A TREATISE, &c. &c. CHAPTER I. OF THE VARIOUS RIGHTS OF WATER. A RIGHT to use water may be either public or private. From some privileges of this kind none can be excluded; they are the common birthright of her Majesty's subjects; but others are capable of being reduced into individual possession, and these are incorporeal hereditaments." The Chapter now before the reader will contain a mere summary of the rights which may be thus exercised by the public, or by private persons. In subsequent pages, each privilege will be discussed upon its own merits. But prior to our entering upon the proposed list, it is desirable to mention, that the law of navigation does not belong to the subject of this Work; to say more upon that point than that the "sea is the great highway of the world," and that public navigable rivers are considered in law as "highways," would be invading the province of writers on the Commercial Law. Incidental considerations, such as the right to demand toll under certain circumstances, the making of ports and harbours, with others of a similar nature, will be occasionally touched upon, to illustrate individual rights upon these public waters; but, as a general principle, it must be laid down, that a right of passage over the sea and great rivers is free, common, and universal. Those important advantages, public rights of fishery, or, to speak more technically, public fisheries, deserve a very particular notice. Fisheries are either enjoyed in common with others, or they are confined to the exclusive enjoyment of an individual. *As a general doctrine, fisheries in the sea and in public navigable rivers are open to all; [*2] but we shall find that particular rights may be successfully maintained even in these ordinarily public waters, by prescription, or by royal grant, beyond time of memory. In rivers not navigable the fishing is usually a private right; but custom will vary the general rule. If, therefore, the public should be found upon any occasion to claim a right of piscary in rivers, which, prima facie, would be considered as private by the law, we must attribute the unusual privilege to the force of custom, which militates against common right, or the every-day usages of things. A private man may, consequently, be entitled to fish in streams which are in their nature public, while the people at large may by chance be discovered in possession of a river which the owner of the soil may, from time immemorial, have neglected, or which he may have dedicated to them. Another valuable enjoyment of water is the privilege of bathing. This may exist by custom or prescription; but it has been decided that there is no common law right of bathing in the sea, (a) and, by inference, there can be none such in a river. If, however, the inhabitants of a particular vill or place, or a certain class of individuals, have from time immemorial participated in the enjoyment of an easement of this kind, it may well be questioned how far such a right can be disturbed, either by the building of houses contiguous to the spot, by claims of ownership of the soil, or any other circumstances. For objections which may be very successfully raised in derogation of a common law right to bathe will be deprived, for the most part, of their influence, when weighed against the important consideration of custom or prescription. The same observations which have been made regarding these rights at sea are also applicable to navigable rivers. There exist the same rights of passage, and of fishing, and the restriction as to bathing is confined within the same limit. And by prescription, a watercourse (an easement, concerning which much will hereafter be said) may be claimed in public rivers. In rivers, however, which are not navigable, and which may be said to be private, because the soil belongs most commonly to an individual, other rights prevail. There may be at least three kinds of fisheries in such a river, namely, a fishery enjoyed by the owner himself, as the territorial possesser; a right of *fishery granted to him by another [*3] person; and a right enjoyed in common with others, either by virtue of a grant or by prescription. That very important easement, a watercourse, is inseparable from the consideration of private rivers. We shall explain by and by, more fully than in this place, in a Chapter devoted to the subject, that the possessor (a) 5 B. & A. 268, Blundell v. Catterall. of such a right cannot use it to the detriment of his neighbour, any more than that he, in turn, can be molested with impunity in the exercise of his own lawful user. Questions upon the use or misappropriation of these waters must frequently arise between the owners of mills, who occasionally interfere with each other's respective rights, either by taking too much. water from the original channel, or throwing back too great a quantity upon the machinery of another mill by penning it improperly back. Inhabitants, or particular persons residing in certain vills, may also have a right to water their cattle in rivers at spots where they had an immemorial usage to do so; and there may be other customs and prescriptions to use water in various ways, which are, of course, too numerous and diversified to be contained in a general Treatise. OF RIGHTS IN THE SEA; THE OWNERSHIP OF THE SOIL THEREIN, TOGETHER WITH THE RIGHTS OF ALLUVION, ETC. THAT the King's subjects have a right to use the ocean for the purposes of commerce; that upon paying certain duties for the use of ports and habours, they become entitled to the shelter and conveniences of those works; that the sea, in a word, is open and common to all for the accomplishment of lawful and useful undertakings, is so familiar to every one, as to need no further confirmation nor authority. The right of fishery, already alluded to in the preceding Chapter, is a very important privilege, and we shall devote a considerable space to the careful investigation of that subject in a future part of these pages. (a) There is, however, no common law right to bathe in the sea, as we shall presently take occasion to shew. Other matters which will form the subject of this Chapter, are the right of taking wrecked goods, by which we assume the absence of any owner-the property of the soil of the sea itself, and of the sea shore, concerning which some questions have arisen-rights of alluvion-the ownership of ground left derelict by the sea-and of islands arising therein. Upon these latter topics much discussion has occasionally prevailed, and we shall lay the cases before the reader in the course of this inquiry. Prior, however, to the consideration of these several heads, a general outline of the extent of our seas, in which the rights above referred to are exercised, may not be inapplicable here. (a) Chap. V. The words "infra quatuor maria" are said to mean, within the kingdom of England, and the dominions of the same kingdom.