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exclusive claim to seaweed, and the public may have a permissive right to take it, when not cast upon those parts of the shore which have passed into private hands. Floating seaweed may thus, in point of fact, be regarded as having no owner. In the few instances in which the title to it has been called in question, the contest has been between those who claimed by prior occupancy and the proprietor upon whose land it was carried by the sea. If seaweed is deposited by storms or tides upon the upland above high-water mark, or upon flats below high-water mark, belonging to an individual, the owner of the land is constructively first occupant, although he may leave it ungathered. A stranger can

be the subject of larceny. Queen v. Clinton, Ir. R. 4 C. L. 6. In the recent Irish case of Brew &. Haren, Ir. R. 11 C. L. 198; s. c. Ir. R. 9 C. L. 29, it was held (two judges dissenting) that trover lay by one who owned the shore down to low-water mark, for the wrongful taking of seaweed cast upon the shore between high and low-water mark, though such seaweed had been left ungathered by the plaintiff; it being considered that trover might be maintained for the conversion of an article the taking of which would not constitute larceny Upon the other hand, Chancellor Kent treated seaweed, when washed ashore, as realty. In the leading case of Emans v. Turnbull, 2 Johns. 313, 322, he said: "The seaweed thus thrown up by the sea" (i.e. upon a portion of the seashore which was private property) "may be considered as one of those marine increases arising by slow degrees; and according to the rule of the common law, it belongs to the owner of the soil. The rule is that, if the marine increase be by small and almost imperceptible degrees, it goes to the owner of the land; but if it be sudden and considerable, it belongs to the sovereign (2 Black. Com. 261; Harg. Law Tracts, 28). The seaweed must be supposed to have accumulated gradually. The slow increase, and

its usefulness as a manure, and as a protection to the bank, will, upon every just and equitable principle, vest the property of the weed in the owner of the land. It forms a reasonable compensation to him for the gradual encroachments of the sea, to which other parts of his estate may be exposed; this is one sound reason for vesting these marine increments in the proprietor of the shore. The jus alluvionis ought in this respect to receive a liberal encouragement in favor of private right."

1 Brew. Haren, Ir. R. 11 C. L. 205, per Fitzgerald, J., who further says: "There seems also to be an absence of any claim to the property in such weed before appropriation on behalf of the grantee of the Crown until very recent times. The grantee of the Crown usually asserted his rights, whatever they were, by excluding the public from going on or over his lands to the seashore; or by excluding them from the seashore when he was in a position to assert his exclusive title to the soil of the seashore."

Church . Meeker, 34 Conn. 421; Mather . Chapman, 40 Conn. 382; Chapman v. Kimball, 9 Conn. 38; Hill r. Lord, 48 Maine, 83.

3 Emans . Turnbull, 2 Johns. 313, 321; Parsons v. Miller, 15 Wend. 561;

not lawfully enter upon land for the purpose of taking seaweed,1 and a statute which gives it to a person other than

Phillips v. Rhodes, 7 Met. 322; Bar- to low-water mark, as well as beyond

ker v. Bates, 13 Pick. 255; Anthony v. Gifford, 2 Allen, 549; Proprietors of Cohasset Flats v. Tower, 24 Law Rep. 734; Chapman v. Kimball, 9 Conn. 38; Church v. Meeker, 34 Conn. 421; Mather v. Chapman, 40 Conn. 382; Moore v. Griffin, 22 Maine, 350; Clement v. Burns, 43 N. H. 609; Kenyon v. Nichols, 1 R. I. 106, 411; Bailey v. Sisson, Id. 233, 240; Hall v. Lawrence, 2 R. I. 218; Baird v. Fortune, 7 Jur. N. S. 926; Howe . Stowell, 1 Alcock & Nap. 348; Healy v. Thorne, Ir. R. 4 C. L. 495, 499; Queen v. Clinton, Ir. R. 4 C. L. 6; Lowe v. Govett, 3 B. & Ad. 863; Brew v. Haren, Ir. R. 11 C. L. 198; s. c. Ir. R. 9 C. L. 29. See East Hampton v. Kirk, 68 N. Y. 459; s. c. 6 Hun. 257. In Kenyon v. Nichols, 1 R. I. 106, 411, an action on the case was sustained for disturbance of the plaintiff's commonable right by taking seaweed from the beach. See, also, Knowles v. Nichols, 2 Curtis, 571; Knowles v. Nichols, 2 R. I. 198; Knowles v. Knowles, 12 R. I. 400, 406, 411. And see, generally, Hall v. Lawrence, 2 R. I. 218; Bailey v. Sisson, 1 R. I. 233.

