Lord Advocate v. Young is a stronger case. By sec. 34 (37 & 38 Vict. c. 94) of the Conveyancing (Scotland) Act, 1874, the period of prescription having been reduced from forty years to twenty years, the various acts of possession proved to have been exercised during a period of twenty years, were that the pursuer's (i. e., plaintiff's) predecessors had built a retaining wall upon a portion of the foreshore, that he and his predecessors had taken stone and sand from the foreshore, and that they and their tenants had exclusively carted away the drift sea-ware. The Crown, on the other hand, adduced evidence to show that stones and sand had been taken from the shore to build a harbour, and that the villagers had carried away in creels drift sea-ware. The House of Lords held that the pursuer had given sufficient prescriptive evidence following on his title to confer on him a valid right of property to the solum of the foreshore as against the Crown.

Restrictions upon the proprietary title of the Crown or of its grantee. Having discussed so far the nature of evidence required to establish the proprietary right of the subject to the foreshore as against the Crown, I next propose to consider the nature of some of the restrictions with which this proprietary right is burdened, whether it still remains in the Crown or has been granted to a subject.

1. Right of access.-First: The Crown's ownership of the soil of the foreshore is subject to the right of access to sea, possessed by the owner of the land adjoining the foreshore. The Crown cannot grant the foreshore to a subject free from this burden. It has been held in a very recent case2 decided by the Privy Council that as against the Crown or its grantee such owner has a private right of access to and egress from the sea, distinct from his public right to the fishery and navigation thereover; and where there is an invasion of such right by means of reclamation and other works (e. g., the erection of a quay or a pier) executed on the foreshore in front of his land by the Crown or its grantee, such owner is entitled to recover damages. Besides the owner of the land adjoining the foreshore, every member of the public has a right of

112 App. Cas., 544.

2 Attorney-General of the Straits Settlement v. Wemyss, 13 App. Cas., 192. Cf. Lyon v. Fishmongers' Company, 1 App. Cas., 662; North Shore Railway Co. v. Pion, 14 App. Cas., 612. In England the dignity and prerogative of the Crown does not allow a petition of right for a tort committed by itself, but according to the law of the Straits Settlement (whence this appeal was brought before the Privy Council), the Crown can be sued in tort. AttorneyGeneral of the Straits Settlements v. Wemyss, 13 App. Cas. 192.

RIGHT OF ACCESS AND NAVIGATION.

59

access to the sea, for the purposes of navigation and fishing, though he may only get to the foreshore by means of a public highway.1

2. Right of navigation.-Secondly: This ownership of the Crown is also, as I mentioned before, subservient to the public right of navigation, and cannot be used in any way so as to derogate from, or interfere with, such right. The grantees of the Crown, consequently, take subject to this right, and any grant to a subject which interferes with the exercise of this public right is void as to such parts as are open to such objections, if acted upon so as to work an injury to the public right.2 •Any such interference with the public right will be abated as a nuisance. In the case of Attorney-General v. Richards, it appeared that the defendants had built certain permanent structures in the Portsmouth harbour between high and low water-marks, which prevented vessels from passing over the spot or mooring there, and also endangered the navigation of the harbour by preventing the current of water from carrying off the mud. The structures were held to be nuisances, and defendants were restrained from making further erections, and were ordered to abate those already built. Every structure erected on the foreshore, however, is not necessarily. a public nuisance. It becomes a public nuisance only when it interferes with the exercise of this public right. What is a public nuisance is therefore a question of fact to be decided according to the circumstances of each case.*

If an act be done for a public purpose and be productive of a counterbalancing advantage to the public in the exercise of that very right, the invasion of which constitutes the supposed nuisance, it is really within the trust, so to speak, of the Crown, and not wrongful.

Б

Although, neither the Crown nor its grantee is competent to obstruct the navigation, there can be no doubt that an obstruction authorized by Parliament would be lawful.6

The public right of navigation carries with it certain incidental pri

1 Hall on the Seashore (2nd ed.,) 172; Morris' Hist. cf the Foreshore, 847-848.

2 Gann v. Free Fishers of Whitstable, 11 II. L. C., 192; Attorney-General v. Burridge, 10 Price, 350; Attorney-General v. Parmeter, 10 Price (378), 412.

