THE LAW OF WATERS. PART I. PUBLIC WATERS. CHAPTER I. OF PROPERTY IN TIDE WATERS AT COMMON LAW. SECTION. 1. Property in the open sea. 2, 3. Rights in territorial waters. 4, 5. The Crown's property in tide waters within the realm. 6. What this includes. 7-9. The seaward limit of national property and jurisdiction. 10. Right to minerals beneath the sea and seashore. 11, 12. Regina v. Keyn. 13, 14. The authority of this decision. 15, 16. Effect of legislation respecting territorial waters. 17, 18. The nature of the Crown's title. The jus publicum and the jus privatum. 19. Foundation of the doctrine of a jus privatum. 20. What are included within the public rights of navigation and fishery. 21. Purprestures and nuisances. 22, 23. Prescriptive rights against the Crown. 24, 25. The rights of the public with respect to sand, gravel, and sea-weed. 26. Bathing. 27. Limits of the shore. 28. Words synonymous with "shore." 29. Meaning of these terms in legal instruments. § 1. The sea is serviceable for important uses, especially for navigation and fishery; but it is incapable, from its nature, of permanent appropriation and continuous occupation. It thus remains without an owner, as a barren and unappropriated waste. When articles of value are taken from the sea, they belong to the finder, inasmuch as there is no title which is superior to his possession. Between different claimants what constitutes such possession may depend upon usage. In the whale fisheries, it is a valid usage that the boat first striking a whale shall be entitled to the fish.1 But, where no special custom of fishery was proved, it was held that the plaintiff, who while fishing had nearly encompassed the fish with his net, could not recover from the defendant for rowing his boat to the opening, thereby disturbing the fish and preventing their capture. The tests for determining the ownership of such parts of the sea as can be appropriated, or of islands arising therefrom or newly discovered, are occupancy, discovery, or conquest.3 Those, for instance, who expend money in mining guano upon a newly discovered island and convey it to the shore, are entitled to protection in the enjoyment of the property thus acquired. Ships upon the ocean continue subject to the law of the flag, making those on board amenable to the laws of the nation to which the vessel is accredited.5 A 1 Fennings v. Grenville, 1 Taunt. 241; Littledale v. Smith, Id. 243, note; Aberdeen Arctic Co. v. Sutter, 4 Macq. H. L. Cas. 355; Young v. Hitchens, 6 Q. B. 606; Stevens v. Jeacocke, 11 Q. B. 741; Hogarth v. Jackson, M. & M. 58; Skinner v. Chapman, Id. 59, note; Taber v. Jenny, 1 Sprague, 315; Bartlett v. Budd, 1 Lowell, 223; Bourne v. Ashley, 1 Lowell, 27; Swift v. Gifford, 2 Lowell, 110. Fish not reclaimed or confined are not the subject of larceny. Rex v. Carrodice, 2 Russ. 1199; State v. Krider, 78 N. C. 481. A sale of fish afterwards to be caught in the sea is invalid. Low v. Pew, 108 Mass. 347. 2 Young v. Hitchens, 6 Q. B. 606. 3 Lawrence's Wheat. Int. Law, pt. II. c. 4, § 5; 2 Black. Com. 3, 8, 258, 400; 3 Kent Com. 318; Grotius, Mare Lib. c. 5, 7; Fleta, lib. 3, c. 2, §§ 6, 9; Just. Inst. lib. 2, tit. 1, § 22; Schultes, Aquatic Rights, 45. American Guano Co. v. United States Guano Co., 44 Barb. 23. See 11 U. S. Stats. at Large, 119; U. S. Rev. Stats. §§ 5570-5578; Benson v. Ketchum, 14 Md. 331; Whiton v. Albany Ins. Co., 109 Mass. 24. Crapo v. Kelly, 16 Wall. 610; 45 N. Y. 86; 41 Barb. 603; McDonald v. Mallory, 77 N. Y. 547; In re Bye, 2 Daly, 525; Lloyd v. Guibert, L. R. 1 Q. B. 115; Reg. v. Bjornsen, 10 Cox, C. C. 74; Reg. v. Sattler, 7 Id. 431; |