The case of Howe . Stowell, 1 Alcock & Nap. 348, was trespass for breaking and entering the plaintiff's close, and the defendant's plea of justification that the close in question was the seashore, and that the plaintiff entered under the general right of the king's subjects to enter and carry away seaweed left by the tide, was held to be bad. Jebb, J., here said: "This being the claim of a right in derogation of, and as a qualification of the king's general right, it ought not to be allowed without some decision, or some authority, or some reason drawn from some decision or authority in favor of it. That the king has the soil of the shore from high

that mark, is clear from the authority of Hale, as also from the charter of the Admiral of England. Callis, 39; Davies, 153. These prerogatives are qualified or adapted to the public benefit by the clearly allowed common right of the king's subjects to fish in the sea, or arms or creeks thereof, as a public right of fishery (subject to exception in case of exclusive rights), and this liberty seems to extend to the taking of shell-fish left on the seashore upon the reflux of the tide, between high and lowwater mark (Bagott v. Orr, 2 Bos. & P. 472), upon the same reason, namely, that the taking of fish is for the immediate sustenation of man, a reason that does not apply to the liberty of taking seaweed - - a liberty which may, in many situations, and under many circumstances, be very reasonable and beneficial, and which may be established by local custom, but can be legally claimed for all the king's subjects, or any portion of them, by virtue of such local custom, and not as being part of the common law." In the subsequent Irish case of Healy v. Thorne, Ir. R. 4 C. L. 495, 499, the court said: "With respect to the contention by defendant that the verdict was against the weight of evidence, it is to be considered that in this action of trespass, the plaintiff was in possession; the defendant is a mere trespasser. The public, in such cases, have no right to go on the seashore, between high and low-water mark, to take seaweed. Howe v. Stowell, Alcock & Nap. 348. Their rights are those of navigation and fishing. These are the privileges which the public enjoy as of right." See also Queen v. Clinton, Ir. R. 4 C. L. 6; Brew v. Haren, Ir. R. 11 C. L. 198; s. c. Ir. R. 9 C. L. 29; Mulholland . Killen, Ir.

the landowner is unconstitutional. "By a liberal construction of the jus alluvionis," says Bigelow, C. J., "it is held that seaweed, kelp, and other marine plants, when detached from the bottom of the sea and thrown on the shore or beach, become vested in the owner of the soil. But these marine products do not become the property of the riparian proprietor until they are cast on the land or shore, so that they rest there and may be justly said to be attached to the soil. So long as they are afloat, and driven or moved from place to place by the rising tide, it is wholly uncertain where they may find a resting-place; and no one can claim ownership in them as appertaining to the particular part of the shore or beach which belongs to him. And this is true, whether they are wholly afloat, so that they do not come in contact with the bottom, or only partially so, or to such an extent that they occasionally, by the motion of the waves or

R. 9 Eq. 471, 482. In the recent case of Mather v. Chapman, 40 Conn. 382, 399, the court, without noticing these cases, used much broader language, saying: "The right of taking seaweed would seem to stand upon the same ground as the right of taking fish. We see no reason for making a distinction between the vegetable and animal products of the ocean. Neither, in the state of nature, is the property of any one; the title to both depends upon first occupancy. It is agreed that while afloat both are alike common; why, when the tide recedes and leaves shell-fish and seaweed on the shore, should the seaweed belong to the riparian proprietor when confessedly the shell-fish remains common property?" It was held in that case that, while the owner of the seashore, or of land bordering on the sea, is constructively the first occupant and owner of seaweed which is cast upon such land or shore by the tide, yet, if seaweed is left upon the shore between high and low-water mark, it is subject to appropriation by the first comer.

Cohasset Proprietors v. Tower, 24 Law Rep. 734. The phrase "privilege of the shores," employed in a statute, includes the right to take gravel and seaweed. Cushing v. 'Worrick, 9 Gray, 382; Ripley v. Knight, 123 Mass. 515.

Anthony v. Gifford, 2 Allen, 549. In this case the plaintiff brought an action of trover for the conversion of seaweed which he had collected and taken from a beach adjoining land from which the defendants claimed the right in gross to take seaweed. The question was as to the meaning of the word "adrift" in the General Statutes of Massachusetts, c. 83, § 20, providing that " any person may take and carry away kelp or other seaweed between high and low-water mark, whilst the same is actually adrift in tide waters." A ruling that, if during flood tide the seaweed was in such a position that each wave moved it, it was adrift, although the bottom of the mass might touch the beach, was held to be correct.

the rise of tide, touch or rest on the beach." If seaweed, though touching the soil under the water, is really adrift,' or if it is deposited upon a part of the seashore which is not private property,2 it is not added to the adjoining land, and is not the property of the owner of such land. In such case, it belongs to him who first appropriates it. The privilege of taking seaweed from another's land or beach is a profit à prendre, and may be conveyed without passing the soil. A sale of all the sea-manure that may land on a certain beach during one year conveys no interest in the beach.5 In Knowles v. Dow, it was decided that a custom for the inhabitants of a town to haul seaweed upon the plaintiff's close, and there deposit it, and afterwards to take it away at pleasure, was not unreasonable or void.

