792 1824. The KING บ. Lord YAR- respec and as the same hath so there been formed, settled, grown, and accrued, hath thereupon and thereby, at those times respectively, in that behalf above mentioned, forthwith become and been, and from the same several times tively hath and have continued to be, and still are and is, part and parcel of the said demesne lands of the same manor, and the several owners and proprietors of the same manor for the time being, during all the time aforesaid, until the time of the seisin of the defendant as aforesaid; and defendant, during the time he hath been so as aforesaid seised of and in the said manor, from the time of the formation and accretion of the same piece of land, and every part thereof respectively, continually, until the time of the finding of the inquisition, respectively were and was seised in their and his demesne as of fee, of and in the same piece of land, and every part thereof, when and as the same hath been so formed and accrued as aforesaid, as and for part and parcel of the demesne lands of the same manor. Without this, that the said piece of land in the plea mentioned, and in the inquisition last above mentioned, or any part or parcel thereof, was, and now is, by the sea left in manner and form as in the inquisition is above supposed and found. A replication by the Attorney-General traversed part of the inducement to the defendant's traverse, in the following words: "Without this, that the said piece of land in the inquisition lastly mentioned, being the piece of land before described at the times in the said plea mentioned, by the slow, gradual, and imperceptible projection, alluvion, subsidence, and accretion of ooze, soil, sand, and other matter, being slowly, gradually, and by imperceptible increase in long time, cast up, deposited, and settled by and from the flux and reflux of the tide and waves of the sea, in, upon, and against the outside and extremity of the demesne land of the same manor, hath been formed, and hath settled, grown, and accrued upon and against and unto the said demesne lands of the manor, in manner and form as the defendant hath above in his plea in that behalf alleged. Re 1824. The KING 0. BOROUGH. joinder by defendant took issue upon this fact. Replication took issue on defendant's traverse that the said piece of land in the plea of defendant mentioned, was, and now is, by the sea left, in manner and form as in the inquisition Lord YARis above supposed and found." Upon this replication issue was also joined by the defendant. Upon the trial of these issues at the last Derbyshire Assizes, before Park, J. a verdict was found for the defendant. In Easter Term a rule was obtained by Copley, A. G. calling upon the defendant to shew cause why there should not be a new trial granted; but at the suggestion of the Court, the facts proved at the trial were afterwards stated in a special case for the opinion of the Court. The case stated was as follows: The land in question consists of 450 acres of salt marsh, called fittees, being the land covered with herbage, which, at the time of taking the inquisition set forth in the pleadings, lay between the, sea-wall and the sea, opposite to North Cotes in the county of Lincoln. It was proved that this land had been formed in the course of time by means of ooze, warp, silt, sludge, and soil, carried down by the river Humber, and deposited and cast up by the flux and reflux of the sea, upon and against the adjacent land, whereby the land has been enlarged and increased, and the sea has receded. The matter thus deposited is at first soft and sludgy, but in the course of five or six years grows firm, and then produces herbage. With respect to the degree or rate of growth and increase of the land, the evidence produced on the part of the crown was as follows: The first witness proved, that the sea had receded in parts 140 or 150 yards within 26 or 27 years; and that within the last four years he could see that it had receded much in parts, but could not say how much; and in parts he believed that it had not receded at all. The alteration, he said, had been slow and gradual, and he could not perceive the growth as it went on, though he could see there had been an increase in 26 or 27 years of 140 or 150 yards, and that it had cer 1824. The KING 0. Lord YAR- tainly receded since he measured the land the year before. The second witness proved, that in 15 years there had been an increase of the fittees on the outside of the sea-wall in some parts from 100 to 150 yards; that it grows a little from year to year; that within the last five years there had been a visible increase in some parts during that period of from 30 to 50 yards; and that the gradual increase is not perceptible to the eye at the moment. The third witness said there had been some small increase in every year; and the fourth witness said, the swarth increased every year very gradually, and that perhaps it had gathered a quarter of a mile in breadth in some places within his recollection, or during the last 54 or 55 years; and in some places it had gathered nothing. It was proved that the ground between the sea-wall above mentioned, and another sea-wall still more remote from the sea, appeared to have been covered over formerly with sea-water. If, upon these facts, the Court should be of opinion that judgment ought to be given for