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and the pleadings themselves set forth that the action was brought to augment the revenues of the crown.15 The doubtful decision in the Philpot case, however, was not followed up, the king being defeated in further attempts, 16 and shortly thereafter the Grand Remonstrance of 1641 was brought against him. So notorious had been Charles' efforts to gain control of the foreshore that Article 26 of the Remonstrance charges him "with the taking away of men's rights under color of the King's title to land between high and low water mark." The Rebellion followed, Charles lost his head, and thus was brought to a definite end this royal effort to snatch the seashore from its owners.

LORD HALE'S WRITINGS. THE PERPETUATION OF THE THEORY
OF THE KING'S TITLE TO THE FORESHORE

It is an entirely reasonable supposition that the theory that the king owned the foreshore in opposition to the ancient rule that it accompanied the title to the adjacent upland would not have survived either in English or American jurisprudence had it not been for the authorship of Lord Matthew Hale.17 Up to the time of the American Revolution, excepting the unreported Philpot case, there are no English cases definitely holding that the foreshore was owned not by the upland proprietor but by the crown.18 While at the bar Lord Hale had acted as counsel for the crown in shore front cases, subsequently becoming Lord Chief Justice of England. He died in 1676, and his treatise "De Jure Maris" was not published until 1787, twelve years after the battle of Lexington. With reference to the title to the foreshore the treatise states that it

"*** doth prima facie and of common right, belong to the King, both in the shore of the sea and the shore of the arms of the sea. *** It is admitted that 'de jure communi' between the high-water and low-water mark doth prima facie belong to the King. Although it is true, that such shore may be and commonly is parcel of the manor adjacent, and so may be belonging to a subject, as shall be shown, yet prima facie it is the king's ***."'19

15 Supra, n. 13.

16Moore, supra, p. 281.

"In Attorney-General v. London, 8 Beav. (Eng.) 270 (1845), Sergeant Merewether states in his argument that there is no basis for the claim of crown ownership of the foreshore against the upland owner, in Saxon charters or laws, Doomsday Book, Laws of William I or Henry I, Glanville Magna Charta, Bracton, Britton, the Year Books, or any other authority down to the time of James I. The argument is published in Appendia to Hall on Seashore (2d ed.), and is accepted by Farnham, Waters, vol. 1, sec. 39; Gould, Waters (3d ed.), sec. 18, and by Moore, supra. The latter shows that practically all the land on the seacoast of England had been granted by the crown in Saxon and Norman times, and that the shore was regarded as part of the grants.

18Riggs, Alienability of the Foreshore, 12 Col. L. Rev. 402. 19Hale, De Jure Maris, ch. iv, sub. ii; Hargraves Law Tracts.

This rule of crown ownership of the seashore is innocuous enough, if taken to mean that title was in the king in those cases where no grant had been made of the adjacent upland, but that where such grant had been made the shore, as appurtenant, was included in the title.20 Such, however, is not the interpretation subsequently adopted by the courts.

With reference to the public rights over navigable waters Lord Hale writes:

"*** There may be such an interest lodged in a subject, not only in navigable rivers, but even in the ports of the sea itself, contiguous to the shore, though below the low-water mark, whereby a subject may not only have a liberty but also a right or propriety of soil. But yet this, that I have said, must be taken with this allay, which I have in part premised.

"Ist. That this interest or right in a subject must be so used as it may not occasion a common annoyance to passage of ships or boats; for the jus privatum, that is acquired to the subject either by patent or prescription, must not prejudice the jus publicum, wherewith public rivers or arms of the sea are affected for public use. * * *21

"2nd. That the people have a public interest, a jus publicum, of passage and repassage, with their goods by water, and must not be obstructed by nuisances, or impeached by actions, as shall be shown when we come to consider of ports. For the jus privatum of the owner or proprietor is charged with and subject to the jus publicum which belongs to the king's subjects; as the soil of an highway is, which though in point of property it may be a private man's freehold, yet is charged with a publick interest of the people, which may not be so prejudiced or damnified."22

It will be noted from a close reading of the foregoing that this great jurist in defining the jus publicum limits it to navigation over the waters, and in stating that the jus privatum or title to the soil is subject to the jus publicum or right of navigation, he specifically refers to "a right or propriety of soil though below the low-water mark" and not the tideway itself.23 The only other public right in the navigable waters mentioned by Hale is that of a "publick common of piscary", which, however, he states may be the subject of an exclusive private grant.24

20Hale might have so intended, as in the original manuscript of his first treatise (Hargrave No. 98) he conceded the ownership of the foreshore by the adjacent manor upon the authority of Sir Henry Constable's Case (supra, n. II) and states that the shore is "most ordinaryly parcell of the adjoyning land" and only prima facia in the king. In chapter V, however, of the treatise as published, he refers to the necessity of an express grant of the foreshore.

