law, by which all lands in the kingdom were derived from the king as lord paramount, and held by his bounty, the shores and bed of tide waters, having no other acknowledged owner, are said to remain vested in him in all cases where he has not expressly granted them away. One writer suggests that at the time of the Norman Conquest, William I., having acquired by confiscation all the estates in England, retained in his own seizin those lands, including the shore, which were not distributed among his followers.2 The Crown's right of private property in tide waters within the realm formed part of the theory of its dominion upon the sea. Lord Hale considers the king's ownership of the shore to be one of the evidences of his ownership of the sea, and Callis says that the littus maris, or shore, taketh its name wholly from the sea, as partaking most of its nature, and that, in point of property and ownership, it is the king's as lord of the seas. Blackstone assigns to the king, as lord of the sea, the lands which it leaves when it suddenly recedes. So it is said that navigable rivers, so far as the tide ebbs and flows in them, belong 1 In Commonwealth v. Alger, 7 Cush. 53, 90, Shaw, C. J., said: "By the general rule of the common law, all real property capable of use and possession, and having no other acknowledged owner, is, in theory, vested in the king, as the head and sovereign representative of the nation. The sea-shore," &c., " are deemed vested in and held by the king." In a recent case in Rhode Island, Potter, J., said: "It was the policy of the English law, and especially of the feudal system, to consider the king as the original owner of all the lands in the kingdom. Hence he was the owner of all vacant lands, derelict, &c. All was held of him and escheated to him. So he is spoken of as the owner of the shore." Providence SteamEngine Co. v. Providence Steamship Co., 12 R. I. 348, 358. In Attorney General v. Chambers, 4 De Gex, M. & G. 206, Ld. Ch. Cranworth said: "The principle which gives the shore to the 3 Crown is that it is land not capable of ordinary cultivation or occupation, and so 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 the most 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." 2 Jerwood on the Seashore, 20-29. 3 De Jure Maris, c. 4. 4 Callis on Sewers, 54. If the kings of England possessed the sea, "it follows that they possessed the shore as well as the sea, for if they have owned the sea, they have it at high water as well as low." Jerwood on the Seashore, 19, 20. 52 Black. Com. 261. to the king,1 because they partake of the nature of the sea, which is his proper inheritance, and that he hath the same property in them as in alto mare.2 The doctrine of the Crown's title as universal occupant appears to be at variance with a recent decision in the House of Lords. In that case 3 the 1 Hale, De Jure Maris, c. 4. "The king hath not only a dominion at sea, but he is dominus maris Anglicani'; he is both owner of the sea and of the soil under the sea. And so it was resolved lately, by my Lord Chief Baron, and the rest of the barons of the Exchequer, in the case of Sutton Marsh (Mich. 13 Car.), that the soil of the land, so far as the sea floweth, is the king's, and the king is seized thereof, jure coronue." 3 Howell's State Trials, 1023. See also the passage from Shepperd's Grand Abr., ante, § 17, note. 2 Royal Fishery of the Banne, Sir John Davies, 149; Com. Dig. tit. Prerogative, D. and Navigation, B.; 2 Roll. Abr. 170; Vin. Abr. 574, B. a. "If a river, so far as there is a flux of the sea, leaves its channel, it belongs to the king; for the English sea and channels belong to the king, and he hath the property in the soil, having never distributed them out among his subjects." Bacon's Abridg. tit. Court of Admiralty, A. and Prerogative, B. 3. 3 Bristow v. Cormican, 3 App. Cas. 641. The plaintiffs in this case had never been in actual possession, but, in support of their claim to a several fishery over the whole of the lake, introduced documentary evidence of title, commencing with a royal grant from Charles II. in 1660, and continued by leases and other documents. The defendants set up a claim of right in favor of and also user by the public. No evidence was given of the Crown's title. The judge at the trial withdrew the case from the jury and directed a verdict for the plaintiffs. The House of Lords held this to be erroneous, the question being one of fact and not of law. Lord Blackburn said: "It is, however, necessary to decide whether the Crown has of common right a prima facie title to the soil of a lake. I think it has not. I know of no authority for saying it has, and I see no reason why it should have it. Mr. Justice Lawson, in his able opinion, hints at one. 