^ _ ° ' land fisli would be difficult to contend that it would be necessary to caught at sea carry fish to a port, before it is landed, (x) The right to ^ ^ ^°'^ ' land the fish upon the strand nearest where it is caught, would seem to be an essential adjunct of the fishery ; the fishery is for the sustenance of the fishermen, their families, and others dwelling on the spot whence they embark ; and to require the fish to be landed at a port perhaps twenty miles off", with all the delays of winds, and tides, and office, and land carriage, &c., is utterly destructive of the fishery. It must be presumed, that the Common law right of fishery includes the right to land the fish at the places where it may be most conveniently sold and used for food. Half the fisheries in the kingdom would be ruined if a contrary doctrine prevailed. It is difficult to regard the fishery as z. public ^n^ general As to the rigli right, and the necessary way and passage for its exercise as "he^.^;™™^ a local and partial privilege. The public right to navigate above high- ^ . . water mark. the seas, and to fish therein, is not limited to particular places ; it is not a local right, but pervades the whole coast of England. The right of way for the exercise of these («) Bagott V. Orr, 2 Bos and Pull. 472. See this case more fully, post, p. 186. {x) See Dickens v. Shaw, Appendix, post, xlvii. Digitized by Microsoft® I 1 76 As to the general Right to use public rights would seem to be commensurate. But the fisherman or navigator must be ruled by the law, through the verdict of a jury, as to what shall be sufficient in the locus in quo. The law (for instance) will compel him to take the usual and public road down to the sea-side, if there be one within reasonable and convenient distance ; but when there, how is he to reach his boat, which may be a mile off along the shore, at the time of high water, unless he can go along the edge of the coast on the terra firma,(j) (j/) Callis, p. 74, says, " I cannot more aptly compare a bank of tlie " sea, or of a navigable river, than to a high way ;" and he extends this right of way to a right " to tow the boats to and fro.'' But more recent authority has decided that " towage along the banks of navig- " able rivers is not a common right." Ball v. Herbert, 3 T. R. 253, post, p. 215. This would not seem to be a "necessarium usum" for navigation, properly so called. But for every " necessarium usum," affecting the public fishery and navigation, the bank would seem to be open to the public. Whether the fishermen and others have a right to drag up their vessels above the reach of the tides, upon the banks, for security and for repairs, as is the universal practice, does not seem ever to have been decided ; this would appear to be essential to the protection of the fishery, and perhaps be supported. [See Appendix, post, p. bciii.] See note to p. 174, ante. So the practice of drying nets on the adjacent land, as well as on the shore, does not seem to have ever been sanctioned by a judicial decision, as a common right. Callis, however, states it as such, p. 73. It might be considered, perhaps, a practice of too vague a character to be supported as a general right, or even local easement or liberty. In some places such a privilege might prevent the cultivation and usufruct of many acres of valuable ground. Nets are said often to extend more than a mile when spread out, belong- ing to one boat only. See what is said by Holroyd, J. in BlundeU v. Caterall, 5 B. & Aid. pp. 295, 296, and cases cited there, which seem opposed to such privilege. [See Gray v. Bond, 2 B. and B. 667, 5 J. B. Moore, 527 S. C. It was there held that it is not lawful for fishermen, merely as such, to dry their nets on a part of the shore which belongs to private persons, or to use such shore land for any purpose accessory to fishing ; but the case shows that, by user, the owner of a fishery in a public navigable river may acquire a right to draw to land and land nets, used in the fishery, at certain places on the banks of a river, the property of private persons unconnected with the fishery. See also Hoyle V. McCunn, 31 Scot. Jur. 63 ; S. C. lo Dec. 1858 : 21 Court of Session Cases, 96.] Digitized by Microsoft® the Shore for Bathing. 177 to his boat ? It would be a serious obstruction to the fishery if he must bring his boat where the old road runs into the sea, and nowhere else. So, when on the sea, if he desire to land his fish, his merchandise (not customable) or himself, at the time of high water, unless he is allowed a way along the terra firma, to the next public road, he cannot land at all ; wherefore, in all such cases, at the time of high water, either there must be a Common law right of way, along the dry land to the nearest inland road, and consistent with the public right of fishing and navigation, or at the time of high water no man can embark or disembark at other places than where the inland road meets the sea. Such a rule, in regard to the fishery, and to all the boat and small craft navigation, would be very injurious to the common right, and prejudicial to the public. The Common law does not seem to control, in such The law dot manner, the general rights of fishing in and navigating the good°™of seas. It does not compel the subject to embark or disem- customable 1 '■ ■" be landed al bark his person or his goods (not customable) at one place port. more than another ; and it is conceived, that in order to the full, complete, and unimpeded exercise of these great public rights, a right of way, above and along the edge of high- water mark, is involved in the existence of those other public rights, and annexed to them ; but subject (for the due protection oi private rights) to the control of a jury, as to what shall be deemed sufficient, in the place of exercise. The object of these remarks has been to shew, that if a right of common, or to a Hberty, or easement be established, the essential means of enjoying that right are established with it. If there be a customary right to bathe in the sea, the use of the sea-shore, so far as such use is essential to the custom, must accompany it, but no further. The general doctrine of Bracton, that the sea-shore is " common for use as the sea," is ajegiti|^a^.^ar^pient in favour of the 178 As to the general Right to use right of bathing, or any other common use of such shore, until it be shewn that such general doctrine is contradicted by law, or custom, or both, as to that particular use of it ; but no custom, no authority whatever has been adduced to contradict Bracton's general doctrine, so far as it is considered to include sea bathing. If this usage of bathing be rejected as not founded in law, it must be rejected by arguments grounded on "the " incompatibility with private rights, or with public con- " venience " of the custom, {z) The Court, indeed, in their decision, seem to have addressed themselves most parti- s to the in- cularly to the points of the inconsistency of this right with ^Aing'mth Other rights, and its public inconvenience. Its incompati- ther private bility with Other rights was strongly insisted upon by all three of the learned judges. It was said by Mr. Justice nd with pri- Holroyd to be " inconsistent with the nature of permanent 'rktioMofthe private property." By Mr. Justice Bayley it was asked, ;hore. « If the soil be vested in an individual, is he to be deprived " of the right of saying how that soil shall be used, and the " privilege of making any regulations he may think fit t " And by Lord Tenterden, " every public right to be exercised " ovei*the land of an individual is, J>ro tanto, a diminution of " his private right : " and Mr. Justice Bayley and Lord Tenterden urged, that " it would prevent the owner of the " soil from building quays, wharfs, or private houses, as " well as from making embankments, &c. ; for all such " would be obstructions to this public right of bathing " (if allowed), and, therefore, abateable as nuisances." (a) {£) [See Appendix, post, p. Ixv.] [a) This argument, as well as that used by the Court, p. 171, ante, rests upon the assumption that the sea-shores throughout the kingdom are for the most part in the hands of private ovsmers, and are not the property of the Crovifn. This, however, seems to be not only a gratui- tous presumption, but a presumption against the King's title. The true presumption i^.^^^t^t|i^^s^ore|^(^iie kingdom are the property of the Shore for Bathing. 179 But it is to be remembered, that any such appropriations As to its in of the shore, even by the owner, are liable to be abated as ^th^prlvLt nuisances, if they interfere with the public rights oi fishing rigWs. and of navigation. Whether they are or are not nuisances is a question for the jury. Thus then the private property of the shore (such as it is) is already, in two material instances, under the check of a jury, by which the owner is ! plainly interdicted from doing with the shore "as he pleases ; " and why should it be thought hard to leave it to a jury to protect any other beneficial pubHc custom (as bathing), by determining whether the obstruction be or be not, in reason and common sense, a public nuisance ? that is, — such an obstruction of the bathing as ought to be put down. Quays, wharfs, and embankments in general, below Quays, whi high-water mark, convert that which was shore into terra ^^e" *^ firma, being, in fact, so much land gained from the sea, and therefore no longer shore. If any ground be left on the otiur side, towards the sea, that may be shore, and subject as before ; but no one can suppose that an embankment by which the soil is rescued from the sea by the owner of the shore, would be abateable as a nuisance, in favour of bathing or fishing, whilst the shore, beyond and around, is still open • to the public, and these rights may be enjoyed as easily as the Crown, and that individual subjects have no right, except by ancient grant from the Crown, to build houses, or construct wharfs, &c. on the shore. It is not to be assumed that the Crown has granted away all, or the principal part of the shores of the kingdom. But if these private ownerships are a^Ay partial, and not general, it does not seem a legitimate ground of argument to object to a general custom, as such, because it might stand opposed, in a few places, to the parti- cular ownerships of a. few individuals. The question ought to be con- sidered as one between the King's ownership in all the " shores " of the realm, and the uses claimed therein by his subjects, in diminution of such absolute ownership. The custom of bathing on the shores of the realm has always been as fully acquiesced in by the Crown as the fishery, and from times as remote and immemorial. See Appendix, post, p. Ixv. Digitized by Microsoft® i8o As to the general Right to use before. Nor was it ever contended that the supposed owner of the soil of the shore has not a right to convert it into terra firma, at his own risk and expense, unless in so doing he created a public or local nuisance. {V) There is no law which makes a conversion of the sea- shore into terra firma, always and necessarily a nuisance ; it must be proved to be a nuisance in its consequences, — and if it prove so to the public, it is better put down. If a road have been used, time out of mind, in a particular direction down to the sea, and by my in-taking of the shore I inter- pose dry land between the water and the place where the water before met the road, where is the difficulty of pro- longing the road down to the new-formed high-water mark } A road existed heretofore over the shore to the sea, and is not lost by the shore's being now dry land ; the said land, when wholly dry, is not altered in title, but is still subject to the right of road to the sea. Why, therefore, are not these rights reconcileable with each other.? Suppose the sea to have suddenly retired from a tract of land, and the old road, instead of ending in the sea, to be thrown back a mile from the water, will not the law carry it on into the water.' And why not also if the land become terra firma by the act of the party .' If I have a way to the shore, am I, when arrived there, to ask leave of the Crown, or other owner, to walk, or ride, or drive into the water .? In launching boats, and disembarking when the tide is low, it is frequently necessary to wade some distance through the water, — and it is to be presumed that it is lawful so to do. When I have reached the shore, how can any line of road be prescribed to me which the next tide will not obliterate .'' The right of way on the sea-shore is bounded by the water's edge, which is never stationary between high-water and low-water mark. But if that which was shore be made the Shore for Bathing. 1 8 1 dry land, one road may then be set out for general use over it, in continuation of the road which before led to the shore, and so into the sea, or along the new shore. The right of bathing would seem to be nothing more than a right of way down to the shore, along the shore, and into the sea. Every permanent occupation of the shore by exclusion of Right to bi the sea is an embankment or in-taking ; and every owner of fJo'the'sei the soil, whether the King or a subject, proving his owner- ship, has a right to appropriate such soil ; but subject and without prejudice to existing rights of others. If the law of Bagott V. Orr (c) be good, and a general Common law right of fishing on the shore at ebb tide exist, then any exclusive appropriation of the soil of the shore is in dero- gation of the public common right of piscary, and abateable as a nuisance, if ajiiry shall decide it to be so in the disputed place. So any appropriation or obstruction of the shore, or of the customary public approaches to the shore, injur- ious to the public right of navigation, is abateable as a nuisance, (d) The learned Judges, however, doubted whether, if they The right admitted the use of the shore for bathing to be a public occasim oi liberty or privilege, all useful appropriations of the shore morehenei would be prevented. But if the appropriation in any given down as case would be a nuisance not to the bathing only, but to the fishery and navigation also, the sooner it is abated the better, whether the bather, or the fisherman, or the navi- gator effect it ; and if it be no obstruction, no nuisance, to navigation or fishing, but actually auxiliary and beneficial towards those national purposes, where is the probability that S2ich an appropriation will, in its extent or locality, be adjudged a nuisance by a jury, on behalf of the bather alone ? On the other hand, if the appropriation prove of (c) 2 Bos. and Pull. 472. (d) rSee Dickens v. Shaw, Appendix, post, p. Ixv.] ^ ^ ^ Digitized byMicrosom 1 82 As to the general Right to tise no advantage to fishing and navigation, whilst it materially interferes with the custom of bathing, a custom which may- have become essential to the local interests of the place, the sooner such an appropriation is declared a nuisance the better, {e) The custom of bathing is not the less ancient or whole- some, because in the present age it has become b. fashion ; and it is now too late to deny that this fashionable custom, freely exercised, has caused a great resort of people to the sea-coasts, and has raised into existence many large and beautiful towns, and produced a spirit of industry and speculation, in furtherance of this bathing custom, which has added greatly to the wealth, population, and strength of the country. Millions of capital have been expended for the accommodation of those who frequent the shores of the realm, for the purpose of exercising their supposed right of bathing ; and the fortunes of thousands are depen- dent on this " custom ; " and yet, by the decision of the above case, it has been thought good to place all this great expenditure and rislc of industry and capital at the mercy of a private owner of the sea-shore, out of regard to the barely possible case of a jury's interfering with the appro- priation of such shore by the owner to the national pur- poses of fishing, navigation, and commerce, on the ground that it is nevertheless an obstruction to bathing. If the interests of these national purposes clash, it might be left to the Jury to decide which shall prevail. It is said by Mr. Justice Holroyd, that "where there is, ' or has hitherto been, a necessity, or even urgency, for >e construed « g^^-jj a. right, there, as far as such necessity has existed, cal custom. " some usage must have prevailed." This admits that there possibly may be a local usage or custom of bathing. Now every manor on the coast has its inhabitants, and it /^/^pfidijdMif/peQ*!^. Ixv. the Shore for Bathing. 