conclusively as a matter of fact that the quay was the property of the respondent.

In Lord Advocate v. Young (r) the pursuer brought an action to establish his title as against the defenders and the Crown to the foreshore of the sea ex adverso land of which he was the proprietor. He claimed a grant of feu made to his ancestor in 1804, which described the property granted as land bounded by the sea, but he did not endeavour to show that the grantor had an express title from the Crown. He, however, endeavoured to establish his right to the foreshore by prescriptive possession following on his own title, and, inter alia, adduced evidence to show that his predecessor in 1827 built a retaining wall upon a portion of the foreshore; that he and his predecessors had taken stone and sand from the shore; and that they and their tenants had exclusively carried away the drift sea-ware. The Crown, on the other hand, adduced evidence to show that stones and sand were 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, affirming the decision of the Court of Session, that, notwithstanding the absence of an express title in the superior, the pursuer had given sufficient proof that he and his predecessors had been in possession of the foreshore in question for the prescriptive period specified in the Scottish Act. of 1617, c. 12, and the Conveyancing (Scotland) Act, 1874 (37 & 38 Vict. c. 94), by virtue of their heritable infeftments, and that he had consequently a valid right of property in the solum of the foreshore, as against the Crown.

"With regard to the relative importance," says Lord Watson (s), “of taking loose ware and the cutting of tangle, as acts evidencing proprietary right, I can only say that, in my opinion, it depends not so much upon attachment or non-attachment to the foreshore, as upon the beneficial character of the right. I should certainly consider the exclusive taking of a valuable annual supply of loose ware to be at least as emphatic an assertion of his right of property, by one having an express title to the foreshore, as his taking from it a yearly crop of growing tangle of less value. . . . I attach not the slightest weight to the fact that some old women carried off sea-ware in creels, for the purpose of manuring their gardens, which were not upon the lands of Colinswell. The removal of clay and stones from the foreshore, which is proved to have taken place at three several periods, is a very different matter. These were in no proper sense acts of the Crown; but acts of that description, although done without title, tend to derogate from the possession of the riparian proprietor, (r) (1887) 12 A. C. 544. (s) Page 554

and if carried far enough will deprive his possession of that exclusive character which is necessary in order to establish a prescriptive right."

All these acts of ownership, therefore, when exercised exclusively, tend to show ownership of the soil. The strength of the claim will, in all cases, depend on the number of exclusive acts exercised by the claimant (t).

Land formed by alluvion, or gradual and imperceptible accretion from the sea, and land gained by dereliction, or the gradual and imperceptible retreat of the sea, belongs to the owner of the adjoining terra firma. Where the increase is sudden or perceptible, the land gained still belongs to its original owner (u). The word "imperceptible" means imperceptible in progress, and not in result-that is to say, where the increase cannot be observed as actually going on, though a visible increase is observable every year (x).

"The whole doctrine of accretion," said Smith, L.J., "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." (y)

The law thus stated would appear to hold good, whether the accretion is caused by natural or artificial causes lawfully employed (*).

(t) Phear, p. 89. As to meaning of " exclusively," see Lord Advocate v. Young, and Hamilton v. Att.-Gen. for Ireland, supra.

(u) Rex v. Lord Yarborough, 2 Bligh, N. S. 162; affirmed by the H. L. in Gifford v. Lord Yarborough, 5 Bing. 163, 27 R. R. 292; 2 Blackstone's Com. 261; Callis on Sewers, 482; Roll. Ab. 170; Dy. 326; Hale de Jure Maris, c. iv. s. 2; Moore's History of Foreshore, p. 785; Woolrych on Waters, p. 34; Seebkristo v. East Ind. Company, 10 Moo. P. C. 140; Mussumat Imaum Bendi v. Hergovind Ghose, 4 Moo. Indian App. 405. See also Abbot of Peterborough's Case; Abbot of Ramsay's Case; R. v. Oldacre, quoted in Stuart Moore's History of Foreshore, p. 157. Land added by accretion may become subject to a custom for fishermen to dry nets on it: Mercer v. Denne, post, p. 50, n. (i).

(x) Rex v. Lord Yarborough, 2 Bligh, N. S. 162; Gifford v. Lord Yarborough, 5 Bing. 163, 27 R. R. 292. See also Ford v. Lacy, 7 H. & N. 151, and Foster v. Wright, 4 C. P. D. 438, 49 L. J. C. P. 97, as to rivers, and post, pp. 80 et seq.

(y) Hindson v. Ashby, [1896] 2 Ch. at p. 28. Pallas, C.B., in Att.-Gen. for Ireland v. M'Carthy, [1911] 2 Ir. R. 260, said: "The real question in every such case is in my opinion whether whilst the process of recession was going on its progress was perceptible."

