change in the course of a river, or an accretion or decretion on the seashore, the landowner cannot rebut the doctrine of accretion by showing the former boundaries of his land.

The principle of accretion and decretion (if such a word may be used), as distinguished from sudden overflowing and dereliction, is of course a most convenient one for the adjustment of the boundaries of property, and is deserving of every respect; but its weak part is that, like all convenient presumptions of law, which are invented to make a rough-and-ready end of difficult questions by arriving at a conclusion as to the probable facts in the absence of evidence of the facts themselves, it is apt to be taken as absolute and irrefragable in all cases, and the exceptions to the principle and the qualifications of it are too easily overlooked and forgotten. It would no doubt be very convenient and save much trouble if, as Lindley, L.J., seemed to think in Foster v. Wright, the qualifications and limitations of the doctrine were wholly got rid of; but, if they were, very serious injustice might easily be done, e.g. the case of an ancient embankment of salt marsh where the wall had been broken and the sea had gradually turned the marsh into foreshore (c).

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It is submitted that the qualification of the doctrine as to proving former boundaries still exists as law, and then the question remains as to what is sufficient evidence to show the former boundary of the land after the irruption of the water and gradual eating away and overflowing of the land. What will satisfy the expressions, "boundes mis et troves," or 'boundes mis et troves devaunt"; "other known boundaries as stakes or extent of land"; "certain known metes or extents"; "reasonable marks to continue the notice of it, or, though the marks be defaced, yet if by situation and extent of quantity and bounding upon the firm land the same can be known"; "yet if the certain extent or contents from the land not overflown can be evidenced though the bounds be defaced"? Must the marks be physical marks, as stakes or sea walls only? It would appear not to be so. Will not a map marking the former boundary and showing the encroachment suffice? Is it necessary that the person who will gain by the encroachment of the water must have notice of the record of the former boundary to make such record admissible as evidence? In short, what steps must an owner, who sees that an encroachment is imminent, take to protect his boundary and preserve his property? These are questions difficult to answer satisfactorily. It is clear that physical marks, as stakes, are the best records. They give notice to the owner

(c) See Hale, pp. 381, 382, and cases there cited.

of the encroaching water of the claim of the person on whose land it is encroaching, and had stakes been fixed in the case of Foster v. Wright, it is possible that the decision would have been different. But physical marks cannot, from the nature of things, be always resorted to. It may be impossible to fix them, or to keep them in place when fixed, and when that is so, it would seem that the only means at the disposal of the landowner, upon whose land the water is encroaching, is to make careful survey and plan, and to keep a record of the former boundary of his land and to prove it by such evidence as he can procure. Of course, in case of sudden movement of the water he is fully protected; but in the case of gradual and imperceptible movement he must not stand idly by and let it continue unnoticed and unrecorded. If he mark his boundary physically, it would seem that he is in a position to rebut the doctrine of accretion and decretion; and it is difficult to see why, when the circumstances of the case make it impossible to mark the boundary physically, he is to lose his land because he adopts the only other alternative open to him to keep a record of that boundary, viz., by making and marking a plan of the gradual movement of the water over his land.

The distinction between what is gradual and imperceptible accretion or decretion and what is not is extremely difficult to determine. It must depend in most cases upon the facts and evidence. The principle upon which it is to be determined was laid down by Willes, J., in Lloyd v. Ingram (d), in 1868, and was cited by Smith, L.J., in Hindson v. Ashby (e) as follows:

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The whole doctrine of accretion is based upon the theory that from day to day, week to week, and month to month, a man cannot see where his old line of boundary was, by reason of the gradual and imperceptible accretion of alluvium to his land. How can this apply to a case like the present, when the whole thing is at once patent? The late Willes, J., in the case of Lloyd v. Ingram (the Shoreham foreshore case), there laid down the law of accretion to the jury: If by gradual and imperceptible accretions in the ordinary course of the operations of nature land is added on by slow degrees to the shore' (Lloyd v. Ingram had relation to the seashore; but as to this point a river stands, in my judgment, upon the same footing), 'notwithstanding that after a certain period you may see that a body of land, however considerable, has accrued to the shore, yet if the steps by which that land is formed are steps gradual and in the ordinary course of nature, and happening from time to time, but you cannot perceive the change from step to step (if one may use that

(d) Separately reported in 1868.

(e) [1896] 2 Ch. at p. 28.

figure), then that land so gradually and imperceptibly accrued does belong to the owner of the shore, and is given to him by the law as his property. I say gradual and imperceptible. . . . The question is whether the land in question was formed by sudden practical perceptible addition such as ordinary observation would recognise from time to time, or whether it was formed by gradual addition such as ordinary observation would not recognise as from step to step, but as to which from stage to stage you would say, there has been an addition that I can now perceive, to the place in question.'

