"of taking loose ware and the cutting of tangle, as acts evidenc"ing proprietary right, I can only say that, in my opinion, "it depends not so much upon attachment or non-attachment to "the foreshore, as upon the beneficial character of the right. I "should certainly consider the exclusive taking of a valuable "annual supply of loose ware to be at least as emphatic an "assertion of his right of property, by one having an express title "to the foreshore, as his taking from it a yearly crop of growing tangle of less value. . . . I attach not the slightest weight to "the fact that some old women carried off sea-ware in creels, for "the purpose of manuring their gardens, which were not upon the "lands of Colinswell. The removal of clay and stones from the "foreshore, which is proved to have taken place at three several "periods, is a very different matter. These were in no proper "sense acts of the Crown; but acts of that description, although "done without title, tend to derogate from the possession of the riparian proprietor, and if carried far enough will deprive his possession of that exclusive character which is necessary in order "to establish a prescriptive right." 66 All these acts of ownership, therefore, when exercised exclusively, tend to show ownership of the soil. The strength of the claim will, in all cases, depend on the number of exclusive acts exercised by the claimant.1 land formed and derelic tion. Land formed by alluvion, or gradual and imperceptible Property in accretion from the sea, and land gained by dereliction, or the by alluvion gradual and imperceptible retreat of the sea, belongs to the owner of the adjoining terra firma. Where the increase is sudden or perceptible, the land gained belongs to the Crown. This question has been carefully considered in the case of Rex v. Lord Yarborough; and the judgment of the Court of King's Bench, delivered by Lord Tenterden, C. J., establishes the propositions above stated, and further defines the word imperceptible" as meaning imperceptible in progress, and not 66 66 1 Phear, p. 89. As to meaning of exclusively," see Lord Advocate v. Young, and Hamilton v. A.-G. for Ireland, supra. 2 Rer v. Lord Yarborough, 2 Bligh, N. S. 162: affirmed by the H. L. in Gifford v. Lord Yarborough, 5 Bing. 163, 27 R. R. 292; 2 Blackstone's Com. 261; Callis on Sewers, 482; Roll. Ab. 170; Dy. 326; Hale de Jure Maris, ch. iv. s. 2; Moore's Land lost by of the sea. in result, that is to say, where the increase cannot be observed as actually going on, though a visible increase is observable every year. The law thus stated would appear to hold good, whether the accretion is caused by natural or artificial causes, provided it does not arise from acts done with a view to the acquisition of the shore. 4 Following this case it has been held in A.-G. v. Reeve, that where the accretion was owing to the erection of piers and harbour and other works constructed on the sea shore under Act of Parliament, and the removal of sand, shingle and ballast by license from the Commissioners of Woods and Forests, and the accretion was perceptible by marks and measures, the land gained belonged to the Crown and not to the lord of the adjoining manor. Coleridge, C. J., in delivering judgment, after remarking that the rule of law governing the matter has long been established without any material variation in its expression, observes that, although the same principle governs throughout "with regard to the older authorities, had they been called forth at a later period, when property became more valuable and "human observation as to its accretion more exact, it is probable "that the expressions used with reference to the gradual increase of the land or recess of the sea would have been less vague "and general, especially if they had been applied to results in part produced as they were in the case now before the Court, "by artificial causes."5 66 66 66 Where the sea, or an arm of the sea, by gradual and encroachment imperceptible progress encroaches on the land of a subject, the land thereby covered belongs to the Crown; but where land is suddenly overflowed, and any marks remain by which its limit can be recognized, it remains to the original owner, and may be regained by art or industry; or if the sea retire again it is his as before. It is very doubtful whether any length of time. 1 Rex v. Lord Yarborough, 2 Bligh, 2 A.-G. v. Chambers, 4 De G. & J. 55. See as to" accretion" in a non-tidal Hindson v. Ashby, (1896) 2 Ch. 1, post, pp. 69, 73. As to mode of procedure in such cases by English information, see post, Chap. X. 6 In re Hull and Selby Rail. Co., 5 M. & W. 327. 7 Blackstone's Com. 262; Hale, c. iv.; Dyer, 326; Vin. Abr. Prerogative, B. a 2; Comyns' Dig. Prerog. D. 62: Callis, 51; see Moore's History of Foreshore, pp. 785-808; Anon., Dyer, 3266. during which lands are submerged will bar the owner's right to them when the waters have again retired.1 With regard to islands, where the island is formed by being, Islands. as it were, torn from the mainland and surrounded by the sea, the land so surrounded continues to be the property of the former owner. Islands arising in the sea are said by Hale to belong of common right and primâ facie to the Crown; but where they arise in a part of the sea, or in an arm of the sea, or creek, or haven, which is the property of a subject, the islands which happen within the precincts of such private property of a subject will belong to the subject according to the limits and extent of such property.3 The rules by which the right to lands gained gradually from the sea belongs to the adjoining owner are thought by Lord Chelmsford not to depend on the principle "De minimis non curat lex," but to be those stated in the case of The Hull and Selby Rail. Co.