(z) See Seebkristo v. East India Co., 10 Moo. P. C. 154, and Brighton and Hove Gas Co. v. Hove Bungalows, Lim., 21 L. G. R. 758; [1923] W. N. 316, and cases there cited on which Romer, J., held that the rule applied, although the accretion was caused by artificial means, viz., the erection of groynes on the foreshore. Where a riparian owner has taken possession of foreshore in process of accreting, he will not have a title against the Crown unless he has had possession for sixty years, though he may have acquired easements over it enabling him to use the land for certain purposes: Att.-Gen. of Southern Nigeria v. Holt & Co. (Liverpool), Lim., [1915] A. C. 599; Philpot v. Bath, 21 T. L. R. 634.

In Att.-Gen. v. Reeve (a) it was held that where the accretion was owing to the erection of piers and harbour and other works constructed on the sea shore under Act of Parliament, and the removal of sand, shingle and ballast by licence from the Commissioners of Woods and Forests, and the accretion was perceptible by marks and measures (b), the land gained belonged to the Crown and not to the lord of the adjoining manor. The doctrine of accretion will never apply when the old line of demarcation between the land and water has always been in existence and still remains patent for all to see (c).

encroach

ment of

Where the sea, or an arm of the sea, by gradual and imper- Land lost by ceptible progress encroaches on the land of a subject, the land thereby covered belongs to the Crown (d); but where land is the sea. suddenly overflowed, and any marks remain by which its limit can be recognized, it remains to the original owner, and may be regained by art or industry (e); or if the sea retire again it is his as before (f). It is very doubtful whether any length of time

(a) 1 L. T. R. 675.

(b) See as to accretion" in a non-tidal river, perceptible by marks and measures, Hindson v. Ashby, [1896] 2 Ch. 1, post, pp. 84 et seq.

(c) Per Smith, L.J., in Hindson v. Ashby, [1896] 2 Ch. p. 29.

(d) In re Hull and Selby Rail. Co., 5 M. & W. 327.

(e) By an Order of the Board of Trade under section 14 of the Harbours Act, 1814, as amended by section 16 of the Harbours Transfer Act, 1862, the taking or removing of any shingle from the shores or banks of the sea at a certain place was prohibited. The appellant, acting under instructions from the owner of the adjoining land, removed shingle from the foreshore at that place below ordinary high water mark, on to the land above high water mark, where his men mixed it with cement to form concrete for the construction of a sea wall for the protection of the adjoining land. The portion of the foreshore from which the shingle was removed had formerly belonged to the landowner, but the sea had encroached upon it. Upon an information charging the appellant with an offence against the Order, the appellant contended that no offence had been committed, and claimed the right to take shingle from one part of the property to another, and that, therefore, the justices' jurisdiction was ousted by a bona fide claim of right. The justices convicted the appellant. Held, that an offence had been committed and that the justices were right.

It was contended for the appellant that inasmuch as he had a legal right to reclaim land which was formerly his, but of the use of which he had been deprived by the encroachment of the sea, he was entitled to take shingle from that land to be used for that purpose. It was, however, pointed out by Lord Alverstone, C.J., in his judgment, that it was not necessary in the present case to decide whether or not the appellant could lawfully build a wall for reclaiming his land at the points at which he had dug the shingle; though his present impression was that the appellant would be entitled to do that. It seemed to him that, it having been proved that the appellant had committed the acts complained of, it was impossible to say that the fact that the shingle was used for the purpose alleged prevented these acts from being an offence against the Order. He was of opinion that an offence had been committed and that the appeal should be dismissed. Kennedy and Ridley, JJ., concurred. Anderson v. Jacobs (1905), 21 T. L. R. 453, D. 93 L. T. 17; see, however, Burton v. Hudson, [1909] 2 K. B. 564, ante, p. 25, n. (c).

(f) Blackstone's Com. 262; Hale, c. iv.; Dyer, 326; Vin. Abr. Prerogative, B. a 2; Comyns' Dig. Prerog. D. 62; Callis, 51; see Moore's History of Foreshore, pp. 785-808; Anon., Dyer, 3266. As to admissibility of surveys produced from the Record Office as public documents" and of depositions

Islands.

during which lands are submerged will bar the owner's right to them when the waters have again retired (g).

Land gained imperceptibly takes on the legal characteristics of the land to which it accretes. Thus it may become leasehold, copyhold or freehold, and be subject to customary rights (h). The doctrine of accretion also applies to questions of jurisdiction. Thus where an area of jurisdiction is described as bounded by the high or low water mark or by the sea shore, the jurisdiction will extend to that boundary wherever it may be from time to time (i).

