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fishery extend to the same limit, whether the shore itself is public or private property.i The low-water mark is an equally important boundary, since, under the decision in Regina v. Keyn,2 and in the absence of statute, it is the limit of the nation's territory on the external coast, and also limits the common-law jurisdiction of counties on the seacoast.3 Lord Hale mentions three kinds of tides as seeming to give rise to three kinds of shore:4 first, the high spring tides, which are the fluxes of the sea at those tides that happen at the two ecpuinoctials; second, the spring tides, which happen twice every month, at the full and change of the moon; and third, the ordinary or neap tides, which happen between the full and change of the moon, twice in twenty-four hours. He concludes that, by the common law, the shore, both of the sea and of the arms of the sea, does not include the soil which is overflowed by the high spring tides or by the spring tides, and that the rights of the sovereign and the public extend only to the point reached by the ordinary tides. In the case of Attorney General v. Chambers,6 this view was adopted, and
1 Pick. 180, 182; Porter v. Sullivan, 7 Gray, 443; Wonson v. Wonson, 14 Allen, 82; Hathaway v. Wilson, 123 Mass. 301; Bell v. Gough, 23 N. J.L. 624; 22 Id. 441 and 21 Id. 156; East Haven v. Hemingway, 7 Conn. 186; Mather v. Chapman, 40 Conn. 382; Hagan v. Campbell, 8 Porter, 9, 25; Teschemachen>. Thompson, 18Cal. 11; Rondell v. Fay, 32 Cal. 354, 303; People v. Morrill, 26 Cal. 336, 353; Ward v. Mulford, 32 Cal. 305, 372; More i>. Massini, 37 Cal. 432; Brumagin v. Bradshaw, 39 Cal. 24; Ball v. Slack, 2 Whart. 508, 539; Boulo v. Mobile Railroad Co., 55 Ala. 480; Martin v. O'Brien, 34 Miss. 21.
i Ibid. The word "foreshore," used in the later English decisions, appears, by 29 & 30 Vict. c. 02, § 7, to denote "the shore and bed of the sea, and of every channel, creck, bay, estuary, and of every navigable river of the United Kingdom, as far up the same as the tide flows (and which are
hereinafter for brevity called the foreshore)." See, also, Trustees v. Bootle, 2 Q. B. 4, Penryhn v. Holm, 40 L. J. Ex. 500; 37 L. T. 133; 25 W. R. 498.
• 2 Ex. D. 03; ante, §§ 11-14.
3 Ante, § 14. See p. 33, n. 1.
'De Jure Maris, c. 6, I.; c. 4, II.; Hargrave's Law Tracts, 12, 26.
4 4 De Gex, M. & G. 200; 4 De Gex & J. 55. Alderson, B.', here said: "Mv. Justice Holroyd, no mean authority, in his very elaborate judgment in the case of Blundell v. Catterall, 5 B. & Ald. 208, 290, mentions this as one of the instances in which the Common Law differs from the Civil Law, and says that it is clear that according to our law it is not the limit of the highest tides of the year, but the limit reached by the highest ordinary tides of the sea, which is the limit of the shore belonging prima facie to the Crown. What then are these 'highest ordinait was held that " the average of the medium tides, in each quarter of a lunar revolution during the year, gives the limit, in the absence of all usage, to the rights of the crown on the seashore." In other words, the boundary is the medium line between the ordinary line of high water in ordinary spring tides, at the full and change of the moon, and the ordinary line of high water at neap tides, at about midway in time between the full and change of the moon.1 The expression, "ordinary high and low-water mark," which is generally used in defining the shore, signifies ordinary lowwater mark as well as high.1 Under the Massachusetts Colony ordinance of 1647, which extended the title of littoral proprietors to low-water mark, not exceeding one hundred rods, the low-water mark is the line of extreme low water, if within one hundred rods;2 but in Maine, under this ordinance, the low-water mark is determined by the ebb of ordinary tides, as at common law.3 These rules apply to tidal rivers and to the arms and inlets of the sea, as well as the sea itself, but they have no application to fresli waters.4 The terms, " ordinary low water " or " low water," says Wayne, J.,8 *' are only predicable of those parts of rivers within the ebb and flow of the tides, to distinguish the water line at spring or neap tides. Such ;i difference is uniform twice within
