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. 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, 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 2'. Johnson, 2 Wils. Ch. 87; Attorney General v. Philpot, cited 2 Anst. 607; Bristol Harbor Case, cited 18 Ves. 214; Attorney General v. Tomline, 12 Ch. D. 214; Attorney General 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 v. Cohoes Co., 6 Id. 133; People v. St. Louis, 5 Gilman, 351. Attorney General v. Richards, 2 Anst. 1 Post, § 122. Com. Dig. tit. Ad quod damnum; Rex v. Montague, 4 B. & C. 598; Rex v. Russell, 6 B. & C. 566; Commonwealth. Alger, 7 Cush. 53, 82; Nichols v. Boston, 98 Mass. 39, 41; Bell v. Gough, 23 N. J. L. 624, 661; Hendricks . 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writ of ad quod damnum, which was the common-law mode of taking private property for public use, is now quite generally superceded by the provisions in acts authorizing canals, dams, railroads, etc., for the condemnation of private property.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. 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 v. 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 v. 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 . 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. 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. punishment of purprestures there in the court of a manor; and such like. And as it may be parcell of a manor, so it may be parcell of a vill or parish; and the evidence for that will be usual perambulations, common reputation, known metes and divisions, and the like." He does not indicate how many of these evidences should combine in order to establish such title to the shore. It has been held that a prescriptive right to wreck will not alone confer such title as against the Crown. It would, however, appear that longcontinued enjoyment of the shore by taking shell-fish and gravel, or by letting it to tenants to take seaweed, may suffice to prove that it is part of the adjacent manor.3 Mr. Hall discusses this doctrine of prescription at length, and concludes that the shore, being land,5 must be governed by the rules of law which apply to inland estates; that a title to this, as well as other land, can only be established, by prescription against the Crown, by showing an adverse possession for sixty years, which is the period prescribed by the Statute of Limitations as to Crown lands; that such adverse possession must, as in the case of the dry land, be proved by showing occupation and actual possession, and that the taking of wreck and seaweed, and the exercise of similar privileges, which do not necessarily imply a title to the soil, because they may be possessed without it, cannot be evidence to establish an absolute ownership in the shore by prescription. § 23. Under a royal grant, no alienation will be presumed beyond what is clearly and indisputably expressed. But 1 Hale, De Jure Maris, c. 7; Hargrave's Law Tracts, 27; As to parishes, see Perrott v. Bryant, 2 Y. & Col. 61. 2 Dickens v. Shaw, reported in Hall on the Seashore (2d ed.), App. 45. See Chade. Tilsed, 5 Moore, 185, 197; 2 Brod. & Bing. 403; Calmady v. Rowe, 6 C. B. 861, 891; ante, § 6. 3 See Le Strange v. Rowe, 4 F. & F. 1048; Healy v. Thorne, Ir. R. 4 C. L. 495. Hall on the Seashore (2d ed.), 16-40, 217. See Phear's Rights of Water, 88. Scratton v. Brown, 4 B. & C. 485; Chad v. Tilsed, 2 Brod. & Bing. 403, 409; 5 Moore, 185; Beaufort v. Swansea, 3 Exch. 413. Royal Fishery of the Banne, Sir John Davies, 149; Somerset v. Fogwell, 5 B. & C. 375; Attorney General v. Farmen, 2 Lev. 171; post, § 29. where the subject possesses land adjoining the sea, the title to which was acquired under an ancient grant from the Crown, which does not by its terms clearly exclude the shore, modern usage is admissable to interpret the grant, and to establish a title to the soil between high and low-water mark as part of the adjoining lands. Thus, modern acts of ownership may be admitted to show that ancient grants of King John and Edward I. included the sea-coast down to low-water mark; 2 to show whether the words "river L." in an ancient patent comprised the bed of the river down to a point where it reached the sea, or only to a