183 were an assertion easily disproved were it said, that bathing in the sea is not customary with these inhabitants ; and it would be impossible to arrive at the precise degree of necessity or urgency which introduced or continued the practice. Assuming that the inhabitants . for the time being of the sea-coasts of England, are and have ever been accustomed to frequent the shore for bathing, it would be singular to denominate this a collection of local customs. The inhabitants of the sea-coast are, in fact, the only class of the community who fish in the sea, or on the sea-shore, and yet it is not a local but a public and general Common law right of fishing ; and the custom of bathing is as general amongst the inhabitants of the sea-coast as fishing. It would be strange, therefore, to denominate the one custom digeneral, and the other custom (which is at least equally general amongst the same class of persons) a local custom. But if the right to frequent the shore for bathing by means of carriages be denied, then, indeed, every watering-place (as they are now called) in the kingdom may be wholly dependent upon the owner of the soil of the shore. Lord Tenterden observes, that the " machines are of As to dist comparatively modern invention." It certainly is not thTcourf handed down to us, by any records, by what various means Blundell -. our ancestors approached the sea for the purpose of bath- tweenbat ing. But the question does not depend upon the inquiry "machm as to what " machines " they employed to transport them- selves to and into the sea ; — but whether the sea-shore be, or be not, subject to a right of road or way for footmen, horses, and carriages to pass over and along it to the sea. Has not the subject a right oi carriage, as well zsfootvfdLy along the shore, to his fishing-boat, yacht, or trading vessel } And if he have, it would seem singular to deny his further right to drive or wade into the sea. It is not meant to be said that a right of road will lie Digitized by Microsoft® 184 Objections to the Right over a man's stake-nets, wears, or private fishing-place ; that is a case sid generis, and an exception to the general rule ; but it is considered that no book, or authority, or custom whatsoever, denies the right of way ad libitum, over and along the " shore," so long as it is shore, whether the soil be the King's, or belong to a subject by grant from the Crown. Such right of way is allowed for fishing ; (/) and, when the case was res integra, it might have been expected that the Courts would have allowed the shore to be used as a high- way as much for the one purpose as the other, instead of thus virtually declaring the same man a trespasser for bathing, who was no trespasser when up to his knees or neck in water, in search of a lobster, a crab, or a shrimp. It was further said by the Court, that in the exercise of this right (if allowed), "one man might make his own " special profit of conveying persons over the shore, the soil " of another ; and that such man had no reason to complain " if the owner of the soil shall participate in the profit." {g) But the profit made by the bathing-assistant is upon the use of the " machine,'' and the labour of his driving it, and his attendance ; and it might as well be urged, that if I am driven in a hired carriage across the soil of the lord of an inland manor, along a public parish road, the lord can, reasonably, stop the driver, and insist upon "participating in his profit '' or hire. According to this view of the case, the ownership of the sea-shore may, by a rapacious indi- (/) [See Dickens v. Shaw, Appendix, post, p. xlvii.] {g) This also seems to be an objection raised to a general custom, upon the ground of its interference with som& few partial ownerships. But the ownership to which this general custom stands properly- opposed, is the general ownership of the Crown in the sea-shores of the realm, and not to the ownerships of a few scattered individuals. It is not to be assumed, nor is it presumed by the law, that the subject has any right to the soil of the shore at all ; and if no such presump- tion can be made, no argument can be founded on it. Digitized by Microsoft® of Bathing considered. 185 vidual, be made, in many places of public resort, a most lucrative source of exaction. The Court, moreover, decided against the liberty of As to the su] bathing, not only from the silence of the books, and its tageofsubjec supposed "inconsistency with certain private rights," but J^f reeuiaio' were also of opinion, that " in sea-bathing, as it now prevails, of *e owner , . 1 • 1 1 1 1 . of the shore. " particular regulations are desirable ; and yet the exist- " ence of this common law right would be a great obstruc- " tion to any such regulation.'' But it can scarcely be deemed a public benefit to subject this right of bathing to the superintendence of the owner of the soil of the sea-shore, (j.e) the lord of the manor, or his grantee, who may be a hundred miles off; and who is under no obligation, by law, to concern himself about it at all. It is to be remembered, too, that so far as decency is concerned, the public are per- fectly able to protect themselves ; for the indecency of bath- ing in too public places, and in too exposed a manner, is indictable as an offence, and punishable at common law, by the local magistrates, without paying any tax to the lords of the sea-shore. The idea of denying this ancient, universal, and healthful custom the support of the Courts of Law, with a view that the lord of the manor may superin- tend the bathing (not without charging his own price for it), or in order that " some contests " between the bathing men and women may be prevented thereby, seems singular. It is not probable that the owner of the soil will ever interfere in these matters, unless for the purpose of making a profit thereby. The public are not likely to be the gainers by his services, especially if they may be taxed for the use of the shore, at the will of the owner. The decision in the case of Blundell v. Catterall has, however, put it in the power of every owner of the soil of the sea-shore to levy a tax ad libitum upon the bathers, not only at fashionable watering-places, but throughout the coasts of England, Digitized by Microsoft® 1 86 As to the public Right to dig wherever such ownership of the shore can be proved. If the public are laid open to such a tax, they will do well to try with a closer scrutiny the claims set up by lords of manors to the " sea-shore ; " and not to take it for granted that, because A or B is lord of the manor on the coast, that he is therefore owner of the shore, now that such ownership involves a question most important to the property of thousands, the prosperity of numerous towns and districts on the coast, and the general health, convenience, and en- joyment of the public. {It) As to the public right to dig for Sand, Shells, ^c. on the Shore.i^ :ase of Bagott The Case of Bagott v. Orr, 2 Bos. and Pull. 472, turned ide^ed '^°^' upon two points ; 1st, whether the subjects of the realm [. As to the had a general Common law right to catch and take shell-fish 5ublic right to ^ '^ , , ^ ;atch shell-fish on the sea-shore, between the flicx and reflux of the tides f jn the shore. {h) [See Angell on Tide Waters, 32. Where there is a local board, see as to Bathing 10 and 11 Vict. c. 89, s. 69; 21 and 22 Vict. c. 98, s. 44 ; and the Town Police Clauses Act, containing provisions as to bathing. Powers conferred upon local commissioners, or local boards of health under 10 and 1 1 Vict. cc. 34 and 89 ; or under^ny special Act, for the regulation of the mode of bathing on the sea- shore, and licensing bathing machines there, do not warrant the licensees of such machines in placing them on any part of the fore- shore which is private property : Mace v. Philcox, 15 C. B. N. S. 600; 33 L.J. N. S. C. P. 124.] {z) [See Dickens v. Shaw, Appendix, post, p. li. It has been held in America that there is a public right to dig for shell-fish in a part of the shore which had become private property : Peck v. Lockwood, j Day (Conn.) R. 22. And there is a common right, in legal presump- tion, to take shell-fish on the shore between high and low water mark. Martin v. Waddell, 16 Peters (U.S.) R. 367 ; Arnold v. Munday, i Halst. (N. Y.) R. i ; Fleet v. Hegeman, 14 Wend. (N. Y.) R. 42 ; Cornfield v. Coryell, 4 Wash. (Cir. Co.) R. 371 ; Parker v. Cutler, Mill Dam Corp. 20 App. (Me.) R. 353 ; Hall v. Whillis, 14 Sc. Sess. Cases, 2nd series, 324 ; Angell on Watercourses, p. 73 ; and Angell on Tide Waters, 135.] Digitized by Microsoft® for Sand, &c. on the Shore. 187 2dly, Whether the subjects of the realm had a general Com- 2. As to the mon law right of digging, collecting, and carrying away for dig for and us use sea shells, and, by consequence, any other portion of the *^'ls> ^'^^' soil of the sea-shore? It was an action of trespass, shore. brought by Bagott against the defendant Orr. The first count was, the breaking and entering the plaintiff's closes, called &c. [names] and the sea-shore in the parish of Keys- Case stated. ham, and plaintiff's shell-fish and shells there finding, catch- ing, taking and carrying away, and converting and dispos- ing thereof to defendant's own use. The second count was for breaking and entering the same closes, and with defend- ant's feet, and the feet of his servants, in walking, treading up, trampling upon, subverting and spoiling plaintiff's soil, earth, and sand, and with the feet of cattle, and with the wheels of carriages, and the keels of boats treading up, trampling, &c. ; and the plaintiff's shell-fish and shells break- ing, crushing, and destroying, and with spades, &c. digging, and making holes, pits, and turning up, &c. plaintiff's earth, soil, and sand, and digging up, raising up, and getting up divers large quantities of plaintiff's shell-fish and shells, and carrying away the same, and converting and disposing there- of to defendant's own use. There were several other counts for breaking and entering plaintiff's several fishery, and his free fishery; on which issues in fact were joined. The de- fendant pleaded, ist, the general issue. 2dly, as to the trespasses mentioned in the two first counts, that the closes therein severally mentioned were the same, and that the said closes in which, &c. at the said several times when, &c. were and still are, and from time immemorial have been, parcel of a certain arm of the sea, in which every subject of this realm, at the said several times when, &c. of right had, and of right ought to have had, and now hath, and of right ought to have, the liberty and privilege of fishing, and catching, digging for, raising. Digitized by Microsoft® 1 88 As to the public Right to dig getting, taking, and carrying away sJwll-fish and shells there, and therefore, defendant beingasubject of this realm, at the said several times when, &c. entered into the said closes in which, &c. so being part and parcel of the said arm of the sea, to fish therein, and to catch, dig for, raise, get, take and carry away the shell-fish and shells there, and did then and there fish, and caught, took, and carried away the said shellfish and shells in the second count lastly mentioned, as it was lawful for him to do, and for the digging up and carrying away of the said shellfish, he entered the said closes in which, &c. by himself and with other persons, and with the said cattle, carts, waggons, and other carriages, and with the said boats, lighters, and other vessels, the same being reasonable, and proper, and necessary in that behalf, and in so doing, he necessarily, and unavoidably, with his feet, &c. in walking, a little trod up, &c. the earth and sand in the second count mentioned, and with the feet of the said cattle, &c. a little trod up, &c. other the soil of plaintiff's last-mentioned closes, and the said shellfish and shells, in the second count first mentioned, necessarily and unavoid- ably a little broke, crushed, and destroyed, and with the said spades, &c. the same being useful, proper, and necessary in that behalf; and in digging up, raising, and getting the said sJiellfish and shells, in the second count lastly men- tioned, necessarily and unavoidably made the said holes, and pits, in plaintiff's said closes, and necessarily and un- avoidably with the spades, &c. dug up, &c. a little of the earth, soil, and sand, in the said closes, doing as little damage on that occasion as he could, which are the same, &c. whereof, &c. and this, 8z:c. whereof, &c. Upon this the plaintiff new assigned, alleging that defendant, on the days in the first count mentioned, broke and entered plain- tiff's closes in the first count mentioned, "being certain " closes lying between the flux and reflux of tlie tides of the ^ *=" Digitized by Microsom "^ -' for Sand, &c. on the Shore. 189 " sea, in plaintiff's manor of Keysham,(,^) and the said " shell-fish and shells there found, caught, took, and carried " away, and converted and disposed thereof when the same " closes in which, &c. were left dry, and not covered with " water." And also that defendant, on the days and in the manner in the second count mentioned, broke and entered into plaintiff's closes, being certain closes lying between the flux and reflux of the tides of the sea, within plaintiff's said manor of Keysham, and with his feet, &c. trod up, &c. the earth, soil, and sand, in the second count mentioned, and with the feet of the said cattle, &c. trod up the said other soil in plaintiff's last-mentioned closes, in the said second count mentioned, and plaintiff's said other shellfish and shells, in the second count mentioned, broke, crushed, &c. and with spades, &c. dug and made holes, &c. and raised up, and got up the said shellfish and shells, Sec. and took and carried away the same, and converted and disposed thereof, &c. when the said last-mentioned closes in which, &c. were left dry, and were not covered with water, as plain- tiff in the first and second counts of the said declaration complained against him, which several trespasses so above new assigned are other and different trespasses, &c. where- fore, &c. To the new assignment the defendant pleaded, first, the general issue ; secondly, that the said closes, first above newly assigned, and the several closes secondly above newly assigned are, and at the several times, &c. were the same closes, and not other or different closes, and are, and at those times when, &c. were certain rocks and sands of the sea ; lying within ih^fltix and reflux of the tides of the sea ; and that the said sltellfish and shells in the said closes, &c. were certain shellfish and fish-shells which, at the said several times when, &c. were in and upon the said rocks [k) Thereby claiming the shore as parcel of the manor ; but whether this claim was well founded, or not, was not in evidence, nor disputed. Digitized by Microsoft® 190 As io the public Right to dig and sands of the sea, and which but a little before the said times when, &c. were, by the ebbing of the tides of the sea, left there in and upon the said closes in which, &c. and that in the said closes in the said declaration mentioned, every subject of this realm, at the said several times when, &c. of right had, and of right ought, &c. the liberty and privilege of getting, taking, and carrying away the shell-fish and fish- shells left by the said ebbing of the tides of the sea, in and upon the said closes in which, &c. wherefore the defendant, being a subject of this realm, at the said several times when, &c. entered into the said closes in which, &c. to get, take, and carry away the shell-fish and fish-shells left by the ebbing of the tides of ■ the sea, in and upon the said closes in which,. &c. and then and there got, took, and carried away, the said shell-fish and shells, in the said first count mentioned, and also got, and for that purpose, with spades, &c. necessarily dug up and raised up, and took and carried away, the other shell-fish and shells in the second count lastly mentioned, and for the getting, taking and carrying away of the said shell-fish and shells, the defendant, at the said times when, Sz;c. entered the said closes in which, &c. as it was lawful for him to do, by himself and with other persons, and with the said cattle, carts, &c. and the said boats, &c. the same being reasonable and proper and necessary in that behalf, and in so doing he necessarily and unavoidably, &c. broke, crushed, and destroyed, and with the said spades, &c. dug up, &c. a little of the said earth, soil, and sand, in the said closes, as it was lawful for him to do, for the causes aforesaid, doing as little damage on that occasion as he could, which are the same, &c. whereof, &c. and this, &c. wherefore, &c. To this plea there was a replication traversing the right of every subject to take shell-fish and sJiells, and a special demurrer thereto, because it traversed matter of law ; but the Court seeming to think that the Digitized by Microsoft® foj' Sand, &c. on the Shore. 191 replication was clearly bad, it was abandoned by the plain- tiff's counsel, who relied upon objections to the plea. It appears that the plaintiff asserted the said closes Remarks upon " were lying within the flux and refliLx of the sea, within Bagott v. Orr. " the plaintiff's manor ; " and his ownership of these closes (being part of the sea-shore) was not disputed. In virtue of this ownership, he (Bagott) denied the right of the de- fendant (Orr) to catch shell-fl,sh, and also his right to carry away for use sea shells. The Report says, "the Court were Judgment of . - , ,..