Definition and limits. Forms part of the body of 2 The Sea Shore. The sea shore may be defined as that portion of the land adjacent to the sea which is alternately covered and left dry by the ordinary flux and reflux of the tides. Although, in common parlance, the word shore has often a more extensive meaning-taking in all that extensive belt of waste ground or strand, shingles, and rock liable to the action of every kind of tide yet it is now finally settled, that in legal intendment no more of that unclaimed tract is sea shore than that portion which lies between high and low water mark at ordinary tides.1 This point has been finally settled by the case of AttorneyGeneral v. Chambers, in which the Lord Chancellor Cranworth, assisted by Maule, J., and Alderson, B., held that the sea shore landwards is, in the absence of particular usage, primâ facie limited by the line of the medium high tide between the spring tides and the neap tides; or, in other words, that part of the shore which for four days in every week, or for the most part of the year, is reached and covered by the tides. As this line will vary as the sea recedes from or encroaches on the land, so the boundaries of the shore will vary with the recession or encroachments of the sea. Land above this line, though overflowed by high spring and extraordinary tides, is not shore, but is presumed to be land the property of adjoining owners. The sea shore, as above defined, forms part of the body of the Peter's, Ipswich, 7 B. & S. 310; Trustees of Duke of Bridgwater v. Bootle-cumLinacre, 7 B. & S. 348 ; Reg. v. Musson, 8 E. & B. 900; McCannon v. Sinclair, 2 E. & E. 53. 1 Moore's History of the Foreshore (Hall on the Sea Shore), 3rd ed. p. 674. 24 De Gex, M. & G. 206, 23 L. J. Ch. 662; see Lord Adr. v. Wemyss, (1900) A. C. 48, H. L. Sc. 3 See also Blundell v. Catteral, 5 B. & Ald. 268, 24 R. R. 353, per Holroyd, J.; and Lowe v. Govett, 3 B. & A. 813, 37 R. R. 560, per Lord Tenterden, C. J.; sce Ilchester v. Rashleigh, 5 T. L. R. 739 ; 61 L. T. 477; Reece v. Miller, 8 Q. B. D. 626; 51 L. J., M. C. 647. As to definition of "bed" of a tidal river, see Thames Conservators v. Smeed, (1897) 2 Q. B. 334. 66 5 boundary. The shore is, indeed, still publici juris; but when the sea goes "back the shore advances, and the pro"prietor is entitled to follow the water "to the point at which it may naturally "retire, or be artificially embanked. (Campbell v. Brown, cited with approval by Lord Watson, in Lord Adr. v. Young, 12 App. Cas. 544.) Where the Crown seeks to recover lands alleged to have been reclaimed from the sea by encroachments or purprestures and the defendant disputes the Crown's title to the soil between the present high and low water marks, the Court will direct an issue to try that point before inquiring into the old boundaries; while, if the defendant admits the Crown's title to the soil between the present high and low water marks, the burden is laid upon the Crown of proving that the high water mark formerly extended further than it does at the present time. (A.-G. v. Chamberlaine, 1858, 4 Kay & J. 292.) 5 Lowe v. Gorett, 3 B. & A. 813, 37 R. R. 560. adjoining county, the justices of which, and not the admiralty, the adjoining have cognizance of offences committed there, whether committed county, but not primâ when the shore is or is not covered with water; it does not, facie of the adjoining however, in the absence of evidence, form part of the adjoining parish or parish, but is primâ facie extra-parochial. It may be in a parish manor, or a manor, but there is no presumption of law that it is within either. Now, however, by 31 & 32 Vict. c. 122, s. 27, every accretion from the sea, whether natural or artificial, and the part of the sea shore to the low water mark, are annexed to and incorporated with the parish to which they adjoin, in proportion to the extent of the common boundary, for all civil parochial purposes; and are therefore liable to be rated to the poor. This statute has been held not to apply to the part of a pier extending below low water mark, and built on iron piles driven into the sands, so that the water flowed under it, no alteration being made in the line of low water mark-the Court holding that, on the authority of Reg. v. Keyn, this portion of the pier was out of the realm and jurisdiction of England, and that it moreover was not an "accretion" within the words of the Act. The shore was held to be an extra-parochial place within the Nuisance Removal Act, 18 & 19 Vict. c. 121, s. 22, since repealed by the Public Health Act, 1875, 38 & 39 Vict. c. 55. 