the Crown, the verdict obtained by the defendant is to be set aside and a new trial had; but if the Court should be of opinion that the defendant is entitled to judgment, then judgment is to be entered for the defendant upon the verdict. Goulburn, for the Crown. The principles of law by which the judgment of the Court will be directed as to the King's title to marine accretions, are so plainly and distinctly set forth by a writer of the greatest authority, that it is unnecessary to refer in detail to other sources, the authorities themselves being all collected and arranged in that writer's work. Lord Hale, in his treatise De Jure Maris, part 1. c. 4. p. 14. says that "The King hath a title to maritima incrementa, or increase of land by the sea; and this is of three kinds, viz. 1. Increase per projectionem vel alluvionem. 2. Increase per relictionem vel desertionem. 3. Per insula productionem." Then follows a description of each. In the present case the claim by the 1824. The KING v. BOROUGH. Crown is in respect of an increase of soil by alluvion, which Lord Hale describes in the following terms: “The increase per alluvionem is when the sea, by casting up sand and earth, doth by degrees increase the land, and shut Lord Yaritself out further than the ancient bounds went; and this is usual. The reason why this belongs to the crown is, because, in truth, the soil, wheret here is now dry land, was formerly part of the very fundus maris, and consequently belonged to the king." The principle to be collected from this position, and which is strongly applicable to this case, is, that the ground being the king's when covered with water, cannot cease to be so when the sea has left it. He states that in two places, first, at p. 14, and second, at p. 28. "But," he adds, "indeed, if such alluvion be so insensible, that it cannot be by any means found that the sea was there, idem est non esse et non apparere; the land thus increased belongs as a perquisite to the owner of the land adjacent." After again describing the jus alluvionis in nearly the same words at p. 28, he citest his passage from Bracton: (a) " Item quod per alluvionem agro tuo flumen adjecit, jure gentium tibi acquiritur. Est autem alluvio latens incrementum. per alluvionem adjici dicitur, quod ita paulatim adjicitur, quòd intelligere non possis quo momento temporis adjiciatur, &c. Si autem non sit latens incrementum, contrarium erit, ut vis fluminis partem aliquam ex tuo prædio detraxit, et vicini prædio appulit, certum est eam tuum permanere," &c.; and then he says, "But Bracton follows the civil law in this and some other following places." Shortly afterwards he adds, "This jus alluvionis, as I have before said, is de jure communi by the law of England the king's." As to the increase per relictionem, or recess of the sea, he observes, at p. 14, that "This doth de jure communi belong to the king;" for the reason before mentioned, namely, that as the sea is part of the waste or demesne of the crown, that which lies under it belongs to the king, and does not cease to be so by the secession of the water. At pp. 14 and 30, he cites the case of Rex v. Oldsworth and (a) Lib. 2. c. 2. Et others, in the Exchequer, which was an information against the defendants for intruding into 300 acres of land which was relictum per mare, and now called Sutton Marsh. The defendants pleaded specially, and entitled themselves by prescription to the lands project by the sea; and upon a demurrer it was adjudged against them, "That first, by the prescription or title made to lands project, which is jus alluvionis, no answer is given to the title of information for lands relict, for these were of several natures. Second, it was held, that it lies not in prescription to claim lands relict per mare." That case establishes two propositions; first, that it is necessary to plead specially in order to entitle the subject to land gained by alluvion; and second, that derelict land can only be claimed by custom. In illustration of the latter proposition Lord Hale cites, at p. 29, Rex v. The Abbot of Peterborough, in K. B. M. 23 Edw. s. Rot. 26. in which case the abbot pleaded and proved a title to land increased by alluvion, and therefore he had judgment. According to the doctrine of that case, if in the present case a custom had been pleaded, and issue taken upon it, and found for the defendant, it could not be successfully contended that he would not be entitled to the lands in question. Lord Hale, in page 28, cites the case of Rex v. The Abbot of Ramsay, E. 43 Edw. 3. Rot. 13. in Scac. (a) where process went out against the abbot for 60 acres of marsh land, which he had appropriated to himself; and he pleaded that he held the manor of Brancaster, situate near the sea, and that there was there a certain marsh sometimes diminished and sometimes increased by the flux and reflux of the sea, and traversed the supposed appropriation; and upon issue joined at nisi prius before one of the barons, a verdict was found for the abbot, and judgment was afterwards given quòd eat sine die, salvo semper jure regis. In observing upon this case Lord Hale says, "Though there were a verdict upon this issue, whether appropriavit or not, yet it is plain that the title stood upon that which the abbot alleged by way of increment. And note: Here is no cus(a) Cited by Dyer, 326, out of the Book of Ramsay. |