(b) The four seas are-1. The Atlantic, which washes the western shore of Ireland, and which comprises, as it were by way of sub-division, the Irish Sea, or St. George's Channel, and the Scottish Sea to the north west; 2. The North Sea on the coast of Scotland; 3. The German Ocean on the east; and *4. The British Channel on the south.(c) The jurisdiction [*5] of the King, as lord and sovereign of the sea, has been defined, with respect to the Channel, to extend between Britain and France, and to the middle of the sea between Britain and Spain. (d) With respect to the Western and Northern Oceans, greater difficulty has arisen in determining the limits of British dominion, and the point does not seem to be entirely set at rest. The great Selden has contended for the fullest exercise of dominion over the seas of Britain, both as to the passage through, and fishing in them; while Sir Philip Medows contents himself with suggesting more confined rights-as, to exclude all foreign ships of war from passing upon any of the seas of England without special license, to have the sole marine jurisdiction within those seas, and also an appropriate fishery.(e) And Rolle, C. J., observes in his Abridgment, that Selden told him of a record in the Tower of London (34 E. 1), where it appeared that all the princes in Christendom had agreed, that the narrow seas, and the sea round England, were within the jurisdiction of the King of England. (f) According to Bodinus, by a kind of common right enjoyed by all princes of maritime countries, the particular sovereign may command and control those who approach within thirty leagues of his shore, and may lay impositions upon them.(g) As our business here, however, is with matters of a practical nature, and not merely theoretical, among which this supposed dominion certainly ranges, we will pass on, merely referring to some of the principal writers on that point.(h) The subject above mentioned is the jus maris; the next branch of jurisdiction exercised on the ocean is the municipal right. On this point, Lord Hale observes, that that arm, or branch of the sea, which lies within the fauces terræ, where a man may reasonably discern between shore and shore, is, or at least may be, within the body of a county, and therefore within the jurisdiction of the sheriff or coroner. That part which lies without, is called the main sea or ocean. (2) So Coke, C. J., observed in a case [*6] which came before him, that the admiral* should have no jurisdic (b) Co. Lit. 107. (d) 3 Leon. 73; 5 Com. Dig. 102. f) 1 Ro. Ab. 528. (9) De Republ. lib. 1, c. ult. p. 179, cited in 16, s. 2. (h) See Selden's Mare Clausum, lib. 1, c. 26. Co. Litt. 107 (a), Note 7. Schultes, p. 4. 2 Molloy, 375, c. Observations concerning the do minion and sovereignty of the seas, by Sir Philip Medows, 1689. Justice's Sea Laws, Article 1, part 1. (i) De Jure Maris, p. 10. 4 Inst. 140. 16 Vin. Ab. 575, B. (a) 7. tion where a man may see from one side to the other; to which the other justices agreed. And, moreover, that where the place was covered over with salt water, and out of any county or town, where it is altum mare, or the high sea; but where it is within any county, it is not the high sea. And, therefore, a prohibition was granted in a case where a contract took place in the Thames, adjoining to St. Katharine's.(k) Again, below the low water mark the admiral has the sole and absolute jurisdiction; between the high water mark and the low water mark, the common law and the admiral have divisum imperium, interchangeably, that is, the one upon the water, and the other upon the land.(7) The admiralty jurisdiction, with reference to the trial of prisoners in England, has undergone much alteration. It was formerly governed in a great measure by 28 H. 8, c. 15, and 39 Geo. 3, c. 37.(m) But by 4 & 5 Wm. 4, c. 36, (The act for establishing the Central Criminal Court), s. 22, that Court is invested with power to try offences committed on the high seas, and other places within the jurisdiction of the admiralty of England, and to deliver the gaol of Newgate of persons committed for such offences. The statute 7 Vict. c. 2, recognising the 28 H. 8, c. 15, and declaring the expediency of making provision for the trial of persons charged with offences on the high seas without the opening of a special commission, by s. 1, empowers justices of assize to take cognizance of all these offences within the limits of their respective commissions. And by sect. 3, justices are required to commit the offender to the gaol to which he would have been committed had the offence been committed on land. By sect. 2, the jurisdiction of the Central Criminal Court is not to be affected, nor shall the issue of any special commission be restrained, "if need shall be." This very general view of the subject may serve for an introduction to the considerations which are about to be offered concerning the various rights which may be derived from the sea. [*7] *There is no common law right of bathing in the sea, although such an indulgence will meet with no interruption, provided that it be exercised with decency, and the rights of others be not thereby invaded. Such an user, however, of this privilege as violates the respect which is due to public morals, will be repressed, and punished by the law. And it may be very innocent to enjoy this right or easement in some places at certain times, and as unjustifiable to use it at other seasons. So again, it may be exercised guiltlessly on parts of the coast, under circumstances which may subsequently alter, so as to render it no longer a lawful recreation (k) Ow. 122, Leigh v. Burley. (1) 5 Rep. 107. Mo. 122, in Lacey's case. See 1 Keb. 14, Ball v. Blackmore 2 Ro. Rep. 157, Barnes's case. Habeas corpus; the prisoner was remanded. (m) See Steph. 261. APRIL, 1853-3 |