"Hale, supra, ch. v.

22 Idem, ch. vi.

23 Riggs, supra, n. 18, at p. 403.

24Lord Fitzwalter's Case, 1 Mod. (Eng.) 106 (1673); Hale, supra, ch. iv.

With the passing of the Stuart kings and the divine right theory, litigation over the foreshore between individual owners and the crown gradually disappeared, and it is not until after the American Revolution that we find English cases25 definitely declaring in favor of the prima facie theory of crown ownership and developing in apposition the theories of the jus privatum and jus publicum.26 At the time, however, of the American Revolution,27 the common law of England (always excepting the unreported Philpot case) was that the title of the adjacent upland owner carried to low water mark, as first stated by Baron Walter even in the Philpot case.28 Furthermore, as stated in the case of Bell v. Gough:29

"There is no evidence that the jus privatum, the right of private property in the shore to low water mark was ever asserted in the colony as a right of the crown, or that it has until recently been claimed by the state, but there is on the contrary, in my opinion, the strongest evidence that this right has been abandoned to the proprietors of the adjoining land from the first settlement of the Province and exercised by them to the present day so as to become a common right and thus the common law.'

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It follows that the courts of this state, in approaching the question, could and probably should have adopted this rule of upland ownership instead of following, as they did,31 the theory of crown ownership, ambiguously stated by Hale, and developed by the English cases subsequent to the Revolution. To have done so, however, would have required much patient research, or the results of the same, which were not at the time available, whereas the theory that the king and therefore the State of New York, as his successor, was the owner of the land between high and low water mark, unless the same had been expressly conveyed, was ready to hand and had gained currency.33 This rule of title having been

25 Lord Advocate v. Blantyre, 4 A. C. (Eng.) 770, 773 (1879).

26 Moore, supra, n. 4, p. 432-3. Att'y.-Gen. v. Richards, 2 Anst. (Eng.) 603 (1795); Parmeter v. Att'y.-Gen., 10 Price (Eng.) 412 (1813).

27 April 19, 1775.

28 Att'y.-Gen. v. Turner, 2 Mod. (Eng.) 106 (1793), 2 Lilly's Practical Register, tit. Rights; Moore, supra, n. 13; Coudert, Riparian Rights: A Perversion of Stare Decisis, 9 Col. L. Rev. 223; Parson's Public and Private Rights in the Foreshore, 22 Col. L. Rev. 711.

2923 N. J. L. 624, 661 (1852), quoted in Gould on Waters, p. 75, and referred to in the Brookhaven and Barnes cases, infra, n. 34, 46.

30 Bogardus v. Trinity Church, 15 Wend. 111 (1835); Waters v. Gerard, 189 N. Y. 302 (1907); New York State Constitution of April 20, 1777, sec. 35.

Canal Comm. and Appraisers v. People ex rel. Tibbets, 5 Wend. (N. Y.) 423 (1830).

32 Moore's History of the Foreshore was not published until 1888. 33Hale, supra; 2 Blackstone's Commentaries 261; Kent's Commentaries; and English cases decided subsequent to 1775, supra, n. 26. Chancellor Walworth in deciding People ex rel. Tibbets in 1830, supra, n. 31, at p. 443, said: “In England

adopted it became necessary to determine exactly what portions of the shore lands had been granted by the king in colonial times. TITLE TO THE BEACHES. THE VALIDITY AND INTERPRETATION OF THE COLONIAL CROWN GRANTS

The primary inquiry involved the validity of the grants of the colonial governors, representing the king, both to individuals and to groups of freeholders establishing a town. It was early decided that these conveyances having been confirmed by the New York colonial assembly and validated by the constitution of the state were binding, and it is under such grants that title to property is derived, and they constitute the bedrock of our system of land titles.34 The next question involved an interpretation of these grants where the description designated as a boundary the ocean or sound, and it was decided in harmony with the prima facie rule, that the beach was not included in the upland title unless it expressly ran to low water mark, or, by some distinctive phrase, included the beach as an appurtenance.35 Otherwise the title ran to high water mark only,36 and the foreshore being unconveyed and left in the crown, the state succeeded to the title.37 The result of such decisions has been to give to the state practically all the beach land below high water mark along the Atlantic ocean and Long Island Sound shore fronts, although the adjacent upland is owned by towns or individuals.