In the case of Att.-Gen. v. Reeve (f), which related to a claim by the Crown to accretion at Lowestoft, the accretions had been measured and noted through a long course of years as they took place, the sea sometimes encroaching and sometimes retiring; and on this evidence it was held that the accretions were perceptible, and that therefore they did not belong to the adjoining owner.

The case of the change in the course of a river, considered in Foster v. Wright, was one where the whole of the river and fishery belonged to one owner.

The result of the cases appears to be that where the change in the course of a river is sudden and perceptible, as distinguished from gradual and imperceptible, the right to the fishery does not follow the new channel so suddenly created. When the change is gradual and imperceptible the boundaries of the fisheries and the extent of the rights of the fishery owners respectively will change as the river changes, subject always to the question as to how far in particular cases there exists evidence of the original boundaries sufficient to rebut the application of the doctrine of accretion. Whether the change has been caused gradually and imperceptibly, or otherwise, must of course depend upon the facts of each particular case, and must be decided on the principles of the law of accretion (g).

It would appear, therefore, that (apart from the question in what manner the doctrine of accretion may in certain cases be rebutted by evidence as to the original boundaries), when a non-tidal river gradually and imperceptibly changes its course, the ownership of the soil of its bed and the fishery over it will shift as the river shifts. If it be the property of one person it will remain so in its newly acquired course. If the fishery belongs to the proprietors on the two opposite banks to the mid-stream, the line of the filum aquæ, which is the boundary of their respective rights, will change as the river changes, and the line is to be ascertained by taking the mid-line between the

(f) (1885) 1 Times L. R. 675.

(g) See Hale, De Jure Maris, cap. vi.; Gould on Waters, sects. 76, 77, 155-159; Woolrych on Waters, c. ii.; Stuart Moore on Foreshore, and cases cited ante.

lines on the banks of the river which mark the ordinary and usual flow of the river unaffected by freshets or by extreme droughts.

In a tidal river belonging solely to one owner the fishery will follow the change of the river into the newly acquired course formed by the gradual and imperceptible change. In a tidal river owned by opposite proprietors to the mid-stream the fisheries will extend to the filum aquæ, and shift as to boundary as that filum aquæ shifts; but in this case, unlike the case of a non-tidal river, the filum aquæ will be ascertained by taking the mid-stream of the river at ordinary low water mark, leaving half the bed (fundus) of the river and all the foreshore on either side in the respective fisheries of the opposite proprietors; for the bed of a tidal river is its bed at low water time when unaffected by the tidal influence of the sea (h). If a tidal river, the fisheries in which belong to opposite proprietors to the middle of the channel, changes its course and forms a new channel, the medium filum of the new channel will be the boundary of the fishery, and not a landmark corresponding to what had been the the medium filum of its former course.

(h) Miller v. Little, (1878) 2 L. R. Ir. 304 ; 4 L. R. Ir. 302; see ante, pp. 120–122.

CHAPTER XXII.

OF GRANTS OF FISHERIES.

GRANTS of fisheries are all, or nearly all, ancient documents, and come within the class of documents which are now construed upon the principles laid down in the cases of Waterpark v. Fennell (a), Duke of Beaufort v. Swansea (b), Duke of Devonshire v. Pattinson (c), viz., that "all ancient documents where a question arises as to what passed by a particular grant, can be explained by modern user" [per Lord Wensleydale]. In Pattinson's Case the grants in question were dated 1767 and 1846. This established principle of construction, which is founded on the soundest of common sense, makes it unnecessary for us to have resort to the various ancient dicta which we find in text-books as to what will pass by particular expressions in a grant. These dicta conflict to some extent, and the most important of them, that of Lord Coke, has been overruled. It will, however, be well to discuss them in order to prevent the recurrence of elaborate arguments based upon them in the future.

In Throckmorton v. Tracy (d) it is stated that "the word stagnum is a word compounded of land and water, and contains both, and the words aqua et piscaria consist of the water and the land which a man shall have by a grant of the said words, as it was adjudged in The Earl of Derby, 4 Edward III." This supports the contention that by the grant of a fishery the soil passes.

Coke (e) states: "If a man be seized of a river, and by deed do grant separalem piscariam in the same, and maketh livery of seizin secundum formam charte, the soil doth not pass, nor the water, for the grantor may take water there; and if the river become drye, he may take the benefit of the soile, for there passed to the grantee but a particular right, and the livery, being made secundum formam chartæ, cannot enlarge the grant. For the same reason, if a man grant aquam suam, the soile shall not pass, but the pischary within the water passeth therewith."

(a) (1859) 7 H. L. C. 650.
(b) (1849) 3 Exch. 413.
(c) (1887) 20 Q. B. D. 263.

(d) (1555) Plowden, 151.
(e) Co. Litt. 4 b.