„,,..,. the Com-t. " of opinion that, if the plaintiff had it in his power to " abridge the Common law right of the subject to the shell- " fish, he should have replied that matter specially; and " that not having done so, the defendant must succeed • " upon his plea, as far as related to the taking of the fish ; " but observed that, as no authority had been cited to sup- " port his claim to take shells, they should pause before they " established a general right of that kind." It is to be regretted that a fuller report of the judgment in this case has not been given (if more was said) ; but it seems to be understood, that the Court affirmed the general Common law right of the subject to take or catch " shell- fish" but doubted whether any such general Common law right existed for the subject to take shells ; meaning, it is presumed, shells of fish destroyed by natural causes before capture, and not the shells of the shell-fish caught by the fishermen, otherwise the decision would have much of the character and effect of that recorded in the " Merchant of Venice." With regard to the catching of shellfish on the sea-shore. The catching it would seem to constitute an integral part of the public shell-fish on common of piscary, and to be subject only to the same occa- *^ ^^""^^ '^ •' -^ -^ ■" ■" of common sional exclusion, by a prescriptive several fishery, as the right. public fishery in the sea itself, and creeks and arms thereof, or tide-rivers, is in some places liable to. The fishery for Digitized by Microsoft® 192 The Right to catch Shell-fish on lobsters, crabs, prawns, shrimps, oysters, and various other shell-fish, besides certain .other kinds of fish, such as eels, &c. is carried on in every fishing village on the coast, and is one very useful and valuable branch of the fishing trade. The catch of these fish is, therefore, part of the public com- mon of piscary, however the fisheries may be regulated (as many are) by act of parliament. Acts of parliament for the regulation of the fisheries are very numerous, and would form a large volume in themselves ; and they regulate, in many instances, private as well as public fisheries. But such acts of regulation do not concern the ownership of the soil. The oyster fisheries are especially subject to the most jealous enactments, and many of them belong to private owners, or to corporations. (/) But whether to one indi- (/) [In an action of trespass, quare clausum, &c., the defendant jus- tified an entry for the purpose of taking oyster spawn in the locus in quo, being a public navigable river, the plea must shew that he took it under circumstances, that made the taking legal within the provi- sions of the several acts for its preservation : Maldon, Mayor of, v. Woolnet, 12 Ad. and E. 13. But the person who is entitled to fish for oysters is not now restricted from taking the spawn : see Bridger v. Richardson, 2 M. & S. 568. The statute therein cited has been re- pealed by 24 and 25 Vict. c. 109, sect. 39. [By the Oyster and Mussel Fisheries Act, 29 and 30 Vict. c. 85, the Board of Trade may make a provisional order for an oyster fishery, on application by a memorial in that behalf, under certain conditions contained therein, but not for a longer period at once than sixty years ; and where any portion of the sea-shore proposed to be comprised in the order belongs to the Crown, in right of the Crown, or forms part of the possessions of the Duchy of Lancaster or Cornwall, the consent, respectively, of the commissioners, the chancellor of the Duchy of Lancaster, and the Duke of Cornwall, or other person empowered to dispose of the lands, must first be obtained. See also 30 Vict. c. 18 ; 31 and,32 Vict. c. 45 ; and 32 and 33 Vict. c. 31. The salmon fishings in the open sea around the coast of Scotland, unless parted with by grant, belong exclusively to the Crown, and form part of its hereditary revenue. This right of the Cro*n is not merely a right of fishing for salmon, but " a right to the salmon fishings around the sea-coast of Scotland ; it is not to be regarded simply as an attribute of sovereig^^-^^g^j^jjgg^^j^patrimonium, a beneficial the Shore part of the public Fishery. 193 vidual, or to a corporate body, it would seem that the title to such exclusive privilege must be supported, as against ihz prima facie public right, by the same kind of evidence as already mentioned in regard to a private fishery in the sea and tide rivers, viz. — grant from the Crown, or prescrip- tion. There is no distinction (in regard to the nature of evidence required to substantiate the right of a corpora- tion) between a separate fishery claimed by a corporate body, or by one individual. The same remark applies to the ownership of the soil itself of the sea-shore in corporate bodies, or in individuals. It has already been contended, that the ownership of the soil of the shore does not neces- sarily confer a right to a several fishery, nor a right to a several fishery necessarily confer the ownership of the shore. Although, in regard to the latter, the cases incline to annex the soil to the ownership of a several fishery. But the onus of proof lies upon the individual, or corporate body, who would claim the exclusive right of fishery against the general Common law right of all the King's subjects to catch shell and other fish upon the sea-shore, as well as in the sea itself. Now, if this be good law, and the King's subjects have a general Common law right of frequenting the shore (whether belonging to a lord of a manor or not, and so that there be no prescriptive several fishery) " on foot and with cattle, carts, and carriages," for the purpose of catching these kinds of fish, there can be no doubt that the shore is a highway for fishing at least, as public as the sea itself. interest constituting part of the regal hereditary property.'' Salmon fishings in the open sea around the coast of Scotland may not only become the subject of a royal grant, but they may be feudalized ; the assertion that the sea is common to all, and that there can be no appropriation of it, except where it adjoins the shore, is an erroneous assertion : Gammell v. Commissioners Woods and Forests, 3 Macq. (H. L.) 419 ; see also the Salmon Fishery Acts.] Digitized by Microsoft® 194 -^s to the public Right to dig No part of the shore, from the extremest lines of the flood and ebb tides, can be free from public use and resort for the fishery. The shore is, in this sense, part and parcel of the sea, and although an ownership is more frequently- claimed in the shore by grant from the King, than in the sea itself ; yet, as it was in the Crown as part of the sea, so it is granted to the subject as part of the sea, and therefore liable to the public common of piscary. As to the pub- With regard to the question of right to dig for shells, &c., for"hells,° '^ 3- technical distinction is to be noted between a mere right th^'^'h*'^' °° °^ egress and regress, or way, and a right to dig and take away the soil. The first is, in law, a mere liberty, or ease- Distinctionbe- inent ; but the carrying away the soil is called a profit-a- ments and prendre, being the conversion of the soil into profit ; the one i^ofits-a-fren- ^^kes more of the substance from the owner of soil than the other, and diminishes the value of the ownership of the soil in proportion. Blackstone, J., in his Commentaries, ini) after stating that " common " is " a profit which one man hath in the land of another," and after describing the commons of pasture, piscary, and turbary, adds, " there is " also a common of digging for coals, minerals, stones, and " the like, all these bear a resemblance to common of pas- " ture in many respects ; though in one point they go much " farther — common of pasture being only a right of feeding " on the herbage and vesture of the soil, which renews an- " nually ; but common of turbary, and those afore men- " tioned are a right of carrying away the very soil itself." Nevertheless, a right to pasture cattle on the lord's com- mon waste, and a right to dig turves or marl, are both technically the same, viz. profits-a-prendre ; but a right of way over the soil is a mere liberty or easement. It is clear, however, that the subjects of the realm may enjoy 2. profit- Digitized ii^i^^om^- 'i'^- for Sand, Shells, &c. on the Shore. 195 a-prendre by general right, as well as an easement, because the public right of fishing is a profit-a-prendre. Now as the treatise ascribed to Lord Hale has compared As to taking the "great waste " of the sea (of which the shore is part) to Jremlhe. the waste lands of a manor, it will be well to explain the wastes of in ' ^ land manors. point in question by shewing, that the wastes of a manor may be, and often are, subject to rights similar to that of digging and carrying away the materials of the "sea- shore ; " and then to inquire how such right ought to be supported (if the point be not yet settled contra) in regard to the sea-shore, as well as inland manorial wastes. It must be remembered, however, that manorial customs are local and not general rights. Thus a copyhold tenant of an inland manor may dig for marl for manure, and for turf for fuel. («) So he may dig for gravel and sand, (p) and notwithstanding these acts of the copyholder, the soil and freehold of the waste is in the lord of the manor. But these are local customs of the manor, and in some manors do not at all exist. The cases referred to in favour of taking sand and stones. They are ana &c. in an inland waste of a manor, which were expressly ^fg for shell stated to be for building and repairs, and the case of taking ^^ °'^ *^ marl for manure, are perfectly analogous to the uses to which the soil of the sea-shore is most capable of being applied, and which, together with the fishing and naviga- tion, constitute its essential value. Since, then, the custom or usage to dig and carry away for use the materials of the soil of another in inland titles is (as a local custom) well known and admitted, the question remains, whether a cus- tom to dig shells, or sand, or stones, &c. on the sea-shore, which shore is either owned by the King, or by the lord of («) Gilb. Ten. 327 ; 2 Atk. 189 ; [Hall's Profit k Prendre, p. 316.] (0) Duberly v. Page, 2 T. R. 391 ; Shakspear v. Peppin, 6 T. R. 741. [See Hall's Profit k Prendre, p. 316.] Digitized by Microsoft® 196 As to the public Right to dig the manor adjacent, can be claimed and maintained as a local custom ? or, if not, then whether as a general custom for all the subjects of the realm? to the right First, can it be claimed as a local custom or usage ? for, :11s, '&1 on if it can, that will be inconsistent with a general custom, a/custom. "^^ ^ ^o'^^^ custom it must be claimed by the parties, either as tenants of the adjacent manor, under the manorial cus- tom, and as if the shore were part and parcel of the wastes of the manor, and therefore within the manor ; or it must be claimed by them as " inhabitants " of the adjacent hamlet, town, parish, hundred, or county. If it be claimed in right of the manorial customs, the " sea-shore " of the locus in qzw must be admitted or proved to be part and parcel of the waste lands of the manor. As waste of the manor, the shore, it is conceived, may be subject to such commons as waste lands in inland manors are usually sub- ject to ; and all that will be necessary in such case will be, to prove the usage or right of common-A-prendre by the usual evidence resorted to in the case of similar claims in inland manors. But if, from circumstances, the claimant cannot support such right by the custom of the manor, either because he is no tenant, or becatise the shore does not appear to be within the manor, in such case he must support his right as an " inhabitant " of the adjacent hamlet, vill, parish, hundred, or county, which is also a local claim ; or, lastly, as a subject of the realm, which is a public and general claim. Neither the local claim, as "inhabitants of the adjacent hamlet," &c., nor the general right make it necessary that the '' shore " should be extra manerium. Whether it be or be not within the manor, it may yet be subject either to a local or to a general right. (/) (/) [A custom for all the inhabitants of a parish to angle, and catch fish in the locus in quo is bad : Lloyd v. Jones, 6 C. B. 81 ; S. C. 17 L. J. C. P. 206 ; ^^-^zHti^m&^bfM L- J- Q- B. 1 55 n. And a similar for Sand, Shells, &c. on the Shore. 197 There is, however, a distinction taken at law, between Distinction " inhabitants " of a particular place or district, and " owners " scriptlon m il of estates or tenements in such place or district, as to ^"^ estate, ar '^ ' as an 'in- making title by prescription to these kind of customs, habitant." In the latter case, the custom is, as it were, attached to the estate, and the owner claims in respect of his estate ; but in custom to take shingle, &c. from the sea-shore above high-water mark is void, because it is a claim to take a profit in alieno solo : Pitts v. Kingsbridge Highway Board, 19 W. R. 884. See Constable v. Nicholson, 32L. J. C. P. 240; S. C. 14C. B. N. S. 230; Blewitt v. Tregonning, 3 A. & E. 554 ; Race v. Ward, 4 E. and B. 702 ; Post v. Pearsall, 22 Wend. (N.Y.) R. 425 ; Perley w. Langley, 7 N. Hamp. 233 ; Sale v. Pratt, 36 Mass. (Pick.) R. 191 ; Angell on Watercourses, p. 71 ; Angell on Tide Waters, 273. [A profit k prendre in another's soil cannot be claimed by custom, however ancient, uniform, and clear the exercises of that custom may be ; neither can a right to carry away the soil of another, without stint, be claimed by prescription, for a prescription to be good must both be reasonable and certain : Att.-Gen. v. Mathias, 27 L. J. Ch. 761 ; S. C. 6 W. R. 780, 4 K. and J. 579. The Court of Queen's Bench, in Rogers V. Brenton, 10 Q. B. Rep. 26, S. C. 17 L.J. Q. B. 34, expressed an extra-judicial opinion that the custom of tin bounding in Cornwall, which involves the taking of a profit in alieno solo, might have been good, if coupled with an obHgation to work ; but assuming, says Byles, J. in Att.-Gen. v. Mathias supra, "that opinion to be correct, I am not aware that it has ever been extended to any other case," and so difficult did the learned counsel for the plaintiff feel their position to be, that they desired to treat the custom which they were bound to support as the lex loci of a province. See Macnamara v. Higgins, 4 Ir. Com. Law R. 326. In Padwick v. Knight and Others, 7 Ex. 854, it was held that a sur- veyor of highways cannot justify a trespass under a prescriptive right, or a custom to take stones from the waste, whether adjoining the sea- shore between high and low water mark, or otherwise, for the purpose of repairing the highways of the parish, but assuming such a prescrip- tion is good, it ought to be pleaded as an immemorial custom for the inhabitants of the parish to take stones from the waste for the purpose of repairing the highways, averring the surveyors were two of the in- habitants, as was done in Johnson v. Wyard, 2 Lutw. 1344. A person who pays highway-rate within a parish, is not rendered a competent witness, by the 54 Geo. 3, c. 170, s. 9, upon the trial of an issue whether within that parish there is a custom, that all persons residing therein, whose duty it is to cause the ^'^WM^^'^Wo'^iM^'^'^^'^ *° ^^ ^paired, 198 As to the public Right to dig the other case it is merely personal, claimed in a personal character, as an " inhabitant." Lord Coke {q) lays it down, that a custom, such as gavel-kind or borough-english, can- not be alleged in an upland town, {r) but such town may allege a custom to have a way, or to well order commons, &c. " But," he adds, " in special cases, a custom may be " alleged within a hamlet, or town, or burgh, or city, manor, " an honor, an hundred, and a county." It is said, in Vin. Abr. tit. " prescription," {s) that " inhabitants, unless incor- " porated, cannot prescribe to have any profit in the soil of " another ; but in matters of easement only, as in a way, may take shingle from the sea-beach for the purpose of such repair, the custom not being a matter relating to ratio or cesses within the meaning of the Act : Oxenden v. Palmer, 2 B. and Ad. 236. See also remarks of Erie, C. J. in Le Strange v. Rowe, 4 F. and F. 1048. In the case of Constable v. Nicholson, 14 C. B. N. S. 230, the pleas claiming a right in the inhabitants to take the gravel, &c. to be used for the cultivation of their land, and in the parish officers for the neces- sary repairs of the highway, were all held bad ; for that, so far as they were capable of being construed as justifying under such a custom, such custom would be void, being a claim of a profit k prendre in alieno solo, which can only exist by grant or prescription ; and if the claim be founded on prescription it would be equally bad, inasmuch as it was a claim by persons who, not being a corporation, were incapable of. taking by grant and not being claimed in a que estate. See also Dyce 11. Lady James Hay, I McQueen, H. L. 305. By sect. 52 of the Highway Act, 5 and 6 Wm. 4, c. 50, materials are not allowed to be taken away from the shore for the repair of high- ways, where any danger of an encroachment by the sea will be in- creased by such removal: see Pitts v. Kingsbridge Board, supra. As to the relief equity affords by injunction, see Clowes v. Beck, 13 Beav. 347 ; Chalk w. Wyatt, 3 Meriv. 