ry tides'? Now we know that in fact the tides of each day, nay, even each of the tides of each day, differ in some degree as to the limit which they reach. There are the spring tides at the equinox, the highest of all. These clearly are excluded in terms by Lord Hale, both in p. 12 and p. 26 of his treatise De Jure Maris, for though in one sense these are ordinary, i.e., according to the usual order of nature, and not caused by accidents of the winds and the like, yet they do not ordinarily happen, but only at two periods of the year. These then are not the tides contemplated by the common law, for they are not 'ordinary tides,' not being ' of common occurrence.' This may perhaps apply to the spring tides of each month, exclusive of the equinoctial tides; and, indeed, if the case were without distinct authority on this point, that is the conclusion at which we might have arrived. But then we have Lord Hale's authority, p. 26, De Jure Maris, who says, ' Ordinary tides or neap tides which happen between the full and the change of the moon' are the limit of 'that which is properly called littiis maris,' and he excludes the spring tides of the month, assigning as the reason that the lands covered with these fluxes are for the most part of the year dry and mnnoriable, i.e., not reached by the tides. And to the same effect is the case of Lowe r. Govett, 8 B. & Ad. 863, which excludes these monthly spring tides also. But we think that Lord Hale's
reason may guide us to the proper limit. What are then the lands which for the most part of the year are readied and covered by the tides! The same reason that excludes the highest tides of the month (which happens at the springs) excludes the lowest high tides (which happen at the neaps), for the highest or spring tides and the lowest high tides (those at the neaps) happen as often as each other. The medium tides, therefore, of each quarter of the tidal period afford a criterion which we think may be best adopted. It is true of the limit of the shore reached by these tides, that it is more frequently reached and covered by the tide than left uncovered by it. For about three days it is exceeded, and for about three days it is left short, and on one day it is reached. This point of the shore, therefore, is about four days in every week, i.e., for the most part of the year, reached and covered by the tides. And as some not indeed perfectly accurate construction, but approximate, must be given to the words 'highest ordinary tides,' used by Mr. J. Holroyd, we think, after fully considering it, that this best fulfils the rules, and the reasons for it, given in our books."
1 Commonwealth r. Roxbury, 9 Gray, 451, 483. Under the civil law, the shore extends as far as the highest waves reach in winter. Inst. lib. 2, tit. 1,§ 3; Dig.lib. 60, tit. 10, § 112; Civil Code of Louisiana, art. 4; Smith P. Stair, 6 Bell, App. Cas. 487; 6 CI.
& Fin. 028; Galveston v. Menard, 23 Texas, 349, 398.
1 Hale, De Jure Maris, c. 4, II.; c. 6, I.; Dickens v. Shaw, reported in Hall on the Seashore (2d ed.), Appendix, 50, 64; Blundell v. Catterall, 5 B. & Aid. 290; Lowe v. Govett, 3 B. & Ad. 863; Harvey v. Lyme Regis, L. R. 4 Ex. 260; Attorney General v. Chambers, 4 De Gex, Macn. & Gord. 206; East Haven v. Hemingway, 7 Conn. 186; Church v. Meeker, 34 Conn. 421, 424; Teschemacher v. Thompson, 18 Cal. 11; People v. Morrill, 26 Cal. .336, 353; Ward v. Mulford, 32 Cal. 365, 372 ; Providence Steam Engine Co. v. Providence Steamship Co., 12 R. I. 348, 357; Gough v. BeU, 22 N. J. L. 441; 23 Id. 624, 685; Seaman v. Smith, 24 111. 521, 524; Howard v. Ingersoll, 13 How. (U. S.) 381, 417; Walker v. Marks, 2 Sawyer, 152, 157.
