1. Property in the open sea. 2,3. Rights in territorial waters. 4, 5. The Crown's property in tide waters within the realm. 17, 18. The nature of the Crown's title. The jus publicum and the jus privatum. 19. Foundation of the doctrine of a jus privatum. 20. What are included within the public rights of navigation and fishery. 21. Purprestures and nuisances. 22, 23. Prescriptive rights against the Crown. 24, 25. The rights of the public with respect to sand, gravel and sea-weed. 26. Bathing. 27. Limits of the shore. 28. Words synonymous with "shore." 29. Meaning of these terms in legal instruments. § 1. The sea - Property in.—The sea is serviceable for important uses, especially for navigation and fishery; but it is incapable, from its nature, of permanent appropriation and continuous occupation. It thus remains without an owner, as a barren and unappropriated waste. When articles of value are taken from the sea, they belong to the finder, inasmuch as there is no title which is superior to his possession. Between different claimants what constitutes such possession may depend upon usage. In the whale fisheries, it is a valid usage that the boat first striking a whale, and obtaining a firm possession, shall be entitled to the fish.' But, where no special custom of fishery was proved, it was held that the plaintiff, who while fishing had nearly encompassed the fish with his net, could not recover from the defendant for rowing his boat to the opening, thereby disturbing the fish and preventing their capture. So, in general, in an ordinary case of fishing in tide water by weirs, nets or lines, no action lies by one fisherman against another for anticipating him in a capture of fish. The tests for determining the ownership of such parts of the sea as can be appropriated, or of islands arising therefrom or newly discovered, are occupancy, discovery or conquest. Those, for instance, who expend money in mining guano upon a newly discovered island and convey it to the shore, are entitled to protection in the enjoyment of the property thus acquired. Ships upon the ocean continue subject to 3 1 Fennings v. Grenville, 1 Taunt. 241; Littledale v. Smith, id. 243, note; Aberdeen Arctic Co. v. Sutter, 4 Macq. H. L. Cas. 355; Hogarth v. Jackson, M. & M. 58; Skinner v. Chapman, id. 59, note; Taber v. Jenny, 1 Sprague, 315; Bartlett v. Budd, 1 Lowell, 223; Bourne v. Ashley, id. 27; Swift v. Gifford, 2 id. 110. Fish not reclaimed or confined are not the subject of larceny. Rex v. Carrodice, 2 Russ. 1199; State v. Krider, 78 N. C. 481. A sale of fish afterwards to be caught in the sea is invalid. Low v. Pew, 108 Mass. 347. By usage, on Cape Cod, fishermen who shoot, with lances, fired from guns, bearing the owner's mark, fin-back whales, which frequent the eastern part of Massachu-, setts Bay in the early spring, and, when killed, sink at once to the bottom, but usually rise again and float within three days, own the whale thus killed, although they are accustomed to pay a small salvage to persons who find them on the beach; and this usage, which has continued for many years, has been held to be reasonable and valid, the appropriation being as complete as the nature of the case admits of. Ghen v. Rich, 8 Fed. Rep. 159. See Heppingstone v. Mammen, 2 Hawaiian, 797. 2 Young v. Hitchens, 6 Q. B. 606. Contra, if the defendant's act were malicious. Post, § 87; Keble v. Hick-eringill, 11 Mod. 74, 130. See Mullett v. Bradley, 53 N. Y. S. 781 (case of a sea lion). 3 Stevens v. Jeacocke, 11 Q. B. 731; Cheney v. Guptill, 2 Hannay (N. B.), 379. 