The expression, "ordinary high and low-water mark," which is generally used in defining the shore, signifies ordinary lowwater mark as well as high. Under the Massachusetts Colony ordinance of 1647, which extended the title of littoral proprietors to low-water mark, not exceeding one hundred rods, the low-water mark is the line of extreme low water, if within one hundred rods; 2 but in Maine, under this ordinance, the low-water mark is determined by the ebb of ordinary tides, as at common law.3 These rules apply to tidal rivers and to the arms and inlets of the sea, as well as the sea itself, but they have no application to fresh waters. The terms, "ordinary low water" or "low water," says Wayne, J.,5 "are only predicable of those parts of rivers within the ebb and flow of the tides, to distinguish the water line at spring or neap tides. Such a difference is uniform twice within

& Fin. 628; Galveston v. Menard, 23 Co., 3 Cush. 1; Monson v. Monson, Texas, 349, 398.

1 Hale, De Jure Maris, c. 4, II.; c. 6, I.; Dickens v. Shaw, reported in Hall on the Seashore (2d ed.), Appendix, 50, 64; Blundell v. Catterall, 5 B. & Ald. 290; Lowe v. Govett, 3 B. & Ad. 863; Harvey v. Lyme Regis, L. R. 4 Ex. 260; Attorney General v. Chambers, 4 De Gex, Macn. & Gord. 206; East Haven v. Hemingway, 7 Conn. 186; Church v. Meeker, 34 Conn. 421, 424; Teschemacher v. Thompson, 18 Cal. 11; People v. Morrill, 26 Cal. 336, 353; Ward v. Mulford, 32 Cal. 365, 372; Providence Steam Engine Co. v. Providence Steamship Co., 12 R. I. 348, 357; Gough v. Bell, 22 N. J. L. 441; 23 Id. 624, 685; Seaman v. Smith, 24 Ill. 521, 524; Howard v. Ingersoll, 13 How. (U. S.) 381, 417; Walker v. Marks, 2 Sawyer, 152, 157.

2 Storer v. Freeman, 6 Mass. 435, 438; Sparhawk v. Bullard, 1 Met. 95, 108; Commonwealth v. Charlestown, 1 Pick. 180, 183; Attorney General r. Boston & Maine Railroad Co., 3 Cush. 1; Attorney General v. Boston Wharf Co., 12 Gray, 553; Commonwealth. Boston & Maine Railroad

14 Allen, 71, 82; 9 Gray, 515, 521, note; Attorney General v. Woods, 108 Mass. 436, 440; Commonwealth v. Roxbury, 9 Gray, 451, 491, 515, 521.

3 Gerrish v. Union Wharf Co., 26 Maine, 384.

4 Hale, De Jure Maris, c. 4, II.; Royal Fishery of the Banne, Sir John Davies, 149; United States v. Pacheco, 2 Wall. 587; Wheeler v. Spinola, 54 N. Y. 377; Commonwealth v. Roxbury, 9 Gray, 451, 491; Attorney General v. Boston Wharf Co., 12 Gray, 553; Kean v. Stetson, 5 Pick. 492, 495; Montgomery v. Reed, 69 Maine, 510; State v. Sargent, 45 Conn. 358; Galveston v. Menard, 23 Texas, 349.

5 Howard v. Ingersoll, 13 How. 381, 417. And see Id. p. 428; Duttoń v. Strong, 1 Black, 23, 32; Handly v. Anthony, 5 Wheat. 374; Child v. Starr, 4 Hill, 369, 376; Canal Commissioners v. People, 5 Wend. 423, 446; Halsey v. McCormick, 13 N. Y. 296, 298; Wheeler v. Spinola, 54 N. Y. 377, 385; Waterman v. Johnson, 13 Pick. 261; Bradley v. Rice, 13 Maine, 198; Stover v. Jack, 60 Penn. St. 339; Lacy v. Green, 84 Penn. St. 514.

every month of the year; and, because it is so, it is termed ordinary. In that part of a river in which there is no ebb and flow, the changes in the current are irregular and occasional, without fixed quantity or time of recurrence, except as they are periodical with the wet and dry seasons of the year. And low water is the furthest receding point of ebb tide."

