Although wreck of the sea is the property of the king by common law right (a), yet like waifs and estrays it may belong to a subject by grant (b), or by prescription (c). And it has been adjudged that by prescription wreck may belong to the Lord High Admiral (d). When a subject is intitled to wreck by grant or prescription, he is said to have a constructive possession, and also a special property vested in him even before seisure, so that he may have his action of trespass or trover against any person taking it (6) See several opinions on adverse claims to the right to wreck within the honour of Bramber, under grants from the crown, 2 vol. Ca. & Op. 452, &c. And note that those adverse claims gave rise to the case of Biddulph & Ather, 2 Wils. 23; in which it was held that two allowances in eyre, and a judgment in trespass 400 years since, were not conclusive evidence against usage for years past to have wreck of the sea. Vide also Chad v. Tilsed, 2 Brod. & Bing. 403, in which an exercise of right over a small bay for 40 years, was held to be evidence from which anterior usage ought to be presumed, to induce a liberal interpretation of a grant of wreck made by Hen. 8. in favour of the proprietory right claimed; but Dallas, C. J. observed, that what is done under usurpation, and 92 in opposition to the clear words of a grant, could not constitute legal usage, but that long usage might be the best exposition of a grant of remote antiquity containing general words, the rule being, that if the language of an ancient grant be obscure or doubtful, constant usage may be resorted to, to expound, though not to control the deed.' Vide 1 & 2 Geo. 4. c. 75. § 25, 26. (c) Co. Lit. 114 b. 2 Inst. 168. Br. Wreck, pl. 1, citing 11 H. 4. 16. See further as to wreck by prescription, 2 vol. Ca. & Op. 456. Saunders' case, Mo. 224. A right to wreck on another man's lands, of necessity gives a right of way over the lands to take it. 6 Mod. 149. Anon. (d) Wiggan v. Branthwaite, 12 Mod. 260. S. C. 1 Lord Raym. 474. S. C. Holt 758. In this case, Holt, Ch. J. said, he made no doubt but some wreck might belong to the Admiral by prescription, as that about the Cinque Ports, and such places, where he was most conversant in ancient times; grounding his opinion on the antiquity of the office. Vide 1 & 2 Geo. 4. c. 75. § 24. away (a); even though the goods should be part of the cargo of a ship from which some person escaped alive to land (b). It is clear therefore that if a stranger take possession of wreck after seisure, an action either of trespass or trover lies against him (c); but the absolute property in wreck is not vested in the lord until after the year and day (d). In the parish of East-dean, in Sussex, there is a custom for the lord of the manor, when a ship is wrecked there, and cast on the lands held of the manor between the flux and reflux of the sea, to bury the dead, and to take care of those who are living and cast on the land, being either sick or wounded, and to preserve the shipwrecked goods for the use of the owners, and for this the lord to have the best anchor and cable; and this has been held to be a good custom, it not being unreason (a) F. N. B. 91 D. Smith v. Milles, 1 T. R. 480. Bul. N. P., 33. Ante, p. 779, n. (f.), p. 784. But see Hawk. Pl. C. 93. c. 33. s. 24, who says, it seems that the taking of wreck before seisure cannot be felony, because no one has property of the goods at the time of the taking. And see Kitch. 49, citing 22 Ass. 99. (b) And though the owners within the prescribed period [1 & 2 Geo. 4. c. 75, § 26] claimed and identified them, and though the taking was before the seisure by the grantee. The Bailiffs, &c. of Dunwich v. Sterry, 1 Barn. & Adolp. 831. (c) 10 H. 7. 6. Kitch. 24. The Stat. West. 1. c. 4. (already cited) further enacts, that the goods shall be saved and kept by view of the sheriff, coroner, or the king's bailiff, and delivered into the hands of such as are of the crown, where the goods were found; so that if any sue for those goods, and after prove that they were his, or perished in his keeping, within a year and a day, they shall be restored to him without delay; and if not, they shall remain to the king, and be seized by the sheriffs, coroners and bailiffs, and shall be delivered to them of the town, which shall answer before the justices of the wreck belonging to the king. And where wreck belongeth to another than to the king, he shall Scroggs 127. 1 able to have some manner of recompence even for a charitable act (a). But where in trover for an anchor and cable, the defendant pleaded a custom in the manor of Miching, in Sussex, that if any ship or boat sailing on the sea, strikes on the land held of the manor and perishes, though it is not wreck, yet the best anchor and cable, &c. belong to the lord of the manor, the plea was adjudged ill, no custom of salvage being found, and the alleged custom being void for want of any manner of consideration to support it (b). The lord of a manor has been held not to be intitled to salvage for taking charge of wreck against the owner's consent, and therefore not in the instance of parts of a ship being thrown on the land within the manor, when the servants of the owner are there to take care of them for him (c). TREASURE TROVE.