between the high and low-water mark, "may be, and commonly is, parcel of the manor adjacent,1 and a subject may possess the creeks or smaller arms of the sea, but not those portions of the sea which would require a naval armament for their defence against foreign powers.2 It is incompetent for the Crown in modern times to abridge or destroy, by its own act, the public rights either of navigation or fishery, and it cannot confer upon its grantee a greater power in this respect than that with which it is itself invested. This subject was reviewed in certain cases in the Exchequer relating to Portsmouth Harbor. In Attorney General v. Burridge, it Bulbrook v. Goodere, 3 Burr. 1768; Colchester v. Brooke, 7 Q. B. 339; Malcomson v. O'Dea, 10 H. L. Cas. 593; Allen . Donelly, 5 Ir. C. L. 292; O'Neill v. Allen, 9 Id. 133; Gann v. Free Fishers of Whitstable, 11 H. L. Cas. 192; Lord Advocate v. Hamilton, 1 Macq. H. L. 47; Seebkristo v. East India Co., 10 Moo. P. C. 140. Hale, De Jure Maris, c. 4, II. 3. Ibid. c. 6; ante, § 3, note. Mr. Hall (on the Seashore, 2d ed. 106) considers that the statute, 1 Anne, c. 7,5, by which royal grants of the demesnes and landed possessions of the Crown are prohibited, restrains the alienation of the seashore. See 1 Black. Com. 286; Doe v. York, 14 Q. B. 81. In England, the regulation and control of the seashores, &c., are now entrusted to commissioners under acts of Parliament. By 29 & 30 Vict. c. 62, § 7, the management of the Crown's interests in the shores and bed of the sea and the tidal rivers of the United Kingdom was transferred from the Commissioners of Woods and Forests to the Board of Trade, and the duties of the Board 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 the 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, when expedient so to do, under the powers contained in earlier statutes. See also 37 & 38 Vict. c. 40; Hall on the Seashore (2d ed.), 4, n. 3 Ibid; Fitzpatrick v. Robinson, 1 Hud. & Br. (Ir.) 585; Devonshire v. Hodnett, Ibid. 322; Williams v. Wilcox, 8 Ad. & El. 314; Lord Advocate v. Sinclair, L. R. 1 H. L. 174; In re Hull v. Selby Railway Co., 5 M. & W. 327; Hale, De Jure Maris, c. 5, 6; 2 Roll. Abr. 107, 170; Sir Henry Constable's Case, 5 Rep. 107; Dickens v. Shaw, in Hall on the Seashore (2d ed.), App.; Chad v. Tilsed, 2 Brod. & B. 403; 5 Moore, 185; Scratton v. Brown, 4 B. & C. 485; King v. Montague, 4 B. & C. 598; Beaufort v. Swansea, 3 Exch. 413; King v. Ward, 4 Ad. & El. 384; Warren v. Matthews, 6 Mod. 73; Grosvenor's Case, 2 Starkie, 511; Gann v. Whitstable Free Fishers, 11 H. L. Cas. 192, 217; 11 C. B. N. s. 301; Hastings v. Ival, L. R. 19 Eq. 558; Colchester v. Brooke, 7 Q. B. 373; Nichols v. Boston, 98 Mass. 41; Rogers v. Jones, 1 Wend. 237; Brookhaven v. Strong, 60 N. Y. 56; Furman . New York, 5 Sandf. 16; Browne v. Kennedy, 5 H. & J. 195; Baltimore v. McKim, 3 Bland Ch. 453; Casey v. Ingloes, 1 Gill, 430. 410 Price, 350. In England the was held that while the Crown may grant a town or borough, which is caput portus, and all the land between high and lowwater mark, yet the subject-matter of the grant remains subject to the right of the king and his people to pass and repass. Attorney General v. Parmenter1 decides that where a part of the shore 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 that objection, if acted upon so as to work an injury to the public right, or it is a grant which does not divest the Crown or invest the grantee. In the earlier case of Attorney General v. Richards, it appeared by the information that the defendants had built certain permanent structures in the harbor between high and low-water mark, which prevented vessels from passing over the spot or mooring there, and also endangered the navigation of the harbor by preventing the current of water from carrying off the mud. The defendants claimed under letters-patent from the Crown, which did not convey the soil at the place in question. There was held to be an invasion of both the jus publicum and the jus privatum, and the defendants were restrained from making further erections, and ordered to abate those already built. There is a broad distinction between a violation of the public right and an invasion of the proprietary interest of the Crown. The one creates a public nuisance; the other a purpresture. Any encroachment upon the king, either upon part of the demesne lands, or in public rivers, harbors, or highways, is called a purpresture.3 If a littoral prerogative of the Crown to intervene, 2 Story Eq. Jur. § 921; 4 Black. Com. in actions affecting the rights or revenues of the sovereign, was not affected by the Judicature Acts; and in such matters the Exchequer Division of the High Court of Justice has all the powers formerly possessed by the Court of Exchequer. Attorney General v. Barker, L. R. 7 Ex. 177; Attorney General v. Constable, 4 Ex. D. 172. 