688 ; Earl Cowper v. Baker, 17 Ves. 128 5 Youl on Waste, 186, 189. As to the removal of shingle from the shore or bank of a port or harbour, see Nicholson v. Williams, 6 L. R. Q. B. 632. It has been held that a gi-ant by the Crown, to a class of persons previously unin- corporated, of a profit k prendre to be taken out of the Crown's soil is valid : WiUingale v. Maitland, L. R. 3 Eq. 103 ; S. C. 36 L. J. Ch. 64.] (g) I Inst, no, b. (r) i.e. A town not having the privileges of a borough or corporation. (.t) Vin. Abr. tit. PreserifffJte*«l>/^M/crosoft® for Sand, Shells, &c. on the Shore. 199 " &c., but not in matters of interest." Cro. Jac. 152, and Gateward's case (^) are cited. This case is a leading case on the subject of pleading, Gateward's alleging, or prescribing for customs. The point in the case Prescription was a common of pasture, claimed by the defendant in a ^Zple^drXy close of land belonging to the plaintiff, as a customary right "inhabit- enjoyed time out of mind by the inhabitants dwelling and good, residing in an ancient messuage, in the ancient town of Stixwold, adjoining to the close. "It was resolved, that the custom was against law, for several reasons, i. There are but four manner of commons, i.e. common appendant, appurtenant, in gross, and by reason of vicinage : and this common, ratione commoranf, and resident', is none of them ; and argumentum a divisione est fortissimum in jure. 2. What estate shall he who is ' inhabitant ' have in the common, when it appears he hath no estate or interest in the house (but a mere habitation and dwelling), in respect of which he ought to have his common '>. for none can have interest in common in respect of a house in which he hath no interest. 3. Such custom will be transitory, and alto- gether uncertain ; for it will follow the person, and for no certain time or estate, but during his inhabitancy, and such manner of interest the law will not suffer, for custom ought to extend to that which hath certainty and continuance. 4. It will be against the nature and quality of a common, for every common may be suspended or extinguished, but such a common will be so incident to the person, that no person certain can extinguish it, but as soon as he who releases, &c. removes, the new inhabitant shall have it. 5. If the law should allow such common, the law would give an action or remedy for it ; but he who claims as an ' inhabitant ' can have no action for it. 6. In these words {i) 6 Rep. 59. [See Macnamara v. Higgins, 4 Ir. Com. Law R. 326, and Hall's Profit k Prendre, 162, et seq.] Digitized by Microsofi® 200 As to the' public Right to dig 'inhabitants' and 'residents' are included tenant in fee simple, tenant for life, for years, tenant by elegit, &c. tenant at will, &c., and he who hath no interest but only his habitation and dwelling; and by the rule of all our books, without question, tenant in fee-simple ought to prescribe in his own name, tenant for life, years, by elegit &c., and at will, &c., in the name of him who hath the fee ; and as he who hath no interest can have no common, so none that hath no interest, if he be but at will, ought to have common, but by good pleading he may enjoy it. 7. No improvements can be made in any wastes, if such common [custom] should be allowed ; for the tenants for life, for years, at will, tenant by elegit, statute staple, and statute merchant of houses of the lord himself, would have common in the wastes of the lord himself, if such prescrip- tion should be allowed, which would be inconvenient. But two differences were taken and agreed by the whole Court. I. Between a charge in the soil of another, and a discharge in his own soil. 2. Between an interest or profit to be taken or had in another soil, and an easement in another's soil ; and, therefore, a Custom that every inhabitant of a town hath paid a modus decimandi to the parson in discharge of their tithes, is good ; for they claim not a charge or profit-a- prendre in the soil of another, but a discharge in their own land. So of a custom, that every inhabitant of such a town shall have a way over such land, either to the church or market, &c<, that is good, for it is but an easement, and no profit ; and a way or passage may well follow the person, and no such inconvenience as in the case at bar. 8. It was resolved, that copyholders in fee, or for life, may, by custom of the manor, have common in the demesnes [wastes] of the lord of the manor, but then they ought to allege the custom of the manor to be ' qitod quilibet tenens customarius citjtis- libet antiqui incsgj^^l^ ^'M&Mfm ^^■> ^'^'^ "^^^ ' ^^'"^ 5'^"'- for Sand, Shells, &c. on the Shore. 20 r i libet inJiabitans infra aliqiiod antiquum messuagium cus- ' tomar,' &c. For a copyholder hath a customary interest in the house, &c., and therefore he may have a customary Gateward's common in the lord's wastes ; and in such case he cannot '^^^' prescribe in the name of the lord, for the lord cannot claim common in his own soil, and, therefore, of necessity such custom ought to be alleged. Vide 21 E. 3, 34, Foiston's case, 4 Rep. 31, 32. {ti) Another difference was taken and agreed, between a prescription, which is always alleged in the person, and a custom, which always ought to be alleged in the land ; for every prescription ought to have, by common intendment, a lawful beginning, but otherwise it is of a custom, for that ought to be reasonable, and ex certa causd rationabili (as Littleton saith) usitata, but need not be intended to have a lawful beginning, as custom to have land devisable, or of the nature of gavel-kind, or borough- english, &c. These, and the like customs, are reasonable, but by common intendment they cannot have a lawful beginning by grant, or act, or agreement, but only by Parliament. See also, for this matter, Foiston's case. Alsoj it was agreed, that the custom of a manor that dominus pro tempore shall grant lands customary, is good, and tenant at will may do it ; and so 20 H. 6, 8, b. by the custom of the Court of Common Pleas, the Chief Justice grants divers offices for life, and these customs are good ; but, in such cases, he who grants them hath an interest in the manor or office, and their grant is made good by the custom ; and 19 R. 2, action sur le case, 52, a beadle of the hundred shall have three flagons of beer of every brewer who sells within the hundred, causd qud supra. But a custom, that an inhabitant or 'resident' shall grant or take any profit, is merely void. 9. It was resolved, that if the custom had (?<) [See Dunstan v. Tresider, 5 Term. R. 2, and Barwick v. Matthews, 5 Taunton 365.] Digitized by Microsoft® primstead v. jllarlowe. 202 As to the public Right to dig been alleged, that quilibet paterfamilias infra aliquod anti- quum messtiag', &c., it would also be insufficient for the causes and reasons aforesaid ; and if he hath any interest he may be relieved as aforesaid. Vide reported by Spel- man that such custom is not warranted by law, and so it was adjudged in this Court. Trin. 33 Eliz. Rot. 422. See the Book of Entries, Trespass, Common, 6. Vide 9 H. 6, 62 b, 7 E. 6, Dyer, 70, Iseham's case." {x) The case of Grimstead v. Marlowe {y) follows Gateward's case ; and it is there laid down by Lord Kenyon, that a man must prescribe in a que estate for a profit-a-prendre, which a mere "inhabitant " or "resident" cannot do ; and it seems settled, that where an inJtabitant of a town would claim z. profit-a-prendre, he must prescribe that "he and all " those whose estate he hath in his house have used to have "common," &c., as in Mellor v. Spateman, i Saund. 339, 343- (^) The case of Grimstead v. Marlowe {a) was a right of common of pasture, claimed by an inhabitant of the parish of Leatherhead. It was pleaded in virtue of a custom, upport a plea « ^jj^^^- gyery ' inhabitant ' occupying, residing, and dwelling Prendre. " in any ancient messuage or tenement within the parish of " Leatherhead, for the time being, &c., had been used and " accustomed," &c. But the Court held that such plea was bad, because it was a profit-a-prendre, which could not be pleaded but in a que estate : here the plea was mere habit- !; Jrimstead v. tlarlowe. ilere " habit- ncy" not ufficient to (x) [See Lloyd v. Jones, 6 C. B. 81 ; Bland v. Lipscombe, 4 E. and B. 713, n. ; Hudson v. McRae, 4 B. and S. 585 ; Att.-Gen. v. Mathias, 4 K. and J. 579 ; S. C. 27 L. J. Ch. 761 ; Waters v. Lilley, 21 Mass. (Pick.) R. 145.] (y) 4T.R. 717- {z) [See Lockwood v. Wood, 6 Q. B. 50 ; Post v. Pearsall, 22 Wend. (N. Y.) R. 425-] {fl) 4 Term. R. 717. See also Weekly v. Wildman, i Ld. Raym. 405, and Selby v. Robii^s^fegdTby^v/g^oflgogers v. Brenton, 10 Q. B. 26. for Sand, Shells, &c. on the Shore. 203 ancy, or occupancy, not ownership ; but the Court did not object to its being prescribed for by the party, "that he and all those whose estate he hath, &c., in his house " had enjoyed ^.Msih. profit-a-prendre, and gave him leave to amend accordingly. Here it is to be observed, that no distinction was taken that he could not (if he would) prescribe in a que estate in a parish or town, in contra-distinction to a borough, or city, or county, inasmuch as the prescription, in such case, would be in respect of the estate he had in his tene- ment, and not in respect of its being in this or that place. It was immaterial where the que estate was situated, pro- vided he could establish his prescription by the usual proofs, " that he and all those who owned, or had owned before " him that estate, had been used to have the profit-a-prendre " in question." {U) It would seem, therefore, that every one who would claim How the cus- a local custom or usage to dig marl, or sand, &c. in inland ^^^Hg" ^ manors must (on account of its being a profit-a-prendre) mustbepre- scribed for as plead in the que estate, [c] i.e. in respect of his interest in the a local custom, tenement which he holds ; which prescription, however, must be laid in the person of him who is seized in fee-simple, and not in the person of one who holds any lesser interest ; who is not, in the eye of the law, owner of the estate. But tenant for life, for years, or at will, may prescribe in the name of the tenant in fee-simple. A copyholder is allowed to prescribe in his own estate for the reason given in Gate- ward's case. Thus far, however, seems clear, that by due form of pleading, in respect of his ancient tenement situate within a town, and by consequence, in other loci known to the law, as honors, manors (parishes), hundreds, boroughs, {b) [McFarlin v. Essex County, 64 Mass. (Cush.) R. 310 ; Melvin v. Whiting, 24 Mass. (Pick.) R. 79, S. C. 30 Mass. (Pick.) R. 184.] (c) [Waters v. Lilly, 21 Mass. (Pick.) R. 145 ; Perley v. Langley, 7 N. Hamp. R. 233 ; Sale v. Pratt,j6 Mass. (Pick.) R. 191.] Digitized by Microsoft® 204 ^^ io the public Right to dig and counties, all these persons before named may, by- good evidence of immemorial usage, substantiate such profits-a-prendre as before mentioned. Such being the law in regard \o profits-a-prendre in inland titles, there would seem to be no objection in law to prevent the owners, or their lessees, of any ancient tenement in any such district or place before named, situate on the coast (as the defendant Orr in the case in question), from pleading in the que estate, and prescribing for a customary right or usage of taking shells, sand, or other portions of the soil of the shore, and if supported by the usual evidence, making good such local usage. There would seem to be no tech- nical reason why this might not be done, in respect of the "great waste" of the sea-shore, where the party has an ancient tenement on the coast, as well as in respect of inland wastes. tWhether, as a Whether the Courts would permit any such customary he^dSSng"of pfo^*^' derivable from the sea-shore, to be pleaded as a local ihells, &c. can custom, without the que estate, i. e. as " easements " are DC prescribed ■orby"inha- pleaded, does not seem to have been ever mooted. The 5ucere? reasons given in Gateward's case would seem to preclude any such proposition; at least where the "shore" is part of the manor, and in the lord's ownership. Where the shore is not within the manor it is the property of the Crown, and whether, as such, it will admit of a different form of laying the local custom or profit in question, viz. in the person as "inhabitant," does not appear. It is con- cluded that it will not ; but it is remarkable, that the men of Devon and Cornwall have immemorially enjoyed the custom of taking the soil of the shores of those counties for use, either in the character of "dwellers" and " inhabitants" - locally, or else by the general Common law right, and not in the que estate. For this appears from the preamble of the statute, 7 is^feidV^SsrSSiStting that, "whereas the sea- for Sand, Shells, &c. on the Shore. 205 " sand, by long trial and experience, hath been found to be Statute of 7 " very profitable for the bettering of land, and especially declaring the " for the increase of corn and tillage within the counties of ^!?^? '?.*^.,!^ ° " inhabitants " Devon and Cornwall, where the most part of the inha- of Devon and 7 ■ r 1 r 1 1 • Cornwall, to " oitants have not used any other worth for the bettering take sand on " of their arable grounds and pastures ; notwithstanding, ^ ^ " divers having lands adjoining to the sea-coasts there, have " of late interrupted the bargemen and such others as Jiave " used of their free wills and pleasures to fetch the said sea- " sand, to take the same under the full sea-mark, as they " have heretofore used to do ; " the statute then goes on to confirm the right of " all persons whatsoever resident and " dwelling within the said counties of Devon and Cornwall, " to fetch and take sea-sand at all places under the full "sea-mark," &c.(^) Now this statute, it is to be observed, asserts a pre-exist- ing custom, commonly used by the inhabitants, at their free wills and pleasures, to take a profit-a-prendre upon the shores of the counties of Devon and Cornwall. But if they were entitled to such custom as a local custom, prior to the statute, it must have been by "prescription," and a pre- scription not founded on the " que estate" but enjoyed as "inhabitants;" and if the "inhabitants" of the counties of Devon and Cornwall could have so claimed, at law, the profits in question, then the " inhabitants " of other coun- tries, or districts, might set up a custom, so pleaded, to enjoy the like profit. It may be, and probably is the fact, that the inhabitants of other maritime counties have been used to take sand, shells, &c. for similar or equally useful pur- poses as those referred to in the statute of James ; and yet it is evident, that unless the rule be relaxed so as to permit them to prescribe otherwise than in the que estate, they, the (rf) See the statute fully cited, p. 94 and 196, ante, [and remarks by Jerwood, p. 87.] ^.^.^^^^ ^^ Microsom 206 As to the public Right to dig Whether the custom to dig for shells, &c. on the shore is of common right. The custom or practice is ge- neral through- inhabitants of other counties, cannot maintain such custom as a local custom, except by similar aid of Statute law, or as a general right, however it may have been heretofore acquiesced in by the King, or mesne lord of the soil, and is further recommended by its public utility. It is also mani- fest, that if those persons only who possess " ancient tene- ments " can maintain such right by pleading in the que estate, it will be confined to a comparatively limited number of persons, and very different from that enjoyed by the men of Devon and Cornwall. It must be allowed, however, that regarding Gateward's case as good law, it would seem to compel the Courts to put the claim to dig and use the soil, &c. of the sea-shore (if pleaded as a local custom) upon the same footing as an inland claim to dig, &c. in the waste of a manor, and to confine the right in question to those persons only who can plead in the que estate, i.e. who are owners of an ancient tenement on the coast, (i) With regard to the custom as a general right in all the subjects of the realm, as pleaded in the principal case, it is obvious that if the Courts could support the right upon the same footing as the public right to fish, no technical diffi- culties would arise as to the pleading. The defendant Orr, in the case referred to, seems to have felt the difficulty of pleading a local custom for a profit-a-prendre as an " inha- bitant," and therefore grounded his case on the general right. As the Court hesitated before it decided on the general right, and did not use any very decisive language against it, there may perhaps be room for a further discus- sion of the question. The point, as regards the " sea-shore," and the public right so to use it, was qucBstio nova in Bagott V. Orr. It certainly is not necessary to plead a getteral custom in the que estate, whether such custom be a profit-a-prendre or («) [See Pitts ?)