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Buildings, erections, and enclosures between high and low-water marks in the harbor of Portsmouth, interrupting the flux and reflux of the tide, were abated by a decree of the court of Exchequer as a nuisance, where made under sanction of the corporation, having a grant from the crown by charter.1 Grants of the crown for the benefit of the king, by augmenting the revenue, founded on inquisition ad quod damnum, must be conformable with the finding must be for the advantage of the crownmust be acted upon promptly must be upheld by possession and enjoyment—and the grantees must fulfil all continuing considerations, or the right of possession will not pass thereby from the crown.2
Bathing in the sea and in tide rivers, it seems, by a divided opinion in the court of King's Bench, in a modern case (Blundell v. Catterall, 1821),3 is held not to be so far a common right, as to justify the public in passing over land which is private property, in order to gain access to the water adjacent, for that purpose. The plaintiff in this case, who resisted the right claimed, was the lord of a manor bounded on the river Mersey, an arm of the sea. As lord of the manor he was owner of the shore under an early grant from the crown to low-water mark, and under which grant he had the exclusive right of fishing on
1 Attorney General v. Parmeter, sup.
2 Ib. And see post, Chap. VII.
Blundell v. Catterall, reported at length in App. p. i.
the shore with stake nets. The defendant was a servant at an hotel erected upon land fronting the shore, and bounded by high-water mark; the proprietors of which hotel kept bathing machines for the use of persons who resorted there, who were driven by the defendant in such machines across the shore into the water for the purpose of bathing. No bathing machines had ever been used upon the part of the shore in question before the establishment of the hotel; though it was proved, that it had been customary for people to pass it on foot, for the purpose of bathing. The defendant contended for a common law right for all the king's subjects to bathe on the sea-shore, and to pass over it for that purpose on foot and with horses and carriages. By three of the learned judges against one, it was held, that no such general right in the king's subjects to frequent the shore for the purpose of bathing existed. Best, J., was in favor of the right of the defendant; but Abbott, C. J., and Holroyd and Bayley, Js., held, that the plaintiff should recover. The dissenting judge reasoned upon the broad grounds of the sea being the highway of the world, of the importance of a free access to it, and of the necessity of the right to bathe in it, as essential to the health of many persons. "By bathing," said he, "those who live near the sea are taught their first duty, namely, to assist mariners in distress. They acquire by bathing confidence amidst the waves, and learn how to seize
the proper moment for giving their assistance." He relied upon the authority of Bracton - Riparum etiam usus publicus est de jure gentium, sicut ipsius fluminis, which Bracton, said he, made part of his book, de legibus consuetudinibus Angliæ. The majority of the judges denied the authority of Bracton, as he had not only quoted, but interpolated his doctrine from the civil law, and they considered, that the civil law and the law of England, in respect to the passage quoted, did not agree. The topic urged at the bar, and by Mr. J. Best, of public convenience, met with no favor from the majority of the court, who held, that public convenience must, in all cases, be viewed with a due regard to private property, the protection whereof was "one of the distinguishing characteristics of the law of England."1
The above case is the first in which the right of the public, by the common law, to make use of the shores of the sea for the purpose of bathing, was ever brought in question, and the decision in the case has been earnestly and ably protested against by Mr. Hall. The silence of the books, he argues, may in some cases be alleged to testify to the extreme
The argument of Mr. J. Best, drawn from inconvenience to the public, in being cut off from the common use of the shore for the highly beneficial use of bathing, is certainly forcible in law, Argumentum
ab inconvenienti plurimum valet in lege. Co. Litt. 97, 152, b.
2 An Essay on the Rights of the Crown and the Privileges of the Subject, in the Sea Shores of the Realm. By Robert Gream Hall. London, 1830. See ante, Preface.
certainty of, and general acquiescence in, a right; and he considers the case of Blundell v. Catterall to be one of those cases. The right in question, he contends, was a case of custom, and if the practice of bathing had generally prevailed, time out of mind, throughout the realm, the silence of the books gives consent rather than denial. The authority of Bracton, he contends, to make use of the shore, might be deemed good authority for all such customary uses made of it as are uncontradicted by the books, and not incompatible with other unquestionable rights, or the known law of the land; and it would have been more singular if the civil and British laws had not agreed in throwing open the sea-shore, for purposes of public use, common to all mankind. Men were used to bathe and swim long prior to the written codes of Rome or England; the custom preceded the law, and that which Roman law may have sanctioned by book, may have been already custom, that is, common law, in England. In some points, respecting the use and property of the sea-shore, the Roman law and the common law of England do disagree; but this is no evidence, that they do not agree in other points; and, as they do agree in the common right of fishing, why may they not agree in the common right of bathing. The habit of bathing is at least coeval with fishing and navigation, two acknowledged "common uses" of the sea-shore. In relation to the admission of Mr. J. Holroyd, that
there may possibly be a local usage or custom of bathing, Mr. Hall says, -"The inhabitants of the sea-coast are, in fact, the only class of the community who fish in the sea, or on the sea-shore, and yet it is not a local, but a public and general common law right of fishing; and the custom of bathing is as general among the inhabitants of the sea-coast as fishing. It would be strange, therefore, to denominate the one custom a general, and the other custom, (which is at least equally general amongst the same class of persons) a local custom." Such is an imperfect outline of Mr. Hall's critical remarks upon the reasoning of the majority of the court, in Blundell v. Catterall; and the reader will do well to consider his line of argument in connection with the opinions of the judges constituting the majority, as given in full in the case which will be found in our Appendix.'
The reader will bear in mind, that the title of the lord of the manor in the above case to the absolute ownership of the shore, comprehends, it was taken for granted, an exclusive right of fishing with stake nets; and, therefore, the question was, whether the private ownership of such shore, coupled with an exclusive right of fishery with stake nets, was subject to a common law right of bathing. The court, as Mr. Hall says, did not confine themselves to the