-It would appear by several ancient authors (d), that treasure trove, at some far distant period, belonged to the finder; but even before the Conquest (with perhaps some exceptions) (e), it was a rule of common law, that treasure trove belonged to the king by his prerogative (ƒ), or to some lord of a manor or liberty, by special grant (g), or by prescription (h). The term treasure is restricted to gold and silver (i), but it may be either in bullion (k), coin, or plate; and the right of (a) Simpson v. Bithwood, 3 Lev. 307. See the pleadings in this case in Appx. to Lex. Man. pl. 41, p. 126. (b) Geere v. Burkensham, 3 Lev. 85. (c) Sutton v. Buck, 2 Taunt. 302. (d) Staunf. f. 39. Glanv. 1. 1. c. 1. 1. 14. c. 2. Britt. 7, 26, 85. Bract. 1. 3. f. 120. 2 Inst. 168. 3 Inst. 132. (e) 3 Inst. 133, (f) Kitch. 78. 3 Inst. 132-3. (g) Ib. Fitz. Abr. tit Corone, pl. 241, 436, cites 22 E. 3. 8 E. 2. Kitch. 78. (h) Co. Lit. 114 b. 3 Inst. 132-3, cites 21 H. 6. tit. Prescription 4. 22 E. 3. cor. 241. 1 H. 7. 33. 9 H. 7. 20. 46 E. 3. 16. Stamf. pl. cor. 39. b. lib. fo. 109 b. (i) 3 Inst. 132. (k) "Veins of gold and silver in the ground of subjects, also belong to the king or the lord presupposes the impossibility of an identification of the property of the person who concealed it (a); but it is immaterial whether it be found hidden in the ground, or in the walls or roof, or ruins of any house, or other building, or elsewhere (b); though treasure found in the sea still belongs to the finder (c). We are told by Glanvill and Bracton, that the fraudulent concealment of treasure trove, was an offence punishable by death; but it was long since adjudged that the punishment should be by fine and imprisonment only (d). FAIRS, MARKETS, TOLLS, &c.-These franchises are annexed to many manors, but are to be claimed only by grant from the crown (e), or by prescription (f); and even if the grant of a fair or market be preceded by a writ of ad quod damnum, or the usual words quod non sit ad nocumentum, &c. be omitted in the grant, yet the patent shall be repealed by scire facias, the king by his prerogative, for they are royal mines." 3 Inst. 132. But this has been doubted, unless the quantity of gold or silver was of greater value than the quantity of base metal. Plowd. 336. 1 Bl. Com. 294. And now by 1 W. & M. st. 1. c. 30. and 5 W & M. c. 6, mines of copper, &c. shall not be looked upon as royal mines, though gold or silver may be extracted from them in any quantities, but the king may have the ore (other than tin in Devon and Cornwall) paying the price stated in the act. (a) Stath. tit. Coron. Kitch. 78. Or by his executors, Fitz. Abr. Coron. 446, cites 22 H. 6. (b) Bract. 1. 2. f. 10. 3 Inst. 132. (c) Britt. f. 26. Kitch. 78. 2 Inst. 168. (e) As an evil rather than a good might result from the establishing of additional fairs or markets, it is usual, previous to a grant by the king, to have a writ of ad quod damnum issued and returned. The King v. Butler, 3 Lev. 222. 2 Vent. 344. And see 3 Burr. 1818, in Rex v. Marsden; 7 Barn. & Cress. 49. n. (f) Co. Lit. 114. b. 2 Inst. 220. And see Hill v. Smith, 10 East 476. 1 Wils. 112. Tenants in ancient demesne have a qualified exemption from toll, ante, pp. 692–3. if it be to the nuisance of the king or others (a). But it has been held, that an uninterrupted user for twenty years, gives a prima facie right to a fair or market, and affords a sufficient answer to an indictment for a nuisance to a highway, although the party is liable to be proceeded against for the usurpation of the franchise (b). The grantee or owner for the time being of the franchise of a market, may have an action on the case against a person who erects a stall upon his own ground near to the market, for selling meat, &c. though he should not take toll, or usurp a franchise (c). And by grant or prescription the owner of such a market may prevent persons, being inhabitants of the place, from selling in private houses (d). In the case of Dorking Market, tried before Heath, J. (e), a man had fitted up an inner room in a public house, and corn was pitched and sold there; and the plaintiff recovered against him in an action on the case, on the same ground as in the prior of Dunstable's case, because it was done secretly. And in the case of the bailiffs of Tewkesbury v. Brick standing the issuing of the writ, an (b) Rex v. Smith et al. 4 Esp. 111. And see Yard v. Ford, 2 Saund. 172. Ib. 175. n. 2. A quo warranto will not lie merely for encouraging and promoting the holding of a market, it being at most a misdemeanour, and no usurpation of a franchise. Rex v. Marsden, 3 |