3 The property in the soil of the shore of the sea, of estuaries and arms of the sea, and of navigable rivers between high and low water mark, is prima facie vested of common right in the Crown; but it may belong to a subject by ancient grant or charter from the Crown, or by prescription. This ownership of the Crown is for the benefit of the subject, and cannot be used in any way so as to derogate from or interfere with the public rights of navigation and fishery. Crown to the soil of the bed, as 1 Embleton v. Brown, 3 E. & E. 234; Reg. v. Musson, 8 E. & Bl. 900. 2 Reg. v. Musson, 27 L. J., M. C. 100, S E. & Bl. 900; D. of Bridgewater's Trustees v. Bootle-cum-Linacre, L. R., 2 Q. B. 4, 15 L. T. 351; see also Reg. v. Gee, 1 E. & E. 1068; see Perrott v. Bryant, 2 Yard. 61, where' oyster layings, in respect of which tithe had been paid for sixty years, were held intra-parochial and titheable. 3 Blackpool Pier v. Fylde Union, 46 L. J., M. C. 129, 36 L. T. 251. Reg. v. Gee, 1 E. & E. 1068. 5 Mayor of Penryn v. Holme, 2 Ex. Div. 328; Gann v. Free Fishers of Whit The prima facie right of the distinguished from the shore of stable, 11 H. L. 192, 35 L. J., C .P. 29, 12 L. T. 150; A.-G. v. Parmeter, 10 Price, 378, 24 R. R. 723, 745; Smith v. Officers of State of Scotland, 13 Jur. 713; Blundell v. Catteral, 5 B. & Ald. 268, 24 R. R. 353; A.-G. v. Chambers, 4 De G. M. & G. 206; Bagot v. Orr, 2 Bos. & Pull. 472, 5 R. R. 668; A.-G. v. Emerson, (1891) App. Cas. 649; A.-G. v. Portsmouth, 25 W. R. 559 Nchester v. Rashleigh, 5 T. L. R. 739; 61 L. T. 477; see also Bristow v. Cormican, 3 App. C. 641; Malcolmson v. O'Dea, 10 H. L. 593. Calmady v. Rowe, 6 C. B. 861; A.-G. v. Jones, 33 L. J., Ex. 249; see also cases at p. 15 of Hall on the Sea Shore. Property in shore between high and low soil of the water mark in the Crown. estuaries and arms of the sea within the body of a county would appear to extend to the whole area affected by the tides and not to depend, as in the case of tidal rivers, on the question of navigability. This question has never been actually decided in this country; but it seems manifestly absurd to suppose that whereas the shores of a tidal creek between high and low water mark prima facie belong undoubtedly to the Crown, the soil of the bed should belong to any other person. The beds of these creeks being within the body of a county are within the realm and therefore the property of some one, and not like the sea below low water mark, unappropriated. In the case of Lord v. Commissioners of Sydney, a grant of land by the Crown bounded by a non-navigable creek of Botany Bay has been held to pass the soil of the creek ad medium filum aque, as the description of the boundaries in the grant did not exclude from it that portion of the creek which by the general prescription of the law would go along with the ownership of the land on the banks of it. The principle on which this decision is founded seems certainly to place non-navigable creeks of the sea on the same footing as non-navigable rivers, but it is not stated in the report that the creek was "tidal," and the Crown being as a matter of fact. owner of the adjoining land in the locus in quo the general question of the extent of the Crown ownership in tidal nonnavigable creeks did not actually arise. In any case the Crown as owner of the land next adjoining the bed of the sea, viz., the foreshore between high and low water mark, would be the natural owner of the bed of such creeks.* 1 See Gann v. Free Fishers of Whitstable, 11 H. L. 192, 35 L. J., C. P. 29, 12 L. T. 150; Malcolmson v. O'Dea, 10 H. L. 593 and see Bristowe v. Cormican, 3 App. Cas. 641, per Lord Blackburn, at p. 666. 2 See judgment of Lord Denman, C. J., in Mayor of Colchester v. Brook, post, p. 41 see Reg. v. Musson, 4 E. & E. 53, per Blackburn, J. 3 12 Moo. P. C. 473. 