'Storer v. Freeman, 6 Mass. 435, 438; Spartiawk v. Bullard, 1 Met. 95, 108; Commonwealth v. Charlestown, 1 Pick. 180, 183; Attorney General v. Boston & Maine Railroad Co., 3 Cush. 1; Attorney General v. Boston Wharf Co., 12 Gray, 553; Commonwealth r. Boston & Maine Railroad
Co., 3 Cush. 1; Monson v. Monson, 14 Allen, 71, 82; 9 Gray, 615, 621, note; Attorney General v. Woods, 108 Mass. 436, 440; Commonwealth v. Roxbury, 9 Gray, 451, 491, 615, 521.
3 Gerrish v. Union Wharf Co., 26 Maine, 384.
4 Hale, De Jure Maris, c. 4, II.; Royal Fishery of the Banne, Sir John Davies, 149; United States v. Pacheco, 2 Wall. 587; Wheeler t>. Spinola, 54 N. Y. 377; Commonwealth v. Roxbury, 9 Gray, 451, 491; Attorney General v. Boston Wharf Co., 12 Gray, 553; Kean v. Stetson, 5 Pick. 492, 495; Montgomery v. Reed, 69 Maine, 510; State v. Sargent, 45 Conn. 358; Galveston v. Menard, 23 Texas, 349.
6 Howard v. Ingersoll, 13 How. 381, 417. And see Id. p. 428; Dutton v. Strong, 1 Black, 23, 32; Handly v. Anthony, 5 Wheat. 374; Child v. Starr, 4 Hill, 369, 376; Canal Commissioners v. People, 5 Wend. 423,446; Halsey v. McCormick, 13 N. Y. 296, 298; Wheeler v. Spinola, 54 N. Y. 377, 385; Waterman v. Johnson, 13 Pick. 261; Bradley v. Rice, 13 Maine, 198; Stover v. Jack, 60 Penn. St. 339; Lacy v. Green, 84 Penn. St. 514.
every month of the year; and, because it is so, it is termed, ordinary. In that part of a river in which there is no ebb and flow, the changes in the current are irregular and occasional, without fixed quantity or time of recurrence, except as they are periodical with the wet and dry seasons of the year. And low water is the furthest receding point of ebb tide."
§ 28. The words " flats " i and "strand " a denote the land between the lines of high and low water, like the shore. The term "coast," or "sea-coast," appears to have no fixed meaning apart from the context, and to be equally applicable to the space between high and low-water mark, or to the territory bordering on the sea, or to that part of the sea which adjoins the land.3 The word "beach" is synonymous with "shore." In Maine, a statute which prohibited cattle running on a certain "beach," and charged a committee to be appointed by a town with the execution of the law, was held to apply only to the space between high and low-water mark.4 And in a later case in the same State, in which the same view was taken, it was said that this word, which was there used in a contract, must have some limited meaning, and could not apply to the large sand wastes above high
i Storer v. Freeman, 6 Mass. 435, 439; Saltonstall v. Long Wharf, 7 Cush. 195, 201; Doane v. Willeutt, 5 Gray, 328, 335; Church v. Mecker, 34 Conn. 421, 424, 429; Stannard v. Hubbard, 34 Conn. 376; Montgomery v. Reed, 69 Maine, 510.
'Doane v. Willeutt, 5 Gray, 328, 335.
