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. Same-Terms synonymous with "shore." — 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

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. 370; Montgomery v. Reed, 69 Maine, 510.

2 Doane v. Willcutt, 5 Gray, 328, 335; Stillman v. Burfeind, 47 N. Y. S. 280.

3 Cf. The Anna, 5 Rob. Adm. 385. 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 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 Newfoundland," "on the shores of the Magdalen Islands, and also on the 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, herein before described, and of the coast of Lab. rador." Coast," as used in certain Crown grants of townships, was limited to land fronting on the open sea, in Queen v. Cox, 1 Pr. Edw. Island, 170. A vessel engaged in the carrying trade on a navigable river is "engaged in the coastwise trade within U. S. St. of 1886, ch. 421, § 2. Ravesies v. United States, 37 Fed. R. 447; 35 id. 917.

66

4 Cutts v. Hussey, 15 Maine, 227.

above high-water mark, like those on Cape Cod.1 In Massachusetts and New York 3 the definition of the shore is considered to be an accurate definition of a beach also; but, in a quite recent case in Connecticut, the word "beach" was said to have 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. The shore may also pass under the terms "sedge-flat," "sea-grounds," "ripa" or "bank," 8 "anchorage-ground," and "sand," 10 when a different construction is not required by the context. The phrase "tide lands,"" employed in the statutes of California and Oregon, applies to the shore between ordinary high and low-water mark, and to the land daily covered by the tide, so as to be unfit for cultivation, and not to the soil which is permanently submerged, or to

1 Littlefield v. Littlefield, 28 Maine, 180; Hodge v. Boothby, 48 id. 68.

2 Doane v. Willcutt, 5 Gray, 328, 335; Niles v. Patch, 13 Gray, 254, 257. See Brown v. Lakeman, 17 Pick. 444, 416; 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 v. Wheeler, 40 Conn. 14; Mather v. Chapman, 40 Conn. 382.

Att. Gen. v. Hanmer, 4 Jur. N. S. 751; 27 L. J. Ch. 837; Att. Gen. v. Jones, 33 L. J. Ex. 249; 2 H. & C. 347. 6 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," "salvia," etc., employed in ancient grants, see Co. Litt. 4 b, 5 a.

7 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; Com. v. Roxbury, 9 Gray, 491.

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 San Francisco v. Le Roy, 138 U.S. 656; 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; Eisenbach v. Hatfield, 2 Wash. St. 236; Pierce v. Kennedy, id. 324.

isolated sand-banks, alternately covered and exposed by the tides, and distant and entirely disconnected from the mainland. "Salt-meadows," employed in a deed, denotes only the land above high-water mark which is overflowed by the spring or extraordinary tides.

a

§ 29. Same-"Shore" in conveyancing.- The shore partakes of the nature both of the sea which covers it and of the land which it defends. 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. The shore may pass under the word “terra.” 5 So a devise of " 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 'pland, and not below high-water mark, where it would be swept away by the tide. 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.8

1 Elliott v. Stewart, 15 Oregon, 259; 496; Beaufort v. Swansea, 3 Exch. Andrus v. Knott, 12 id. 501. 413.

2 Church v. Meeker, 34 Conn. 421, 429. A salt meadow cannot pass as an appurtenance. Armstrong v. Du Bois, 90 N. Y. 95, 102. Grant of "a certain piece of salt thatch" with other evidence, see Roe v. Strong, 119 N. Y. 316.

3" 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 Scratton v. Brown, 4 B. & C. 485,

5 Beaufort v. Swansea, 3 Exch. 413, 425.

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

7 Mather v. Chapman, 40 Conn. 382. 8 State v. Hudson Tunnel R. 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, 328, 335; Niles v. Patch, 13 Gray, 254; Hodge 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 general 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.

