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exclusive claim to seaweed, and the public may have a per: missive 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. its usefulness as a manure, and as a Clinton, Ir. R. 4 C. L. 6. In the recent protection to the bank, will, upon Irish case of Brew r. Haren, Ir. R. 11 every just and equitable principle, C. L. 198; s. c. Ir. R. 9 C. L. 29, it vest the property of the weed in the was held (two judges dissenting) that owner of the land. It forms a reatrover lay by one who owned the sonable compensation to him for the shore down to low-water mark, for the gradual encroachments of the sea, to wrongful taking of seaweed cast upon which other parts of his estate may the shore between high and low-water be exposed; this is one sound reason mark, though such seaweed had been for vesting these marine increments left ungathered by the plaintiff ; it in the proprietor of the shore. The being considered that trover might be jus alluvionis ought in this respect to maintained for the conversion of an receive a liberal encouragement in article the taking of which would not favor of private right." constitute larceny. Upon the other Brew ». Haren, Ir. R. 11 C. L. hand, Chancellor Kent treated sea- 205, per Fitzgerald, J., who further weed, when washed ashore, as realty. says: “There seems also to be an In the leading case of Emans v. Turn- absence of any claim to the property bull, 2 Johns. 313, 322, he said: “The in such weed before appropriation on seaweed thus thrown up by the sea” behalf of the grantee of the Crown (ie, upon a portion of the seashore until very recent times. The grantee which was private property) “may be of the Crown usually asserted his considered as one of those marine rights, whatever they were, by excludincreases arising by slow degrees; and ing the public from going on or over according to the rule of the common his lands to the seashore; or by law, it belongs to the owner of the excluding them from the seashore soil. The rule is that, if the marine when he was in a position to assert increase be by small and almost im- his exclusive title to the soil of the perceptible degrees, it goes to the seashore.” owner of the land; but if it be sudden ? Church v. Meeker, 34 Conn. 421; and considerable, it belongs to the Mather . Chapman, 40 Conn. 382; sovereign (2 Black. Com. 261; Harg. Chapman r. Kimball, 9 Conn. 38; Hill Law Tracts, 28). The seaweed must 1. Lord, 48 Maine, 83. be supposed to have accumulated Emans 1. Turnbull, 2 Johns. 313, gradually. The slow increase, and 321 ; Parsons v. Miller, 15 Wend.561;
not lawfully enter upon land for the purpose of taking seaweed, 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 that mark, is clear from the authority v. Gifford, 2 Allen, 549; Proprietors of Hale, as also from the charter of of Cohasset Flats v. Tower, 24 Law the Admiral of England. Callis, 39; Rep. 734; Chapman v. Kimball, 9 Davies, 153. These prerogatives are Conn. 38; Church v. Meeker, 34 Conn. qualified or adapted to the public 421; Mather v. Chapman, 40 Conn. benefit by the clearly allowed com382; Moore v. Griffin, 22 Maine, 350; mon right of the king's subjects to Clement v. Burns, 43 N. H. 609; Ken- fish in the sea, or arms or creeks yon v. Nichols, 1 R. I. 106, 411; Bailey thereof, as a public right of fishery v. Sisson, Id. 233, 240; Hall v. Law- (subject to exception in case of exrence, 2 R. I. 218; Baird v. Fortune, clusive rights), and this liberty seems 7 Jur. N. S. 926; Howe r. Stowell, 1 to extend to the taking of shell-fish Alcock & Nap. 348; Healy v. Thorne, left on the seashore upon the reflux Ir. R. 4 C. L. 495, 499; Queen v. Clin- of the tide, between high and lowton, Ir. R. 4 C. L. 6; Lowe v. Govett, water mark (Bagott v. Orr, 2 Bos. & 3 B. & Ad. 863; Brew v. Haren, Ir. R. P. 472), upon the same reason, namely, 11 C. L. 198; s. c. Ir. R. 9 C. L. 29. that the taking of fish is for the imSee East Hampton v. Kirk, 68 N. Y mediate sustenation of man, a reason 459; B. c. 6 Hun. 257. In Kenyon v. that does not apply to the liberty of Nichols, 1 R. I. 106, 411, an action on taking seaweed — a liberty which may, the case was sustained for disturbance in many situations, and under many of the plaintiff's commonable right circumstances, be very reasonable and by taking seaweed from the beach. beneficial, and which may be estabSee, also, Knowles v. Nichols, 2 Cur- lished by local custom, but can be tis, 571; Knowles v. Nichols, 2 R. I. legally claimed for all the king's sub198; Knowles v. Knowles, 12 R. I. jects, or any portion of them, by vir400, 406, 411. And see, generally, tue of such local custom, and not as Hall v. Lawrence, 2 R. I. 218; Bailey being part of the common law." In v. Sisson, 1 R. I. 233.
the subsequent Irish case of Healy The case of Howe v. Stowell, 1 v. Thorne, Ir. R. 4 C. L. 495, 499, the Alcock & Nap. 348, was trespass for court said: “With respect to the conbreaking and entering the plaintiff's tention by defendant that the verdict close, and the defendant's plea of was against the weight of evidence, justification that the close in question it is to be considered that in this acwas the seashore, and that the plain- tion of trespass, the plaintiff was in tiff entered under the general right of possession; the defendant is a mere the king's subjects to enter and carry trespasser. The public, in such cases, away seaweed left by the tide, was have no right to go on the seashore, held to be bad. Jebb, J., here said: between high and low-water mark, to “This being the claim of a right in take seaweed. Howe v. Stowell, Alderogation of, and as a qualification cock & Nap. 348. Their rights are of the king's general right, it ought those of navigation and fishing. These not to be allowed without some deci- are the privileges which the public sion, or some authority, or some rea- enjoy as of right." See also Queen son drawn from some decision or v. Clinton, Ir. R. 4 C. L. 6; Brew v. authority in favor of it. That the Haren, Ir. R. 11 C. L. 198; s. c. Ir. R. king has the soil of the shore from high C. L. 29; Mulholland e. Killen, Ur.