2 Anst., 603.

Attorney-General v. Richards, 2 Anst., (603), 615; Attorney-General v. Burridge, 10 Price, 350; Reg. v. Betts, 16 Q. B., 1022; Reg. v. Randall, 2 Car. & M., 496; Attorney-General v. Terry, L. R., 9 Ch., App., 423.

Rogers v. Brenton, 10 Q. B., 26.

& Rex v. Montague, 6 D. & R., 616; 4 B. & C, 598.

vileges, such as the right to anchor, which involves the use of the soil beneath the water as well as of the water itself. The right of anchorage 'is essential to the full enjoyment of the right of navigation, and if reasonably and properly exercised, is protected like the principal right, even though it may cause a temporary disturbance of the soil, or an unavoidable injury to an oyster bed there planted. Although this right of passage over water may be unlimited as regards locality, yet it would seem that the right to anchor is confined to such places alone as are usual and reasonable having regard to the condition of the particular place.

In Mayor of Colchester v. Brooke, it was held that the right of pas-' sage in a river, and a fortiori in the sea, exists at all times and states of the tide, and that it is no excess of this right if a vessel which cannot reach its destination in a single tide, remains aground till the tide şerves again.

This right of passage was held in Blundell v. Catterall, (a somewhat old case), not to extend, in the absence of necessity or of prescription, to the right of crossing the foreshore when it is dry at low-water for the purpose of bathing, fishing, landing goods, or of navigation, where the foreshore is vested in a private individual. In a supplemental chapter of essay on the seashore, Mr. Halhas elaborately and very forcibly combated the reasons for the judgment pronounced in that case and has adduced, most excellent arguments to shew that the grounds, upon which the general right of the public to cross the seashore for the purpose of bathing was denied in that case, cannot reasonably be sustained. It may, pops, be worth while to observe, in further support of Mr. Hall's position, that as the owner of the foreshore in that case had the exclusive right of fishing thereover with stake nets under a valid grant created by the Crown before Magna Charta, the ultimate determination at which the Court arrived might well perhaps be upheld without acknowledging the necessity of affirming the very broad proposition, that the public has no right to cross the shore at low-water mark at any place; because the

B..

1 Gann v. Free Fishers of Whitstable, 11 H. L. C., 192; Mayor of Colchester v. Brooke, 7 Q. 339.

2 Rex v. Ward, 4 A. & E., 384.

3 Williams v. Wilcox, 8 A. & E., 314.

47 Q. B., 373.

6 Blundell v. Catteral, 5 B. & Ald., 268.

6 Ibid.

7 (2nd ed.), 155-186; Morris' Hist. of the Foreshore, 833-800.

PUBLIC RIGHT OF PASSAGE ACROSS OR ALONG FOReshore.

61

unrestrained liberty of the general public to pass and repass over the foreshore is really incompatible with the exclusive right of a private owner to fish over any particular spot with what are called stake nets planted in the soil. Moreover, the grounds of decision in that case seem to be inconsistent with the judgment in Bagot v. Orrl where it was held that, the public has a right by Common law to take shell-fish from the shore, such as lobsters, crabs, prawns, shrimps, oysters &c. even though the proprietary right to the particular spot may be in a private individual. If a man is not a trespasser when he is up to his knees or neck in water in search of a fobster, a crab or a shrimp, it would indeed be a strange anomaly, if he were to be treated as such when he goes there for bathing. In fact, later decisions seem virtually to haye overruled the dicta in Blundell v. Catterall, and it is doubtful whether they would be supported at the present day. If the proprietary right of the Crown or of its grantee were, subject to the public rights of navigation and fishing, se exclusive and absolute in its character, as it was declared to be by the learned Judges (except Best, J.,) in that case, it woul follow that even the owner of the land adjoining the foreshore would have no right of access to, and egress from, the sea over the foreshore where it happened to be vested in a subject (other than himself) by grant from the Crown; but this, however, would, as I have already pointed out, be contrary to the rule of law established by the highest authority.