110 Price, 378, 412. 22 Anst. 603. 32 Inst. 38, 272; Co. Litt. 277 b; Spellman's Glossary, tit. Pourpresture; 167; Termes de la Ley, tit. Purpresture. "Purpresture in a forest is every encroachment upon the king's forest, be it by building, inclosing, or using of any liberty without a lawful warrant so to do." Ibid.; Glanville (Beames' ed.), 238. A bathing-house, erected on piles driven into the bed of a navigable river below low-water mark, such bed belonging to the gov ernment, is, as between individuals, personal property. Marcy v. Darling, 8 Pick. 283. proprietor, without grant or license from the Crown, extends a wharf or building into the water in front of his land, it is a purpresture,' though the public rights of navigation and fishery may not be impaired. If such a structure causes injury to the public right, it is a common nuisance and abatable as such, even though erected under license from the king, for he cannot license a common nuisance.3 It is not every building below the high-water mark, nor every building below the low-water mark, that is ipso facto a nuisance, but nuisance or not nuisance is a question of fact. The remedy for a purpresture is either by an information of intrusion at common law, or by information in equity at suit of the attorney general.5 The effect of a judgment at law is the abatement of the erection complained of, whether it be a nuisance or not. When the structure is both a purpresture and a nuisance, the injury to the rights of the king and of his subjects may be redressed in the same proceeding. A common nuisance is abatable at suit of the Crown by virtue of its power of superintendence and control, and the attorney general, on the part of the Crown, may proceed by information in equity for the protection either of the jus privatum of the king from the purpresture, or the jus publi Hale, De Portibus Maris, c. 7; Hargrave's Law Tracts, 84; Callis on Sewers, 174, 175; Woolrych on Waters, 193; 2 Story Eq. Jur. §§ 921 -925; Eden on Injunctions, 259; Beames's Glanville, 239, note; 3 Kent Com. 432. 2 Ibid.; New Orleans 2. United States, 10 Peters, 623; Hart v. Mayor, 9 Wend. 571; Commonwealth v. Wright, 3 Am. Jur. 185; Watertown r. Cowen, 4 Paige, 510; Attorney General r. Cohoes Co., 6 Paige, 133; Mohawk Co. v. Railroad Co., Id. 554; Davis . Mayor, 14 N. Y. 526; People r. Vanderbilt, 28 N. Y. 376. 3 Hale, De Portibus Maris, c. 7; Hargrave's Law Tracts, 85; Gann v. Whitstable Free Fishers, 11 H. L. Cas. 192; Williams v. Wilcox, 8 Ad. & El. 314; Colchester v. Brooke, 7 Q. B. 339; Rex r. Tindall, 1 N. & P. 723. 4 Hale, De Portibus Maris, c. 7; Hargrave's Law Tracts, 85; Attorney General v. Richards, 2 Anst. 603, 615; Attorney General v. Burridge, 10 Price, 350; Reg. v. Betts, 16 Q. B. 1022; Reg. v. Randall, 2 Car. & M. 496; Attorney General v. Terry, L. R. 9 Ch. 423; Attorney General v. Evart Booming Co., 34 Mich. 462; People v. St. Louis, 5 Gilman, 351; Diedrich v. North Western Railway Co., 42 Wis. 248. 5 Eden on Injunctions, 223; 2 Story Eq. Jur. § 922; 2 Dan. Ch. Prac. (4th ed.), 1481; State v. Arledge, 1 Bailey (S. C.), 551. Ibid.; Milford Eq. Pl. 145; Attorney General v. Richards, 2 Anst. 606. cum of his subjects from the nuisance.' The terms purpresture and nuisance are sometimes used interchangeably. But, in strictness, that which is simply a purpresture is not subject to indictment, although abatable by the Crown.2 If the structure is both a purpresture and a nuisance, or if, being authorized by the Crown, it is a nuisance and not a purpresture, it is also liable to indictment,3 and to a private action in favor of individuals who sustain an injury distinct from that suffered by other members of the public. The mode of proceeding at common law to authorize the erection of wharves and other structures on the shores of the sea or of navigable rivers, where the property remained in the Crown, was to sue out a writ of ad quod damnum, and upon the return of an inquest by a jury, finding that no injury would result to the king or others from the grant, the Crown licensed what would otherwise be a purpresture. Although a royal grant or license would not protect from indictment or injunction, V. 1 Attorney General v. Parmenter, 10 Price, 378, 412; Attorney General v. Burridge, Id. 350; Attorney General v. Chamberlaine, 4 K. & J. 292; Attorney General v. St. Aubyn, Wightw. 