certain ford some distance up the river,3 or to show that the seashore is parcel of a manor. In Chad v. Tilsed, it appeared that a grant of wreck was made by King Henry II., in connection with the grant of certain lands upon the coast, which was confirmed by Henry VIII. The proprietors had erected an embankment upon the shore forty years prior to the suit, and, though the bank had been broken by tempests, had since asserted, without opposition, an exclusive right to the soil thus enclosed. It was held that this exclusive occupapation and usage constituted evidence from which a previous usage might be presumed, and that such usage, coupled with 1 Chad v. Tilsed, 5 Moore, 185; 2 Brod. & Bing. 403; Beaufort v. Swansea, 3 Exch. 413; Levett v. Wilson, 3 Bing. 115; Lopez v. Andrews, 3 Man. & Ryl. 329; Weld v. Hornby, 7 East, 194, 199; Attorney General v. Jones, 2 H. & C. 347; Calmady v. Rowe, 6 C. B. 861; Attorney General v. Chamberlaine, 4 K. & J. 292; Hastings v. Ivall, L. R. 19 Eq. 558; Attorney General v. Chambers, 4 De Gex & J. 55; 4 De Gex, MacN. & G. 206; Waterpark v. Fennell, 7 H. L. Cas. 650; Malcomson v O'Dea, 10 H. L. Cas. 593; Rogers v. Allen, 1 Camp. 309; Lee v. Brown, 2 Mod. 69; Bristow v. Cormican, 3 App. Cas. 641; Ir. R. 10 C. L. 425; Lord Advocate v. Blantyre, 4 App. Cas. 770; Newcastle Pilots v. Bradley, 2 El. & B. 428, note; Jenkins v. Harvey, 1 C. M. & R. 877; Brine v. Thompson, 4 Q. B. 543, 552; In re Belfast Dock Act, Ir. R. 1 Eq. 128; Healy v. Thorne, Ir. R. 4 C. L. 495; Donegal v. Templemore, 9 Ir. C. L. R. 374; Brew v. Haren, Ir. R. 11 C. L. 198; Ir. R. 9 C. L. 29; Boyle v. Mulholland, 10 Ir. C. L. R. 150; Mulholland v. Killen, Ir. R. 9 Eq. 471; Bloomfield v. Johnson, Ir. R. 8 C. L. 68, 91. "Beaufort v. Swansea, 3 Exch. 413; Attorney General v. Jones, 2 H. & C. 347; Le Strange v. Rowe, 4 F. & F. 1048; Hunt on Boundaries (2d ed.), 225. 3 Donegal v. Templemore, 9 Ir. Com. Law, 374; In re Belfast Dock, 1 Ir. Eq. 128. 403. Calmady v. Rowe, 6 C. B. 861. 55 Moore, 185; 2 Brod. & Bing. the general terms of the grant, served to elucidate it and to establish the asserted right to the shore. Dallas, C. J., said:1 66 I agree that cases of this sort may rest on one or both of the two following grounds: That is to say, on grant, or on usage which presupposes a grant; I agree, also, that in the case of a grant, no usage, however long, can countervail the clear words of the instrument, for what is done under usurpation cannot constitute a legal usage; but it is equally clear that when a grant of remote antiquity contains general words, the best exposition of such a grant is long usage under it. Unless, therefore, the usage of forty years ago can be proved to have originated in usurpation, it is evidence whence usage anterior to that time may be presumed; and such a length of modern usage, connected with the ancient usage, affords the strongest exposition of the meaning of the original grant." In the recent case of Hastings v. Ivall,2 the town of Hastings sought to restrain the defendant by injunction from depositing earth upon a portion of the shores' within its limits. Letters patent from Queen Elizabeth to the corporation were produced, which granted certain lands in and about Hastings, and "all that her parcel of land and her hereditaments called the Stone Beache, with the appurtenances in Hastings aforesaid, in the said county of Sussex, and all messuages, houses, edifices, and buildings whatsoever, with the appurtenances, in and upon the aforesaid parcel of land called the Stone Beache." It appeared that the corporation had exercised acts of ownership over the beach; that these acts had on several occasions been recognized by the Crown, but that there had been certain acts on the part of the corporation tending to show admissions of the title of the Crown to certain parts of the beach. The power of the Crown to grant the shore in the reign of Elizabeth was not doubted, and as the term "Stone Beach" was now applied to the soil below, as well as above, high-water mark, the corporation was held to have a sufficient possessory title to the space between high and low-water mark to enable it to maintain the suit against a mere trespasser, even though the 2 L. R. 19 Eq. 558. 1 2 Brod. & Bing. p. 406. |