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who claims the exercise of any right inconsistent with the free enjoyment of a public easement or privilege, must put himself on the ground of prescription ; unless he has a grant or some valid authority from the government; and a right by prescription does not exist in the present case.” ?
' Arundel (In. of) v. McCulloch, 10 Mass. R. 70. And see Johnson o. Irwin, 3 S. & Rawle (Penn.) R. 292.
CONNECTIVELY with the rights to the shore which have been considered in the preceding pages, it may perhaps be proper to consider the subject of wreck, which is where any vessel is lost at sea and the cargo is thrown upon the land, and which by the ancient common law was considered to belong to the king.'
To constitute a legal wreck, it is to be observed, the goods must have come to land. If they continue at sea, they were distinguished by the barbarous names jetsam, flotsam and ligan. Jetsam is where goods are cast into the sea and there sink and remain under water; flotsam is where they continue to swim on the surface of the sea; and ligan is where they are sunk in the sea, but tied to a cork or buoy, in order to be found again. These, by the common law, are also the king's, if no owner appears to claim them; but if an owner appears, he is entitled to the possession. For if they are thrown overboard in order to lighten the ship, without any mark or buoy, the owner is not by this act of necessity
"1 Black. Com. 283, 292.
construed to have renounced his property. And agreeably to this was the Roman law, Quæ enim res in tempestate, levandæ navis causa, ejiciuntur, hæ dominorum permannet. Quia palam est, eas non eo animo ejici, quod quis habere nolit. Each of these three is considered so distinct from wreck, that by the king's grant of wrecks, things jetsam, flotsam and ligan will not pass.
The laws which have been made upon the subject of wreck, have, in modern times, been influenced by a spirit the reverse of that exhibited by the savage customs which formerly prevailed among the northern nations of Europe, (and particularly on the shores of the Baltic,) permitting the inhabitants to seize on all the wrecked property they could find, as lawful prize. The inhuman Drois de Bris sur le Naufrages, was in barbarous ages very generally, and rigidly enforced in Europe, and especially among the Gauls. In those days every stranger was treated as an enemy, and was not only robbed of his goods when in the distress of shipwreck, but was fortunate if he escaped the hand of the murderer. As it is expressed by an ancient author, in naufragorum miseria et calamitate tanquam vultures ad prædam currere." The common law, as laid down by Blackstone, that goods wrecked were adjudged to belong to the king, and the property in them was lost to the owner, he admits, was not consonant to reason and humanity. It is no more than fair to presume, that the king's ancient prerogative of wreck was founded on the general principle of policy and convenience. If every person was permitted to carry away what he found upon
i Sir Henry Constable's case, 5 Rep. 108; 1 Bl. Com. 202 ; Harg. Tracts 41.
Inst. L. 2, t. 1, s. 48.
5 Rep. 108. * Sea Laws, 153. » See 1 Bl. Coin. 283.
the seashore, the owner would be exposed to the danger of losing his property therein. For the benefit of the owner, therefore, it was just and
proper, that the property should be consigned to the proper officer of the crown, by whom it was preserved, and if the rightful claimant did not appear in a reasonable time, it was proper that it should be applied to the augmentation of the public revenue.
It was ordained by king Hen. I. that if any person escape alive out of the vessel, it should be no wreck. Afterwards, king Henry II. by charter, declared, if on the coasts of either England, Poicton, Oleron or Gascony, any ship should be distressed, and either man or beast should escape, or be found therein alive, the goods should remain to the owners, if they claimed them within three months; but otherwise should be esteemed a wreck, and should belong to the king or other lord of the franchise.
' 1 Bl. Com. 290; Harg. Tracts, 37, 38. *Jb. 1 Rym. Fæd. 36.
The charter of Henry II. was confirmed with improvements by Richard I.; who, in the second year of his reign, not only established the concessions of this charter, by ordaining that the owner, if he was shipwrecked and escaped, “omnes res suas liberas et quietas haberet,” but also, that if he perished, his children, or in default of them, his brethren and sisters might retain the property. And in default of brother or sister, then the goods should remain to the king. It was in like manner that Constantine the great, finding that by the imperial law the revenue of wrecks was given to the princes”. treasury, or fiscus, restrained it by an edict, and ordered them to remain to the owners, adding the humane expostulation, “ quod enim jus habet fiscus in aliena calamitate, ut de re tam luctuosa compendium sectetur.” 2 Bracton, who was acquainted with the edict of Constantine, lays down the doctrine of wreck upon like equitable principles, for if not only a dog, for example, escaped, by which the owner might be discovered, but if by any certain mark was set on the goods, as evidence of the owner, it was no wreck.3
By the statute of West. I. 3 Ed. I. ch. 4, the time of limitation of claims given by the charter of Hen. II. (three months) is extended to a year and a day;
' 1 Bl. Com. 291; Harg. Tracts, 40.
ode, 11,5, 1. ; Bract. L. 3, 120, s. 5.