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broke, crushed and destroyed, and with the said spades, shovels, mattocks, pickaxes, and other instruments, the same being useful, proper, and necessary in that behalf, in digging up, raising, and getting the said shell-fish and shells in the said second count lastly mentioned, necessarily and unavoidably dug and made the said holes and pits in plaintiffs said closes, and vecessarily and unavoidably with the said spades, shovels, mattocks, pickaxes, and other instruments dug up, turned up, subverted, and spoiled a little of the said earth, soil, and sand in the said closes,
as it was lawful for him to do for the causes aforesaid, doing as little damage on that occasion as he could, which are the same, &c. whereof, &c. And this, &c. wherefore, &c.”
To this plea there was a replication, traversing the right of every subject to take shell-fish and shells, and a special demurrer thereto, because it traversed matter of law; but the court seeming to think that the replication was clearly bad, it was abandoned by the plaintiff's counsel, who relied upon objections to the plea.
Marshall, Serjt., in support of the plea. Best, Serjt., contra. The Court were of opinion that if the plaintiff had it in his power to abridge the common law right of the subject to take sea-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. They therefore offered to allow the defendant to amend his plea, without costs, by striking out his claim to the fish-shells, and shaping his justification in such way as he should be advised. Which offer was accordingly accepted."
[Reported 5 B. & Ald. 268.] Trespass, for breaking and entering the plaintiff's close, (describing it, first, as a close called the Sea-Shore, within the manor of Great Crosby ; secondly, as a close between the high-water mark and the lowwater mark of the River Mersey, in Great Crosby, in the county of Lancaster ;) and with feet in walking, and with the feet of horses, and with the wheels of bathing-machines, carts, and other carriages, passing over, tearing up, damaging the sand, gravel, and soil of the said close.
It was held, in Mather v. Chapman, 40 Conn. 382 (1873), that sea-weed cast upon the shore below high-water mark belongs to the public, and may be appropriated by the
first occupant. Scd qucre.
The defendant pleaded, as to the trespasses committed on the close called the Sea-Shore, and on that between the high and low water mark, a public right of way on foot, and with cattle, carts, and carriages ; and secondly, as to the same trespasses, that all the liege subjects of our lord the king had been used and accustomed to have and enjoy, and of right ought to have had and enjoyed, and still of right ought to have and enjoy the right and liberty of bathing in the sea from time to time, being over and upon the whole or any part of, or adjoining to, the said close, in which, &c., at all seasonable and convenient times, for their health and recreation, and for that purpose, of going and returning, passing, and repassing into, through, over, and along the said close, in which, &c. on foot, and with their servants, and with carriages and bathing-machines, and horses drawing the same to the sea and back again ; and of staying in and upon the close a necessary and convenient time for the purposes of bathing as aforesaid : And thirdly, as to part of those trespasses, a right of bathing and of passing on foot only. The plaintiff took issue on these pleas; and also newly assigned that the defendant committed the trespasses on other occasions, and for other purposes than those in the pleas mentioned, and out of the highway in the first set of pleas mentioned. Issue thereon. At the trial, at the last Lancaster Assizes, before Bayley, J., å verdict was found for the defendant on the first set of pleas; and for the plaintiff on the new assignment, and on all the other pleas, subject to the opinion of the court on a special case. The plaintiff was the lord of the manor of Great Crosby, which is bounded on the west by the River Mersey, an arm of the sea. As lord of the manor, he was the 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 kept bathing-machines for the use of persons resorting thither, 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 service and assistance. No bathing-machines were ever used upon the shore in Great Crosby before the establishment of this hotel, but it had been the custom for the public to cross it on foot, for the purpose of bathing. There was a common highway for carriages along the shore, and it was proved, that various 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 coinmon 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. The case was argued in last Easter Term.
Gregson, for the plaintiff.
And now, there being a difference of opinion, the court delivered their judgments seriatim.
Best, J. The question in this case is, whether there be a common law right to pass over the shore for the purpose of bathing in the sea. It will not be disputed that the sea, which has been called the “ great highway of the world,” is common to all. Bathing in the sea, if done with decency, is not only lawful, but proper, and often necessary for many of the inhabitants of this country. There must be the same right to cross the shore in order to bathe as for any other lawful purpose. We are, therefore, now to decide, whether the public are precluded from passing, except at particular places, over the beach to the sea without the consent of some lord of a manor. That this will be the consequence of our deciding in favor of the plaintiff, has been already admitted at the bar, and must be conceded by every one.
I am fearful of the consequences of such a decision; and, much as I dislike differing from the rest of the court, I have thought it my duty to declare that I cannot assent to it. We have been told that lords of manors will find it their interest to indulge the public with the privilege of going on or over the sands of the sea, and that judges and juries will check the vexatious exercise of the right to exclude them. But the free access to the sea is a privilege too important to Englishmen to be left dependent on the interest or caprice of any description of persons.