/J^BSffep4fiS&-(B4gfeway Board, 19 W. R. 884.] for Sand, Shells, &c. on the Shore. 207 not. Looking at the general claim as res Integra, it must out the mari- ,,.,,,. , , time counties be admitted that there is reason to presume that the " inha- bitants " of all the districts bordering on the sea-coasts of England, have actually (whether now allowed to be lawfully or not) been in the habit of resorting to the " shore " for the materials in question, for manure and other useful purposes, without asking the consent of the owner of the adjacent terra firma ; and it would be difficult to find a cultivated and inhabited spot, on or within reasonable distance from the coast, where it has not been the practice of the inhabi- tants to resort to the shore for materials for manure, for ballast, for building, road mending, &c. It is the natural, if not the necessary result of their locality and wants. (/) It is not to be looked at as a want confined to those per- sons only who are immediately dwelling on the sea-side, but may be reasonably extended to all within convenient reach of it ; to all such, in fact, as have, by a like immemorial usage, established a general right to fish. It may also be remarked, that where such general inducement exists every- where along the coasts of England to use such materials, and yet no case is to be found supporting the practice as a local and limited custom, or denying it as a general right (if we except Bagott v. Orr), the presumption is in favour of it as a general custom. In the case of Bagott v. Orr, after quoting the statute of Whether the James I., before noticed, the learned Counsel in favour of james^L, ch. the right contended, (^) that "the statute was, in fact, a full rft^ ^ o/^ti^e" " recognition of the right of the subject to use the shore of common righ " the sea in every way in which it could be serviceable to (/) Lord Hale mentions " ballastage" or a toll '' for liberty to take up ballast out of the bottom of the port" as a port duty, arising " from the propriety of the soil," de Portibus maris, 74. Qy. As to any toll of the kind out of ports ? {g) [Macnamara v. Higgins, 4 Ir. Com. Law 332, per Lefroy, C. J.] Digitized by Microsoft® 2o8 As to the public Right to dig " him." On the other side it was contended, that "it was " an enacting, and not a declaratory law ; and that a pecu- " liar privilege is thereby granted to the men of Devon and " Cornwall, which peculiar privilege it would have been " absurd to have granted, if all the people of England had " been entitled thereto at Common law." The Court offered no argument upon this statute, or upon the reasoning on either side. Now, it may perhaps be insisted in favour of the public, that the statute is both a declaratory and an affirmative statute. It states a long existing usage, with- out throwing a doubt upon its legality, and affirms that such use shall be continued. It forbids the owner of the soil "adjoining the coast" to molest those who frequented the shore for the purposes of digging sand, &c. but allows such owners to take a reasonable toll, or composition, for the damage done, not to the shore, but to their " adjoining grounds," and for casting sand there, and for way, passage, &c. in places where no general right of way existed to the shore. The toll was not for digging and appropriating sand, &c. under the full sea-mark. There is not a word in the statute intimating a right in the owner of the land adjoining to a property in the sand, &c. itself, tmder full sea-mark. The words are, " paying " for the taking, casting out, and landing of every barge- " load of sand upon the grounds of any matt, such duties, " &c., and for passage by and through such ways, &c., such " duties, &c. as had been used and accustomed." (It) There {h) Payments to the owner of the adjacent ground or bank, imme- diately above high-water mark, for depositing timber, stone, &c. there, are very common. But this is not for the landing the goods,— but for the use of the ground so appropriated. According to Lord Hale, de Portibus maris, 51, it was resolved, in a case he cites, that " though a " man may take amends for the trespass in unlading upon his gi'ound, " yet he might not take it as a certain common toll." [See Dickens v. Shaw, Appendix, post, xlvii. liv.] Digitized ay Microsoft® for Sand, Shells, &c. on the Shore. 209 may have been abundance of the same materials worth taking above high-water mark, and the soil above high- water mark belonged to the adjoining land. The owners of the adjoining grounds, above the full sea-mark, appear to have also refused to permit sand to be heaped upon or car- ried over their land, which the statute, for the public good, compels them to allow ; but this does not show or prove a right in such persons to the shore, under the full sea-mark. The first section of the statute seems to be declaratory of the custom of the counties, viz. to dig and fetch away sand under full sea-mark. The second section is remedial, and mandatory, confirming and enforcing the ancient custom, and directing that the sand shall be unloaded and landed, &c. upon such adjoining places as have been used within fifty years, and be carried away by such ways as have been used within the last twenty years, saving to the owners of such places and ways, their reasonable right of toll and charge for such easements. Here then is a customary right of common, or profit-a- preitdre, recognized and confirmed by statute law as belong- ing to all the inhabitants of Devon and Cornwall ; (j) — not merely to the " owners of ancient tenements in their que estate" but to all the " residents and dwellers " in those counties. It is manifest, therefore, that, according to the statute, a right of common a-p'rendre for digging sand ex- isted, as an ancient custom, or usage, hy prescription in two of the largest and most populous maritime counties of Eng- land. This custom so allowed would seem to be in oppo- sition to the doctrine of Gateward's case, decided in the fourth year of the same reign, only three years prior to the statute, if it be regarded as a local custom. Therefore, in order to support the doctrine in Gateward's case, it must be assumed (in opposition to the positive words of the statute) ii) [See Appendix, post,^^^|^c|^^(jj^^I)ick^ v. Sha^v, and ante, p. 94-] 2io As to the public Right to dig that no such profit-a-prendre existed in the inhabitants of those counties prior to the statute, on the ground that such custom could not, according to law, be in " inhabitants," as such. Yet the language of the statute certainly authorizes us to assume it to have been either a good general, or good local custom, independent of and prior to that statute ; whilst Gateward's case decides that, considered merely as a.profit- aprendre, it could not have been a good local custom, causa qua supra. It would seem to follow, therefore, that if it could not be good as a local custom, it can be good no other- wise than as a general custom, in the same manner as the common of piscary in the sea and shore is a good custom (although a profit-a-prendre) as a general custom of the realm. That which is a good general custom of the realm, is good alike for Cornwall and Sussex, or any other mari- time county. It cannot be supposed that such a custom, or such use of the shore, did not prevail as much in Dorset, Hants, or Sussex, and other maritime counties, as in Devon and Cornwall. All these were and are agricultural coun- ties ; and their farmers were then, and are now in the habit of manuring their lands, as well as the men of Devon and Cornwall ; and it must be supposed knew as well the value and use of sand, or shells, or sea-weed, &c. for manure. There is every reason to believe that what the statute affirms to have been the old customary right of the Devon- shire and Cornish men, was equally a practice in the other maritime counties. If so, the statute could not have set up a new, or merely local privilege. But although the statute is not silent, the books certainly are ; for the general right in question cannot be specifically traced in any of them, as a Common law privilege ; neither is it denied by the books. In this view it resembles the question raised inD^i^^fe^^gf s4J®gb/^se of Blundell v. Caterall, for Sand, Shells, &€. on the Shore. 2 1 1 regarding the right to bathe in the sea. It also resembles it, in that it is as difficult to say, that the practice of resort- ing to the sea-shore for materials, for the uses just men- tioned, has not prevailed, time out of mind, throughout all our maritime counties. In this respect, also, it resembles the public right to catch fish on the shore. In some places on the coast it would be impossible to prove that any one had actually been accustomed to catch shell-fish upon the " shore ; " but this will not invalidate the general right. Common sense and experience entitle us to assume, that fishing on the shore is far more general than the not fishing there at all. Yet it would be difficult to say, that shell-fish fishing is a custom more frequent or general than the dig- ging and taking materials from the shore for useful purposes. The presumption is in favour of both, as general and imme- morial practices. It may reasonably be doubted, whether the men of Devon and Cornwall have not carried away from the shore as much shells, sand, &c., and from as many places, as they have carried away shell-fish. Nor would it be easy nor reasonable to contend, that the men of Dorset or Hants have not exercised, in an equal degree, these several privileges. If it be admitted that ^& presumption is in favour of it, as a general practice, and that the practice is a great public benefit to the agriculture of the kingdom, why should not that suffice to warrant it as a lawful public custom ? — our books being silent alike as to the negative or affirmative of the point, but, in general language, favour- ing it. That it is a privilege very beneficial and important to the Importance c general advancement of agriculture and for other public agriculture purposes, cannot be denied: these are interests not local ^nd the gene but general. Now it appears, that as a local custom it can- the realm, not be supported at law in favour of the " inhabitants " of the coasts of England ; ^^^g^gytego^ists a legal tech- 2 1 2 As to the public Right to dig nical objection {k) to its being so pleaded. In this respect it is in a worse situation than the right to bathe; for that, not being a profit, might, perhaps, be pleaded as a local custom by the " inhabitants," and as an " easement." But there is no mode by which the inhabitants of the maritime counties can maintain a right to manure their lands from the materials cast upon the shores of their coasts, except that which supports the public fishery, viz. the general cus- tom of the realm. The men of Devon and Cornwall indeed may plead their statute, but the Statute law has done nothing for the other counties. This statute of James, however, can scarcely be construed into evidence that the general Common law right did not exist before ; although such construction was attempted. If it did exist before, the statute certainly could not have abrogated it ; for it is an affirmative and declaratory statute ; and also in its opera- tion local No just or fair inference can be drawn from this partial statute to negative the right of other inhabitants of other maritime districts to a like privilege by common law. The statute did not confer this right as a new privilege, even upon these two counties, as appears by the very words of the statute itself (/) It will not be denied that agriculture is as ancient and as important a pursuit as fishing or navigation. The public interests are as much concerned in the one as in the other. It would also be difficult to contend, that the agricultural interests of all the maritime counties in the kingdom are not to be regarded as the general public interests of the realm. The right in question partakes of the character of the interests to which it is made subservient. It is sub- (k) Gateward's case, 6 Co. Rep. 59 B. (/) If it be a fact, that in nine-tenths of the maritime districts, this privilege is, and has immemorially been exercised by all mankind who chose to do it, without toll or hindrance, it would seem to follow that, as " custom," it is ni£)J8«feerftoloM(J?/b«hS® the fishery. for Sand, Shells, &c. on the Shore. 213 servient to the agricultural interests of all the maritime counties of the realm ; a range large enough to entitle it to be called a general public benefit, even as the fishery is a general right and benefit, although actually limited to the maritime districts. There seems no substantial reason why the one ^'communis usus" of the shore might not be sup- ported by the Courts, on public grounds and general usage, as well as the other. The practice is in favour of it ; the public interests are in favour of it ; and the Statute law, as far as it goes, is in favour of it. The silence of the " books " is neutral. There was a time when the books were equally silent in regard to the fisheries ; yet the fisheries subsisted at that time by the Common law. At that time, also, agriculture subsisted in the same dis- tricts where the fisheries were carried on. Probably agri- culture was the most ancient of the two pursuits ; and unless it be assumed that agriculture is a modern invention, as bathing was assumed to be, then, so far at least as regards the application of the several useful manures furnished spon- taneotisly by the sea and sea-shore, the taking and using such manures must have prevailed in the very manner by law required to establish a general Common law custom, viz. immemorially and generally. It is reasonable to conclude, that the use of these natural Antiquity of manures, so plentifully offered and so accessible, was more using marine ancient than of those more artificial kinds which require ^"^^Ui^^e greater science and skill than was anciently in vogue. (/«) (m) Agriculture, however, as an art, is of great antiquity in Britain. Julius Caesar speaks of it as having been introduced into the southern parts of Britain from Gaul, a century before his invasion. Cass, de Bell. Gall. lib. 5, ch. 12. By which it would seem that the maritime districts were the first to practise it as an art. It appears also, from Pliny, that we were then acquainted with manures, as he speaks of the wonderful effects of our marl-ing our fields. There is no doubt but that time was also used hoitoigiUzQlal^ ft«kdoinft®ritain, in those early 214 As to the public Right to dig It may be supposed that some of these artificial kinds of manure have superseded, in some places, the frequent use of the soil of the shore ; and perhaps it would appear that in other places the natural products of the shore have been more than ever resorted to for manures, where modern re- search has detected new soils, or new modes of combining such soils so as to increase the productive powers of land in tillage. In the same manner alterations and improve- ments have occurred in the fisheries. And when it is con- sidered, that such common right to use the shore of the realm would include within its range not the open shores of the sea only, but the shores of all creeks and arms of the sea, and of tide-rivers, the value and utility of such a d its extent privilege to the public cannot be questioned. Every species ^' of natural manure is to be found within this extensive range, as well as other products capable of conversion into rich manures by artificial processes. Some (such as chalk) are used both in the natural state, and also after being im- proved by artificial processes. («) times ; and this is an artificial preparation of a manure to increase its powers. There is no doubt too but that the coming of the Romans into Britain introduced their improved modes of tillage ; and at that time, the Romans had studied agriculture as a science, and it was held in particular honour by that great and wise people. («) In a book of agriculture of great authority (Sir John Sinclair's Code of Agriculture) it is said, p. 40, " an object deserving considera- " tion is the situation of the farm regarding manures ; for an easy " access to lime, chalk, marl, sea-weed, &c. is of essential advantage " to cultivation." In various parts of the same work, the manures fur- nished by the " shore " are spoken of in the highest terms. Thus in p. 242, " sea-ooze" is mentioned as '' of a most enriching nature." In p. 243-4, sea- weed is described as good for arable lands ; and the late Duke of Richmond is stated to have used it in Sussex. Tangle, or drifted sea-ware, is extolled p. 243-4, as having " several advantages over other sorts of manure.'' Sea-shells are said " to abound in various parts of the British Isles,'' and these, together with sea-sand, are spoken of as excellent manures ; and are stated to be in use, not in Devon and Cornwall only, but in the North and East Ridings of York- Digitized by Microsoft® * -^ for Sand, Shells, &c. on the Shore. 