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Mather v. Chapman.

In the case we are called on to decide, the sea-weed cou.l not be regarded as a marine increase of the plaintiffs' land, for it had not reached their land and was not attached to it nor connected with it. To be a marine increase it must form part and parcel of the land itself. Being between high and low-water mark, at each returning tide it would be afloat, and, even in Massachusetts, sea-weed when afloat is publici juris, although floating over soil which is private property.

The sea-weed in this suit is not treated as part of the real estate which by small and imperceptible degrees had become part of the plaintiffs' land. It is treated as personal property, and the defendant is sued for taking it as such and converting it to his own use. In the case of Emans v. Turnbull the plaintiff's title was held good upon a liberal construction of the jus alluvionis, which implies that the weed had then become part and parcel of the plaintiff's land, and must therefore have been above, or upon, ordinary high-water mark. Title to personal property, jure alluvionis, would be a novelty in the law. 2 Black. Com. 262. Title by accretion is substantially the same as by alluvion. Both are modes of acquiring title to real property.

Title however to personal property may be acquired by what in law is called accession; but to acquire title by accession the accessory thing must be united to the principal, so as to constitute part and parcel of it. "Accessio" is defined by Bouvier, as a 66 manner of acquiring the property in a thing which becomes united with that which a person already possesses." The plaintiffs therefore seem to us to have no title by alluvion, or by accretion, or by accession, certainly none ratione soli, and they cannot be regarded as first occupants by construction merely because of the propinquity of their land to the property in dispute.

The question under discussion does not seem to be fully settled in England. The soil of the sea-shore is there, as with us, prima facie in the public, but it may become private property, and frequently is so, where the adjoining lands are part of the manor. The authority of Bracton is clearly in favor (1st) of the common right of all to the shores of the sea as part of the sea itself. (2d.) In Liber 2, speaking of the right of first occupancy, he says "Item, locum habet eadem species occupationis in iis quæ communia sunt, sicut in mare et littore maris, in lappillis et geminis et ceteris in littore maris inventis." Sea-weed must be included within the et ceteris of VOL. XVI.—7

Mather v. Chapman.

Bracton in this passage, and upon his authority belongs to the first occupant.

The opinion of Lord HALE in favor of the common right to take sea-weed on the shore is shown by the following passage in chapter 6 of Hale's de Jure Maris. After speaking of three kinds of shore he says, "This kind of shore, to wit, that which is covered by the ordinary flux of the ocean, may belong to a subject, and may be parcel of a manor, and the evidences to prove it parcel of a manor are commonly these, constant and usual fetching of gravel and seaweed and sea-sand, between high and low-water mark, and licensing others so to do."

In the case, however, of Bagott v. Orr, 2 Bos. & Pul. 472, the court expressed doubts upon the right of the public to come upon the shore and take shells which had been thrown up and left there by the tide. In the case of Blundell v. Catterall, 5 Barn. & Ald. 268, there occurs a very learned and interesting discussion upon the right of the public between high and low-water mark, but the precise question now under consideration is not made the subject of comment.

The case of Church v. Meeker, 34 Conn. 421, is relied upon by both parties. We think the opinion of Judge BUTLER in that case must be construed as applicable solely to sea-weed found as it here was above high-water mark.

In the case of Peck v. Lockwood, 5 Day, 22, the plaintiff owned a portion of the shore below ordinary high-water mark, and it was held that he could not maintain trespass against the defendant, who entered the premises when the tide was out and dug for shellfish and carried the fish away. That is a strong case in favor of the common right of fishing.

But the right of taking sea-weed would seem to stand on the same ground as the right of taking fish. We see no reason for making a distinction between the vegetable and animal products of the ocean. Neither, in the state of nature, is the property of any one; the title to both depends upon the first occupancy. It is agreed that while afloat both are alike common; why, when the tide recedes and leaves shell-fish and sea-weed on the shore, should the sea-weed belong to the riparian proprietor when confessedly the shell-fish remains common property?

We think the charge of the judge in regard to the first count was correct.

[The remainder of the opinion is not of general inte: 38t.]

Mather v. Chapman.

