Durham (y), and those fronting and adjacent to Crown lands, and mines under the foreshores are excepted. Among the powers thus given to the Board are those of leasing foreshores (z) or derelict lands for ninety-nine years, and of compromising the Crown's disputed claims with the consent of the Treasury (a). By the Harbour Transfer Act, 1862 (b), the Board has also the power, formerly vested in the Admiralty, of preventing ballast and shingle from being taken from the shores or banks of any ports; and as to this it has been decided in Nicholson v. Williams (c), that the word port" is here used in its wide sense of port as appointed by the Treasury for customs and fiscal purposes, and this interpretation was given statutory sanction by the Customs Consolidation Act, 1876, s. 11 (d). There is no doubt that a subject may be owner of a portion of the sea shore by express grant from the Crown (e). The aliena (y) As defined by the Thames Conservancy Act, 1867, the Tees Conservancy Act. 1857, and 21 & 22 Vict. c. 45, respectively. (z) The Crown Lands Act, 1845 (8 & 9 Vict. c. 99); the Harbours Act, 1814 (54 Geo. 3. c. 159). As to leases of the sea shore and of oyster and mussel fisheries under the Sea Fisheries Act, 1868, see the Crown Lands Act, 1885 (48 & 49 Vict. c. 78), s. 3. (a) The Crown Lands Act, 1853 (16 & 17 Vict. c. 56), s. 5. (b) 25 & 26 Vict. c. 69. (c) L. R. 6 Q. B. 632. In Burton v. Hudson, [1909] 2 K. B. 564, it was held that where the Board of Trade has prohibited the taking of shingle from the shore under this section and the owner has subsequently taken it and has set up a bona fide claim of right to do so, justices were right in dismissing the information on the ground that a bona fide claim of a right which can exist at law having been raised their jurisdiction was ousted; but where the owner of land above high water mark claimed to take shingle from the shore for the purpose of building a retaining wall above high water, the Court held that an offence had been committed, and that the justices' jurisdiction was not ousted. Anderson v. Jacobs, 21 T. L. R. 453, 93 L. T. 17, (1905) post, p. 37. It would seem that, under the Harbours Act, 1814, it is not an offence to remove ballast from below low water mark. (d) 39 & 40 Vict. c. 36; see also post, p. 503. By section 8 of the Crown Lands Act, 1894 (57 & 58 Vict. c. 63), the Commissioners of Woods may, with the consent of the Treasury, release to or waive in favour of any grantee of land from the Commissioners or any parish council, district council, council of a county borough, or other local authority or body having power by statute to supply water, any water right exerciseable by or reserved to the Crown. Section 6 (1) of the Act of 1906 empowers the Commissioners of Works, under the Crown Lands Acts, 1829-1894, to convey bridges under their management and land required for widening or improving bridges to a bridge authority willing to accept such conveyance; and for the purposes of this section "bridge includes the approaches to and abutments of a bridge, and "bridge authority" means any local authority having the duty of the maintenance of bridges. (e) Moore's History of Foreshore, pp. 672-683; Att.-Gen. v. Portsmouth, 25 W. R. 559; see also, as to construction of such grants, Att.-Gen. v. Hanmer, 4 De G. & J. 200; Ranfurley, Ex parte, Ir. R. 1 Eq. 128; see also Att.-Gen. v. Ceeley, Wightwick, 208; Att.-Gen. v. Plymouth, Wightwick, 134; 12 R. R. 713, where the Crown was held entitled to Sutton Pool semble under grant from a subject; Vyner v. Mersey Docks, 14 C. B. (N.s., 753, where foreshore was granted to different persons in succession by the Crown; held, that first grantee was entitled. Quare, whether the Crown can grant lands under sea, which after grant become derelict, and as to what words are necessary to pass such lands. (Att.-Gen. v. Farmer, 2 Lev. 172; Sir. T. Raymond, 246; 2 Mod. 106.) Title by ex- By prescription. tion of Crown lands was prohibited by 1 Anne, c. 7 (f); and so much therefore of the sea shore as has not actually been aliened still remains vested in the Crown, incapable of alienation except under powers conferred by subsequent statutes (g). Grants by the Crown of portions of the sea shore to a subject are like all Crown grants to be construed strictly in favour of the Crown pro bono publico and against the grantees (h). The burden of proof is in all cases on the claimants, and unless they make out a good title judgment must be for the Crown (i). The same rules, however, of common sense and justice must apply in the construction of a deed, whether the subject-matter of construction be a grant from the Crown or from a subject-it being always a question of intention to be collected from the language used with reference to the surrounding circumstances (k). Thus in the Scotch case, Lord Advocate v. Wemyss (1), the House of Lords held that the doctrine of possession by prescriptive working for minerals applicable to the foreshore ex adverso of a barony granted with parts and pertinents cannot be extended to a barony granted with power to work minerals below low water mark, because the words showed that the grant was limited to minerals under the foreshore only. Nor can such prescriptive use be extended to a third barony where a barony with boundary charter lies between. In absence of express grant of the shore, the question