'What ground,' he says (Ir. R. 10 C. L. 418), 'is there for suggesting that the title was not in the Crown? It is not shown, or even suggested, to be in any other, and it could not be in the public." This would be a strong remark if there was any authority for saying that, by the prerogative, the Crown. was entitled to all lands to which no one else can show a title. But this is so far from being the case, that, in the only instance in which no one could show a title, I mean that of an estate granted to one for the life of another, where the grantee died leaving the cestui que vie, the law cast the freehold on the first occupant of the land. See Co. Litt. 40. It was never thought that the Crown was entitled in such a case. Those who committed trespasses after the death of the tenant for life, and before any one occupied, did so with impunity, because there was no one entitled to complain of their acts, and it may be that those who fish in Lough Neagh may do so, not of right, yet with impunity,' so long as the true owner of the soil either fails to prove his right, or does not choose to interfere. But that does not give any rights to the Crown. The Crown might have had title in many ways, by forfeiture, plaintiff proved, in support of his claim of title to a non-tidal lake, an ancient royal grant, but did not prove the title of the Crown; and although there was no suggestion that the title could be legally vested in any other than the Crown, it was held that it was necessary to prove the grantor's title, as in the case of a private grant, and that there was no presumption in favor of the Crown's title to vacant land like the bed of a lake. Such presumption exists with respect to the shore and the soil under tide waters; and if the Crown's private rights in the bed of navigable waters within the realm were originally connected with the obsolete theory of dominion. over the narrow seas, it is, perhaps, probable that they now depend upon prescription.2 §20. "All prerogatives," says Bacon,3"must be for the advantage and good of the people; otherwise they ought not or escheat, or otherwise. But generally speaking, in order to make such a title in the Crown perfect, there must be office found. And here not only is there no evidence of any office found, but the indenture contains what purports to be a dispensation from the Statute of Henry VI. showing that there was not any office found. I think, therefore, that Mr. Justice Fitzgerald was quite right when he says (Ir. R. 10 C. L. 422) that 'we must deal with the grants of 1660 and 1661 in the same way as if the grantor was a private individual.' See, however, Doe v. Redfern, 12 East, 96; 2 Black. Com. 258, 261; Crane v. Reeder, 21 Mich. 24. The right to the soil between high and low-water mark is prima facie in the Crown, and although it may be in a subject according to the terms of the grant, yet the burden is upon those who set up an adverse title. Attorney General v. Richards, 2 Anst. 606; Scratton . Brown, 4 B. & C. 485; Somerset v. Fogwell, 5 Id.; Dickens v. Shaw, reported in Hall on the Seashore, Appendix, p. 283; Blun dell v. Catterall, 5 B. & Ald. 268; Attorney General . Parmenter, 10 Price, 378; s. c. nom. Parmenter r. Gibbs, Id. 412; Attorney General r. Burridge, Id. 350; Lopez v. Andrew, 3 Man. & Ryl. 329; Levett v. Wilson, 3 Bing. 115; post, § 27. See Chitty on the Prerogative, 142, 206; Sheppard's Grand Abr. pt. 3, p. 46; 1 Molloy, De Jure Marimo (9th ed.), 125, 126. "Every government that is not established by military force, or founded on the express consent of the people, must derive its authority from positive law or from long-continued usage. .. No one will pretend that any prerogative of the king of England is founded either on military force or on the express consent of the people. Every prerogative of the Crown must, therefore, be derived from statute or from prescription; and, in either case, there must be a legal and established mode of exercising it." Allen on the Prerogative (1st ed.), 166. 3 Bac. Abr. tit. Prerogative, p. 1; Bracton, 1. 2, c. 5, § 7; Id. 1. 3, t. 1, c. 9; Hale, De Jure Maris, c. 2, pl. 3; 1 to be allowed by law." "Many of the king's rights," says Bayley, J., "are, to a certain extent, for the benefit of his subjects, and that is the case as to the sea, in which all his subjects have the right of navigation and of fishing." So far as the use of tide waters is necessary for these purposes, the public are invested with rights which are as clearly estab lished as those of the Crown, and its private right is burdened with a trust or charge in favor of the public. The king has the property, but the people have likewise the use necessary.2 This has been compared to the waste of a manor, wherein the title is in the lord, but the common right of user is possessed by all the tenants, and to the