Acts of ownership admissible to prove extent of grant.

A grant, therefore, of a sea-coast manor does not necessarily include the foreshore, though it may do so, even though the technical words to describe it are absent, for example, when the grant is of the manor cum pertinentiis or grants, rights, privileges, or franchises to be exercised within the manor which can from their nature only be enjoyed in respect of the foreshore (x).

Where the owner of an adjoining manor, whose title to the manor from the Crown is not disputed, claims a portion of the sea shore as forming parcel of that manor, the question is really one of boundary, and not of title; and in such cases it has been decided that acts of continuous ownership, including under this head such rights as those of taking wreck and royal fish, digging and selling stones and sand, and cutting seaweed, building a retaining wall, working minerals under the foreshore, and the enjoyment of an exclusive fishery, may be called in to explain the grant and to prove the portion of the sea shore claimed to be within the boundaries of the manor granted (y).

Thus it has been held, that where the Crown granted all the regions, countries, or territories of C., and the boundary seaward was the bank of the bay of K., as the description did not necessarily exclude from the grant the shore of the bay between high and low water mark, continuous acts of ownership were admissible against the Crown to prove that the foreshore was included in the grant (z).

So in Att.-Gen. v. Jones (a), on the trial of an information of intrusion, the question being as to the title of the defendant as against the Crown to the sea shore between high and low water

(x) For instances of terms which have been held to pass the foreshore, see Foreman v. Whitstable Free Fishers (1869), L. R. 4 H. L. 266; Le Strange v. Rowe (1866), 4 F. & F. 1048; Bridges v. Highton (1865). 11 L. T. 653; Re Alston's Estate (1857), 28 L. T. (o.s.) 337; Scratton v. Brown (1825), 4 B. & C. 485; Re Belfast Dock Act (1867), 1 Ir. R. Eq. 128; Att.-Gen. v. Hanmer (1858), 31 L. T. (o.s.) 379; Penryn Corporation v. Holm (1877), 2 Ex. D. 328; Duke of Beaufort v. Swansea Corporation (1849), 3 Ex. 413; Calmady v. Rowe (1848), 6 C. B. 861; Re Walton-cum-Trimley Manor (1873), 2 Str. 12: Biddulph v. Ather (1755), 2 Wils. 23; Lord Advocate v. Wemyss, [1900] A. C. 48; Att.-Gen. v. Emerson, [1891] A. C. 649: Stuart Moore's History and Law of Foreshore, passim; Hale de Jure Maris, c. 6; Harg. Law Tracts, p. 27. Foreshore may not only be parcel of the manor but de facto it many times is so, and perchance it is parcel almost of all such manors as by prescription have royal fish or wrecks of the sea within their manor."

(y) Att.-Gen. v. Jones, 2 H. & C. 347; Case of the Barons of Barclay, Harg. Tracts, 34; Att.-Gen. v. Tomline, 14 Ch. D. 58; 12 Ch. D. 214; Daly v. Murray, 17 L. R. Ir. 185; Lord Advocate v. Young, 12 A. C. 544; Agnew v. Lord Advocate, 11 Ct. of Sess. Cas. (3rd series), 309; Donegal v. Templemore, 9 Ir. C. L. R. 374; and cases cited in preceding note. Evidence of acts of ownership on parts of the foreshore which are separated and divided from the part in dispute by foreshore, are not admissible to prove a title to the whole tract of which they form part. (Att.-Gen. v. Portsmouth, 29 W. R. 559.) (z) In re Belfast Dock, Ir. R. 1 Eq. 128.

(a) 2 H. & C. 347; see also Calmady v. Rowe, 6 C. B. 861; and In re Belfast Dock, Ir. R. Eq. 128; Healy v. Thorne, Ir. R. 4 C. L. 495.

mark, the defendant gave in evidence a grant of a manor, with fishery, wrecks of the sea, &c.; and also gave in evidence various acts of ownership, such as taking sand and gravel, and preventing others from doing so. The learned judge told the jury that the grant of the manor did not pass the shore, and left it to the jury to say whether they were satisfied by the evidence of user that the defendant had acquired a title as against the Crown; but the Court of Exchequer held this a misdirection, and that the proper question for the jury was, whether the evidence of user, coupled with the grant, satisfied the jury that the defendant had such title.

In The Duke of Beaufort v. Swansea (b), it was held that the sea shore between high and low water mark may be parcel of the adjoining manor; and where, by an ancient grant of the manor, its limits are not defined, modern usage is admissible as evidence to show that the sea shore is parcel of the manor; the Court in this case holding that the grant of the Terra or Seignory de Gower was equivalent to the grant of a manor, and that a grant of Terra de Gower cum pertinentiis was sufficient to pass the foreshore.