§ 26. In the case of Blundell v. Catterall, the court of King's Bench decided that the public have no common-law right to bathe in the sea. The plaintiff in that case was the owner of the shore, and had an exclusive right to fish there with stake nets; and the defendant, who was a servant at a hotel near by, was sued for driving bathing-machines across the shore and into the sea for the purpose of bathing. The reasoning of the court was not confined to the grounds, that bathing at the place in question, with carriages or on foot, was an interference with the plaintiff's private right of fishery with stake nets, or that the use of bathing-machines might be distinct from the right to bathe without them, but pro

1 Anthony v. Gifford, 2 Allen, 549. Mather v. Chapman, 40 Conn. 382; Peck v. Lockwood, 5 Day, 22; Nudd v. Hobbs, 17 N. H. 527; Arnold v. Mundy, 1 Halst. 1. 12. In Connecticut and New Jersey, riparian proprietors have no legal title to unimproved flats below high-water mark. Post, c. 5.

3 Ibid.

Hill v. Lord, 48 Maine, 83, 100; Nudd v. Hobbs, 17 N. H. 524; East Hampton v. Kirk, 68 N. Y. 459; 84 N. Y. 215.

5 Parsons v. Smith, 5 Allen, 578. 6 22 N. H. 387.

75 B. & Ald. 268. See Mace v. Philcox, 15 C. B. N. s. 600; 10 Jur. N. S. 680; 33 L. J. (C. P.) 124, deciding that, under a special statute for the regulation of the mode of sea-bathing and licensing bathing-machines, those who obtain such a license are not justified in placing the machines on such parts of the shore as are private property.

ceeded upon the broad ground that there was no public right to frequent the shore for the purpose of bathing, either on foot or with carriages. It has also been held in North Carolina that the privilege of approaching the sea for the purpose of bathing is not a right of necessity, and that there is no general right of access to the sea for this purpose. The right of the public to pass over the shore between high and low-water mark is not limited, it seems, to the period when the tide is in, but exists also when the shore is dry;3 and if the decision in Blundell v. Catterall relates only to such parts of the shore as are private property, the only practical restraint upon the privilege of sea-bathing appears to be that which is imposed by decency and respect for public morals.1

§ 27. The presumption that the shore belongs to the Crown, as far as the high-water mark, gives rise to the presumption that the title to lands adjacent to tide water extends only to this line, and places the burden of proof upon those who claim beyond it.5 The public rights of navigation and

See McManus v. Carmichael, 3 Iowa, 1, 55; Laird v. Briggs, 19 Ch. D. 22.

2 Hatfield v. Baum, 13 Ired. 394. Kent says: "The case of Bagott v. Orr may be considered as shaken by that of Blundell v. Catterall, 5 B. & Ald. 268; and the doctrine of Peck v. Lockwood seems to be very questionable." 3 Kent Com. 417, note (c). Peck v. Lockwood, 5 Day, 22, follows Bagott v. Orr, 2 B. & T. 472, deciding that the public may enter upon the shore for the purpose of taking shell-fish. Bagott v. Orr is several times referred to in Blundell v. Catterall, with no intimation of an intention to overrule it; and as the right to take shell-fish is included in the public right of fishing, the latter decision does not affect it. See Moulton v. Libbey, 37 Maine, 472, 491.

3 State v. Wilson, 42 Maine, 9; Colchester v. Brooke, 7 Q. B. 889; Marshall v. Ulleswater Co., L. R. 7 Q.

B. 166; Gann v. Whitstable Free Fishers, 11 H. L. Cas. 192; Rex v. Russell, 6 B. & C. 566; Original Hartlepool Co. v. Gibb, 1 Ch. D. 713; Attorney General v. Conservators of the Thames, 1 Hem. & M. 32; South-Eastern Railway Co. r. Darling, 5 C. B. N. s. 821. 4 Rex v. Crunden, 2 Camp. 89.

5 Royal Fishery of the Banne, Sir John Davies, 149; Somerset v. Fogwell, 5 B. & C. 875; Lowe ». Govett, 3 B. & Ad. 863; Smith v. Stair, 6 Bell, App. Cas. 487; Sidney v. Lord Commissioners, 12 Moo. P.C. 473; Howard v. Ingersoll, 13 How. (U. S.) 381, 421; United States v. Pacheco, 2 Wall. 587 ; Pollard v. Hagan, 3 How. 212; Mobile r. Hallett, 16 Peters, 266; Barney v. Keokuk, 94 U. S. 324, 336; Bowman ». Wathen, 2 McLean, 376; United States v. New Bedford Bridge, 1 Wood. & M. 401, 415; Cortelyou . Van Brundt, 2 Johns. 357; Wiswall v. Hall, 3 Paige, 313; Storer v Freeman, 6 Mass. 435, 439; Commonwealth v. Charlestown,

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