-viz., 1st. That that which cannot be perceived in its progress is taken to be as if it had never existed; and 2nd. The necessity for some such rule of law for the permanent protection and adjustment of property; for it must be borne in mind that the owner of lands does not derive benefit alone, but may suffer loss from the operation of the rule; for if the sea gradually steals upon the land, he loses so much of his property." The reason for assigning lands gained suddenly from the sea and islands to the Crown is stated by most writers to be, that the king is owner of the soil of the sea, and the universal occupant of what was unclaimed.7 from inroads of the sea. The king has probably from the very earliest times had a right Protection as part of the prerogative to defend the realm against the waste of the sea, and to order the construction of defences at the expense severally of those who are to be benefited by them.8 p. 73, on the question of "accretion" 7 See Hale, pp. 17, 36; Callis, 44; 2 8 Per Coleridge, C. J., in Hudson v. Tabor, 2 Q. B. D. 290, 46 L. J., Q. B. 463; 36 L. T. 492; see Woolrych on the Crown. The power to erect a sea-wall or embankment as a protection against the sea, or from the influx of the tide in rivers, is one Prerogative of of those things which emanate from the prerogative of the Crown for the general safety of the public; and no doubt the ordinary rights of property must give way to that which is done for the protection and safety of the public, but only to the extent to which it is necessary that private rights and public rights should be sacrificed for the larger public purposes-the general common weal of the public at large.1 Commissions of sewers. Powers and duties of Commissioners of Sewers. We therefore find in the very earliest records that commissions of sewers were issued by the king for this purpose. The various statutes of sewers, beginning with 6 Hen. VI. c. 5, do but regulate the exercise of the prerogative in this respect, and prescribe forms of commissions for the ordering and execution of the necessary works, which forms have been from time to time varied. In early times, probably, the king ordered the construction of such sea walls as he judged necessary, very much according to his own discretion. In process of time, however, this discretion came to be limited by established rules, and at last by statute. The Statute of Sewers, 23 Hen. VIII. c. 5, is the most important of these. By it commissions of sewers were to be issued from time to time as need required, and their powers and duties were confined to the particular districts issued in each particular commission, which formerly only lasted for three years. But now, by 24 & 25 Vict. c. 133, a commission of sewers once issued shall be deemed to continue until such time as it shall be superseded by his Majesty, who may from time to time fill up any vacancies therein under his sign manual. The Commissioners of Sewers were required by 23 Hen. VIII. c. 5, in the first place, to make a survey of the various defences against the sea, and obstructions to navigation or the flow of rivers, and to hear and determine concerning the same, through whose default such defences were out of repair, or such obstruction caused, and to ascertain the names of the owners of the various lands where offences have occurred, and also of such as have suffered inconvenience. They were empowered to assess Sewers, pt. 1, p. 42; Callis on Sewers, V. 1 Greenwich Board of Works Maudslay, L. R., 5 Q. B. 397, 23 L. T. 121. 2 The most important are-23 Hen. VIII. c. 5; 13 Eliz. c. 9; 3 & 4 Will. IV. c. 22; 24 & 25 Vict. c. 133. See also post, Chap. VII. 3 See Woolrych on Sewers, pp. 8, 9. the lands of all individuals in their district, whether damaged or not, for repairs which they are directed to execute, and to take labourers, carriages, timber, and other necessaries, on paying a reasonable price. They are empowered to make such orders, ordinances, and decrees as may be expedient, and by the judicial authority with which they are invested they may sit in judgment upon their own orders, subject, however, to the correction of the higher Courts. They may issue writs and precepts to the sheriffs, bailiffs, and others, and may punish by distress, fine, and, in some cases, by imprisonment, any one showing negligence or disobeying their orders. Their powers are confined to the sea, and to navigable rivers, and to public sewers, and to things which interfere with the public convenience. 3 embankments or walls erected not vested in The authority to be exercised by the Commissioners of Sewers Property in on the behalf of the public, does not, however, vest in them such a property in the embankments or walls which they have erected, as will enable them to maintain an action of trespass them. against a trespasser for breaking them down-the remedy must be by indictment in the name of the king. Sect. 10 of the Sewers Act, 1833 (3 & 4 Will. IV. c. 22), by which all walls, banks, &c., adjoining the sea or tidal rivers are to be within the jurisdiction of the commissioners, does not vest such walls, &c., in the commissioners until they have taken them within their jurisdiction in the manner described in sect. 47. It has further been held that there is nothing inconsistent with the purposes of a sea or river wall or embankment erected to protect the neighbouring lands, in a public right of way along the surface; and that the same evidence of user will raise the presumption of a dedication of a right of way by the owner of the soil in the case of such embankment, as in any other case of uninterrupted and open user by the public; but that, if it was necessary for public purposes or for the public safety of a district that the level of the wall should be altered, so as to interfere with and obstruct the public right of way, the right of way must yield to the larger and more important purpose for which the powers of the Commissioners of Sewers were given.5 The navigable rivers, ports, harbours and docks of the kingdom Their powers 1 Woolrych on Sewers, pp. 54–62. 2 Ibid. p. 68; per Buller, J., in Jean v. Holland, 2 T. R. 365. 3 Duke of Newcastle v. Clark, 2 Moore, R. 666; 20 R. R. 583; see Driver v. Simpson, Ibid. note on p. 682. 4 West Norfolk Farmers' Manure Co. v. Archdale, 16 Q. B. D. 751; 55 L. J., Q. B. 230; 54 L. T. 561, 5 Greenwich Board of Works V. Maudslay, L. R., 5 Q. B. 397. limited to |