W regard to the public right of way along the coast at high wate for the purpose of navigation or fishing, Mr. Hall thus argues :"The low, for instance, will compel him " i. e., the fisherman or the navigator to take the usual and public road down to the sea-side if there be one within reasonable and convenient distance; but when there, how is he to reach his boat which may be a mile off along the shore, at the time of high water, unless he can go along the edge of the coast on the terrâ firma to his boat? It would be a serious obstruction to the fishery if he must bring his boat where the old road runs into the sea, and nowhere else. So, when in the sea, if he desire to land his fish, his mer

1 2 Bos. & Pul., 472.

'Marshall v. Ulleswater Co. L. R., 7 Q. B., 166; Mayor of Colchester v. Brooke, 7 Q. B., 339 5 B. & Ald. 268.

Afterwards, Lord Wynford.

Attorney-General of the Straits Settlement v. Wemyss, 13 App. Cas., 192. Cf. Lyon v. Fishmongers' Company, 1 App. Cas., 662; North Shore Railway Co. v. Pion, 14 App. Cas., 612.

chandise (not customable) or himself, at the time of high water, unless he is allowed a way along the terrâ firma to the next public road, he cannot land at all; wherefore in all such cases, at the time of high water, there must be a Common law right of way, along the dry land to the nearest inland road."

This

3. Right of fishery.-Thirdly: The ownership of the foreshore by the Crown is also burdened with the public right of fishing thereover.' The Crown cannot since Magna Charta grant to a subject an exclusive right of fishery over the foreshore, nor grant any portion of the foreshore itself freed from this public right. An exclusive right of fishery in the sea or over the foreshore can now be claimed by a subject only under express grant from the Crown made prior to Magna Charta or by prescription, or ancient enjoyment presupposing such a grant.3. right of the public to fish has been held to include the taking of shell-fish; but not perhaps of shells. This public right is, however, subservient to the paramount right of navigation. Whether the fishermen and others have a right to drag up their vessels above the reach of the tides, upon the banks, for security and for repairs, as is the general practice, does not seem ever to have been decided; but this seems essential to the exercise of the right of fishing, and would therefore be supported. It is incontestable that immemorial custom will entitle the fishermen of a sea village to beach their boats in winter on ground adjoining the foreshore.6

a.

There is no general right in the public to enter the foreshore and take sand, shells and sea-weed. These being either part or natural products of the soil of the foreshore, belong primâ facie to the Crown or its grantees. When the soil of the foreshore still remains vested in the Crown, the removal of these things by the public is attributable rather to forbearance or non-intervention on the part of the Crown, than to the existence of any right in them. A lord of a manor cannot claim a

1 Hall on the Seashore (2nd ed.,) 176-177; Morris' Hist. of the Foreshore, 851-852.

2 Fitzwalter's case, 1 Mod, 105; Warren v. Mathews, 1 Salk., 357; Smith v. Kemp, 2 Salk., 637; Ward v. Cresswell, Willes, 265; Bagot v. Orr, 2 Bos. & Pul., 472; Carter v. Murcot, 4 Burr., 2163; Neill v. Duke of Devonshire, 8 App. Cas., 135.

Malcolmson v. O'Dea, 10 H. L. C., 593; Neill v. Duke of Devonshire, 8 App. Cas., 135, 4 Bagot v. Orr, 2 Bos. & Pul., 472.

• Attorney-General v. Parmeter, 10 Price., 378; Attorney-General v. Johnson, 2 Wils., 87. Aiton v. Stephen, 1 App. Cas., 456.

7 Howe v. Stowell, 1 Al. & Nap., 356; Bagot v. Orr, 2 Bos. & Pal., 472.

Per Best, J., in Dickens v. Shaw, Hall on the Seashore, (2nd ed.,) Apdx., lxviii.