4 Lawrence's Wheat. Int. Law, pt. II, ch. 4, § 5; 2 Black. Com. 3, 8, 258, 400; 3 Kent Com. 318; Grotius, Mare Lib. chs. 5, 7; Fleta, lib. 3, ch. 2, §§ 6, 9; Just. Inst. lib. 2, tit. 1, § 22; Schultes, Aquatic Rights, 45. 5 American Guano Co. v. United States Guano Co., 44 Barb. 23. See 11 U. S. Stats. at Large, 119; U. S. Rev. Stats. §§ 5570-5578; Benson v. the law of the flag, making those on board amenable to the laws of the nation to which the vessel is accredited.1 A nation's jurisdiction extends to the punishment of its citizens for offenses committed on deserted islands or an uninhabited coast; 2 and the consensus of civilized nations may establish rules for navigators having a force of the law of the sea. But, with respect to property, the sea is not subject to the exclusive dominion of any nation, and cannot be apportioned by municipal law. - § 2. Territorial waters - Jurisdiction — Property.— It is somewhat different with respect to those parts of the sea which Ketchum, 14 Md. 331; Duncan v. Navassa Phosphate Co., 35 Fed. Rep. 474; 11 S. Ct. 242; Jones v. United States, 137 U. S. 202; The Dauntless, 19 Fed. Rep. 798: Whiton v. Albany Ins. Co., 109 Mass. 24. 1 Crapo v. Kelly, 16 Wall. 610; 45 N. Y. 86; 41 Barb. 603; McDonald v. Mallory, 77 N. Y. 547; In re Bye, 2 Daly, 525; The Belgenland, 114 U. S. 355; Lloyd v. Guibert, L. R. 1 Q. B. 115: The Gaetano, 7 P. D. 137; Reg. v. Bjornsen, 10 Cox, C. C. 74; Reg. v. Sattler, 7 id. 431; Dears. & B. C. C. 525; Reg. v. Lesley, 8 Cox, C. C. 269; Bell, C. C. 220; Reg. v. Anderson, L. R. 1 C. C. 161; 9 Cox, C. C. 198; The August, (1891) P. 328; In re Moncan, 8 Sawyer, 350; Lawrence's Wheat. Int. Law. pt. II, ch. 2. § 4: Wildman's Int. Law, 40; Halleck's Int. Law, 185; Bluntschli, § 317; Parker v. Byrnes, 1 Lowell, 539; Johnson v. Twenty-one Bales, 2 Paine, 601; United States v. Bennett. 3 Hughes, 466; Calahan v. Babcock, 21 Ohio St. 281. See 31 Am. L. Reg. N. S. 193. The State to which a vessel belongs, and not the United States, is, in this country, the sovereignty whose laws accompany the vessel in respect to matters which are not granted exclusively to the general government or rightfully legislated upon by Congress. Crapo v. Kelly, supra; Steamboat Co. v. Chase, 16 Wall. 522; 9 R. I. 419; Sherlock v. Alling, 93 U. S. 99; McDonald v. Mallory, 77 N. Y. 546. In Rex v. Allen, 1 Moo. C. C. 394, an English sailor was held guilty in the English admiralty for stealing tea from his own vessel when lying in a river in China twenty miles or more from its mouth, there being no evidence as to the tide. See United States v. Gordon, 5 Blatch. 18. Torts originating within the waters of a foreign nation may be the subject of a suit in our domestic courts. Panama R. Co. v. Napier Shipping Co., 166 U. S. 280, 285. 2 United States v. Smiley, 6 Sawyer, 640; Re Stupp, 11 Blatch. 124; 12 id. 501; Roth v. Roth, 104 Ill. 35; 18 A. G. Op. 219. 3 Ex parte McNeil, 13 Wall. 236; The Continental, 14 Wall. 345; Wilson v. McNamee, 102 U. S. 572; Lord v. Steamship Co., id. 541; 1 Kent Com. 27; Vattel, bk. 1, ch. 19, § 216; 2 Rutherford's Inst., bk. 2, ch. 9, §§ 8, 19. In The Scotia, 14 Wall. 170, 187, Mr. Justice Strong said: "Undoubtedly, no single nation can change the law of the sea. That law is of universal obligation, and no statute of one or two nations can create obligations for the world. Like all the laws of nations, it rests upon the common consent of civilized communities. It is of force, not because it was prescribed by any superior power, but because it has been generally accepted as a rule of conduct." 4 Ibid.; Vattel, § 279: Grotius, bk. 2, 3, 7; Cooper's Justinian, 67, § 1; 1 Phil. Int. Law, ch. 5. |