4 In Ilchester (Earl) v. Rashleigh, 5 T. L. R. 739; 61 L. T. 477; 38 W. R. 104, before Kekewich, J., in the Chancery Division, the plaintiff claimed to have a number of persons restrained by injunction from committing trespasses on a piece of water called the Fleet, adjoining Portland Road, and separated from the English Channel by the Chesil Bank or Chesil Beach, and from committing certain trespasses on the Chesil Bank and disturbing a certain decoy and game of swans. The plaintiff also claimed to be entitled to the land covered by water and known as the Fleet, which is of varying width, and is described in his pleadings as extending from Portland Ferry Bridge to Reeds End Boathouse, near Abbotsbury, and also to the Chesil Beach and a decoy in the Fleet in a bay at the most westerly end thereof. This decoy extends over several acres, and in it are a great number of swans, which the plaintiff claimed as his property. Within the Fleet there has been, time out of mind, as the plaintiff alleges, a game of swans building, nesting, and breeding there. The plaintiff conceded the right of the defendants and other persons having lawful occasion to do so to cross so much of the Fleet as is not bounded by the parish of Abbotsbury, but alleged that the trespasses complained of were on The ownership of the Crown in the sea shore is compared by Lord Hale to the ownership of lords of manors in the common and waste lands of the manor. The soil and freehold of the waste belong to the lord, but subject to certain rights of manorial tenants; so the king is lord of the great waste of the sea, subject to certain beneficial rights and privileges of fishing, navigation, &c., immemorially enjoyed by his subjects therein by the custom of the realm, which is the common law. The grantee of the Crown takes subject to this public right, and he cannot, in other parts of the Fleet. The Fleet is connected with Portland Road by a narrow passage called Portland Passage at the east end of the Fleet, and the majority of the defendants contended that the Fleet was a salt water inlet or arm of the sea, and along its entire length within the flux and reflux of the tide. The plaintiff denied that it was navigable in the legal sense of the word, or that it was perceptibly influenced by the tide. At the trial, on the suggestion of his Lordship, the plaintiff, with regard to his claim to prevent defendants from landing upon or trespassing upon the Chesil Beach, limited his claim to an injunction with respect to the soil above high water mark; but as a concession with respect to the present action only, and not as an abandonment of the further rights claimed. Also, with respect to the navigation of the Fleet, he sought to protect his rights only as regarded so much of the Fleet as was situate between. the westernmost point thereof and a point 250 yards west of the Abbotsbury Stone above mentioned. The plaintiff's title to the Fleet and the Chesil Beach were by grant from the Crown. Evidence was brought on the question of the tidality of the water in the Fleet, and as to how far the ebb and flow extended, there being evidence that at times there was a sufficiency of water all along the Fleet to allow of some boats of light draught to navigate it, while at other times certain parts were dry for days together. The result of the evidence, however, in the opinion of the Court, was to establish that in the western part of the Fleet, being the part in question, there was no diurnal ebb and flow of the tide. Held that : A creek or arm of the sea, in order to be navigable, in the legal sense of the term, must be affected by the ebb and flow of ordinary or mean tides. The circumstance that it can be traversed by small boats does not make navigable a creek which is not so affected. The rights of private owners over the foreshore extend down to ordinary high water mark, and there is no legal right for fishermen (apart from exceptional circumstances, such as stress of weather) to draw or to leave their boats above that line. Land may be said to be covered with "navigable" wateralthough at different times of short duration dry portions of the land may be seen. When, however, such portions of the land are dry for days together this excludes the notion of navigability, The legal and technical