sea cover the land at flux of the sea, and retreat at the reflux, so that the sea-marks are known, if such land be gained from the sea, it belongs to the owner.(w)

*

And so again, the marshes overflowed by the sea in Lincolnshire and Norfolk, at spring tides, or otherwise, are not derelict lands, because they are easily distinguishable, and the courses of the ocean are in this [*31] case no other than ordinary.(x) So where the river Severn had gained upon the vill of Shinbridge, but receded again, it was held, that neither the neighbouring vill nor the Crown should have the land left derelict. The boundaries being sufficiently marked prevented either of these dilemmas from taking place.(y)

Being derelict, and not appertaining to any original owner, land so gained from the sea becomes vested in the King; and it remains, therefore, to be observed, that this right also is transferable, and that lords of manors and other persons, frequently claim it by grant or prescription. Thus, the Abbot of St. Peter's was presented for taking three hundred acres of waste land in Lincolnshire, without the King's license; and an immemorial custom was alleged, that all the lords of manors, lands, and tenements on the sea coast there ought to have waste land and sea land, derelict, or thrown up at the flux and reflux of the sea; and that he, the said abbot had a manor, &c. And thereupon a jury were directed to come, &c.(z)

But it seems, that no prescription can extend to lands farther than the low water mark, because a subject can have no use of such as are beyond although between the high and low water mark a prescription of that kind may exist, because the lands are dry for twelve hours in every day. (a)

Some few words may properly be said here upon a subject very nearly allied to the present, namely, upon grants of land to be recovered from the sea by embankments, or otherwise. And it has been determined, that in order to maintain a good title to such grant, the land must be reduced into possession within a reasonable space of time. The defendants were charged in an information with erecting a wharf, &c., between high and low water mark, in Portsmouth harbour, adjoining to Gosport, so as both to prevent vessels from sailing over that spot, or mooring there, and also to endanger further damage to the harbour, by preventing the free current of the water to carry off the mud. The information prayed, that the defendant might be restrained from making any further

(w) Dy. 326 (a), n. 2.

Callis, p. 51.

Corporation of Romney's case, S. P. 2 Ro. Ab. 168. (x) Callis on Sewers, p. 50.

(y) Hale de Jure Maris, p. 16. Villata de Shinberg.

(z) 16 Vin. Ab. 574, pl. 3. See also 7 Jac. 1, c. 18. An act for the taking, landing, and carrying of sea-sand for the bettering of ground, and for the increase of corn and tillage within the counties of Devon and Cornwall.

(a) Callis, p. 49.

erections, that those made might be abated, and that the harbour might be restored to its ancient situation. The defendant set forth a grant from the Crown, of certain lands overflown with the sea on each side of Gosport, under letters patent, dated in 4 Car. 1, *rendering a

certain rent for every acre recovered till 1630, and thereafter a [32] certain other rent. Two of the defendants pleaded possession for more than sixty years, and it was admitted that there had been such a possession of a piece of mud land adjoining to the piece in dispute. The ground in question, however, had never been recovered from the sea, till the erections complained of by the bill, and these were made after notice of the intention to dispute the right; but the defendants had for some time before kept possession by means of floats of timber moored there. It was also found, that the embankment now made was highly prejudicial and dangerous to the harbour, and hurtful to Gosport, as stated in the information. There was even some doubt upon the evidence, whether the place in question had or not been included in the grant. However, it was argued for the Crown, that by the nature of the grant, it appeared that this land should have been reduced into possession in a reasonable time, if at all; that the embanking within a reasonable time was a condition annexed to the grant, and which was left unperformed for one hundred and fifty years, and that the nonpayment of rent during that period, shewed that there had neither been an actual nor a constructive possession. It was said on the other side, that from the circumstance of part of the land mentioned in the grant having been embanked for a considerable time, (and which was so,) the immediate embankment of the whole was not expected, and that as no time had been limited, it was still open to the grantee's successors to take advantage of it. But the Court were of opinion against the defendant. They noticed, that part of the grant exempted the new land from tithes for seven years, and said, that the intention clearly was, to have the soil put into a state to produce titheable matter. The rent also proved, that the embankments, and regaining from the sea, were the condition and spirit of the grant. That condition had not been complied with. Moreover, the place had been suffered to remain open as a public passage since 1629, and that circumstance would preclude any right to question the title of the Crown. It would be extremely inconvenient if old dormant grants of the Crown could be thus enforced, when the evidence of their nature and extent is lost by lapse of time. The soil was, therefore, decreed to be the property of the Crown, and the buildings were ordered to be abated.(b)