NOTE. -The case of Bagott v. Orr, 2 Bos. & Pull. 472, turned upon two points: 1 Whether the subjects of the realm had a general common-law right to catch and take shell-fish on the sea-shore, between the flux and reflux of the tides; 2. Whether the subjects of the realm had a general common-law right of digring, collecting and carrying away for use, sea shells, and by consequence any other portion of the soil of the sea-shore. It was an action of trespass by Bagott against Orr. The first count was the breaking and entering plaintiff's close, and the sea-shore in the parish of Keysham, and plaintiff's shell-fish and shells, there finding, catching, taking and carrying away and converting thereof to defendant's own use. The second count was for treading and trampling upon plaintiff's soil, etc., and breaking, crushing and destroying plaintiff's shell-fish and shells, and carrying away the same. There were several other counts for breaking and entering plaintiff's several fishery and his free fishing, on which issues in fact were joined. The defendant pleaded, first, the general issue; seoond, that the locus in quo was and had from time immemorial been parcel of a certain arm of the sea in which every subject of the realm had the right and privilege of fishing and catching, digging for, raising, taking and carrying away shell-fish and shells, and defendant being a subject of the realm had done the acts complained of in pursuance of said rights. Thereupon the plaintiff new assigned, alleging that defendant broke and entered plaintiff's close in the first count mentioned, "being certain closes lying between the flux and reflux of the tides of the sea in plaintiff's manor of Keysham, and the said shell-fish and shells there found, caught, took, and carried away and converted and disposed thereof, where the same closes in which, etc., were left dry and not covered with water." Defendant pleaded among other things that said shell-fish and shells were left by the ebbing of the tide upon said spot; but a little before the said taking, and that the defendant, as a subject of the realm, had a right to take and carry away the shell-fish and shells. It appears that the plaintiff asserted the said closes "were lying within the flux and reflux of the sea within the plaintiff's manor," and his ownership of these closes (being part of the sea-shore) was not disputed. In virtue of this ownership, Bagott denied the right of the defendant to catch shell-fish, and also his right to carry away for use sea shells. The report says: "The court were of opinion that if the plaintiff had it in his power to abridge the common-law right of the subject to the shell-fish, he should have replied that matter specially, and that not having done so the defendant must succeed upon his plea as far as related to the taking of the fish; but observed that as no authority had been cited to support his claim to take shells they should pause before they established a general right of that kind." "It is to be regretted," says a learned writer, commenting on this case "that a fuller report of the judgment in this case has not been given (if more was said); but it seems to be understood that the court affirmed the general common-law right of the subject, to take or catch shell-fish,' but doubted whether any such general common-law right existed for the subject to take shells; meaning, it is presumed, shells of fish destroyed by natural causes before capture, otherwise the decision would have much of the character and effect of that recorded in the Merchant of Venice.'" Hall's Sea Shore, 191. With regard to the question of right to dig for shells, sand, etc., a technical distinction is to be noted between a mere right of egress and regress, or way and a right to dig and take away the soil. The first is in law a mere easement while the other is a profit-à-prendre. For a learned discussion as to taking proflis-à-prendre in the wastes of inland manors, and of their analogy to digging for shells, etc., on the shore, see Hall's Sea Shore, (2d ed., Londe, 1875),

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Mather v. Chapman.

195. A profit-d-prendre in another's soil cannot be claimed by custom, however
Ancient, uniform and clear, the exercise of that custom may be.
General v. Mathias, 27 L. J. Ch. 761.

Attorney

In the case of Grimstead v. Marlowe, 4 T. R. 717, it was laid down by Lord KENYON that a man must prescribe in a a que estate for a profit-à rendre which a mere "inhabitant" or "resident" cannot do; and it seems settled that where an inhabitant of a town would claim a profit-d-prendre he must prescribe that "he and all those whose estate he hath in his house have used to. are common," etc., as in Mellor v. Spateman, 1 Saund. 339. See Lockwood v. Word, 6 Q. B. 50.

HALL, further commenting on the case of Bagott v. Orr, said: “Looking at the general claim as res integra it must be admitted that there is reason to presume that the inhabitants' of all the districts bordering on the sea-coasts of England have actually (whether now allowed to be lawfully or not) been in the habit of resorting to the shore' for the materials in question, for manure and other useful purposes, without asking consent of the owner of the adjacent terra firma; and it would be difficult to find a cultivated and inhabited spot on or within reasonable distance from the coast, where it has not been the practice of the inhabitants to resort to the shore for materials for manure for ballast, for building, road mending, etc. It is the natural if not the necessary result of their locality and wants. It is not to be looked at as a want confined to these persons only, who are immediately dwelling on the sea-side, but may be reasonably extended to all within convenient reach of it; to all such in fact as have, by a like immemorial usage, established a general right to fish. It may also be remarked that where such general inducement exists everywhere along the coasts of England to use such materials, and yet no case is to be found supporting the practice as a local and limited custom or denying it as a general right (if we except Bagott v. Orr), the presumption is in favor of it as a general custom." In behalf of the common-law right and in support of its desirableness, the same writer dwells at length upon the antiquity of the custom of using marine manures in agriculture; of its general character and of its importance to the agricultural interests, and upon the doctrine of Lord KENYON (Ball v. Herbert, T. R. 261) that "common-law rights are either to be found in the opinions of lawyers, delivered as axioms or to be collected from the universal and imme. morial usage throughout the country," insists that the general common-law right may well be sustained.