§ 28. The words "flats" and "strand "2 denote the land between the lines of high and low water, like the shore. The term "coast," or "sea-coast," appears to have no fixed meaning apart from the context, and to be equally applicable to the space between high and low-water mark, or to the territory bordering on the sea, or to that part of the sea which adjoins the land.3 The word "beach" is synonymous with "shore." In Maine, a statute which prohibited cattle running on a certain "beach," and charged a committee to be appointed by a town with the execution of the law, was held to apply only to the space between high and low-water mark. And in a later case in the same State, in which the same view was taken, it was said that this word, which was there used in a contract, must have some limited meaning, and could not apply to the large sand wastes above high

used, appears in the Convention of 1818, between Great Britain and the United States, which provided that the inhabitants of both countries should have the liberty to fish on a part "of the southern coast of New foundland," "on the shores of the

1 Storer v. Freeman, 6 Mass. 435, 439; Saltonstall v. Long Wharf, 7 Cush. 195, 201; Doane v. Willcutt, 5 Gray, 328, 335; Church v. Meeker, 34 Conn. 421, 424, 429; Stannard v. Hubbard, 34 Conn. 376; Montgomery v. Reed, 69 Maine, 510. *Doane v. Willcutt, 5 Gray, 328, Magdalen Islands, and also on the

335.

3 Callis says that the "sea-coast" certainly contains the shore and banks, and that, while a shore is sometimes dry land, and sometimes water, and a creek is always sea and never land, a coast is always dry land. Callis on Sewers, 54-57. Its meaning must, however, be gathered from the context. The indefiniteness of this term, and also of "shore," as sometimes

coasts, bays, harbors, and creeks from Mount Joly on the southern coast of Labrador to and through the Straits of Belle Isle, and thence northwardly indefinitely along the coast"; and also "to dry and cure fish in any of the unsettled bays, harbors, and creeks of the southern part of the coast of Newfoundland, hereinbefore described, and of the coast of Labrador:"

4 Cutts . Hussey, 15 Maine, 227.

4

water mark, like those on Cape Cod.1 In Massachusetts and New York3 the definition of the shore is considered to be an accurate definition of a beach also; but, in a recent case in Connecticut, the court said that the word "beach" has no such inflexible meaning that it must denote land between high and low-water mark. The word "waste" is also a sufficient description of the shore, and passes it in a private grant, if the estate to which the waste belongs extends to low-water mark.5 The shore may also pass under the terms "sedge-flat," 6 "sea grounds," "ripa," "bank," 8 "anchorage-ground," and "sand," 10 when a different construction is not required by the context. The phrase "tide lands," 11 employed in the statutes of California, applies to the shore between ordinary high and low-water mark, and not to the soil which is permanently submerged. "Salt meadows," 12

1 Littlefield v. Littlefield, 28 Maine, 180; Hodge v. Boothby, 48 Maine, 68. Doane v. Willcutt, 5 Gray, 328, 335; Niles v. Patch, 13 Gray, 254, 257. See Brown v. Lakeman, 17 Pick. 444, 446; s. c. 15 Pick. 151.

3 East Hampton v. Kirk, 68 N. Y. 459; s. c. 6 Hun, 257. See Hastings v. Ival, L. R. 19 Eq. 558, 580.

4 Melvin . Wheeler, 40 Conn. 14; Mather v. Chapman, 40 Conn. 382.

3 Attorney General v. Hanmer, 4 Jur. N. S. 751; 27 L. J. Ch. 837; Attorney General v. Jones, 33 L. J. Ex. 249; 2 H. & C. 347.

Church v. Meeker, 34 Conn. 421, 424; Peck v. Lockwood, 5 Day, 24. As to the effect of such words as "stagnum," "gurges," "mariscus," "palus," "marettum," "saliva," etc., employed in ancient grants, see Co. Litt. 4 b, 5 a.

Scratton v. Brown, 4 B. & C. 485. The word "grounds" does not generally include land under water. State v. Jersey City, 1 Dutch. 525, 530.

8 Ripa" or "bank" properly refers to hard, dry land, and to the margin of fresh waters rather than salt. But "the bank of a 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." In re Belfast Dock, Ir. R. 1 Eq. 128, 139.

9 Foreman v. Whitstable Free Fishers, L. R. 4 H. L. 266; L. R. 2 C. P. 688; L. R. 3 C. P. 578; Le Strange v. Rowe, 4 F. & F. 1048; Calmady v. Rowe, 6 C. B. 891.

10 In the case of a warranty deed which purported to convey all the fishing rights, rights to the "sand," and all useful things that may drift upon the beach, and contained a description of the land which constituted the beach, with words of inheritance, it was held that the word "sand" was equivalent to "land," and that the fee passed by the deed. Spinney v. Marr, 41 Maine, 352.