215 In 'the case of Ball v. Herbert, ( r -■-■ Digitized by Microsoft® xcvi Appendix. " of London; and therefore, and for that the same lies between the " high-water and low-water marks of the river of Thames, all the " houses built between the Hermitage Wharf and Dickshore east- " ward, and between the old wall of Wapping Wall on the north and " the river of Thames on the south, are decreed for the king, and " the same were accordingly seized into the king's hands." Now, my Lord, it is right that I should mention that case : but whenever it may be attempted to be cited as an authority, and the circum- stances connected with it are looked into, I am sure it will not at this day be acted upon ; as I believe it never has been ; at least, if acted upon, it was disputed and called in queetion, and the proceedings under it were inch by inch fought by the Corporation of London. At that time, it is well known as a matter of history, the coffers of the Crown were not full ; and it was desirable that proceedings of this kind should take place /or the improvement of the king's revenue ;^ and accordingly it will be found, when that case is looked into, that the Lord High Treasurer and the Chancellor of the Exchequer sat with the learned Judges upon the Bench, and were present at the decision of that case. I think I may say with confidence, that case will not be relied upon. Mr. Solicitor-General. — It is very possible. Mr. Serjeant Merewether. — I shall be very glad if that case is relied upon, that the circumstances of it should be gone into ; there are facts connected with it, which I think will be amusing and in- structive to my learned friend, whenever he thinks fit to enter upon them. I do not find that case anywhere mentioned, excepting upon one occasion, in Whitaker v. Wise, Keble's Reports, 759 ; where it is said by the reporter at the end of his report, " That case was " decided against Sir Henry Constable's." I think therefore neither in law, nor in fact, will my learned friend be able to make anything of that case, so soon afterwards repudiated, when brought under consideration. 1647. There is in the 22 Charles L a case ^which 1 think is almost Z2 Car. I. decisive, that this doctrine was not adopted as a known point of law at that time. It is a short note — and mentions only a part of the proceedings ; but there is sufficient to show that it occurred at a Johnson v. Trial at Bar. It is the case of Johnson v. Barrett, Aleyn's Reports, Barrett. page 10.^ It related to a wharf at Yarmouth; the owner of which brought an action against the corporation for removing his wharf, ' It is so statedin^lha RtPKegfeg*® ' See Jerwood, p. 6l. speech of Mr. Serjeant Merewether. xcvii it being- supposed to be a nuisance to the harbour. In the course of the trial, as Aleyn reports, on its being asked to whom the land would belong if the wharf was removed, Rolle, counsel on one side, stated that " if it were above low-water it belonged to the owner of " adjoining land." But Hale, who was counsel on the other side, strenuously denied this, and said it was in the king. "But it was " agreed that if it were hdow low-water mark, it was in the Crown." Now I think it is hardly possible for any one to say that at that time it could be considered the law of this land, that " by the Royal pre- " rogative, the ground and soil of the coasts and shores of the sea " round this kingdom, and the ground and soil of every port and " haven, and every navigable river into which the sea ebbs and flows, " belonged to His Majesty." If so, the answer at the trial at bar would have been at once clear and plain, and it must have been instantly stated and assented to. Philpot's case would have been cited, if indeed anybody had had hardihood enough to do it — and you would probably have had this case of Johnson v. Barrett quoted by Hale, if Lord Hale was really the author of the treatise as as- serted; Lord Hale himself being the counsel who stated that point in Court. But neither is Johnson v. Barrett quoted, nor any reference to it made in this treatise : — so that if it is Lord Hale's compilation, it must be inferred that Johnson v. Barrett was decided against his doctrine. My Lord, this treatise, as far as it goes, is directly against the last proposition, that " if it were below low-water mark it was in the " Crown," — because the book shows that weirs, which are generally below low-water mark, may belong to the owners of the adjoining land, which gives them a right beyond the mere line of low-water mark ; as Magna Charta also seems to assume. Perhaps my learned friend will expect that in candour I should 1663. also refer to the case of Bulstrode v. Hall, Siderfin's Reports, 148, I? .T''^' , ' , ' T^ ' Bulstrode respecting some property at Blackwall ; and where this note is v. Hall. inserted by the reporter : " In this case it was oftentimes affirmed " and not denied, that the soil of all rivers, so far as the flux and " reflux of the sea, is in the king and not in the lords of the manors, " except by prescription." Now I imagine, my Lord, that is the first distinct assertion of this doctrine now so much relied upon : it is a note of the reporter — not at all in the manner, as if it were the acknowledged law of the land ; but rather as one of the new nota- bilia, which he thought it was right to put down in his note-book. And it can easily be accounted.for, that it was alleged on the one ■' Digitized by Microsoft® ° xcviii Appendix. side and not denied on the other, because it might have been ad- mitted by both ; as was the fact in a subsequent case, with respect to the Portsmouth Harbour, to which I drew your Lordship's attention before ; where exactly the same took place. There it was admitted by the counsel on both sides, that the right did exist in the Crown : — but for the most obvious reason — that both parties claimed under the Crown. One party claimed under the Crown by that charter, which I have mentioned before to the De Wandesfords, — and the other claimed under the Crown by the general title — of course therefore the Crown's right was not disputed in that case. Such might have been the fact in Bulstrode v. Hall. But at all events it can never be said that this was stated in such a manner by this reporter, what- ever his credit might have been, as to induce any one to believe that this prerogative right (which if it existed at all, must have existed from the earliest time) was then acknowledged law. 1664. In the same reign there was the important case of Trematon ;^ 16 Car. II. ^jjjj there have been more modern cases to the same point. That case. case related to the port and water of Sutton Pool at Plymouth, which was held, after (as is stated) seven years' evidence, to have passed as parcel of the manor of Trematon. There was no special mention of the water in the grant ; and it is said in this treatise that the water passed " not by any prerogative right, but it passed by " strength of its being parcel of and appendant to the manor." Now this, my lord, is a matter of great importance: — because the Duchy of Cornwall would afford a full opportunity of sifting and testing this prerogative right. In a subsequent case, an information was filed against Sir John St. Aubyn by the Attorney-General of the Duchy of Cornwall,^ for an encroachment upon the sea-shore at Devonport : — after a long trial and much discussion, it was at length found in favour of the lessee of the Duchy of Cornwall and against Sir John St. Aubyn ; not upon any prerogative right belonging to the duke or to the Crown, but because the sea-shore belonged to the Duke of Cornwall as "part and parcel of the manor of Trematon." The same was held in the case, to which I was just before drawing your lordship's attention ; and also in a subsequent case with respect to Plymouth Harbour ; and it is clear law that the sea-shore of those places belongs to the Duke of Cornwall, as parcel of his manor there, and not by any prerogative right. If the Attorney-General therefore sets up a prerogative right, a question must immediately occur ' See JeEps^edfib^'M/crosoft® ' Wiglitwick, 167. speech of Air. Serjeant Mercivether. xcix between the Crown and the Duke of Cornwall : for it is clear law that such a right in the Crown cannot pass but by express words ; — and there are no such express words in the charter which gives the Duchy of Cornwall to the Prince of Wales. — The charter is Rowe v. given at length in 3 Manning and Ryland's Reports, in the Appendix Trenton. to Rowe V. Brenton. I have already referred your Lordship to the treatise De Jure Dejure Maris} I have made some observations upon it, and I am anxious ^^^"• not to trespass unnecessarily upon your time, therefore I will not repeat them ; but I think I am justified in saying that if that treatise is examined carefully, it will be found, both from intrinsic as well as extrinsic circumstances, not to be entitled to the name which it has so long borne. I believe it is not Lord Hale's work : which may be justly tested by its intrinsic merits. There are some cases in it which seem accurately and well stated ; but there are others which are contradictory to each other, and are perverted : — nevertheless this treatise has always been the authority referred to for the support of the doctrine I am now disputing. I will not trouble your lordship with any observations upon the subsequent Abridgements, which have added to the former works of that class : the former Abridgements, of Statham and Fitzherbert Abridge- and RoUe, are all of them free from any assertion of this prerogative ™^"'5- right, as I have already stated ; but Comyn's Abridgement, Bacon's Abridgement, and Viner's Abridgement, all of them state it. How- ever, I have gone through the authorities which they quote for it, and none of them support it ; it is merely a statement made in those works without authority. I must make one observation upon Blackstone's Commentaries^ — Black- a book very likely to have promoted that general impression in the ^ °"^' law, which has been entertained in modern times ; for as we all read that book early in life, and imbibe its contents greedily and implicitly, so also we retain them long. This book therefore, from its style and composition and general use, is likely to have produced an effect upon the minds of most lawyers. Blackstone lays it down clearly and distinctly, that the shores belong to the king. But when you look at the authority he quotes for it, it is in fact a reference to the Commission of Sewers — he cites Fitzherbert's Natura Brevium, 149; which is nothing more than a transcript of the recital of the Com- mission of Sewers, in which it is alleged that inasmuch as His ' See Jerwood, V-i^itized by Microsoft^''^-' P- 9^ c Appendix. Majesty is bound to protect the country from foreign enemies, so is he also bound to protect the shores from the aggression of the sea. How so learned an author could have imagined that he was justified, from such an authority, in making such an assertion, I must confess I cannot explain. I will not trouble your Lordship with a reference to a case, in which Mr. Justice BuUer ' quoted ohiier a passage on this subject ; it is clear that he merely quoted from the treatise. But I hold in my hand the notes on the First Institutes, by Mr. Butler, who was the colleague (if I may use the expression) of Mr. Hargrave, and Butler's the note, a portion of which I am about to read, is the writing of Co'Litt ^^- Butler.'* Probably it is not to be wondered at that Mr. Butler, who was so connected with Mr. Hargrave, should adopt the doctrine of the manuscript published by that gentleman. He says (quoting in fact the treatise) : — " This being premised with respect to the " propriety or ownership of the sea and its soil, it may be considered " under these three distinct divisions, the high seas, the shore, or " the land between high-water mark and low-water mark, and the " soil and franchise of ports. " As to the high seas and their soil, the right of fishing in the sea " and its creeks and arms is originally lodged in the Crown, as the " right of depasturing is originally lodged in the owner of the waste " whereof he is lord ; the king has therefore of common right the " primary right of fishing." — (I think it would be difficult to support that by authority.) — " Yet the people of England have also, by " common right, a liberty of fishing in the sea and its creeks or " arms, as a public common of piscary ; yet in some cases the king " may enjoy a propriety exclusive of their common of piscary. He " also may grant it to a subject, and consequently a subject may be " entitled to it by prescription. " As to the soil between high-water mark and low-water mark at " ordinary tides, this of common right belongs to the king. It may " however belong to a subject by grant or prescription." Then he refers to Sir Henry Constable's case,^ which is contrary to the position he lays down : — and he states further also that " Wreck " may be parcel of a manor ! " Now there certainly can be no ground for such a proposition. Though I should speak with great respect of Mr. Butler's opinion, I cannot but think that on this occasion he ' In Rex v. Smith — Doug. 441. ' See Jerwood, p. 97. ' It is obvious that. Mr. Butler was led into this error by the treatise, which he imphcitly (ollovreu'P iS^iRK'mSS'^Pn.emy Constable's case is quoted to support doctrine directly the reverse of the point settled by it. speech of Mr. Serjeant Merewether. ci was misled. A person of such authority as Mr. Hargrave having published a manuscript, as if written by Lord Hale, too many, like Mr. Butler, would be willing to take the doctrine on the authority of Lord Hale, without considering the foundation on which it really rests. My lord, there is an Act of Parliament which seems to bear upon 54 Geo. this subject — the 54 Geo. IIL c. 159' — which authorizes the Ad- HI- ^- 159- miralty to do certain acts upon the sea-shore, with the view of prohibiting sand and other things being improperly taken away from it ; but there is a proviso, " That nothing in this Act shall abridge, " diminish, or take away, any rights of property or ownership which " any lord of a manor, or other person, may have on any port, or the " banks, shores, and sides thereof:" — and there being no reserva- tion of the right of the Crown in that Act, jt seems to go far as a legislative admission upon the point, that the subject is entitled to it as belonging to the land ; and that the Crown is not. For the reason which I have stated before, I will not weary your Lordship by a minute reference to those cases in which the rights of the lord of the manor have been established ; but I would state shortly that in the case of Brooke v. Spering,^ the right of the lord of the manor to the shores of Sheppy Island was upheld. In Lord Grosvenor's case, which occurred as to the river Thames, Lord Tenterden refers to the right of the soil in the City of London. Then in Blundell v. Catterall^ which was a question with respect to the right of bathing on the sea-shore ; the inhabitants set up such a right, but the lord of the manor resisted it ; the right of the lord of the manor was maintained : — and there was no reference to any right in the Crown. Chad v. Titsed* is a case, my Lord, of con- Chad v. siderable importance, because it is entirely consistent with the late T''^^'^- case of the Duke of Beaufort, to which I before alluded, and which I think your Lordship will find to bear strongly on this point. Chad V. Tilsed was an action of trespass, brought by the owner of Brownsea Island in the Harbour of Poole, and a verdict was given for him : — the trespass being committed upon the sea-shore. The right of the plaintiff to recover was made out under a charter, which was produced, and also by acts of ownership by the lord ; and those acts of ownership were held to be conclusive evidence of the right of the lord, without producing any grant by express words ' See Jerwood, p. 86. ' Ibid., p. 68. ' S Barn, and Aid. 2^3/(?f^¥^ /feSMjfe'- ^8- * 2 Bred, and Bing 403 ; and see Jerwood, p. 70. cu Appe7idix. from the Crown ; which is most material with reference to the doctrine I have before mentioned, that a prerogative right (if it really exists in the Crown) cannot pass from it but by express words- Mr. Justice Richardson saying, " It was quite clear that an indi- " vidual might maintain a right to such soil, by usage, independently " of a grant." Now this case, my Lord, was cited in the very recent case of the Duke of Beaufort. — I pass over with a mere mention