The next question arose as to the title to the bodies of water and their beaches, consisting of the bays, creeks, inlets, and other estuaries of the sea and sound. If such waters were to be regarded as integral parts of the sound or ocean, under the rule that the grant ran only to high water mark, it would follow that the state also owned the beaches of these various interior bays and inlets where the tide rose and fell. The case of Lowndes v. Huntington's decided this question by declaring that where the words "sound" or "ocean" were

no principle of the common law as to the rights of property is better established," citing Hale and Kent. "The fountain from which all the rules on the subject now under consideration have been drawn, is the celebrated treatise de jure maris by Lord Chief Justice Hale." People v. Canal Appraisers, 33 N. Y. 46, 468 (1865). 34People v. Clark, 10 Barb. 20 (1850); Brookhaven v. Strong, 60 N. Y. 56 (1825); Town of Southhampton v. Mecox Bay Oyster Co., 116 N. Y. (1889); Laws of the Colony of N. Y., 1694, vol. i, p. 224; Constitution of N. Y., Art 1, sec. 17. 35 Rockaway Beach Co. v. City of N. Y., 140 App. Div. 160 (1910), upholding Dongan patent of beach to Capt. John Palmer, the description reading "on the south with the Maine sea to low water mark."

36 Ex parte Jennings, 6 Cow. (N. Y.) 518 (1826); Mayor v. Hart, 95 N. Y. 443 (1884); Matter of City of N. Y. (West Farms Rd.), 212 N. Y. 325 (1914). 37People v. Trinity Church, 22 N. Y. 44 (1860); Wendell v. People, 8 Wend. 183 (1831); Knickerbocker Ice Co. v. Schultz, 116 N. Y. 382., (1889). 38153 U. S. 1 (1894).

used as indicating the boundaries of the grant they referred to the main or outlying body of water and that their estuaries, such as bays, harbors, and inlets, were within such boundaries and passed with the grants, and the state had no title therein. This decision harmonizes with similar New York cases involving crown grants to the various Long Island townships.3 39

To summarize with reference to the title documents it is established (a) that the crown grants involving the beaches are valid, (b) that the state owns the beaches along the sound or ocean front unless the colonial grant ran to low water mark or the beach is expressly designated, and (c) that, where the grant is bounded by the sea or sound, title to the connecting harbors and bays with their beaches is in the grantees or their successors and not the state.

THE RIPARIAN RIGHTS OF THE UPLAND OWNER. A QUASI RE-ASSERTION OF THE ANCIENT LAW OF THE MANOR

If, under the prima facie theory, the king privately owned all unconveyed tidal lands and the state succeeded to his title, it followed that the adjacent upland owner had no property rights in the foreshore. Such substantially became the law of England40 and the rule early adopted in this state." This worked an injustice to the upland owner, who was obviously the person who could best use the beach in front of his property, which may have been the reason for the original doctrine regarding the beach as an appurtenance of the upland. The courts of this state, recognizing the hardship of thus restricting the upland owner, gradually accorded him property rights in the foreshore,42 even to the erection of structures, such as a pier, even though the latter might interfere with the use of the beach by the holder of the title; and the latter was restrained from erecting structures which would interfere with the rights of the upland owner." Profoundly considered, these adjudications establishing substantial property rights of the upland owner in and to the beach reconstitute

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39Tiffany v. Town of Oyster Bay, 209 N. Y. 1 (1913); Grace v. Town of North Hempstead, 166 App. Div. 844 (1915), aff'd. 220 N. Y. 628; Starke-Belknap v. N.Y.C.R. R. Co., 197 App. Div. 249 (1921), aff'd. 234 N. Y. 630; Bliss v. Benedict, 202 App. Div. 115 (1922), aff'd. 234 N. Y. 596.

40This was the judgment in the Philpot case, followed in Att'y-Gen. v. Richards (1795) and Parmeter v. Gibbs (1813) supra, n. 26. However, Buccleuch v. Metrop. Board of Works, L. R. 5 H. L. 418 (1872) finally modified this rule in favor of the upland owner.

41Lansing v. Smith, 8 Cow. 146 (1828); Gould v. Hudson Riv. R. R. Co., 6 N. Y. 522 (1852).

42Rumsey v. N. Y. &. N. E. R. R. Co., 133 N. Y. 79 (1892); Matter of City of N. Y., 168 N. Y. 134 (1901).

43Trustees of Brookhaven v. Smith, 188 N. Y. 74 (1907). 44Tiffany v. Town of Oyster Bay, 234 N. Y. 15 (1922).

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