king's highway, in which, though the title may be in the owners of the adjoining lands, yet the king, as guardian and protector of the public interests, has the power to prevent obstructions, and the people have the common right of passing and repassing. Certain incidental privileges necessary to the exercise of the public rights of navigation and fishery are allowed by law, which involve the use of the soil beneath the water as well as the water itself. The right of anchorage is a necessary part of the right of navigation, because it is essential for the full enjoyment of that right,5 and if reasonably and properly exercised, it is protected like the principal right, though it involves a temporary disturbance of the soil, or an unavoidable injury to an oyster bed there planted. If a river is navigable, it is so whether the tide is in or out, and a vessel Hargrave's Law Tracts, 11, 19, 20; 410. 1 Blundell r. Catterall, 5 B. & Ald. 268. Callis on Sewers, 55. 3 Hale, De Jure Maris, c. 4, pl. 1. Hale, De Jure Maris, c. 2, pl. 3, and c. 6; Hargrave's Law Tracts, p. 36; Blundell v. Catterall, 5 B. & Ald. 268. Gann . Free Fishers of Whitstable, 20 C. B. N. s. 1; Colchester v. Brooke, 7 Q. B. 339; Stephen v. Costor, 2 Burr. 1408. The right of passage is locally unlimited, and extends to every part of a navigable river as well as of the sea; Rex v. Ward, 4 Atk. 384; post, § 55; but the right to anchor is confined to such places as are usual and reasonable, having regard to the condition of the particular place. Williams v. Wilcox, 8 Ad. & El. 314; Rose v. Miles, 4 M. & S. 101; Colchester v. Brooke, 7 Q. B. 339; post, § 96. 7 Ibid. which cannot reach its destination in a single tide may remain aground till the tide serves. So the right to take shell-fish below high-water mark, as well those which are imbedded in the soil as those which lie upon its surface, is a part of the public right of fishery, and, in the exercise of this right, the public may dig or rake the soil.2 § 21. The Crown may grant to a subject the soil of tide waters, and in ancient times it could pass exclusive rights of fishery in such waters.3 According to Lord Hale, the shore 1 Mayor of Colchester v. Brooke, 7 Q. B. 339; Hall on the Seashore (2d ed.), 43, note. A vessel thus grounded is not a nuisance, and another vessel will not be justified in running into it negligently or maliciously. Id. Cummins v. Spruance, 4 Harr. (Del.) 315. 2 Bagott v. Orr, 2 Bos. & Pul. 472; Blundell v. Catterall, 5 B. & Ald. 268, 299; Hall v. Whillis, 14 Sc. Ct. of Ses. (2d series), 324; Martin v. Waddell, 16 Peters, 410; Den v. Jersey City, 15 How. 132; McCready v. Virginia, 94 U. S. 391; Fleet v. Hegeman, 14 Wend. 42; Paul v. Hazelton, 37 N. J. L. 106; State v. Taylor, 27 Id. 117; Gulf Pond Oyster Co. v. Baldwin, 42 Conn. 255; Peck v. Lockwood, 5 Day, 28; Parker v. Cutler Mill-dam Co., 20 Maine, 353; Moulton . Libbey, 37 Maine, 472; Porter . Shehan, 7 Gray, 435. "The right of fishing in the sea or rivers in any town in this Commonwealth, either for swimming fish or for shell-fish, is a public right which belongs to all the inhabitants of the town, unless restricted by acts of the legislature or of the town, inconsistent therewith, or by prescription; and a grant by the legislature to a town of the title in the bed of a river, or in flats covered by tide water, within its limits, does not convey by implication the right of fishing to the town as its own property; for the right of fishing, not being an incident to the right of property in the soil, but a public right to take the fish, which, whether moving in the water or imbedded in the mud covered by it, depend upon the water for their nourishment and existence, is unaffected by the question whether the title in the land under the water is in the Commonwealth, in the town, or in private persons." Gray, J., in Proctor v. Wells, 103 Mass. 216, citing Coolidge v. Williams, 4 Mass. 140; Randolph v. Braintree, Ib. 315; Dill v. Wareham, 7 Met. 438; Weston v. Sampson, 8 Cush. 347; Lakeman v. Burnham, 7 Gray, 437; Commonwealth v. Bailey, 13 Allen, 541. 3 Weirs in navigable rivers are legal in England, if erected before the reign of Edward I. Williams v. Wilcox, 8 Ad. & El. 314; Rex v. Westham, 10 Mod. 159; Rex v. Bristol Dock Co., 6 B. & C. 181; Lord Fitzwalter's Case, 1 Mod. 105; Carter v. Murcot, 4 Burr. 2162; Anon. 6 Mod. 73; Rex v. Clark, 12 Mod. 615; Case of Chester Mill, 10 Rep. 137; Robson v. Robinson, 3 Dougl. 307; Warren v. Matthews, 1 Salk. 357; Somerset v. Fogwell, 5 B. & C. 875, 884; Blundell v. Catterall, 5 B. & Ald. 268; Weld r. Hornby, 7 East, 195; 2 Black. Com. 39; 16 Vin. Abr. tit. Piscary, B. 1; Hale, De Jure Maris, c. 5; Hargrave's Law Tracts, 85; Phear, 50; Browne . Kennedy, 5 Har. & J. 203; Weston v. Sampson, 8 Cush. 347, 352 ;. |