meaning of the word "navigable" requires not only that navigation should be possible, but also that there should be ebb and flow of the tide. (Murphy v. Ryan, 2 Ir. Rep., C. L. 153, referred to by Kekewich, J., as to the fact that "navigable" has a popular as well as a legal and technical meaning, 5 T. L. R. p. 741.) "He (plaintiff) admits, as he was "bound to do, that deriving title to the "foreshore by Royal grant, he can claim "nothing that was not originally vested "in the Crown, and that paramount to "the right of the Crown in the open sea "is the right of the public to navigate "and fish. It has long been settled that "this right does not extend to places "only occasionally covered by water, "and the necessity of laying down some "rule of reasonable certainty has in"troduced one which fully supports "the claim above mentioned. It was "solemnly decided in Attorney-General "v. Chambers (4 De G. M. & G. 206) in "1854, and it has never since been "questioned, that the average of the "medium tides in each quarter of a "lunar revolution during the year gives "the limit in absence of usage to the "rights of the Crown on the sea shore. "There is here no evidence of usage to "interfere with the application of this "rule." 1 De Jure Maris, c. iv.; Hall on the Sea Shore, p. 4. But subject to public rights. Nuisances. Purprestures. Wreck, royal fish, and several fishery. Management. respect of his ownership of the soil, make any claim, or demand, even if it be expressly granted to him, which in any way interferes with the enjoyment of the public right.1 Any interference with the public rights is a nuisance and the subject of indictment or information, and of an action on proof of special damage.2 Any unauthorized intrusion or encroachment on the soil of the shore, such as the building of quays, piers, moles, &c., is termed a purpresture, and may be abated by the Crown or the owner of the shore, or restrained by injunction at suit of Attorney-General, whether they create a nuisance or not. Such purprestures may or may not be nuisances to the navigation; whether they are so or not is a question of fact. The right to take wreck and royal fish, and the right before Magna Charta to create a several fishery to the exclusion of the public, belong to the Crown as a part of the royal prerogative distinct from the ownership of the shore, and may, as such, be communicated to the subject by grant or charter." The duty of administering the rights of the Crown in the foreshores of the kingdom is vested chiefly in the Board of Trade, to which all the authority till then exercised by the Commissioners of Woods and Forests (since 1830) was transferred by 29 & 30 Vict. c. 62 (ss. 17, 20, 21 and sched.); except the foreshores in the Thames, Tees, and Durham, and those fronting and adjacent to Crown lands, and mines under the foreshores. Among the powers thus given to it, are those of leasing foreshores or derelict lands for ninety-nine years (under 8 & 9 Vict. c. 99), and of compromising the Crown's disputed claims with the consent of the Treasury under 16 & 17 Vict. c. 56, s. 5. The Board has also the power, formerly vested by 25 & 26 Vict. c. 69, in the Admiralty, of preventing ballast and shingle from being taken from the shores of ports; and as to this it has been decided in 1 Gann v. Free Fishers of Whitstable, 11 H. L. 192, 35 L. J., C. P. 29, 12 L. T. 150. 2 R. v. Grosvenor, 2 Stark. 511, 20 R. R. 732; Duke of Newcastle v. Clark, 2 Moo. Rep. 666, 20 R. R. 583; R. v. Clark, 12 Moo, 615; A.-G. v. Richards, 2 Anstr. 613, 3 R. R. 632; Rose v. Miles, 4 M. & S. 161, 16 R. R. 405; see Smith v. Stair (Earl of), 2 H. L. Cas. 807; 13 Jur. 713. Where a proprietor of a feu, described in the feu charter as bounded by the sea shore, enclosed a portion of the sands which it was proved that the public had immemorially used for purposes of enjoyment and otherwise: held, that the feuor being a wrongdoer, the officers of the Crown, irrespective of the right of property, were entitled to the interdict. 34 Blackstone's Comm. 271, note; Angell on Tide Waters, 198. See post, as to REMEDIES, Chap. X. 5 Reg. v. Betts, 16 Q. B. 1022; R. v. Randall, Car. & M. 496; A.-G. v. Terry, L. R., 9 Ch. 423, 30 L. T. 215. 6 See post, p. 42. |