167; Attorney General v. Richards, 2 Anst. 603; Attorney General Johnson, 2 Wils. Ch. 87; Attorney General . Philpot, cited 2 Anst. 607; Bristol Harbor Case, cited 18 Ves. 214; Attorney General v. Tomline, 12 Ch. D. 214; Attorney General v. Cleaver, 18 Ves. 218; Attorney General v. Forbes, 2 Myl. & Craig, 129; Bristol v. Morgan, and Newcastle v. Johnson, cited in Hale, De Portibus Maris, c. 6; Hargrave's Law Tracts, 81; 2 Story Eq. Jur. §§ 921-925; Cooper, Eq. Pl. 102; People v. Vanderbilt, 26 N. Y. 287; 28 N. Y. 396; 38 Barb. 282; Davis v. Mayor, 14 N. Y. 526; Mohawk Bridge Co. v. Utica Railroad Co., 6 Paige, 559; Hart v. Albany, 3 Paige, 559; Attorney General. Cohoes Co., 6 Id. 133; People v. St. Louis, 5 Gilman, 351. Ibid.; 4 Black. Com. 271, note. 3 Rex v. Grovesnor, 2 Stark, 511; Attorney General v. Richards, 2 Anst. 5 Com. Dig. tit. Ad quod damnum; Rex v. Montague, 4 B. & C. 598; Rex v. Russell, 6 B. & C. 566; Commonwealth v. Alger, 7 Cush. 53, 82; Nichols v. Boston, 98 Mass. 39, 41; Bell v. Gough, 23 N. J. L. 624, 661; Hendricks v. Johnson, 6 Porter, 572. The proceeding by inquisition under the writ of ad quod damnum, which was the common-law mode of taking private property for public use, is now quite generally superceded by the provisions in acts authorizing canals, dams, railroads, etc., for the condemnation of private property. If the act of incorporation is silent as to the mode of proceeding, or the nature of things requires it, the principles, applicable to proceedings under the writ of ad quod damnum, still govern. Compton v. Susquehanna Railroad, 3 Bland, 386. as nuisances, buildings which impair the common right of navigation, yet Parliament has the power to determine whether this would be for the public advantage. It may legalize encroachments which are for the benefit of navigation, and, it would seem, may also sanction such as are not in aid of the public right.2 § 22. The general principle is that no time runs against the king; yet by custom or prescription a subject may acquire certain of the maritime interests of the Crown, including the right of several fishery in the creeks and arms of the sea, the property in the shore and in land left by the recession of the sea, and in wreck. Lord Hale says that the evidence to prove that the shore is parcel of a manor 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; inclosing and imbanking against the sea, and enjoyment of what is so inned; enjoyment of wrecks happening upon the sand; presentment and 1 Lowe v. Govett, 3 B. & Ad. 863; Rex r. Montague, 4 B. & C. 598; Vooght v. Winch, 2 B. & Ald. 662; Attorney General v. Burridge, 10 Price, 350; Attorney General v. Parmenter, 10 Price, 378, 412; Williams v. Wilcox, 8 Ad. & El. 314; Rex v. Montague, 4 B. & C. 598; Arundel v. McCulloch, 10 Mass. 70; Commonwealth r. Charlestown, 1 Pick. 180, 185; Weston v. Sampson, 8 Cush. 347, 352; Commonwealth v. Alger, 7 Cush. 53, 83; Nichols v. Boston, 98 Mass. 39, 41; People v. New York Ferry Co., 68 N. Y. 71; Vanhorne v. Darrance, 2 Dall. 304; Flanagan v. Philadelphia, 42 Penn. St. 219, 230; Scudder r. Trenton Falls Co., Sax. (N. J.) 696; Gough v. Bell, 22 N. J. L. 441, 457. 2 Ibid. In this country, the powers of Congress and of the State legislatures are restrained by written constitutions, but acts of Parliament are valid, though they conflict with the unwritten constitution. 4 Co. Inst. 36; 1 Black. Com. 90, 160, 161, 244; Hale, Of Parliaments, 49; Locke on Government, p. 2, §§ 149, 227; Broom's Const. Law, 795; De Tocqueville, Democracy in America, c. 6; Hodgdon v. Little, 14 C. B. N. s. 111; 16 Id. 198; Rolle v. Whyte, L. R. 3 Q. B. 286, 306; Eduljee Byramjee, Ex parte, 5 Moo. P. C. 294; 3 Moo. Ind. App. 468; Eaton v. B. C. & M. R. Co., 51 N. H. 504, 516; Thompson v. Androscoggin Co., 54 N. H. 545, 556. 33 Black. Com. 257; Broom's Legal Maxims, 165. No lapse of time will legalize a public nuisance, and the right to maintain encroachments which limit the public right cannot be gained by prescription. Post, § 121; Peckman v. Henderson, 27 Barb. 207. 4 Hale, De Jure Maris, c. 5, 6; Hargrave's Law Tracts, 18, 25, 27, 29, 31, 32; Kingston v. Homer, Cowper, 102, 215; In re Belfast Dock, 1 Ir. Rep. Eq. 128; Re Alston's Estate, 5 W. R. 189. |