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The question then is, what is to be considered as “high-water mark ? ” it being well known that the tides rise much higher upon some occasions, and at some seasons of the year, than at others. The law takes notice of three kinds of tides, viz. 1. The high spring tides, which are the fluxes of the sea at those tides which happen at the two equinoctials ; 2. The spring tides, which happen twice 'every month, at the full and change of the moon ; 3. The neap, or ordinary tides, which happen between the full and change of the moon, twice in twentyfour hours. Relatively speaking, it would seem, that the spring tides, though periodical, can scarcely be denominated “ordinary," when there are other tides which take place daily, and more regularly, viz. the neap tides. Besides, the land subject to spring tides, is, for the greater part of the year, dry land.' The civil law, in respect to the terra firma, and the title of the riparian owners, differs from the common law. By the former, high-water mark is determined by the highest tides, and the shore, it is understood, includes the land, as far as the greatest wave extends itself in the winter, - Est autem littus maris, quatenus hibernus, fluctus maximus excurrit, according to the Institutes ;' and according to the Digest, Littus publicum est eatenus qua maxime fluctus ex
· Hale, sup. 25, 26; Hall's Rights to the Sea, &c. 9.
Inst. L. 2, T. 1, s. 3.
æstuat. By the law of Scotland on the subject, it was adjudged in the House of Lords, in 1839, that the mouth of a river, ostium fluminis, comprehends the whole space betwixt the lowest ebb and the highest flood mark. The civil code of Louisiana conforms to the civil law. The ordinance of Louis XIV. provides, that “all the space which is covered and discovered by the new and full moon, and as far as the tide extends at the high flood of March, shall be reputed to be the sea-shore.”
On the other hand, the law laid down, as the English common law, by Lord Hale and other writers, is, that the soil which is overflowed by high spring tides, or by extraordinary tides at any time, does not properly come under the denomination of shore ; and consequently, the sovereign and public right is not of that large extent. Hale states the rule of the common law to be, that the shore is that land only which is usually overflowed by ordinary tides ; and he further states it to have been so expressly adjudged in the exchequer chamber about 12 Car. I., on prosecution by information of certain lands in the county of Norfolk; and again, in Sir Edward Heron's case, 15 Car. I. (B. R.); and again, in an ejectione firme for the town of Cowes in the Isle of Wight, 17 Car. II. The law as thus stated, has been recognized in the modern case of Blundell v. Catterall." By an act of parliament reciting, that a certain tract of land daily overflowed by the sea, and to which the king in right of his crown claimed title, might be rendered productive if embanked, and that his majesty had consented to such embankment, a part of said tract of land, called Lipson bay, was granted to a company for that purpose. On one side of the bay was the northern side of a private estate, called Lipson ground, forming an irregular declivity, in parts perpendicular, and in parts sloping down to the sea-shore and overgrown with brushwood and old trees. The company, in embanking the bay, made a drain on this side, in the same direction with the cliff, cutting through it in parts, but leaving several recesses of small extent between the projecting points. These recesses used to be overspread with sea-weed, and were covered by the high water of the ordinary spring tides, but not by the medium tides. It was held, that the soil of these recesses must be presumed to have belonged to the owner of the adjoining estate, and did not, therefore, pass to the
· Dig. L. 50, T. 16, s. 112.
2 Horne v. Mackenzie, 6 Clark & Finn. R. 628. Several Scotch cases, therein cited.
3 Art. 4, Civil Code Louisiana, By sea-shore we understand the space of land upon which the waters of the sea are spread in the highest water during the winter season."
• Cited by Callis in his work on Sewers.
" Treatise, De Jure Maris; and Hall on the Rights to the Sea, &c. 9.
2 Blundell v. Catterall, App. p. i.; Ball v. Slack, 2 Whart. (Penn.) R. 508 ; and see 4 Mason, (Cir. Co.) R. 345.
embankment company by the act in question. The act made mention in its recital, it will be observed, of land daily "overflowed by the sea," and assuming, said Lord C. J. Tenterden, those words mean only land ordinarily overflowed by the sea, still the recesses in question did not come within that description. The land in question, said Park, J., was above the ordinary high-water mark, and therefore the plaintiffs could not entitle themselves to it under the crown.
The common law on the subject, as above stated and expounded, is recognized in this country by the highest authority. One of the questions in the case of Storer v. Freeman, in the supreme court of Massachusetts, was as to a boundary designated in a conveyance as a line running to the shore, and thence by the shore ; and it was whether the land, (by virtue of such description) was conveyed, between high and low-water mark. In the decision of the question, it was observed by C. J. Parsons, — “The sea-shore must be understood to be the margin of the sea, in its usual and ordinary state; and when
"Lowe &c. v. Govett, 3 B. & Adol. R. 967, and 23 Eng. Com. Law, R. 203. Upon the whole, it may be regarded as good law at this day, that the terra firma, and right of the subject, in respect of title and ownership, extends beyond the lines of the high spring tides, and spring tides, and down to the edge of the high-water mark of the ordinary, or neap tides. Hall on Rights to the Sea, &c.
· Peyroux v. Howard, 7 Peters (U. S.) R. 324. • Storer v. Freeman, 6 Mass. R. 435.
the sea is full, the margin is high-water mark. The sea-shore is therefore all the ground between the ordinary high-water mark and low-water mark.” Again the same court, in the case of the Commonwealth v. Charlestown,' understood the rule of the common law to be, that the sovereign and public right extended only to ordinary high-water mark. It was contended in the supreme court of the state of New York, that the rule of the civil law, as above laid down, was the rule to be adopted in that state ; and the reason assigned was, that the state was granted by the Dutch government, and that, at the time of the grant, the civil law prevailed in the seven United Provinces. The court, however, adhered to the doctrine of the common law on the subject as laid down by Lord Hale. Under the colonial ordinance of Massachusetts of 1641, the ebb of the tide, when from natural causes it ebbs the lowest, and not the average or common ebb, is to be taken as the low-water mark. The rule of the common law is unquestionably subject to any alteration by statute.
· Commonwealth v. Charlestown, 1 Pick. (Mass.) R. 180.
* By an act of the state of Virginia, passed February 16, 1819, it is declared that hereafter the limits or bounds of the several tracts of land lying on the Atlantic ocean, the Chesapeake bay, and the rivers and creeks thereof within the commonwealth, shall extend to ordinary low-water mark; and the owners of said lands shall have, possess and