In the case of Brew v. Haren (c), the Irish Court of Exchequer Chamber have held, that where lands specifically described by name adjoining a sea shore were granted, and also all and singular lands, tenements, &c., thereto belonging, &c., evidence, such as the taking of seaweed by the plaintiff immemorially, and numerous convictions obtained by the plaintiff at petty sessions of persons whom he had prosecuted for taking seaweed in the locus in quo, and also that he had brought a former action against an alleged trespasser, in which, after a submission to arbitration, there was an award in his favour, which was made a rule of Court, was admissible as against a mere trespasser to prove that the shore passed under the grant, though the grant was not of a

manor.

In Mulholland v. Killen (d), a title to the foreshore, as it would appear, in gross, was held, as against a trespasser, to be supported by proof, that for sixty years the owner had let portions of it at yearly rents, and kept a bailiff to protect the seaweed, had issued regulations to govern the conduct of his tenants on the shore, and had issued licences to cut seaweed and dig gravel.

In Chad v. Tilsed (e), where there was a grant of wreck from Hen. 2 to the Abbey of Cerne, by all their lands upon the sea,

(b) 3 Exch. 413.

(e) Ir. R. 11 C. L. 198, Ir. R. 9 C. L. 41; see Lee v. Brown, 2 Mod. 69; Pollexfen, 410, sub nomine Lea v. Browne.

(d) Ir. R. 9 Eq. 471; Healy v. Thorne, Ir. R. 4 C. L. 495.

(e) 5 Moore, 185, 23 R. R. 477.

What acts of ownership

confirmed by inspeximus of Hen. 8, and a subsequent grant of the island of B. and its shores, belonging to the late Abbey of C., supported by evidence that between forty and fifty years ago the owner of B. raised an embankment across a small bay, and had ever since asserted an exclusive right to the soil, it was held that although the usage of forty years could not of itself establish an exclusive right to the shore and destroy the rights of the public, yet it was evidence from which prior usage to the same effect might be presumed, and which, coupled with the general words of the grant, served to establish such right.

In Lord Advocate v. Lord Blantyre (f) parties holding barony titles to lands situated on both sides of the Clyde, a navigable tidal river, claimed, as against the Crown and the Clyde Navigation Trustees, that the foreshore ex adverso their lands belonged in property to them, subject to such rights of navigation or other rights which the public and the Clyde Trustees might have over the same. The barony titles contained no express grant of foreshore, nor did they contain any specific boundaries which could be held to include the foreshore. The parties rested their claim on the grounds (1) that the barony titles alone gave them the property; (2) that coupled with their titles they had exercised from time immemorial acts of possession over the foreshore:—

The House of Lords held, affirming the decision of the Court below, that the acts of possession for the prescriptive period having been proved, and following on barony titles to lands so situated, they constituted a right of property in the foreshore.

Held, also, that in this case it was not necessary to decide the question whether a barony title to lands so situated, which does not specify the exact boundary of the lands or contain any express grant of foreshore, could alone give a right of property in the foreshore.

From these cases it is clear that certain acts of ownership are admissible to prove that the foreshore is within the boundaries of a grant of land on the sea shore; what acts of ownership, claim to fore- however, are sufficient to establish such a claim, it is not so easy

sufficient to establish a

shore.

to say.

66

In Lord Advocate v. Lovat (g), Lord O'Hagan says: As to possession, it must be considered in every case with reference to the peculiar circumstances. The acts implying possession in one case may be wholly inadequate to prove it in another. The character and value of the property, the suitable and natural mode of using it, the course of conduct which the proprietor might reasonably be expected to follow with a due regard to his own interests-all these things greatly varying, as they must, (f) 4 A. C. 770. (g) 5 A. C. 288.

under various conditions, are to be taken into account in determining the sufficiency of a possession."

"It is, in my opinion," says Lord Watson (h), "practically impossible to lay down any precise rule in regard to the character and amount of possession necessary in order to give a riparian proprietor a prescriptive right to foreshore. Each case must depend upon its own circumstances. The beneficial enjoyment of which the foreshore admits, consistently with the rights of navigators and of the general public, is an exceedingly variable quantity. I think it may be safely affirmed that in cases where the sea shore admits of an appreciable and reasonable amount of beneficial possession, consistently with these rights, the riparian proprietor must be held to have had possession, . . . if he has had all the beneficial uses of the foreshore, which would naturally have been enjoyed by the direct grantee of the Crown. In estimating the character and extent of his possession it must always be kept in view that possession of the foreshore, in its natural state, can never be, in the strict sense of the term, exclusive. The proprietor cannot exclude the public from it at any time; and it is practically impossible to prevent occasional encroachments on his right, because the cost of preventive measures would be altogether disproportionate to the value of the subject."

