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■evidence might not be sufficient to displace the prima facie title of the Crown. In this country, also, ancient patents, or grants from the government, in which the description of the land is vague, may be interpreted by the acts of the government, of the parties, and of those claiming under similar grants of the contiguous lands.1 So, also, ancient deeds and plans may be introduced in evidence to show the position of a creek or arm of the sea which has been filled up since they were made.2
§ 24. In strictness, the jus publicum is limited to the rights of navigation and fishery, and to the incidental rights above referred to.3 In the case of Bagott v. Orr,4 in which tne prima facie right of every subject to take shell-fish found upon the sea beach between high and low-water mark was recognized, the court declined to express an opinion as to the subject's right to take shells, saying that, as no authority was cited in support of it, they should pause before establishing a general right of that kind.5 In Porter v. Shehan,6 in Massachusetts, it was held, with respect to unenclosed flats, which were private property, subject to the right of the public to take floating and shell-fish therefrom, that the public right of fishery does not include the right to take the soil, or fish shells, part of the soil, except such slight portions of the soil as would necessarily and ordinarily be attached to shell-fish when taken. So, the public have no right to take mussel-bed manure from private flats,7 or sand, gravel,
or shingle from the shore ab<
case of Dickens v. Shaw (Hall on the Seashore, 2d. ed., App. 45, 60, 64, 65), the lords of the manor of Brighton sued the defendant for digging and taking away sand from the seashore of Brighton, and the plaintiffs, heing put to proof of their title to the locus in quo, proved only, as a badge of ownership, the right to wreck. Mr. Justice Park instructed the jury inter alia that by the law of England the king had the right of soil between high and low-water mark, but that the subject might be in possession of itiiy grant or prescription, which was evidence from which they might draw an inference, and that, if the lord of the manor was entitled to wreck, this, if uncontradicted, was evidence of a title to the soil. The jury returned a verdict for the defendant, with which the presiding justice certified that he was not satisfied. Upon the hearing to obtain a new trial, Mr. Justice Bailey said (p. 50) with reference to the fact that many persons had commonly taken sand from this beach: "I do not think that it proves the right is not in the Crown; for, in general, the Crown has the right, — not with a view to the private reservation to collect the stones for itself, or to collect the sand for itself, but for the general interest for the public ; and if you can, without interfering with and prejudicing the interest of the public, remove the sand and the stones, the Crown will not interfere. But if you do that which amounts to a nuisance, then you may be indicted for it." Mr. Justice Holroyd (p. 66) said: "The circumstance of any persons who chose getting sand, and their manner of conducting themselves, evidently thinking they had a right to do it, is evidence to show that the right was in the Crown, and not in the lord of the manor, who may be presumed to have been present and looking after his right, not person
ve high water, even when it is.
ally, but by his reeve or bailiff or some other person whose business it was to look after lus property. If the right is in the Crown, the Crown is more likely not to be looking after this, which, though it may have been beneficial to the public, yet it is a sort of property which the Crown would be less likely to interfere with, and to take away the right from the subject, who is likely to derive some benefit from it." Mr. Justice Best (p. 57) said: "What Lord Hale says is that a party having one right is some evidence to show that he has another; but not that it is sufficient to show, by having the right of wreck, that he is the owner of the soil. The case here is nothing like that which he puts; he should show that he has continually taken sand, and licensed others to do so; — is there any evidence of that kind in this cause? It appears that, in ancient times, whoever thought proper to carry away sand did so. It appears that, in modern times, the lord has interrupted the parties; but it does not appear that he has, in any other instance, either licensed others to exercise this right, or exercised it himself. I think this was an extremely weak case on the part of the lord of the manor; and, in my judgment, certainly not sufficiently strong to' beat down the common-law right which exists in the king. It has been argued that these acts were done by individuals at Brighton who gave no proof of right; if the right is in the king, it is not necessary they should have given that proof, because he has the common-law right. Is there any evidence to show that the common-law right has, or has not, been transferred to the lord? It is to be presumed that, while the right is in the king, he would permit these things to be done, if they were not injurious to the navigation." A new trial was
desired for ballast in aid of navigation.1 If the sand of the shore is drifted by the wind upon a private close, it becomes a part of that close, and a custom to take such sand is bad.9 No right to thus remove the soil of a landowner can be acquired by a custom, not annexed to the person or attached to a particular estate, on behalf of the inhabitants of a town or locality, however ancient or uniform such custom may have been;3 nor can the public gain such a right by general custom or prescription,4 inasmuch as a claim destructive of
refused. It is clear from these expressions, and from the fact that the presiding judge was not satisfied with the verdict, that, in the opinion of these judges, there is no affirmative general right to take sand or gravel from the shore, although the Crown may suffer, or even may be presumed to suffer it to be done when the publie rights will not be impaired. See also Bro. Abr. tit. Customs, 4(5; and remarks of Holroyd, J., in Blundell v. Catterall, 5 B. & Aid. 208.
1 In Lime Regis v. Taylor, 3 Lev. 100, it was held that a custom to take gravel for ballast in ships is a good custom. See also Johnson r. Wyard, 2 Lutw. V-iii. But this is not supported by the later decisions cited in the following notes.
- Blewett v. Tregonning, 3 Ad. & El. 554.