With regard to islands, where the island is formed by being, as it were, torn from the mainland and surrounded by the sea the land so surrounded continues to be the property of the former owner (k). Islands arising in the sea are said by Hale to belong of common right and primâ facie to the Crown; but where they arise in a part of the sea, or in an arm of the sea, or creek, or haven, which is the property of a subject, the islands which happen within the precincts of such private property of a subject will belong to the subject according to the limits and extent of such property. "If the filum aquæ divide itself, and one part take the east and the other the west, and leave an island in the middle between both the fila, the one half will belong to one lord and the other to the other. But this is to be understood of islands that are newly made; for if a part of an arm of the sea by a new recess from its ancient channel incompass the land of another man, his propriety continues unaltered" (1).

The rules by which the right to lands gained gradually from water belongs to the adjoining owner are thought by Lord Chelmsford (m) not to depend on the principle "De minimis non curat lex," but to be those stated in the case of The Hull and Selby Rail. Co. (n)-viz., 1st. That that which cannot be perceived in its progress is taken to be as if it had never existed; and 2nd. The necessity for some such rule of law for the permanent protection and adjustment of property; for it must be borne in mind

in an information against persons who claimed to be entitled to a manor for suffering destruction of a sea bank, see Mercer v. Denne, [1905] 2 Ch. 58, 74 L. J. Ch. 723.

(g) Mussumat Imaum Bendi v. Hergovind Ghose, 4 Moo. Ind. App. 405. (h) Mercer v. Denne, [1904] 2 Ch. 534.

(i) Smart & Co. v. Suva Town Board, [1893] A. C. 301.

(k) Hale, part 1, ch. vi.; Fleta, lib. 3, c. 2, s. 6; see Angell, Tide Waters, 268; Woolrych, 36.

(1) Hale, supra. Islands within the three mile limit were held to belong prima facie to the Crown in Secretary of State for India v. Ski Rajah Chelikani Rama Rao (1916), 85 L. J. P. C. 222.

(m) Att.-Gen. v. Chambers, 4 De G. & J. 68. See further as to this question, the elaborate judgment of Lindley, J., in Foster v. Wright, 4 C. P. D. 438, and post, pp. 82 et seq.

(n) 5 M. & W. 327.

that the owner of lands does not derive benefit alone, but may suffer loss from the operation of the rule; for if the water gradually steals upon the land, he loses so much of his property (o).

The reason for assigning lands gained suddenly from the sea and islands to the Crown is stated by most writers to be, that the king is owner of the soil of the sea, and the universal occupant of what was unclaimed (p).

of the sea.

The king has probably from the very earliest times had a right Protection as part of the prerogative to defend the realm against the waste from inroads of the sea, and to order the construction of defences at the expense severally of those who are to be benefited by them (q). The power to erect a sea wall or embankment as a protection against the sea, or from the influx of the tide in rivers, is one of those things which emanate from the prerogative of the Crown Prerogative for the general safety of the public; and no doubt the ordinary of the Crown. rights of property must give way to that which is done for the protection and safety of the public, but only to the extent to which it is necessary that private rights and public rights should be sacrificed for the larger public purposes-the general common weal of the public at large (r).

of sewers.

We therefore find in the very earliest records that commissions Commissions of sewers were issued by the king for this purpose (8). The various statutes of sewers, beginning with 6 Hen. 6. c. 5, do but regulate the exercise of the prerogative in this respect, and prescribe forms of commissions for the ordering and execution of the necessary works, which forms have been from time to time varied. In early times, probably, the king ordered the construction of such sea walls as he judged necessary, very much according to his own discretion. In process of time, however, this discretion came to be limited by established rules, and at last by statute. The Bill of Sewers 23 Hen. 8, c. 5, is the most

(0) See judgment of Lindley, J., in Hindson v. Ashby, [1896] 2 Ch. 1, post, p. 84, on the question of accretion when the boundaries are defined and known.

(p) See Hale, pp. 17, 36; Callis, 44; 2 Blackstone, 251. But, as Callis says, such islands are not within a county, and so without the realm: Reg. v. Keyn, 2 Ex. D. 63. The king is not universal occupant of unclaimed dry land: Bristowe v. Cormican, 3 A. C. 641, per Lord Blackburn. See ante, p. 8, as to the Crown's ownership of the bed of the sea; and Secretary of State for India v. Ski Rajah Chelikani Rama Rao (1916), 85 L. J. P. C. 222.

(q) Per Coleridge, C.J., in Hudson v. Tabor, Q. B. D. 290, 46 L. J. Q. B. 463. 36 L. T. 492; see Woolrych on Sewers, pt. 1, p. 42; Callis on Sewers, p. 80; see also per Lord Coke, 10 Coke, 143; see also per Lord Holt, 12 Mod. 321; Holt's Cases, 643.

121.

(r) Greenwich Board of Works v. Maudslay, L. R. 5 Q. B. 397, 23 L. T.

(s) See printed edition of Patent Rolls, e.g., 15 Edw. 1, pp. 276, 320, 331, 390, 394, 400, 407, 513.