The chief proprietary acts for which the sea and sea shore afford scope appear to be:

1. Taking wreck.

2. Taking royal fish.

3. The various incidents of a port.

4. Paying for the burial of dead bodies washed ashore or found thereon (i).

5. A several fishery.

6. Shooting over the foreshore.

7. Mining, digging, and taking sand, seaweed, &c.

8. Taking anchorage and groundage dues.

9. Building on, embanking and inclosing.

10. Punishing purprestures or intrusions, i.e., trespasses. 11. Licensing persons to do acts on the foreshore.

The first three of these are not incidents to the possession of the soil, but exist independently as franchises or prerogative rights of the Crown, and though Phear (k) argues that they cannot

(h) Lord Advocate v. Young, 12 A. C. 544, at p. 553.

(i) See Burial of Drowned Persons Act, 1808 (48 Geo. 3. c. 75), and ibid. 1886 (49 & 50 Vict. c. 20), s. 1. Payment for the burial of dead persons found on the foreshore is evidence of a right of the lord of a manor to wreck, infra

manerium.

(k) Page 89. But if the grant says they are to be exercised infra manerium, there is a great presumption that the foreshore is part of the manor, because

be adduced as evidence of title to the shore, this statement of the law has not been adopted by the Courts, as in the case of Dickens v. Shaw (1), though it was held that the right of the lord of a manor to take wreck was not sufficient alone to confer a title on him by presumption of law to the ownership of the soil, yet the Court was clearly of opinion that it might be evidence of such ownership, particularly if coupled with other acts of enjoy

ment.

In Hamilton v. Att.-Gen. for Ireland (m), in the absence of a special grant of the sea shore, evidence of a custom to take wreck of the sea, "flotsam and jetsam, waifs and strays," was held admissible to prove a title to the shore.

With regard to the ownership of a several or exclusive right of fishery, as giving a right to the soil of the sea shore, in the case of The Duke of Somerset v. Fogwell (n), the Court seemed to be of opinion, that though the owner of a several fishery in tidal waters may, in an ordinary case, be presumed to be the owner of the soil, as in the case of non-tidal water, yet that a grant of such a fishery does not necessarily import the ownership of the soil.

In Att.-Gen. v. Emerson (o) it was held by the House of Lords that though prima facie the Crown is entitled to every part of the foreshore, proof by the lord of an adjoining manor of the ownership of a several fishery over part of it raises a presumption that the freehold of the soil of that part of the foreshore is in the owner of the several fishery. In Vandeleur v. Glynn (p) and Att.-Gen. for Ireland v. Vandeleur (q), the respondent claimed to be entitled under a charter of 1621, which, however, did not in terms grant the foreshore, to the property in a quay built in 1848 upon the foreshore by his predecessor in title, and to the foreshore upon which it was built which was also claimed by the Crown. The House of Lords held, affirming the M.R. and Court of Appeal in Ireland, that, without deciding any questions of law, the weight of the evidence from the user and documents showed

wreck and royal fish are not taken above the high water mark. Infra " means "within," see Lord Advocate v. Wemyss, [1900] A. C. 48, 61.

(1) Stuart Moore's History of Foreshore, pp. 651, 889; see also Le Strange v. Rowe, 4 F. & F. 1048.

(m) 5 L. R. Ir. C. L. 555; see also Att.-Gen. v. Jones, 2 H. & C. 347, and cases in note (y), p. 30. ante.

(n) 5 B. & C. 375, 29 R. R. 449, because the several fishery may in fact have become an incorporeal right; see also Scratton v. Brown, 4 B. & C. 485, 28 R. R. 344; R. v. Ellis, 1 M. & S. 652; Gray v. Bond, 5 Moo. 527, 23 R. R. 530; Hale de Jure Maris, Harg. Tracts, 34.

(0) [1891] A. C. 649; see Hanbury v. Jenkins, [1901] 2 Ch. 401; Hindson v. Ashby, [1896] 2 Ch. 1, and post, Chap. VI.

(p) [1908] 1 Ir. R. 483, C. A.

(q) [1907] A. C. 369, 76 L. J. P. C. 89, 97 L. T. 221, H. L. Ir.