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to be allowed by law." "Many of the king's rights," says Bayley, J.,i "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 established 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,3 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.4 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 necessaiy part of the right of navigation, because it is essential for the full enjoyment of that right,6 and if reasonably and properly exercised,6 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.7 If a river is navigable, it is so whether the tide is in or out, and a vessel
Brooke, 7 Q. B. 339; Stephen v. Costor, 2 Burv. 1408.
8 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. Wileox, 8 Ad. & El. 314; Rose v. Miles, 4 M. & S. 101; Colchester v. Brooke, 7 Q. B. 339; post, §96.
which cannot reach its destination in a single tide may remain aground till the tide serves.i So the right to take shell-fish below high-water mark, \s 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 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.3 This subject was reviewed in certain cases in the Exchequer relating to Portsmouth Harbor. In Attorney General v. Burridge,4 it was held that while the Crown may grant a town or borough, which is caput partus, 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 jug 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,2 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 jut publicum and the jut 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
i Mayor of Colehester i>. Brooke, 7 Q. H. 339; Hall on the Seashore (2d 1-d.). 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 Hurv. (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, 10 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. c. Baldwin, 42 Conn. 255; Peck v. Lockwood, 5 Day, 28; Parker v. Cutler Mill-dam Co., 20 Maine, 353; Moulton v. Libbey, 37 Maine, 472; Porter v. Shehan, 7 Gray, 435. "The right of fishing in the sea or rivers in any town in this Commonwealth, cither 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 iight 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, lb. 315; Dill v. Wareham, 7 Met. 438; Weston v. Sampson, 8 Cush. 347; Lakemnn 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. Wileox, 8 Ad. & El. 314; Rex v. Westham,.10 Mod. 159; Rex v. Bristol Dock Co., 6 B. & C. 181; Lord Fitzwaltcr's Case, 1 Mod. 105; Carter v. Murcot, 4 Burv. 2102; Anon. 0 Mod. 73; Rex v. Clark, 12 Mod. 015; Case of Chester Mill, 10 Rep. 137; Robson i>. Robinson, 3 Dougl. 307; Warren v. Matthews, 1 Salk. 357; Somerset v. Fogwell, 5 B. & C. 875, 884; Blundell v. Catterall, 5 B. & Ald. 208; Weld v. Hornby, 7 East, 195; 2 Black. Com. 39; 16 Vin. Abv. tit. Piscary, B. 1; Hale, De Jure Maris, c. 5; Hargrave's Law Tracts, 85; Phear, 50; Browne v. Kennedy, 5 Hav. & J. 203; Weston v. Sampson, 8 Cush. 347, 352; Bulbrook ». Goodere, 3 Burr. 1768; Colchester v. Brooke, 7 Q. B. 339; Malcomson r. O'Dea, 10 H. L. Cas. 593; Allen r. Donclly, 5 Ir. C. L. 292; O'Neill p. Allen, 9 Id. 133; Gann i>. Free Fishers of Whitstable, 11 H. L. Cas. 192; Lord Advocate v. Hamilton, 1 Macq. H. L. 47; Seebkristo !'. East India Co., 10 Moo. P. C. 140.
1 Hale, De Jure Maris, c. 4, II. 3.
* Ibid. c. 0; ante, § 3, note. Mr. Hall (on the Seashore, 2d ed. 106) considers that the statute, 1 Anno, c.
§ °> 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 Viet. c. 40; Hall on the Seashore (2d ed.), 4, n.
3 Ibid; Fitzpatrick i>. Robinson, 1 Hud. & Br. (Ir.) 585; Devonshire v. Hodnett, B>id. 322; Williams v. Wilcox, 8 Ad. & El. 314; Lord Advocate B. 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. K. s. 301; Hastings v. Ival, L. R. 19 Eq. 558; Colchester c. Brooke,
7 Q. B. 373; Nichols v. Boston, 98 Mass. 41; Rogers p. Jones, 1 Wend. 237; Brookhaven v. Strong, 60 N. Y. 50; Furman r. New York, 5 Sandf. 16; Browne v. Kennedy, 5 II. & J. 195; Baltimore r. McKim, 3 Bland Ch. 453; Casey v. Ingloes, 1 Gill, 430.
4 10 Price, 350. In England the
prerogative of the Crown to intervene, in actions uffecting 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 Barker, L. E. 7 Ex. 177; Attorney General v. Constable, 4 Ex. D. 172.
1 10 Price, 378, 412.
s 2 Anst. 003.
»2 Inst. 38, 272; Co. Litt. 277 4; Spcllman's Glossary, tit. Pourprcsture;
2 Story Eq. Jur. § 021; 4 Black. Com. 167 j Termes dc la Ley, tit. Purpresture. "Purpresture in a forest is every encroachment upon the king's forest, lie it by building, inclosing, or using of any liberty without a lawful warrant so to do." Ibid.; Glunville (Bennies' 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 government, is, as between individuals, personal property. Marey 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,i 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.8 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.4 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.6 The effect of a judgment at law is the abatement of the erection complained of, whether it be a nuisance or not.6 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
i Hale, De Portibus Maris, c. 7; Q. B. 339; Rex v. Titidall, 1 N. ft P.
HargraTe's Law Tracts, 84; Callis on 723.
Sewers, 174, 175; Woolrych on 'Hale, De Portibus Maris, e. 7;
Waters, 193; 2 Story Eq. Juv. §§ 921 Hargrave's Law Tracts, 85; Attorney
-925; Eden on Injunctions, 259; General v. Richards, 2 Anst. 603, 015;
Beames's Olanville, 239, note; 3 Kent Attorney General v. Burridge, 10
Com. 432. Price, 350; Reg. v. Betts, 10 Q. B.
8 Ibid.; New Orleans v. United 1022; Reg. c. Randall, 2 Cav. & M.
States, 10 Peters, 623; Hart v. Mayor, 490; Attorney General v. Terry, L. R.
8 Wend. 571; Commonwealth v. 9 Ch. 423; Attorney General v.
Wright, 3 Am. Juv. 185; Watertown Evart Booming Co., 34 Mich. 402;
v. Cowen, 4 Paige, 510; Attorney People v. St. Louis, 5 Gilman, 351;
General v. Cohoes Co., 6 Paige, 133; Diedrieh v. North Western Railway
Mohawk Co. v. Railroad Co., Id. .r,r,4; Co., 42 Wis. 248.
Davis v. Mayor, 14 N. Y. 526; People 6 Eden on In junctions, 223; 2 Story
v. Vanderbilt, 28 N. Y. 376. Eq. Juv. § 922; 2 Dan. Ch. Prac.
•Hale, De Portibus Maris, c. 7; (4th ed.), 1481; State v. Arledge, 1
Hargrave's Law Tracts, 85; Gann v. Bailey (S. C), 551.
Cas. 192; Williams v. Wileox, 8 Ad. torney General v. Richards, 2 Anst.
& El. 314; Colehester v. Brooke, 7 000.