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

§ 30. Tide waters in the United States - Property.- 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. The early English settlements in this country, upon the Atlantic coast, were of the former class,' the lands which were occupied 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 Smith v. Brown, 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. Mundy, 1 Halst. 1, 82, 83; Bell v. Gough, 23 N. J. L. 624, 707; Johnson v. McIntosh, 8 Wheat. 543; Martin v. Waddell, 16 Peters. 367; Cherokee Nation v. Georgia, 5 Peters, 1; Worcester v. Georgia, 6 id. 515; Holden v. Joy, 17 Wall. 211, 243, 244;

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. As to lands, like the island of Porto Rico, acquired by cession, see Ex parte Ortiz, 100 Fed. Rep.

955.

3 Blackstone's statement (1 Black. Com. 107, 108), that the American plantations were principally obtained by

by the colonies being claimed by the Crown of England by right of discovery. A grant from the king could alone confer title to the soil, and was the only source of authority for exercising powers of government over the lands granted. The absolute right of property and dominion was thus held to belong to the European nation by which any particular portion of the country was first discovered, as if it had been found without inhabitants.2 The Indians were regarded as mere temporary occupants, having no title to the soil which they could convey, except to the nation which claimed the territory, or with its express consent. Hence, a grant by the Indian tribes neither augmented the title acquired by discovery, nor did it alone possess such validity as would enable the grantee to resist a title to the same lands under a royal grant.* Where Indian grants were recognized and confirmed by the colonial governments acting under the political powers con

United States v. Cook, 19 Wall. 591; Jackson v. Porter, 1 Paine, C. C. 457; Mitchell v. United States, 9 Peters, 745; Clark v. Smith, 13 id. 195; 8 Att. Gen. Op. 262, 264; United States v. Forty-three Gallons of Whisky, 93 U. S. 188; Beecher v. Weathersby, 95 U. S. 517, 525; De Armes v. New Orleans, 5 La. 132; Penn v. Baltimore, 1 Ves. 445; Commonwealth v. Roxbury, 9 Gray, 451, 478; Jackson v. Ingraham, 4 Johns. 163; Jackson v. Waters, 12 Johns. 365; Jackson v. Hudson, 3 Johns. 375; 1 Kent Com. 258; 3 id. 377 et seq.; Jackson v. Wood, 7 Johns. 295; Gilbert v. Wood, 7 Johns. 290; Goodell v. Jackson, 30 Johns. 693; Penobscot Tribe v. Veazie, 58 Maine, 402; Veeder v. Guppy, 3 Wis. 502. In England it is held that when English subjects establish themselves in uninhabited or barbarous lands, they continue subject to the sovereignty of England and to such of its laws as are applicable to their new condition: but that acts of Parliament, passed after the settlement of the new colonies, do not bind them unless they are expressly named, or are manifestly included within their

scope. Anon. 2 P. Wms. 75; Blankard v. Galdy, 2 Salk. 411; Campbell v. Hall, 1 Cowper, 204, 208; Att. Gen. v. Stewart, 2 Mer. 143, 159; Adv. Gen. v. Dossee, 9 Jur. N. s. 877; Dutton v. Howell, Show. Parl. Cas. 31, 32; Picton's Case, 30 Howell's State Trials, 903; Pitt v. Dacre, 3 Ch. D. 295; Jex v. McKinney, 14 App. Cas. 77; Callender v. Lagos, [1891] A. C. 460; Reg. v. Jameson, 65 L. J. M. C. 218; Martin v. Waddell, 16 Peters, 367; Pollard v. Hagan, 3.How. 212, 229; 1 Black. Com. 107, 108; Johnson v. McIntosh, 8 Wheat. 543, 595.

1 Ibid.
2 Ibid.

3 See authorities above, note 3; Holden v. Joy, 17 Wall. 211, 243, 244; Leavenworth R. Co. v. United States, 92 U. S. 733; East Hampton v. Vail, 151 N. Y. 463; 71 Hun, 94; Minter v. Shirley, 45 Miss. 376; Wood v. M. K. & T. R. Co., 11 Kansas, 323; 1 Kent Com. 258; 3 id. 377 et seq.; Com. v. Roxbury, 9 Gray, 451, 478; Lynn v. Nahant, 113 Mass. 433; Bell v. Gough, 23 N. J. L. 624, 707 4 Ibid.