a case of the same description — Gray v. Bond,^ giving the right to the lord of the manor — and come to Dickens v. Shaw,^ at Brighton, with respect to taking sand from the shore : — there the case was also between the lord of the manor and the inhabitants of the town, but there was no interposition whatever by the Crown : and in the course of that case Mr. Justice Bayley (probably as much acquainted with this subject as any person could be) stated that " as far as the " Crown was concerned, the Crown had no beneficial right in the " soil ; it had only a right for the protection of the public : " — which if your Lordship will allow me to call your recollection to what I stated at the commencement of my argument, is just the point upon which I rest. I say the Crown has certain rights on the sea-shore,^ — the rights of dominion as alleged in the Infor- mation — the rights of jurisdiction by the Admiralty courts and by the common law courts, — and the duty to take care of the sea-shore for the purpose of navigation, and for the public use, as far as the public are entitled. To this extent the Crown has rights and duties: — but no beneficial interest — no right of private property — no right to take the fruits of the sea-shore : — which as my learned friend Mr. Bethell most properly put it, would be the case in effect, directly or indirectly, notwithstanding the arrangement which has been made that the Crown shall have its revenue out of the Consohdated Fund, and the hereditary revenues shall be in the administration of the Woods and Forests : — still, directly, or indirectly, this is a claim of private right in the Crown, and to the Crown would go the profits which would be derived by the establishment of this pro- position. In Scratton v. Brown,'* the lord of the manor established his right expressly to the shore on the coast of Essex. ' Brod. and Bing. 667. And Oxenden z'. Palmer, M.S., Kent, Heme Bay. The lord of the manor recovered against a surveyor of the roads for taking stones from the shore to mend the roads. And see Jerwood, p. 71. '' See ante, p. xliii. Also Jerwood, p. 71. ' See Jerwood, p. 122. * 4 Barn, and Cress. ^8^igiiiieBii>}eMiam^pfl®ys- speech of My. Serjeant Mcrewether. ciii My Lord, there is a case of Benest v. Pipon, which was tried in Benest z'. Jersey, and eventually brought before the Privy Council, where ^'PO"- Lord Wynford gave the judgment. He said " that occupation was " the foundation of most of the rights of property in land," and spoke of " that portion of the shore which was capable of being " usefully occupied ; " and he laid down, that " What never has had " an individual owner, belongs to the sovereign in whose kingdom " it is ; whatever any sovereign has allowed an individual to possess " or improve, he cannot take away, because he would be taking " from the occupant the value of the labour expended on it." Considering that this claim extends over the whole shore of the kingdom ; — and that immense sums have been laid out by parties ' in improving their property by erections upon the sea-shore, to make it convenient for the purposes of commerce and trade — to require that all those improvements should be put at the mercy of this prerogative of the Crown, is a most formidable doctrine ! — particularly when we must remember that much of this property has been made the subject of grants, of marriage settlements, mortgages, and other securities of that kind : — that those arrange- ments should be interfered with by a principle of this sort, when there are none but modern instances to support such a doctrine, or to show that such a right has ever been exercised, is, I repeat, .an alarming proposition. These are the observations I have to press upon your Lordship ; Modern in for with the exception of the case of the river Mersey, and a few ^ ^"'^'^s- cases, comparatively speaking, in the river Humber, where parties, tired of proceedings with the Crown, which never pays costs, con- sented to take leases at small rents under the Crown — with the exception of those cases, and two within this last year, I believe there is no- proof whatever of this prerogative right, extensive as it is alleged to be, ever having been put in force : — and I believe I am fully within compass when I say that these cases are within the last twenty years. A late friend of mine, Mr. Ward of West Cowes in the Isle of West Wight, was indicted' for a nuisance in the river Medina, on the °w^^- shore; injuring, as it was said, the navigation: but nobody ever dreamt of claiming the soil from him ; no right whatever was set up in the Crown ; though at that time (as in the Humber) much attention was given to the asserted regalia of the Crown. One can ' 4. Ad. and Ell. 384; and see Jerwood, p. 74. Digitized by Microsoft® American case. Portland. Duke of Beaufort's Case. civ Appendix. hardly suppose a stronger case than this, in which the Crown did not interfere, if indeed it had really such a title as is alleged. There is an American case' which would bear upon the subject : but perhaps your Lordship would not think it very material : though the American law is now certainly considered as of some authority in this country. To the island of Portland I may also refer, as rather curiously illustrative of the rights of the Crown. I believe it will be found that in that island Her Majesty is the lady of the manor, and in that character she has used the shore, and has made grants of it, and deals with it as belonging to Her Majesty ; but in right of the manor, and not of any prerogative.^ With regard to the case of the Duke of Beaufort,'' to which I was drawing your Lordship's attention, that was an action brought by the Duke of Beaufort against the mayor and corporation of Swansea, for a trespass upon what had been theretofore a part of the sea-shore. Ships had from time to time lodged their ballast there ; by which means the shore had been so much raised and made fit for occupation, that I believe the corporation had formed public walks or something of that description upon it : but the Duke brought an action against them for trespass, in order to try the right to the soil. The Duke it seemed claimed under some deed from the Earl of Warwick, and produced the grant in Court — the grant was read — it contained only general words — it conveyed the land — the terra and the lordship of the manor of Gower — and nothing further : and it was contended that this sea- shore was parcel of that manor. Acts of ownership, by his Grace and his predecessors, upon the sea-shore, were shown ; and were left to the jury for them to say whether they proved or not 'that the sea-shore passed under the words " Terra de Gower." A ver- dict was given for the Duke of Beaufort. The corporation were dissatisfied with that verdict, and they moved in the Court of Exchequer for a new trial. When the rule Nisi came on for discussion, the Attorney-General appeared to support the motion for a new trial ; and he put the case distinctly upon the ground, that the right to the shore was the prerogative right of the Crown, and that such a prerogative right could not pass out of it but by ' Martin v. Waddell, i6 Peters' U. S. Rep. 369. ' See the "Case of Swans" at Abbotsbury, in the same neighbourhood, 7 Rep. 86; also the " History of Weymouth and its Neighbourhood." ' See Jerwood, VdJ^ti&lfiiy Microsoft® speech oj Mr. Serjeant Merewether. cv express words, which were not to be foundj in this grant. The learned Judge had directed the jury that in his judgment the grant was not sufficient of itself without explanation to carry the sea-shore ; but he said to the, jury, " You are to take into your '' consideration all the acts of ownership done by the Duke of " Beaufort and his predecessors, and say upon the whole, whether " you are satisfied or not, that the sea-shore did pass under the " grant and was part and parcel of the manor." The jury gave deliberate answers to all the questions put to them, affirming that it did pass under the grant and that it was part of the manor. But the Attorney-General, when he supported the rule, contending that sea-shore was the prerogative right of the Crown, said that the grant could not convey any right to the shore to the Duke of Beaufort, unless it was by express words ; so of course the evidence of acts of ownership could not give that effect to the grant ; and it was put to him distinctly by Mr. Baron Rolfe, " Then, Mr. Attorney, " why do you refer to the evidence at all ? because you say, that " no possible evidence could have such an effect : for your proposi- " tion is, that the prerogative right existing in the Crown cannot " pass out of it without express words." Here the Court, con- sisting of some of the first lawyers in this country, the Lord Chief Baron, Mr. Baron Parke, Mr. Baron Alderson, and Mr. Baron Rolfe, concurred unanimously in opinion that the direction of the learned Judge was right, and consequently overruled the position of the Attorney-General, that there was any such prerogative right in the Crown. My Lord, there are other cases which would bear upon the sub- ject, but I will not trouble you with them. Lord Chancellor. — The Duke of Beaufort's title was not derived directly from the Crown. Mr. Serjeant Merewether. — No, my Lord. Mr. Solicitor-General. — Yes, my Lord ; the only question in that case was (I do not think it will be very material upon this argu- ment,) but the question in that case really was, whether in the grant which came from the Crown, from the Duchy of Lancaster, the extent of the manor did include this part of the shore which was in the harbour of Swansea. Mr. Serjeant Merewether. — I think my learned friend is mistaken, in saying that the Duke claimed from the Duchy of Lancaster. Mr. Solicitor-General. — That was the express question, whether the grant included ^'^'^hFglti^ihy Microsoft® , ., Mr. Serjeant Merewether. — I am quite sure that if it came from cvi Appendix. the Crown directly or indirectly, to the Duke of Beaufort, it came from the Crown possessed in its private right, and not jure coronal. It was originally in a subject, and being seized by the Crown was afterwards granted to Robert de Brios, from whom the present plaintiff derived his title. Mr. Solicitor-General.— It is stated in a report by a gentleman at the bar, " This was an action of trespass, tried before Mr. Justice " Vaughan Williams, for certain erections made between high and " low-water mark, alleged to belong to the plaintiff, as passing to " him under the general words in a grant from the Crown of the " Seignory of Gower." The question I believe was, simply, whether the words cum pertinentibus included this. It came from the Crown. Mr. Serjeant Merewether. — Not from the Crown jure coror\yrMmXi^S<9oi- precedents taken from the arbitrary reigns of those monarchs ; and I hope I shall not see such prece- speech of Mr. Serjeant Merewether . cvii those cases to which I referred your Lordship — I say therefore that from that period precedents must be looked at with suspicion; — ■ not but that there might be in those days decisions sound in law — quoted from time to time — acted upon — and dealt with as law :— and which, whatever the times were, would be regarded as authority. — But if you find at such a period only a text author suggesting this doctrine — without any authority quoted for it — the matter loosely mooted — a sort of obiter argument by the counsel on the one side and the other, — followed up by such a case as the one I have referred to ' — not finding that case afterwards quoted except to be repudiated, by the statement that it was contrary to Constable's case — charters granted by the Crown at that same time, pretending to deal with the shore (there was that of the De Wandesfords, to which I have alluded, and one also relating to part of the shore of Dorset, both however held to be void) — how this doctrine, now revived, can be supported merely upon the authority of text authors, and the obiter dicta of learned Judges, misled by the treatise published under the name of Lord Hale, but not I think rightly so, I must confess I am at a great loss to understand. I believe my learned friends will in vain look through all our books upon the law for a single case which will support this doctrine. I challenge my learned friends to that point : — and when it is remembered that it was the Attorney- General himself who argued the case of the Duke of Beaufort, — and we know all his assiduity, his intelligence and his zeal, — we may be quite sure that he would not have passed by the opportunity of quoting any authority upon the point, if he could with his numerous assistants have found one. The only authority referred to was the case of Sir Henry Constable, which, he was reminded, was directly against him. With the thorough conviction therefore that there is no ground in Law for this prerogative right, I close the argument which I have addressed to your Lordship, to prove that this right cannot he maintained; and consequently that we ought not to be required further to answer the Crown on this point : — for the Crown having no title in itself, cannot as a stranger to this matter call upon the Defendants to discover the evidence of theirs. dents revived in this reign ; or if they do take a temporary root, they will soon be eradicated. ^Per Wood, B. in the case of the Attorney-General of the Prince of Wales v. Sir St. Aubyn."— Wightwick's Rep. 187. ' Philpot's Case, 8 Car. I. See before, p. xcv. Digitized by Microsoft® Digitized by Microsoft® COPIES OF FORMS IN COMMON USE AT THE BOARD OF TRADE Relative to the rights and interests of the Crown in the Shores and Bed OF the Sea. IHE following is the form upon which any works or encroachments, or other interferences with the fore- shore or bed of the sea or tidal rivers, are reported to the Board of Trade, by officers of Coast Guard and of Customs. * Division, 187 . Sir, With reference to instructions received by me from the Commodore Controller General of the Coast Guard, by circular dated , I beg to forward upon the other side the particulars of a at within this Division. I am, Sir, Your obedient Servant, Inspecting Commander, To the Secretary, Division. Board of Trade, Whitehall. Digitized by Microsoft® ex Appendix. w K H O m « o w ■< o M u Z; >5 W ^ [« u Sog -ca a ciJ-?7> 0-2 ^rS'^^^d ■— ' OJ h/) Will be prov Navi S not s prese ely inter such s? ePai rs. it does ■fere at is it lik ifter to ith any Right so, Stat ticula U-. 5j -H T3 Ph ■■g M ci ,-^ Add r Pe or cl; crcis Owi akin each se m %l'S^'^t'%^ ame a Perso ercisi] tc e Act 01 theE IS the 1^ u '+^ ^^ '^ ^ C O a, „,^ ■S K d fS h O O a •« m Ph(x, l=i ".^ "o S i:^ re and tion of vnershi r ;hment. ized /3y Micros 1 ■> tD "^ 4) S ^ ^ rf-^ Id -^ O 1) C -C J3 S " r^ +J ^ - S ■" o ."5 tu CO be Qj rt '^ -^ ^ cd to o C OJ ° C ^ T3 &§^ I -S "^ O ^^ "^i of Tichfend, Case of . . . xviii, Ixxxi Abridgments, &c., on Crown's Right to the Shore, cited by Mr. Serjeant Merewether : — Bacon . . xcix Comyns ... xcix Fitzherbert .... . . Ixxxii, Ixxxix Rolle xcix Statham Ixxxii, Ixxxix Viner xcix Acts of ownership, continuous, may show the shore to be parcel of a manor. [See " Ownership."] .... 15 may raise presumption of lost grant 15 in one part of a bank no evidence of ownership of a particular spot loi Adverse possession, title by 22, 23, 24 may be confirmed by statute law but not by prescriptive rights to wreck, &c 39 Agriculture, advantages to, from a right to dig for manures on the shore 211,216 Alienation of Crown lands, prohibited . . . . 106 Alluvion, defined 108, 109, xi, xxv belongs to the owner of the adjacent / et seq. of shore do not /?rj-£ give wreck or other regalia . . .82 flotsam, &c. do not pass under grant of " Wreccum Maris'' . xl Groynes, as to the right in a subject to make them on the shore . 167 Hacchesham manor, case of xii, Ixxxii Hale, C. J., " De jure Maris " i authenticity of, questioned . 5 Heron, Sir Edward, case of .12, xxiii High spring tides. See " Tides " and " Spring tides.'' definition of lo, ix, xxiii the soil subject to, is no part of the shore . . . 12, ix Horne'S " Myrrour of Justices," silence in, as to Crown's right to the sea-shore Ixxxv Immemorial usage. See " Usage." in prescription for a customary privilege it is allowed to raise the presumption of an ancient grant 23 whether it can alone raise a title to land considered . 25 et seq. the essence of prescription 36, 37 the public cannot acquire by, a right of fishing in a non-tidal river ........... 37 by the public of an open waste, what inference . . .37 a subject may by, have a several fishing in an arm of the sea xvii Digitized by Microsoft® Index. cxxxvii Page Immemorial usage will not support a claim to dues for anchorage 43 towing paths may be acquired by, as a local custom . . 48 INCREMENTA Maritima defined. (See "AUuvion," "Derelict," and " Islands ") xi, xxxv what may pass under xiv, xv Infra, meaning of 79, Ixxxv INTAKINGS, their evidence of title to the shore .... 100 Inundations, as distinct from tides 8 as to title to land subject to xii Islands, arising in the sea, &c. . . . 