was annexed, and not a right in gross; and that it could not be severed and sold separate from that land. And also, that the owner of the privilege was not bound to use the sea-weed on the land to which the privilege was annexed, but might use it on his other land, or dispose of it to other persons, or lease his share of the privilege while he should continue to be the owner of the land to which it was annexed. And further, that the grantees of the privilege were not affected by the gradual shifting of the boundaries of the beach, by the action of the sea, but were entitled to take sea-weed from the beach, wherever the beach might be, below the land as bounding on it.1

An averment of a lost grant from the owner of a beach in Massachusetts, to the inhabitants of a town, in their corporate capacity, to the use of all the inhabitants thereof, to take sea-weed for manuring their lands, is not supported by evidence, that individuals of the town had been accustomed from a very early period of time to take sea-weed from the beach for that purpose. The defendant, in support of his plea of a grant, relied upon proving, that the inhabitants of Chelsea had long been used to take seaweed from the beach, and expected to show from the length of time and the extent of this usage, that it would support the plea of a lost grant; and sev

1 Phillips v. Rhodes, 7 Met. (Mass.) R. 322.

eral persons, inhabitants of the town, were offered as witnesses, who were rejected. The court, without deciding, whether the inhabitants of Chelsea were incompetent on the ground of interest, were of opinion, that the evidence was rightly rejected, on the ground that it had no tendency to prove the issue tendered by the defendant. The evidence offered, was the testimony of witnesses to prove that sundry inhabitants of Chelsea had, from a very early period, been used to take sea-weed from the beach in question, for the benefit of their lands. The grant pleaded was, of a right and privilege of the town of Chelsea, as an ancient corporation, to the use of all of the inhabitants thereof, to take sea-weed; and this was the fact to be proved. The court said, that however strongly the fact, that certain individuals, however numerous, had been in the habit of taking sea-weed from the beach for their own use, might tend to show a grant to themselves, or their ancestors, either as a personal privilege, or as a privilege to them in right of their being owners and occupiers of particular estates, it would have no tendency to prove a grant to the town as a corporation.1

2. Per relictionem, or by reliction, which is an increase by the retreat or receding of the water.

This increase has been known in some parts of the world to occur suddenly, and to a very great ex

1 Sale v. Pratt, 19 Pick. (Mass.) R. 191.

2

tent. Lord Hale relates, that sometimes the ocean, especially the narrow sea between England and France and the Netherlands, leaves the English shore in a very considerable measure; possibly by reason of some superundation on the eastern shore.1 In such cases, the land left dry by the receding of the water, is the property of the sovereign, as being a part and parcel of what previously was the sovereign demesne. The right of property in the soil, in other words, is not changed by such change of the water; so that in this country, soil covered by tide water and thus relicted and left dry, remains the property of the state. But if the soil when covered by water, belonged to an individual, then, though relicted, it continues to belong to him. As, if an individual has acquired by a grant from the government theexclusive right of property in the soil of an arm ofthe sea, and the water should afterwards recede from it, the soil thus left bare will still be his. Of course the right of the riparian proprietors to their upland, which is inundated by an encroachment of the sea and then left dry, is still retained; and by their art and industry, they may regain the upland so inundated, even when (according to Coke and Foster,

3

'De Jure Maris, Harg. Tracts, 30.

Ib. 14, 15, 30, 31.

3 Per Daggett, J., in Chapman v. Kimball, 9 Conn. R. 41; and see ante, Chap. II.

De Jure Maris, Harg. Tracts, 15.

7 Jac. C. B. cited by Lord Hale) the landhas been inundated for the space of forty years; and one hundred acres, parcel of a manor, was regained from the river Thames and enjoyed accordingly.1 Sea water has been justly compared to a common enemy, against which every man may defend himself as he can; and in this respect it is different from an occasional course of superabundant inland water-flowing in the usual direction, and the ordinary channel has become insufficient to carry it off. In the one case, if the works of a riparian proprietor to defend or regain his banks be successful, the water is prevented from coming where it never before had come; in the other, it is prevented from passing in the way, in which, when the occasion happened, it had been accustomed to pass, which is illegal.

But the same rule holds as to slow and imperceptible increase, with respect to reliction, as holds with respect to alluvion; that is, although it be true, that if the sea leaves any shore by a sudden falling off of the water, the land derelict belongs to the state, yet if the falling off be by insensible degrees, it becomes a part and parcel of the land adjoining.3 In Rex v. Lord Yarborough, it was considered, that land formed by the gradual declining of the sea is the property

1 Precedent cited by Hale, ub sup., E. 2, Rot. 174, B. R. Rex v. Trafford, 1 B. & Adol. R. 874; S. C. 2 Eng. Com. Law R. 498.

Bac. Abr. Tit. Prerogative.

of the owner of the adjoining land; but otherwise, if suddenly left by the sea. A gradual reliction can seldom, if ever, happen, however, without some degree of alluvial increase; and it has already been shown, that if the alluvial character predominates, it is taken as a part of the land with which it has formed a coalition. If the shore of an arm of the sea be conveyed by the government, the shore, or the space for the time being, between the low-water mark, and the ordinary high-water mark, though those limits be changed, passes to the grantee.

2

3. Per insula productionem, or islands gradually or suddenly formed out of the sea or "navigable" rivers.

When islands are formed, it is either by the desertion of the water, or by the collection and exaggeration of sand and other substances which become discoverable as terra firma, environed by the water; and of course therefore they are primâ facie the property of the sovereign; they having before constituted a part of that soil in which the sovereign prima facie has the right of property.3 But the same exception holds with respect to islands formed, as holds with respect to suddenly relicted soil; that is, though of common right, in common

1

Rex v. Lord Yarborough, 3 B. & Cress. R. 91, cited more fully ante, p. 255.

2 Stratton v. Brown, 4 B. & Cress. R. 485.

3 Bl. Com. 251; Hale, De Jure Maris, Harg. Tracts, 17; Callis on Sewers, 45.