The success attending this case encouraged other efforts on the part of the Crown to regain rights which had been unduly assumed by others, and likewise to vindicate the public *convenience. The Attorney General brought another information in respect of this har[*33] bour. And it was admitted that the Crown might grant, by letters patent, to a corporation, &c., all land between high and low water mark,

(6) 2 Anstr. 603. 614, Att. Gen. v. Richards. S. C. 1 Dow. 316, nom. Parmeter ▼. Att. Gen.

but, at the same time, subject to the public right of passage. An obstruction of such a right is a nuisance, and is a matter of fact to be inquired into. The Court might either determine this question upon the evidence, (an English bill had been filed in the Court of Exchequer,) or direct an issue.(c) Thus again, buildings, erections and inclosures, between high and low water mark, in the harbour of Portsmouth, were abated by a decree in like manner, inasmuch as they interrupted the flux and reflux of the sea. And it was no defence that they had been placed there by the corporation under a grant from the Crown by Charter. The grant was void as to such parts as were open to these objections; at all events, it did not divest the Crown nor invest the grantee quoad such parts. No general order could be allowed to prevail against the public rights.(d)

There is a difference, as it seems, between a grant of so much land covered by the sea to be presently redeemed from it, and a grant of land which may by possibility be so recovered, because a bare possibility does not lie in grant. In the former case the land was at once made the subject of the grant, although overflowed with water; but in the following, the deed was to operate in future. It was a grant of certain march land near the sea, togther with all the soil, ground, land, sand, and marsh land adjacent, which were then covered with water, or which at any subsequent time might be recovered by the reliction of the sea, or otherwise, not naming the value, quantity, or quality. After this, one hundred acres were left derelict by the sea adjoining to the marsh land so particularly granted, and the question was, whether the King or the patentee should have this soil. It was insisted, that the grant was void by reason of the bare possibility. On the other side it was urged, that here there was such a certainty as the thing itself was capable of having; and it would be difficult to say, that the King has an interest in a thing, and yet that he cannot dispose of it. And, moreover, it was observed, that even taking the grant to be uncertain, the omission to name the worth, quantity, or quality, would cure any default for want of information in the King. But, notwithstanding this, the Court held, that as to the one hundred acres, the patent was void, and that nothing passed by

[*34] those general words. (e) In this case also it was said,(ƒ) that

there was a custom in Lincolnshire for the lords of manors to have dere lict lands; and that it was a reasonable custom; for if the sea wash away the lands of the subject, he can have no recompense, unless he be entitled to what he may gain from the sea.

This probably, was the custom of frontagers referred to above, and which was held to be an invalid custom; but there might be a prescrip

(c) 10 Price, 350, Att. Gen. v. Burridge.

(d) Id. 378, Att. Gen. v. Parmeter. Affirmed in error, Id. 412.

(e) 2 Lev. 171, Att. Gen. v. Sir Ed. Farmen, in the Exchequer. 2 Mod. 106. S. C. nom. Att. Gen. v. Sir E. Turner. Sir Tho. Raym. 241. S. C. nom. Att. Gen. v. Sir E. Farmer.

(f) 2 Mod. 107, by counsel arg.

tion to that effect, for a previous grant from the Crown could then be supposed.

By an act of Parliament a company was permitted to embank certain lands which had been overflown by the sea. In doing this the company made a drain, and left several recesses between the projecting points of the cliff. These recesses were overspread with sea-weed and beach, and at high tide) were covered by the sea. It was held, that the recesses belonged to the adjoining proprietor, there being no proof of adverse ownership, and the presumption being accordingly against the Crown, they were held not to pass to the embankment company.(g)

Concerning alluvion, Fleta writes thus: "We acquire a right to things, according to the law of nations, by accession. That which a stream has added to our land by alluvion, for instance, belongs to us by virtue of the same law."(h) Now we have seen, that the meaning of alluvion is the secret accession of soil to other soil. This newly-acquired land, therefore, does not belong to the King, but to the owner of the ground to which it attaches itself. So, again, the distinction between derelict land and alluvion is drawn thus: If the sea leave the land gradatim, and but for a little quantity only, the owner of the soil shall have it; but if for a great quantity, and at a time, it goes to the King.(i) This increase per alluvionem is when the sea, by casting sand and earth, increases the land by degrees, which, consequently, protrudes itself out further than its ancient bounds.(k)