140, 141, xiv, xxxiv, xxxv Crown has a /r/»Z(Jy&(rzV title to . . 140, 141, xxxiv, xxxv when a subject may have . . . 140, 141, xxxiv, xxxv Bracton's texts 141 as to the law in America 141 Jetsam, definition of 40, 41, 80, xl Crown's title to 40, 41, 80, xl confers no title to the shore 81 Hale, C. J., opinion of xxv may belong to a subject 81 by charter or prescription xli does not pass under grant of " Wreccum Maris " . . . xl if taken up in wide ocean belongs to the finder, if owner cannot be found xl if in the narrow seas primA facie belongs to the Crown . . xl if the owner can be found, to him xl may be parcel of or belonging to an hundred . . . .xli King, title of, to the sea and sea-shore . . 1-6, vii, ix, x, xv, Ixiv title of, to navigable rivers 3, 4 rights of, managed by Board of Trade . . . . 4, 5, 46 rights of, forms used by the Board of Trade in dealing with cix-cxxv grants by, of portions of land sea-covered . . 6, xii, xv, xxxi grants by, of sea-shore 14, 15, 17, xiv, xv grants by, construed strictly . . . .20, 21, 65, 103, io5 title of, to shore is by the Common law 39 whether right of fishing is originally lodged in . . 42, vii title of, to wreck .".... 44, 80, xxxvi, Ixiv grant of shore by, and no more words will not pass wreck, &c. 82 title' of, to shore ought to be preserved on grounds of public policy 104 alienation of lands by, prohibited 106, 220 title of, to derelict land title of, to lakes and marshes . title of, to islands arising de novo Bracton's doctrine thereon Digitized by Microsoft® 115, 129, xxvu . 115 . 140, xxxv . 141, xxxv cxxxviii Index. Page LAKE, title to soil of 4 when gained from the sea 115 title of king 115 title of owner of adjoining lands 116 Land, prescription gives no title to 22 title to, by grants 22 title to, by adverse possession aided by the Statute law . 22 shore is technically ........ 32 cannot be appendant or appurtenant to land ... 34, 35 cannot be prescribed for 38 alienation of, by Crown, prohibited by Statute . . 106, 220 Laws of William L and Henry L, no reference therein to Crown's rights to the sea-shore (quoted by Mr. Serjeant Merewether) Ixxv Laws, Saxon, quoted by Mr. Serjeant Merewether . . . Ixxiv LiGAN, definition of 40, 41, 80, xl Crown's title to 40, 41, 80, xl confers no title to the shore 81 doctrine of Hale, C.J xxv may belong to a subject , 81, xxv by charter or prescription ....... xli does not pass by grant of " Wreccum Maris " . . . xl if taken in wide ocean belongs to the finder, if the owner cannot be found xl if in the narrow seas primA facie belongs to the Crown . xl if the owner can be found, belongs to him . . . . xl may be parcel of or belonging to an hundred . . .xli LiTTUS, or the shore, is primd facie the king's. (See " Sea-shore") 1 3 technically land ......... 32 distinction between, and " ripam " 162 Lords OF THE MANOR, their claims to the shore . . . .17 grants by the Crown to 17, 18 ownership of, in the sea-shore by prescription considered . 21 may have a separate fishery 52 mere ownership of the shore by, will not include a separate fishery 53 title of, to alluvion 113 their rights as opposed to copyholders 113 title of, to land imperceptibly derelict 114 Machines, bathing in, as to the rights of . . . .170,183 Magna Charta, quoted by Mr. Serjeant Merewether . . Ixxv Manor, shore may be parcel of 15, ix, xxiv what proof necessary 15, xxiv Digitized by Microsoft® Index. cxxxix Page Manor {continued) — claim of lord of, to the shore 17 under what words the shore will pass in a grant of . 14, 18, xiv grants by the Crown to lords of 18 on the coast does not necessarily include the shore . . 18 on the coast does not necessarily include the regalia of wreck 19 or royal fish 19 ownership of lord of, in the sea-shore by prescription considered 2 1 lord of, may have a separate fishery 52 mere ownership of the shore by a lord of manor will not in- clude a separate fishery S3 title to alluvion by lord of 113 his rights as opposed to copyholder's 113 title to land " imperceptibly " derelict by lord of . . .114 lands acquired ''^ per relictionem maris" are not prescribable as part of a 131 Manures, as to public right to dig for on the shore . 92, 206, xlvi antiquity and utility of using marine, in agriculture . 213,214 Maritima Incrementa, Crown has a title to. (See "Alluvion," " Derelict," and " Islands.") xi, xxv what may pass under xiv, xv Marshes, gained from the sea 10, uS king's ownership in 10, 115 title of adjoining owner to 116 Mines, under the sea in Cornwall are vested in the Duke of Cornwall 18 Navigable river, what is a 4, 13, vii, xiv to whom the soil belongs 3, 4 rights of crown to soil of 3, 4 management of Crown's rights in, by Board of Trade . . 4, 46 public rights of fishing and navigation in . . .3, 42, 46, vii et seq., xvii bed of, /r/;«(Jy3czV extra-parochial 15 may be parcel of a vill or parish 15, xxiv is within the adjoining county . . . . . 16, vii nuisance must not be created in . . . . 43, v, xxxiv as to vessels sunk in 45 of conservators of xx, xxi Navigation, pubhc right of, in the seas, &c. ... 42, 43 obstruction to, must not be created in a tidal river 43, v, xxxiv liability to remove such obstruction 45 in America, what it includes 48 towing is not, properly so called 48 Digitized by Microsoft® cxl Index. Page Neap tides. (See " Tides.") are ordinary tides • 1°, xxiv boundary of the shore is by the medium tide between the springs and the 9, lo shore covered by, may belong to a subject .... xxiv Nets, fishing with Ji public fishery is a floating right with 52 right of drying, on the bank 176 Neville, Sir Henry, case of .... 79, 83, xxv, Ixxxv NoY, case in, quoted by Mr. Serjeant Merewether . . . xciv Nuisance, must not be created in a river . . . 43, v, xxxiv when indictable 44, v, vi what amounts to a 45 is a question for a jury 45 used sometimes to be reformed in the King's Bench . . vi sometimes by Special Commission vi Obstruction, to navigation must not be created . 43, 44, v, xxxiv what liability to remove 45 Ownership of the soil of the sea and navigable rivers . 3, 108 value of proof of, acts of 15 as to whether, in the sea-shore can be claimed by prescription 21 Mr, Butler's opinion as to the proofs of the title to the owner- ship of sea-shore 26,31 what acts can oust the king's, in the shore .... 33 of several fishery 47 of the soil of the shore does not entitle such owner to esta- blish an exclusive fishery . . ^ . . . . 53 mere ownership of the soil will not exclude the public . 54 et seq. of exclusive fishery does not give a title to the shore . 55 ^^ seq. of royal franchises does not necessarily include, of the shore itself 81 of shore does not necessarily include royal franchises . 82 et seq. as to digging for sand being evidence of, to the shore . 92 et seq. as to embanking being evidence of, to the shore ... 98 acts of, in one part no evidence of right to do acts on another part of the shore 101 franchises, &c. which will not give, to the soil . . . 103 of the shore, doctrine of the Civil Law writers on . 104, 105 of alluvion and derelictions imperceptible . . . 110 et seq. what, of adjacent land entitles to the alluvion, &c. . .112 of lords of the manor 113, 114 of the copyholder 113,114 of lakes or ponds 11^, l\6, et seq. Digitized by Microsoft® Index. cxli PaRe Ownership, of soil in ports 135 eiseg'. of islands 140, 141 Oyster fisheries, acts relating to 192 Parcel of a manor, shore may be . . . . . • IS, xxiv what proof necessary 15, xxiv Parish, shore may be part of adjoining 15 but /r2';«^_/a«V it is extra-parochial 15 Plymouth and Sutton Poole, case of . 138, 146, xxxii, xcviii Port of Toppesham, case of ■ . 57, 137, 145, xviii, xxxii, Ixxx Ports, title to the soil of 135, xxx belongs like the shore to the king primd fade . , 135, xxx but may belong to a subject 137, xxxi creation of new ports 135 franchise of, distinct from the soil . . . •137, xxxi the franchise may belong to a subject either with or without the soil 137, xxxi whether the word " port " will per se carry the soil in an ex- press grant . 137, 144, xxxi ancient survey of 139 whether prescription for a " port" includes the soil 137, 143, xxxi doctrine of Hale, C. J., on this point . . . 137, 145, xxxi distinction between possession of it by a subject and by the king IS3 whether fish or goods not customable must be landed in 175, 177 Prescription, title by, to the shore considered . . .16, 21, 1 gives no title to lands 22 positive and negative 22 Prescription Act, what is within 23 Mr. Phear on the Act 23 by statutes of limitation 24 as to the old law of 25 modern law of 26 doctrine of Hale, C. J., and Mr. Butler as to its giving title to the shore 26, 27 concerns things appendant and appurtenant ... 34 what things may or may not be prescribed for , . . 35 plea of, by what evidence supported . . . . 36, 37 usage, the essence of 3^ a subject may have the interest of fishing in arm of the sea by xv seizin and, distinguished 37) 38 prescriptive rights no proof of title 39 ceases with its subject matter 75 Digitized by Microsoft® cxlii Index. Page Prescription {continued)— a right lying in, ought not to include more than it would if expressly granted 97 for a port, whether it will include the soil . . ■ lyj et seq. whether land covered by the sea can be prescribed . . 142 derelict soil does not he in 131 for profits ^ prendre 194,196,200 distinction between, in que estate and as an inhabitant . 197 for a profit k prendre by inhabitants not good . . . 199 for easements 200 mere habitancy not sufficient to support a plea for profit ^ prendre 202 for a local custom to dig sand, &c. 203 whether any distinction in prescribing for inland profit and profit on the shore . 204 Prior de Coningshed, case of xvi of Christ Church, Canterbury 138, xxxii of Stoke xvi of Tinmouth ......... x, Ixxxi Profits a prendre, in gross, do not come within the Prescription Act 23-24 distinction between easements and 194 what 194, 195 analogy between, in inland wastes and in sea-shore . . 195 prescription for 196, 197 must be prescribed for in the " que estate" . . . 197-199 but not as inhabitants 198, 199, 201 Public rights of fishing in the sea, &c. . 41, 42, 46, 49, viii, xvii of navigation 42, xxxiv of egress and regress over the shore from boats . . 48,175 are to be construed strictly 107 on the shore 156, 186, 191 of bathing 156 of way over the shore on foot and in carriages . , 171, 184 of disembarking on the " ripam" . . . . .173,174 of laying up boats on the shore 174,176 of way for, and public right of fishing on the shore 173, 174, 175 of way along the " ripam" above high-water mark . • I7S of towing paths ... . . > . . 176,215 of drying nets on the shore 176 of taking shell fish on the shore 186 is part of the public fishery ....... 191 of digging sand, &c. on the shore 191, 194 of digging for manures on the shore .... 206,218 Digitized by Microsoft® Index. cxliii Page PURPRESTURES, meaning of loo, 1 whether jurisdiction to prevent and punish evidence of ownership of the shore loo, I Quays, wharfs, &c., on the shore Que estate, prescription in • 179 197 et seq. Ramsey, Abbot of, case of 118, xxvi, kxxvii RlPA, shore may pass under the term of 18 distinguished from shore 162 deiinition of, in America 163 definition of, in England 9, 163 text of Bracton on the subject 163 right of way over 173 right to land fish upon 174 right of way along, above high- water mark . . . -175 towage of boats along 176,215 on the rights of fishermen to drag their boats upon . . 1 76 tne practice of drying nets upon 176 Rivers, fresh, belong to the owners of the soil adjacent, " usque filiim aqua" ......... i special usage may alter common presumption . . . ii as to sudden and insensible gains on one or other side . ii special custom may alter the case in great rivers . . . ii of the right of prerogative in fresh rivers .... iii, iv pubUc, what are 4-13 title to the soil of 3-4 rights of Crown to soil of 3-4 management of Crown's rights in, by Board of Trade 4, 46 public rights of fishing and navigation in 3, 42, 46, vii, xvii bed of, /r««(fyaa> extra-parochial 15 may be parcel of a vill or parish . . . • i S, xxiv is within the adjoining county .... 16, vii nuisance must not be created in . . . 43, v, xxxiv as to vessels sunk in 45 of conservators of xx, xxi as to property in islands arising in . . . 140, xiv, xxxv Royal Fish, what are 40, 44, 80, xli not necessarily included in a grant of a sea-coast manor . 19 not always appurtenant to a manor 19 may be parcel of or belonging to an hundred . . .xli a royal franchise 40, 41, 80, xli, xlii a subject may have by grant or prescription . . .40, 81, xlii whether it gives a title to the shore . . . . 81, 82 Digitized by Microsoft® cxliv Index. Royal Fish, doctrine of Hale, C. J., on this point his doctrine considered Page 78, XXV 79,80 Salmon, as to the Crown's right in Scotland . . . .192 Sand, as to digging and taking, being evidence of title to shore 92, 103, xlv Stat, of I Jac. I. ch. 18, as to digging it in Devon and Cornwall 94, 204, 207, xxiv effect of express manor grants of right to dig ... 97 as to the public right to dig for it on the shore . 186J 191, 194 is a profit \ prendre 194 analogy between the right on the shore and in inland wastes 195 as to right to dig for it, as a local custom, on the shore . 196 a general practice on the shore 206 importance of general right to dig, on the shore . . .211 Saxon charters quoted by Mr. Serjeant Merewether . . Ixxi, Ixxiii laws, quoted by Mr. Serjeant Merewether .... Ixxiv Seas, British, and the arms thereof, &c., the limits of . . i, vii, ix of the king's title therein 2, vii, ix includes the sea and the land covered by it . . . . 2 extent and nature 2, 3, 4, vii of the title which subjects may have therein . . 3, 6, 14, xiv king's title to the land under the sea 6 if a portion be granted by the Crown to a subject, it does not change its ownership if left dry . 7, 142, xii, xv, xxix, xxxi Sea-bottom, definition of 8 belongs to the king 6, 13 Sea-coast, manor on, does not necessarily include the shore . 18, 1 nor wreck nor royal fish 19 Sea-shore, definition of 8, 9, 13, ix boundaries 8, 9, 13, ix, xiv, xxiv, Ixiv belongs /n>«(^7JzczV to the king . . 9-13, ix, xiv, xxiii, Ixiv but subject to the right of passage over . the title which subjects may have therein title proofs of, same as in inland estate . under what words in a grant it may pass grants of, by Crown .... may be made the subject of express grant may be parcel of a manor, vill, or parish \)Vi. prhnd facie extra-parochial title to, by prescription . Mr. Butler's doctrine considered is part of adjoining county title of lords of the manor Digitized by Microsoft® 14, ix, xxxiii, Ixiv 14, ix, xxxiii, bciv 14, 15, 18, xiv, XV • 14, IS. xiv IS, ix, xxiv 1 5, ix, xxiv 16, 21, XV, xxxi 26, 31 16, vii • 17, 18, 19 Index. cxiv Page Sea-shore {continued) — grants to lords of manor 17 not necessarily included in a grant of a sea-coast manor . 18, 1 technically land 32 is capable of seizin in law 33 king's title to, is positive and by common law . . .39, ix title to, by adverse possession confirmed by Statute law . 39 ownership of, does not necessarily include a several fishery 52, 53 of manor often of great extent 73 not included in an express grant of a several fishery . . 74 grant of, per se, does not give wreck or other regalia . . 82 Bracton's doctrine as to ownership of . . . . . 105 right of way over, for fishing, &c 171 public right to fish on 174,175,186,191 right to land from boats on 174 whether right to dry nets on 176 digging sand, shells, &c. on 194 ef seq. right of way over, on foot and in carriage . . . 184,193 SEA-v^fEED, title to . 92 of the right to take it . .92 Seizin, shore capable of -33 difference between, and prescription 37 proofs of \,,'\yL " spring tides " \o et seq. " terra firma" 8, 162 " wreck " 40, 44, 80, xxxvi et seq. Wreck, definition of 40, 44, 80, xxxvi et seq. is a royal franchise 4°, 44, 80, xxxix, bciv may belong to a subject by grant or prescription . 40, 81, xxxix will not jS«rj« confer a title to the shore . 10, id et seq.W\ doctrine of Hale, C.J., that it will raise a presumption of ownership in the shore 78, xxiv, xxv his doctrine considered 79 grant of so much shore by the king and no more words will not pass 82 grant of shore does not /^rj^ include wreck . . . 82,lvi implies the right of egress and regress to take it . . .82 xxv, Ixvi grant of a sea-coast manor does not necessarily include the regalia.of wreck, &c 19 Yarborough, Lord, case of 120-128 Year Books, on Crown's right to the sea-shore quoted by JVIr. Serjeant Merewether . . , Ixxxii 22 Ed. III. Liber Assisarum case in, also quoted by him Ixxxvi 34 Ed. III. pi. II, case in, also quoted by him . . Ixxxvii 6 Rich. II. case in, also quoted by him .... bcxxvii 8 Ed. IV. fol. 18, case in, also quoted by him . . Ixxxviii THE END. Digitized by Microsoft® Digitized by Microsoft® Digitized by Microsoft® Digitized by Microsoft® iilllllMlil iii"i'''"'i'''li;!i!;llNiiilinii'i"i"'i"' iiiii.iiyii"!