• Loyd v. Jones, 6 C. B. 81; Murphy v. Ryan, Ir. R. 2 C. L. 143; Bland r. Lipscomb, 24 L. J. Q. B. 155, note; Pitts v. Kingsbridge Board, 10 W. R. 884; Constable v. Nicholson, 14 C. B. s. s. 230; Maldon i-. Woolvet, 12 Ad. & El. 13; Race v. Ward, 4 El. & Bl. 702; Rivers v. Adams, 3 Ex. D. 361; Chilton v. London, 7 Ch. D. 735; Saltash v. Goodman, 5 C.'P. I). 431; Attorney General v. Mathias, 4 K. & J. 579; Allgood v. Gibson, 34 L. J. N. s. 883; Murgatroyd v. Robinson, 7 El. & Bk. 391; Tad'wick v. Knight, 7 Exch. 854; MacXamara v. Iliggins, Ir. R. 4 C. L. 320; Dyce v. Hay, 1 Maeq. H. L. 305; Oxenden v. Palmer,
the subject-matter of a grant cannot be set up by usage. The Crown, being charged by the prerogative with a duty to protect the realm from the inroads of the sea, may restrain a subject from removing sand or stones from the seashore, if the effect will be to destroy a natural barrier against the sea.1 So, in this country, the legislature of a State may, by statute and without compensation, prohibit the removal of stones, gravel, or sand from a beach when such removal would endanger a harbor and its navigation.8 The rights of the public in tide waters and their shores, for navigation and fishery, not being affected by a transfer of the Crown's interest to individuals, it would appear that, as the public have no right to take sand from a private beach, they cannot claim that right where the shore remains in the Crown.3 When
1 Attorney General v. Tomline, 12 Ch. D. 214 ; Nicholson v. Williams, L. R. 6 Q. B. 632.
* Commonwealth v. Tewksbury, 11 Met. 65; Boston v. Richardson, 105 Mass. 361, 302; Boston v. Lecraw, 17 How. (U. S.) 420, 433. Large stones are not "gravel" or "sand," though imbedded in and mixed with the gravel of a beach. Brown v. Brown, 8 Met. 573.
» Blundell v. Catterall, 5 B. & Aid. 268; per Best, J.; Dickens v. Shaw, in Hall on the Seashore (2d ed.), App.; Howe v. Stowell, 1 Alcock & Nap. 360; Bagott r. Orr, 2 Bos. & Pul. 472; Moore v. Griffin, 22 Maine, 350, 355; Dickens v. Shaw, above cited. Mr. Hall (on the Seashore, 2d ed.,92,180), argues in favor of the right of the public to take sand, etc., from the shore, although he admits that there is no direct authority upon the question in England, p. 210. He refers to the statute 7 James, e. 18, making it lawful for the inhabitants of the maritime counties of Devon and Cornwall to take sea-sand at all places under the full sea-mark "as they have heretofore used to do" (until interrupted by the owners of the lands adjacent to the sea-coast, who demanded "com
position with them at such rates as
the shore is private property, a removal of sand or gravel therefrom by the owner is a natural and lawful use of such property, and he appears to be subject to no liability, if the Crown or the State does not interfere, for injury to the adjoining lands resulting from a consequent overflow of the sea.i
§ 25. The right to gather seaweed and other marine growths is analagous to the right to take sand and gravel. The sea and the soil under it being the property of the Crown, the lord of a manor cannot acquire an exclusive right to take seaweed growing below low-water mark, except by grant from the Crown, or such long and undisturbed enjoyment as will establish a title by prescription.2 When these products become detached from the sea-bottom by natural causes, and float from place to place with the tides and currents, a different rule is applied in practice. While sea sand does not lose its character of realty by natural changes,3 seaweed is, by some authorities, classed with personal property.4 It does not appear that the Crown has ever made any
lated to flats between high and lowwater mark, Shepley, J., said, with reference to Mv. Dane's statement: "No such right of taking sand, manure, or ballast is reserved in the grant made to the owner of the adjoining land. And Mv. Dane does not refer to any authority or decision in support of that practice. No such practice can be recognized as depriving the legal owner of his rights according to his title, unless supported by proof that would establish a common right. The language of the ordinance cannot be extended beyond the obvious meaning of the words fishing and fowling. . . . Neither the ordinance nor the common law would authorize the taking of 'mussel-bed manure' from the land of another person." See, also, Clement v Burns, 43 N. H. 6p9; Emansv. Turnbull, 2 Johns. 313, 322. The recent case of Merwin v. Wheeler, 41 Conn. 14, related to the taking of sand by prescription from a
beach above high-water mark, and the decision there was that an individual, as one of the publie, could not acquire such a right by prescription, it not being incident to an estate in other lands.
i Attorney General v. Tomline, 12 Ch. D. 215; Hudson v. Tabor, 2 Q. B. D. 290 As to the remedy in equity to protect private property from being endangered by the removal of shingle, etc., forming a defence against the sea, see Clowes v. Beck, 13 Beav. 347; Chalk v. Wyatt, 3 Meriv. 388; Cowper v. Baker, 17 Ves. 128; Maloon v. White, 57 N. H. 152.
• Benest v. Pipon, 1 Knapp P. C. 68.
3 Blewett v. Tregonning, 3 Ad. & El. 554.
4 Church v. Mecker, 34 Conn. 421; Mather ,>. Chapman, 40 Conn. 382. Seaweed, cast upon the shore by the sen, and left ungnthered by him who has the exclusive ownership of such shore, has been held in Ireland not to