*The reason of this indifference on the part of the Crown to alluvial soil is said, by Sir William Blackstone, to be either be- [ *35]

cause de minimis non curat lex, or because owners of land being often losers by the breaking in of the sea, or being at charges to keep it out, have thus a possible gain as a reciprocal consideration for their possible charge or loss.(7)

This subject underwent some consideration in a recent case, and the distinction above adverted to was fully recognised. An inquisition was taken in Lincolnshire, by which it was found, that certain land had been derelict by the sea, and consequently the commissioners seized it for the Crown. Lord Yarborough, the defendant, traversed this inquisition, alleging that the land said to have been derelict had been formed by alluvion; and issue was joined. It appeared at the trial, that the alteration had been slow and gradual, that the gain in twenty-six or twenty-seven years was on the average of about five yards and a half in a year; but

(9) 3 B. & Ad. 863, Lowe v. Govett. Trespass. Not guilty, and lib. ten. Issue. Whether upon this issue the plaintiff might prove twenty years' adverse possession, or whether it should have been specially replied, was made a quære.

(h) Fleta, lib. 3, c. 2, s. 6. Bract. lib. 2, c. 2, s. 2.

(1) Callis, 51. Hale de Jure Maris, p. 28. See 22 Ass. pl. 93.

(k) Hale de Jure Maris, p. 29. Abbot of Peterborough's case, Id. p. 14. 30 Rex v. Oldsworth. See Dy. 326 (b). 16 Vin. Ab. 576 (B a), (13).

(2) 2 Comm. 262.

Callis, p. 51.

that this increase had been imperceptible, that is to say, imperceptible in its progress. A verdict was found for the defendant, and after an argument in support of the motion for a new trial, the Court gave judgment against the Crown; for the distinction between land derelict in consequence of the retiring of the salt water, and land gained by alluvion, or the projection of extraneous matter, presented itself too clearly to be inisunderstood; and it was very plain, that the land in question was of the latter description, and therefore that it could not belong to the Crown.(m)

It has been held also, that the grantee of premises situated on the shore has no right to follow the sea, or take the land acquired from it, where a corporation had a right to the whole territory of the burgh vested in them by their charter. The case was first decided in Scotland, and the appellant, the grantor of premises as before described, sought to reverse a decree given there against him. He possessed a small inclosure situated in the burgh of Dundee, bounded by the sea floods. The water receded, in consequence of embankments and other improvements, and a tract of dry ground was left between the sea or high water mark, and the appellant's inclosure; and the corporation exercised rights of ownership from time to time over this derelict land. This ground, called the shore, was claimed by the appellant; but it was insisted on the other side with effect, that the boundary by those floods was made use of as a term of description, and that the description in question was to [+36] be considered as accurate only at the date of the first conveyance; and, moreover, by the uniform and unvaried usage of the town of Dundee, no right to the sea shore could by possibility have been granted by the conveyance under which the appellant claimed. And it was accordingly ordered and adjudged, that the interlocutors should be affirmed.(n)

It has been held in equity, that the right of the subject to traverse an inquisition extends to every case in which property is found in the Crown; and not merely to cases of a claim by the Crown by reason of incidents of tenure, as escheat. But the Court will not quash an inquisition on the prayer of the subject, as in the case of the Crown; the only course is a traverse on the behalf of the subject. And the Court held, moreover, that in order to obtain leave to traverse, the petition must shew a prima facie against the Crown.(o)

Sir William Blackstone observes, that if the alluvion or dereliction be sudden and considereable, it goes to the King; because as he was owner of the soil when covered with water, it would be but reasonable that he

(m) 3 Barn. & Cres. 91. The King against Lord Yarborough, S. C. affirmed in the House of Lords. 5 Bing. 163. S. Č. 2 Bligh. N. S. 147. 1 Dow. N. S. 176. S. C. 4 D. & R. 790. S. P. 4 B. & C. 485, Stratton v. Brown.

(n) 8 Brown. Cases in Parl. 119, Smart v. The Corporation of Dundee.

(0) 4 Madd. 281. Ex parte Lord Gwydir and another, and see post, Chap. XIII., Evidence.