It is agreed by all, that the sea-shore was at first appropriated to the king, from whom the right to it must be derived. The present state of the shore shows the manner in which the Crown must have used it. Some parts of it were held exclusively by the Crown for the purposes of fisheries, harbors, warehouses, &c. But the greatest part was left open as a common highway between the sea and the land. This is the state in which it continues to this day, and in which, from its general sterility, it must ever continue. From the state of the greatest part has arisen the general rule, or common law right, and the state of the portions exclusively occupied has occasioned the exceptions. The claim of the public to a right of way over the beach stands on the general law, and a person who will dispute this public right in any particular part of it, must establish his right to do so by showing, first, that the king had an exclusive possession of such part, and that a right to such exclusive possession has been conveyed from the Crown to such person. This has been the course in which persons have proceeded who have attempted to show any exclusive right, either in arms of the sea or in the shore. In Lord Fitzwalter's Case, 1 Mod. 105, Lord Hale
says: An arm of the sea is prima facie common to all, and if any will appropriate a privilege to himself, the proof lieth on his side ; for in case of an action of trespass brought for fishing there, it is prima facie a good justification to say, that the locus in quo is brachium maris, in quo unusquisque subjectus dom. regis habet et habere debet liberam piscariam." So, in Bagott v. Orr, 2 Bos. & Pull. 479, the Court of Common Pleas held, “ that if the plaintiff had it in his power
to abridge the common law right of the subject to take sea-fish upon the shore within his manor, he should have replied that matter specially.” The same doctrine is laid down in Carter v. Murcot, 4 Burr. 2162. It may be observed, that in the case now under consideration it is es. pressly found, that the soil of the locus in quo is in the plaintiff; but I say the soil must be in the plaintiff, as it was in the king ; for the grantee cannot have a greater interest than the grantor bad. The king had the right of soil in the shore in general ; but the public had a riglit of way over it, and the king's grantee can only have it, subject to the same right. In the treatise of De Jure Maris, p. 22, Lord Hale says: “The jus privatum that is acquired to the subject, either by patent or prescription, must not prejudice the jus publicum wherewith public rivers and arms of the sea are affected for public use." If the owners of the soil must claim by prescription, can they establish an exclusive right? Did they ever possess an exclusive right? For, as Lord Hale says, the civilians tell us truly: Nihil præscribitur nisi quod possidetur (De Jure Maris, p. 32). As the king might have granted a right in particular parts of the shore, so, either he or his grantee of the soil of any part of the shore, may take the products of the shore, provided their removal does not impede the public right of way. The owner of the soil of the shore may also erect such buildings or other things as are necessary for the carrying on of commerce and navigation on any parts of the shore that may be conveniently used for such erections, taking care to impede, as little as possible, the public right of was. This is not more inconsistent with a public right of way over it, than the right of digging a mine under a road, or the erecting of a wharf on a river, are inconsistent with the right of way along such road or river. The former does not interfere with the use of the road; and although the latter, in order to be useful, must be carried out beyond the highwater mark, and, whilst the tide is up, must somewhat narrow the passage of the river ; yet, such wharfs are necessary for the loading and unloading of vessels, and the right of passage must be accommodated to the right of loading and unloading the craft that pass. The law in these, as in all other cases, limits and balances opposing rights, that they may be so enjoyed as that the exercise of one is not injurious to the other. The civil law, copying, in this respect, from the law of nations, allowed any one to build on the sea-shore (there being, under that law, no lords of manors to claim the soil), but imposed builders the condition that the law of England imposes on the owners of the soil, that is, that their buildings should not interrupt the right of way. Digest, 1. 43, tit. 8. In littore jure gentium ædificare liceret nisi usus publicus impediret.
The universal practice of England shows the right of way over the sea-shore to be a common law right. All sorts of persons who resort to the sea, either for business or pleasure, have always been accustomed to pass over the unoccupied parts of the shore with such carriages as were suitable to their respective purposes, and no lord of a manor bas
ever attempted to interrupt such persons. Goods could not be landed or loaded except at particular places ; but this restraint was imposed by laws made for the protection of the revenue, and the security of the realm, and is not the consequence of any rights in the owners of the soil of the shore. Men have landed from boats, drawn their boats on the sands during their stay on shore, and embarked again in their boats. Persons have at all times, at their pleasure, walked or ridden on the sands. Men have, from the earliest times, bathed in the sea ; and, unless in places or at seasons when they could not, consistently with decency, be permitted to be naked, no one ever attempted to prevent them. So far from the law allowing lords of manors to restrain persons from bathing, it will give them every facility for this recreation. Bathing promotes health. By bathing, 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
. It is found as a fact, in this case, that it has been the custom for the public to cross the spot in question on foot for the purpose of bathing. Bathing-machines were used before my time, and I believe before that of the oldest person now alive, and I think the use of them is essential to the practice of bathing. Decency must prevent all females, and infirmity many men, from bathing, except from a machine. Attempts have been made to make those who use machines pay some acknowledgment to the lord of the manor where they were used ; but I cannot find that any of those attempts have yet succeeded. I shall presently show from authority, that the right to fish is only a part of the general right of the subjects of England. Persons have also crossed the beach for the purpose of fishing in the sea, and have brought back their fish over the beach, both on horses and in carriages. These acts of the fishermen are instances in support of the common law right of way.
The practice of a particular place is called a custom. A general immemorial practice through the realm is the common law. Many of our most valuable common law rights have no other support than universal practice. In Ball v. Herbert, 3 T. R. 261, Lord Kenyon says: “Common law rights are either to be found in the opinions of lawyers, delivered as axioms, or to be collected from the universal and immemorial usage throughout the country.” The instances put by me sufficiently demonstrate the existence of a universal custom in favor of a public right of way over the sea-shore.
It has been at all times the policy of this country to encourage navigation. The free passage of the sea-shore is essential to the convenience and safety of navigation. Cases of immediate necessity or imminent danger may be said to form exceptions to general rules; but there are many cases in which there is neither immediate necessity nor imminent danger, in which boats must pass between ships at sea and the shore, letters and provisions must be sent, passengers require to land or to embark, intelligence necessary to the further prosecution of