11 People v. Davidson, 30 Cal. 379; Randall v. Fay, 32 Cal. 354; Walker v. Marks, 2 Sawyer, 152; 17 Wall. 648; Supervisors v. United States, 18 Wall. 71; People v. Morrill, 26 Cal. 336; Patterson v. Tatum, 3 Sawyer, 164.

429.

12 Church v. Meeker, 34 Conn. 421,

employed in a deed, denotes only the land above high-water mark which is overflowed by the spring or extraordinary tides.

66

§ 29. The shore partakes of the nature both of the sea which covers it and of the land which it defends.1 When this term is used in deeds and legal instruments, it comprehends the soil itself, and is inapplicable to a grant of a mere privilege or easement.2 The shore may pass under the word "3 terra. So a devise of "a beach for drift-wood and timber" is a gift of the land itself, and not of a mere easement in the land. But it is not to be construed according to its technical meaning if such construction would violate the intention of the parties. Where land adjacent to the sea was conveyed by a deed which reserved the privilege "of piling up seaweed on the shore," it was held that the right reserved was to pile the seaweed upon the upland, and not below high-water mark, where it would be swept away by the tide.5 So, where a certificate filed by a railroad company described one terminus of a tunnel as being "on the western shore of the Hudson River, and within or near Jersey City or Hoboken," the word "shore" was held to be used in the sense in which Jersey City or Hoboken is said to be situated on the shore of the river.

"The shore is not counted for lands or grounds gained from the sea, or left by it, because at every full sea it is covered with the waters thereof." Callis on Sewers, 54. "Shores and such grounds, which alternis vicibus are wet and dry, are not accounted relinquished grounds." Id. 274.

4 Brown v. Lakeman, 17 Pick. 444; 13 Pick. 151; Lakeman v. Butler, 17 Pick. 436; Phillips v. Rhodes, 7 Met. 322, 325.

5 Mather v. Chapman, 40 Conn. 382. 6 State v. Hudson Tunnel Railroad Co., 38 N. J. L. 548. See Hathaway v. Wilson, 123 Mass. 359, 361, 362; Ripley v. Knight, 123 Mass. 515; Saltonstall v. Long Wharf, 7 Cush. 195, 201; Doane v. Willcutt, 5 Gray, 3 Beaufort v. Swansea, 3 Exch. 413, 328, 335; Niles v. Patch, 13 Gray, 254;

2 Scratton v. Brown, 4 B. & C. 485, 496; Beaufort v. Swansea, 3 Exch. 413.

425.

Hodge v. Boothby, 48 Maine, 68.

CHAPTER II.

OF PROPERTY IN TIDE WATERS IN THIS COUNTRY.

SECTION.

30. The right to this property prior to the Revolution.

31. The powers possessed by the colonies.

32. The title acquired by the States at the Revolution, and the nature of

this interest.

33. The commercial powers and admiralty jurisdiction ceded to the gen

eral government.

34. The power of Congress over navigable waters.

35. The rights of the State in relation to the power of Congress.

36. State grants in navigable waters, how construed.

37. Rights acquired by prescription against the State.

38. The State's control of fisheries within its limits.

39. The rights of the new States in their navigable waters.

40. The power of the general government over navigable waters not included in any State.

§ 30. In territories acquired by discovery, the rights of the new settlers are determined by the laws of the mother-country, which become immediately applicable; but in lands acquired by conquest, the conqueror may prescribe what law he pleases.2 The early English settlements in this country, upon the Atlantic coast, were of the former class,3 the lands which

11 Black. Com. 107; Bogardus v. Trinity Church, 4 Paige, 178; 15 Wend. 111.

2 Ibid.; Calvin's Case, 7 Co. 17; Campbell v. Hall, 1 Cowper, 204, 208; 1 Black. Com. 107; 1 Kent Com. 473, note; United States v. Percheman, 7 Peters, 51, 87; Langdeau v. Hanes, 21 Wall, 521, 527; McMullen v. Hodge, 5 Texas, 34.

3 Blackstone's statement (1 Black.

Com. 107, 108), that the American plantations were principally obtained by conquest and driving out the natives, or by treaties, and that the common law of England, as such, has no allowance or authority there, and Lord Holt's remark in Salk. 666, that "the law of England does not extend to Virginia; her law is what the king pleases," have been always treated as erroneous in this country. Arnold v.