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The case of Blundell v. Caterall, 5 Barn. & Ald. 268, involved the question of the general right to frequent the shore for sea bathing. The plaintiff who resisted the right was the lord of the manor Great Crosby, which is bounded on the west by the river Mersey, an arm of the sea. It is stated in the report of the case "that as lord of the manor he was owner of the shore and had the exclusive right of fishing thereon with stake-nets. The defendant was the servant at an hotel erected in 1815 upon land in Great Crosby, fronting the shore and bounded by the high-water mark of the river Mersey, the proprietors of which hotel kept bathing machines for the use of persons resorting thither, and who were driven by the defendant in machines across the shore into the sea, for the purpose of bathing; and the defendant received a sum of money from the individuals so bathing for the use of the machines, and for his services and assistance. No bathing machines were ever used upon the shore of Great Crosby before the establishment of this hotel; but it had been the custom for the people to cross it on foot for the purpose of bathing. There was also a com mon highway for carriages along the shore, and it was proved that various

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Mather v. Chapman.

articles for market were occasionally carted across the shore, although the more common mode of conveyance for such things was by a canal made about forty years ago. 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. It was decided by three of the judges against one that no such general right in the subject to frequent the shore for the purpose of bathing, existed whether on foot or in carriages. This was the first case in which the public right to use the sea and sea-shore for bathing was ever judicially either claimed or opposed as was remarked by Mr. Justice BAGLEY. The case was very fully argued, and the judges gave their opinions at length. The plaintiff's counsel opposed the right on the following three grounds: 1. From the silence of the authorities; 2. Because such a right was contrary to analogies; 3. Because it was contrary to acknowledged and established rights, and the three judges by whom the case was decided seem to have been governed by the first and last of these several grounds of argument. This decision and the grounds upon which it is based are examined at great length in "Hall on the Sea Shore," (London, 1875) 156 et seq., and very satisfactorily answered.

The same author says, p. 92, "with regard to the constant and usual fetching of sea-sand, sea-weed and gravel, between the high-water and lowwater mark, and licensing others so to do; and embanking against the sea, and enjoyment of what is so inned; these, it must be admitted, are all acts likely to be done by the owners of the soil; and they afford color that he who does these acts is such owner; but these acts may be usurpations or intrusions on the king's ownership and prima facie are so. As to the right of digging for sand, the authorities show that this may and often does exist without confer ring any title whatever to the land; for similar rights are exercised by the tenant in the wastes of a lord's manor, and yet the tenants have no title to the sil; but such rights are mere profits-à-prendre." The lord of the manor cannot acquire an exclusive right to cut sea-weed below high-water mark unless by grant of the king, or such long and undisturbed enjoyment as to give him title by prescription; Benest v. Pipon, 1 Knapp, 68, and evidence of such acts of ownership as liceuses to take shingle, sand and sea-weed, is receivable to support the presumption of a grant of the soil of the shore, etc. Strange v Rowe, 4 F. & F. 1048. That was an action by the lord of the manor for taking shell fish and shingle from the fore shore of the manor, between high and low-water mark, his title being under a royal grant of the manor with anchorage and groundage, but with no express mention of the shore. It was held that this grant afforded of itself presumption that it included the soil of the shore. See also Healey v. Thorne, 4 Ir. C. L. R. 495.

In Howe v. Stowell, 1 Alcock & Nap. 348, which was an action of trespass for breaking and entering the plaintiff's close, a plea of justification that the close was the sea-shore and that all the subjects of the king had the right to enter and carry away the sea-weed, was held to be bad.

Sea-weed thrown up by extraordinary tides belongs to the riparian proprietor upon whose land it is thrown. Lowe v. Govett, 3. B. & Ad. 967.

In Emans v. Turnbull, 2 Johns. 313, the locus in quo was very clearly held to be in the defendant. The action was trespass for assaulting the plaintiff and detaining him. Plea, that plaintiff had entered defendant's close and was about to remove sea-weed therefrom when defendant prevented him; replication that defendant was not possessed of the close nor owner of the sea-weed; ejoinder that defendant was so possessed and was such owner and this was the

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