arises whether a title to it as against the Crown can be acquired by a subject by user and prescription, giving rise to the presumption of a grant. Hall, in his book on the Sea Shore (m), discusses this point elaborately, and comes to the conclusion that as the shore is land, it must be governed by the same rules of law as to title and (f) 1 Anne, c. 7, s. 5; Doe d. R. v. York, 14 Q. B. 81. The following are the principal Acts relating to the management of the land revenue of the Crown : 10 Geo. 4. c. 50; 2 Will. 4. c. 1; 2 & 3 Will. 4. c. 112; 3 & 4 Will. 4. c. 67; 5 Vict. c. 1; 8 & 9 Vict. c. 99; 11 & 12 Vict. c. 102; 14 & 15 Vict. c. 42; 15 & 16 Vict. c. 62; 16 & 17 Vict. c. 56; Crown Lands Acts, 1866, 1873, 1885, 1894, and 1906. (g) As to the validity of a grant of foreshore by the Crown under the Crown Lands Act, 1829 (10 Geo. 4. c. 50), see Liverpool and N. Wales Steamship Co. v. Mersey Trading Co., [1908] 2 Ch, 460, 78 L. J. Ch. 17 (C. A.), post, p. 466. (h) There are exceptions to this rule of construction; see note (t), post, P. 29. (i) Att.-Gen. v. Portsmouth, 25 W. R. 559, C. A. (k) Lord v. Commissioners of Sydney, 12 Moo. P. C. 473. (m) Set out in Stuart Moore's History of Foreshore, pp. 682-709; but see his notes thereto. It has, however, been held, in Att.-Gen. v. Emerson, [1891] A. C. 649, that the ownership of a several fishery raises a presumption against the Crown that the freehold of the foreshore over which the fishery is exercised is in the owner of the several fishery. proof of title as terra firma; and that as prescription and user can give no title to lands, especially as against the Crown, such title, in the absence of express grant, can only be supported by evidence of adverse possession for the full period prescribed by the Statutes of Limitations relating to Crown lands-viz. sixty years. He further argues that the evidence capable of supporting such adverse possession must be similar to that which will support a claim by adverse possession to inland estates-viz. evidence of occupation and actual possession; and that, therefore, the user of rights and privileges-such as the right to wreck, several fishery, royal fish, and, perhaps, digging sand, which are separable from the ownership of the soil, and do not imply a title to it cannot be evidence to support a claim to absolute ownership of the soil (m). Phear, in his Rights of Water, takes a view more favourable to claimants against the Crown. "Almost all beneficial enjoyment of land," he says, "is necessarily so exclusive in its character as to leave but little opening for question as to its possession. It is only with regard to waste land, waters and the sea shore that any real doubt can arise. On the other hand, of these latter the sea shore especially is, by its very nature, so little capable of exclusive possession, that the most undoubted owner of it finds it very difficult to support his title by user. In some sense, ownership may be said to be an aggregate of exclusive easements; the greater the number of them which are openly exercised, the stronger is the probability of the greater right being the true foundation of that exercise. Where, as in the case of the sea shore, the incidents of enjoyment are very few, it is not easy to say whether the user of one or two of them is to be referred to the greater or the lesser right. No general rules of guidance can be laid down, but perhaps it may be assumed, that to make acts evidence of ownership, they must appear, under the circumstances which surround them, to have been done animo habendi, possidendi et appropriandi” (n). The Courts, however, have taken the later view of the law, holding that evidence of the user of various rights and privileges. is admissible to show that the part of the shore claimed forms parcel of the adjoining manor or lands. This proposition is stated with authority by Lord Watson in a case which came before the House of Lords on appeal from the Courts of Scotland: (0) There is in my apprehension, or ought to be, a practical distinction recognized between the prescriptive possession which (m) See note (m) on p. 26. (n) Phear on the Rights of Water, p. 88. (0) Lord Advocate v. Wemyss, [1900] A. C. 48, H. L. Sc. establishes a new and adverse right in the possessor, and the prescriptive possession which the law admits, for the purpose of construing or explaining, in a question with its author, the limits of an antecedent grant or conveyance. In the first case the rule obtains tantum prescriptum quantum possessum. In the second, it appears to me a much more liberal effect has been given to partial acts of possession as evidencing proprietary possession of the whole, in cases where the subject of controversy has been in itself a distinct and definite tenement. The foreshore is simply a tract of land, at times covered by the tide. and at other times dry, and is in many respects attended with the same incidents as land estate situated above the level of high tide. When the subjacent minerals have not been severed from it in title, an absolute grant of foreshore will, just as in the case of other land, carry the whole materials below it usque ad centrum, and in the absence of express grant, the fact of the baron's having worked a mineral seam below it might be reasonably regarded as a strong act of possession, to be taken into account along with other acts and