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The third witness said there had been some small increase in every year. The fourth witness said, the swarth increases every year gradually, and perhaps it had gathered a quarter of a mile in breadth in some places within his recollection, or during the last fifty-four or fifty-five years, and in some places it had gathered nothing.' And this was the whole evidence on the subject. We think the jury might, from this evidence, very reasonably find that the increase had not only been slow and gradual, but also imperceptible,' according to the sense, in which, as I have before said, we think that word ought to be understood.” 1
Land formed by alluvion is, in general, to be divided among the riparian proprietors entitled to it according to the following rule: Measure the whole extent of their ancient line on the river, and ascer
The King v. Lord Yarborough, 3 B. & Cress. R. 91; S. C. 10 Eng. Com. Law R. 19; S. C. affirmed in the House of Lords, 2 Bligh R. (N. S.) 147; 1 Dow R. (N. S.) 176. In the controversy respecting the batture at New Orleans, when it was urged, that it was not alluvion, because its increase was perceptible, after every swell of the Mississippi, it elicited from Mr. Livingston the following reply: “When the ingenious counsel can analyze the different deposits, separate the sands of the Red river, the rich mould of the Missouri from the clay and other various soils which the Mississippi receives from a thousand tributary streams; when he can dive into its turbid eddies, watch the moment of the precious deposit, and date the existence of each stratum of its increase ; then this first branch of the authority he has cited (quantum quoque temporis momento adjiciatur) may be applicable to his cause." 2 Hall's Law Journ. 307.
tain how many feet each proprietor owned on this line; divide the newly formed river line into equal parts, and appropriate to each proprietor as many of these parts as he owned feet on the old line; and then draw lines from the points at which the proprietors respectively bounded on the old, to the points thus determined as the points of division on the newly formed shore. This rule is to be modified under particular circumstances; for instance, if the ancient margin has deep indentations, or sharp projections, the general available line on the river ought to be taken, and not the actual length of the margin, as thus elongated by the indentations or projections. This rule is found in a work of the civil law entitled a “ Collection of New Decisions by Denisart," I and was adopted by the supreme court of Massachusetts in Deerfield v. Arms. Analogous to this case is the case of the division of flats-ground in Massachusetts and Maine, conformably to the colony ordinance of 16+1.2
It is consistent with the explanation which has been given of the legal meaning of " imperceptible” increase, that sea-weed deposited upon the shore by natural means, below the ordinary high-water mark, should belong to the riparian proprietor bounding
" Published in France in 1783. The rule is found in the work referred to under the title Attérissement.
Deerfield v. Arms, 17 Pick. (Mass.) R. 41. • For which see ante, Chap. VII. p. 232, 233.
opposite; and it has so been held. In Emans v. Turnbull, in New York, the question who had the right to sea-weed came directly before the court, when the opinion of the court was given by Kent, C. J., as follows:-“ Sea-weed thrown up by the sea may be considered as one of those marine increases arising by slow degrees, and according to the rule of the common law, belongs to the owner of the soil. The rule is, if the increase be by small and almost imperceptible degrees, it goes to the owner of the land ; but if it be sudden and considerable, it belongs to the sovereign. Sea-weed is supposed to have accumulated gradually. The slow increase, and its usefulness as a manure, and as a protection to the bank, will, upon every just and equitable principle, vest the property of the weed in the owner of the land. It forms a reasonable compensation to him for the gradual encroachments of the sea, to which other parts of his estate may be exposed. This is the sound reason for vesting the maritime increments in the proprietor of the adjoining land. The jus alluvionis, in this respect, ought to receive a liberal encouragement in favor of private right." I
In Pennsylvania a riparian proprietor has exclusively a qualified right to the shore to low-water mark;
1 Emans v. Turnbull, 2 Johns. (N. Y.) R. 313. This case is cited and the decision assented to by the supreme court of Massachusetts, in Phillips v. Rhodes, 7 Met. (Mass.) R. 322.
that is, though his right is not the same, in all respects as to the main land above the bank, because a vessel or raft may sail over the shore at high tide, yet he has the sole right to quarry stones or take gravel, above low-water mark;' from which, it may be argued, a fortiori, that he has the sole right to sea-weed.
But the right to take sea-weed below low-water mark on the bed of a navigable river, is in the public, and not exclusively in the riparian proprietor. This was expressly held by the supreme court of Connecticut, in a case in which they recognize the decision in Emans v. Turnbull, in New York, as founded upon the just considerations therein set forth; but in the case before them, the sea-weed was not collected on the shores, but grew and accumulated, below lowwater mark. In no sense then, say the court, could the adjoining proprietor be entitled to any exclusive right to it.” Sea-weed thrown upon the upland by extraordinary tides most clearly belongs to the ripariano proprietor upon whose land it is thus thrown, inasmuch as his upland is bounded by the ordinary high-water mark ;3 and this has been expressly determined."
' Per Huston, J., in giving the opinion of the court in Hart v. Hill, 1 Whart. (Penn.) R. 137.
Chapman r. Kimball, 9 Conn. R. 38. 3 See ante, as to what is legal high-water mark. Chap. III. p. 68-72.
* Lowe v. Govett, 3 B. & Adol. R. 967 ; S. C. 23 Eng. Com. Law R. 263. In Lord Hale's treatise the only instance in which the word
In Massachusetts a riparian owner, it has already been shown, owns the flats to low-water mark, under the colonial ordinance of 1641,' and it has been held, that under it, a person is not authorized to take “ muscle bed manure” from the flats of another person, between high and low-water mark. The seaweed which is thrown up, also belongs to the owner of the beach, and so is the subject of grant. The heirs of an owner of real estate, which was bounded in part by a sea beach, divided the estate by deed, and assigned to some of them parcels of land bounded by the beach, and to the others different parcels. The deeds assigning the latter parcels granted the privilege of getting sea-weed from the beach below the lands granted by the deeds of the former parcels. It was held, that this was a grant of an incorporeal hereditament appurtenant to the land to which it
sea-weed is used, is where he mentions the constant and uninterrupted taking of it by the proprietor of the adjoining estate, as one of the usual means of showing that the space between high and low-water marks, is a part and parcel of the estate. “ The shore” (he says)“ may be part and parcel of a manor, and the evidences to prove this fact, are commonly these ; constant and usual fetching gravel and sea-weed and sea-sand, between the high and low-water mark, and licensing others so to do.” This passage would seem to indicate that the learned author considered the public to be, primâ facie, entitled to sea-weed. For if he had not so considered it, then the circumstance of its being exclusively taken by the lord of the manor, could not be received as a proof of his adverse right of property in the shore.
See ante, Chap. VII. p. 224, et seq. * Moore v. Griffin, 9 Shep. (Me.) R. 350.