the landowner is unconstitutional. “By a liberal construction of the jus alluvionis,” says Bigelow, C. J.,2 " 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 C ohasset Proprietors v. Tower, case of Mather v. Chapman, 40 Conn. 24 Law Rep. 734. The phrase " privi382, 399, the court, without noticing lege of the shores,” employed in a these cases, used much broader lan- statute, includes the right to take guage, saying: “The right of taking gravel and seaweed. Cushing v. Worseaweed would seem to stand upon rick, 9 Gray, 382; Ripley v. Knight, the same ground as the right of tak- 123 Mass. 515. ing fish. We see no reason for mak ? Anthony v. Gifford, 2 Allen, 549. ing a distinction between the vegetable In this case the plaintiff brought an and animal products of the ocean. action of trover for the conversion of Neither, in the state of nature, is the seaweed which he had collected and property of any one; the title to taken from a beach adjoining land both depends upon first occupancy from which the defendants claimed It is agreed that while afloat both are the right in gross to take seaweed. alike common; why, when the tide The question was as to the meaning recedes and leaves shell-fish and sea of the word “adrift" in the General weed on the shore, should the seaweed Statutes of Massachusetts, c. 83, $ 20, belong to the riparian proprietor when providing that " any person may take confessedly the shell-fish remains com- and carry away kelp or other seaweed mon property?" It was held in that between high and low-water mark, case that, while the owner of the sea whilst the same is actually adrift in shore, or of land bordering on the tide waters.” A ruling that, if during sea, is constructively the first occu- flood tide the seaweed was in such a pant and owner of seaweed which is position that each wave moved it, it cast upon such land or shore by the was adrift, although the bottom of the tide, yet, if seaweed is left upon the mass might touch the beach, was held shore between high and low-water to be correct. mark, it is subject to appropriation ly the first comer.
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,” 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.4 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,6 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
Anthony v. Gifford, 2 Allen, 549. 5 Parsons v. Smith, 5 Allen, 578. ? Mather v. Chapman, 40 Conn. 622 N. H. 387. 382; Peck v. Lockwood, 5 Day, 22; 75 B. & Ald. 268. See Mace v. Nudd v. Hobbs, 17 N. H. 527 ; Arnold Philcox, 15 C. B. N. S. 600; 10 Jur. v. Mundy, 1 Halst. 1. 12. In Connec- x. s. 680; 33 L. J. (C. P.) 124, decidticut and New Jersey, riparian pro- ing that, under a special statute for the prietors have no legal title to unim- regulation of the mode of-sea-bathing proved flats below high-water mark and licensing bathing-machines, those Post, c. 5.
who obtain such a license are not 3 Ibid.
justified in placing the machines on * Hill v. Lord, 48 Maine, 83, 100; such parts of the shore as are private Nudd v. Hobbs, 17 N. H. 524; East property. Hampton v. Kirk, 68 N. Y. 459; 84 N. Y. 215.
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.4
$ 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 B. 166; Gann v. Whitstable Free FishIowa, 1, 55; Laird v. Briggs, 19 Ch. D. ers, 11 H. L. Cas. 192; Rex v. Russell, 22.
6 B. & C. 566; Original Hartlepool Co. ? Hatfield v. Baum, 13 Ired. 394. v. Gibb, 1 Ch. D. 713; Attorney GenKent says: “The case of Bagott v. eral v. Conservators of the Thames, Orr may be considered as shaken by 1 Hem. & M. 32; South-Eastern Railthat of Blundell v. Catterall, 5 B. & way Co. 1. Darling, 5 C. B. N. s. 821. Ald. 268; and the doctrine of Peck v. • Rex v. Crunden, 2 Camp. 89. Lockwood seems to be very question 5 Royal Fishery of the Banne, Sir able.” 3 Kent Com. 417, note (c). John Davies, 149; Somerset v. Fogwell, Peck v. Lockwood, 5 Day, 22, 5 B. & C. 875; Lowe v. Govett, 3 B. & follows Bagott v. Orr, 2 B. & T. 472, Ad. 863; Smith v. Stair, 6 Bell, App. deciding that the public may enter Cas. 487; Sidney v. Lord Commissionupon the shore for the purpose of ers, 12 Moo. P.C. 473; Howard v. Ingertaking shell-fish. Bagott v. Orr is sev- soll, 13 How. (U. S.) 381, 421; United eral times referred to in Blundell 2. States v. Pacheco, 2 Wall. 587; Pollard Catterall, with no intimation of an 0. Hagan, 3 How. 212; Mobile r. Halintention to overrule it; and as the lett, 16 Peters, 266; Barney r. Keokuk, right to take shell-fish is included in 94 U.S. 324, 336; Bowman ». Wathen, the public right of fishing, the latter 2 McLean, 376; United States v. New decision does not affect it. See Moul- Bedford Bridge, 1 Wood. & M. 401, ton v. Libbey, 37 Maine, 472, 491. 415; Cortelyou w. Van Brundt, 2
3 State v. Wilson, 42 Maine, 9; Col- Johns. 357; Wiswall v. Hall, 3 Paige, chester v. Brooke, 7 Q. B. 889; 313; Storer v: Freeman, 6 Mass. 435, Marshall v. Ulleswater Co., L. R. 7 Q. 439; Commonwealth v. Charlestown,