circumstances, in determining whether he and his predecessors in title had been in prescriptive proprietary possession of the whole foreshore. "For a definition of what will constitute sufficient evidence of such possession, I may refer to the remarks made by Lord Blackburn in Lord Advocate v. Lord Blantyre: (p) Every act shown to have been done on any part of that tract by the barons or their agents which was not lawful unless the barons were owners of that spot on which it was done is evidence that they were in possession as owners of that spot on which it was done. No one such act is conclusive, and the weight of each act as evidence depends on the circumstances; one very important circumstance as to the weight being, whether the act was such and so done that those who were interested in disputing the ownership would be aware of it. And all that tends to prove possession as owners of parts of the tract tends to prove ownership of the whole tract; provided there is such a common character of locality as would raise a reasonable inference that if the barons possessed one part as owners they possessed the whole, the weight depending on the nature of the tract, what kind of possession could be had of it, and what the kind of possession proved was. This is very clearly explained by Lord Wensleydale (then Baron Park) in Jones v. Williams (q). And as the weight of evidence depends on rules. of common sense I apprehend that this is as much the law in a Scotch as in an English Court. And the weight of the aggre (p) 4 A. C. 770, 791. (q) 2 M. & W. 326, 633, 46 R. R. 611. gate of many such pieces of evidence taken together is very much greater than the sum of the weight of each such piece of evidence taken separately.' In actions against mere trespassers, a sufficient possessory title can be established by persons claiming foreshore, without producing evidence sufficient to displace the title of the Crown (r). There is no doubt that the foreshore may, and very frequently Foreshore does, form parcel of a manor; it may also be parcel of an honor, or borough, or land (8). Where the grant of the manor is express and unambiguous, the title to the shore will depend wholly on the construction of the metes and boundaries of the grant, which will, as has been said, be construed stricto jure in favour of the Crown and against the grantee (t). Thus if the boundary be expressed to be down to the sea, it is presumed that the ordinary high water mark is intended as the boundary line; but if it is expressed to be down to low water mark, this will be tantamount to a grant of the shore (u). In fact land granted, whether situate upon the sea coast or inland, is co-extensive with the words of the grant, and no more. (r) Corporation of Hastings v. Ivall, L. R. 19 Eq. 558. Actual possession of the locus in quo would have been not merely evidence of title, but actually a tile against wrongdoers." Per Lord Blackburn, in Bristowe v. Cormican, 3 A. C. 660. See also Smith v. Stair (Earl of), 2 H. L. Cas. 807, 13 Jur. 713; Reg, v. Downing, 23 L. T. 398; Johnson v. Barrett, Aleyn, 10; Moore's History of Foreshore, p. 661. (s) Hale de Jure Maris, c. 6, Harg. 27; Calmady v. Rowe, 6 C. B. 861; Duke of Beaufort v. Swansea, 3 Ex. 413; Sir H. Constable's Case, 5 Rep. 107; Sir John Constable's Case, Anderson, 36; Ranfurley, Ex parte, Ir. R. 1 Eq. 128: Case of Barons of Barclay, Harg. Tracts, 34; Alston's Estate, In re, 5 W. R. 189; Att.-Gen. v. Portsmouth, 25 W. R. 559; Lord Advocate v. Blantyre, 4 App. Cas. 770; In re Tomline, 28 L. T. 12; Wyse v. Leahy (1875), Ir. Rep. 9 C. L. 384; Moore, History and Law of Foreshore, pp. 76, 103, 554, 685. Prima facie, the foreshore in the Duchy of Cornwall is within the parliamentary grant to the Black Prince and inalienable, but evidence of enjoyment by owners of adjoining manors may justify the presumption of a statute vesting it in them. (Lopes v. Andrews, 3 M. & R. 329.) In Le Strange v. Rowe, 4 Fost. & Fin. 1048, Erle, C.J., said: There are some manors that remain in the Crown as in Cornwall, but I take it that in the great majority of cases the right to the foreshore between the high and low water mark is in the lord of the manor. (t) Cf. judgment of Sir Henry Nicholls in King v. 49 Casks of Brandy (1836), 3 Hag. Ad. 275, that all grants of the Crown are to be construed strictly. There are exceptions to this rule: grants of land made by Queen Elizabeth before 1600 are to be construed more beneficially to the grantees, see 1s Eliz. c. 2, and 43 Eliz. c. 1. (u) In Corporation of Hastings v. Ivall, L. R. 19 Eq. 558, where there was a grant by Queen Elizabeth of all that her parcel of land called the Stone Beache," it was held that, as the name Stone Beach now applied to the entire beach below as well as above high water mark, such grant, as against a person not claiming any title himself, must be presumed to include the whole foreshore. In Att.-Gen. v. Hanmer, 4 De G. & J. 200, 6 W. R. 804, under a grant of waste lands or marish grounds the foreshore of a tidal river has passed on proof of user; and a grant by the Crown of all coals under commons, waste grounds or marshes" of a certain manor has been held to pass coal lying under the space between high and low water mark on the shore of such See also In re Belfast Dock, Ir. R. 1 Eq. 128. manor. may form parcel of a manor. Effect of grant of seacoast manors. |