3 Callis says that the "sea-coast" certainly contains the shore and banks, and that, while a shore is sometimes dry land, and sometimes water, and a creck is always sea and never land, a coast is always dry land. Callis on Sewers, 54-57. Its meaning must, however, be gathered from the context. The indefiniteness of this term, and also of "shore," as sometimes
used, appears in the Convention of 1818, between Great Britain and the United States, which provided that the inhabitants of both countries should have the liberty to fish on a part "of the southern coast of Newfoundland," "on the shores of the Magdalen Islands, and also on the coasts, bays, harbors, and creeks from Mount Joly on the southern coast of Labrador to and through the Straits of Belle Isle, and thence northwardly indefinitely along the coast"; and also "to dry and cure fish in any of the unsettled bays, harbors, and crecks of the southern part of the coast of Newfoundland, hereinbefore described, and of the coast of Labradov."
* Cutts c. Hussey, 15 Maine, 227.
water mark, like those on Cape Cod.1 In Massachusetts9 and New York3 the definition of the shore is considered to be an accurate definition of a beach also; but, in a recent case in Connecticut, the court said that the word "beach " has no such inflexible meaning that it must denote land between high and low-water mark.4 The word "waste" is also a sufficient description of the shore, and passes it in a private grant, if the estate to which the waste belongs extends to low-water mark.6 The shore may also pass under the terms "sedge-flat,"6 "sea grounds,"7 "ripa," "bank,"8 "anchorage-ground,"9 and "sand,"10 when a different construction is not required by the context. The phrase "tide lands," 11 employed in the statutes of California, applies to the shore between ordinary high and low-water mark, and not to the soil which is permanently submerged. "Salt meadows," u
1 Littlefleld i>. Littlefield, 28 Maine, 180; Hodge ». Boothby, 48 Maine, 68.
1 Doane v. Willcutt, 5 Gray, 328, 335; Niles v. Patch, 13 Gray, 254, 257. See Brown «. Lakeman, 17 Pick. 444, 446; s. c. 16 Pick. 151.
3 East Hampton v. Kirk, 68 N. Y. 459; s. c. 6 Hun, 257. See Hastings v. Ival, L. K. 19 Eq. 558, 580.
4 Melvin v. Wheeler, 40 Conn. 14; Mather v. Chapman, 40 Conn. 382.
"Attorney General v. Hanmer, 4 Jut. N. S. 761; 27 L. J. Ch. 837; Attorney General v. Jones, 33 L. J. Ex. 249; 2 H. & C. 347.
• Church v. Meeker, 34 Conn. 421, 424; Peck v. Lockwood, 6 Day, 24. As to the effect of such words as "stagnum," "gurges," "mariscus," "palus," "marettum," "saliva," etc., employed in ancient grants, see Co. Litt. 4 6, 6 a.
» Scratton v. Brown, 4 B. & C. 485. The word "grounds" does not generally include land under water. State v. Jersey City, 1 Dutch. 525, 530.
* " Ripa" or "bank" properly refers to hard, dry land, and to the margin of fresh waters rather than ■alt. But "the bank of a bay" may
include a sand-bank or mud-bank, though alternately covered and uncovered by the flux and reflux of the sea, and so be equivalent to "shore." In re Belfast Dock, Ir. R. 1 Eq. 128, 139.
• Foreman v. Whitstable Free Fishers, L. R. 4 H. L. 266; L. R. 2 C. P. 688; L. R. 3 C. P. 578; Le Strange v. Rowe, 4 F. & F. 1048; Calmady v. Rowe, 6 C. B. 891.
10 In the case of a warranty deed which purported to convey all the fishing rights, rights to the "sand," and all useful things that may drift upon the beach, and contained a description'of the land which constituted the beach, with words of inheritance, it was held that the word " sand" was equivalent to " land," and that the fee passed by the deed. Spinney v. Marr, 41 Maine, 362.
11 People v. Davidson, 30 Cal. 379; Randall v. Fay, 32 Cal. 354; Walker v. Marks, 2 Sawyer, 152; 17 Wall. 648; Supervisors v. United States, 18 Wall. 71; People v. Morrill, 26 Cal. 336; Patterson e. Tatum, 3 Sawyer, 164.
11 Church v. Meeker, 34 Conn. 421, 429.