Definition.

however, the custom was for the good of the navigation, a custom for the freemen of an ancient borough and the proprietors of ships to dig gravel was held good (q).

A claim of this kind may, however, be acquired in the same way as the right of any other profit à prendre is acquired, but in no case can such claim extend to taking any stones if their removal will cause damage or injury to adjoining lands or increase the danger of encroachments of the sea (r). Where such a right has been acquired there will be a right of way over the adjoining land if it cannot otherwise be exercised (s).

A tenant under a building agreement with the lord of the manor, who has only a right of entry upon the foreshore for the purposes of that agreement, cannot maintain an action against a defendant who sets up a forty years' uninterrupted use and enjoyment of the foreshore by taking shingle therefrom and putting bathing machines thereon (t).

By 7 Jac. 1. c. 18, the taking of sand from the shore for agricultural purposes by the inhabitants of Cornwall and Devon is made lawful; this was in confirmation of a prior usage which originated in a grant by Richard, King of the Romans to the inhabitants of Cornwall (u).

At common law there is no right to discharge sewage on to the foreshore or into the sea so as to cause nuisance, neither does any such right exist under the Public Health Acts, 1848 and 1875 (x), nor can such a right be acquired by prescription (x).

Ports and Harbours.

A harbour or haven is a place naturally or artificially made for the safe riding of ships (y). A port is a haven and something

Ward, ibid.; Allgood v. Gibson, 34 L. T. (N.s.) 883; Att.-Gen. v. Mathias, 27 L. J. Ch. 761; Gateward's Case, Cro. Jac. 152; Macnamara v. Higgins, 4 Ir. C. L. R. 326. As to right of surveyors of highways to take shingle, see Clowes v. Beck, 20 L. J. Ch. 505, and the Highway Act, 1835 (5 & 6 Will. 4. c. 50), ss. 51, 52. A claim by the inhabitants of a parish by immemorial right to take gravel from the bed of a river being a claim to take gravel without stint cannot exist at law, Hough v. Clark (1907) 5 L. G. R. 1195; 23 T. L. R. 682; see also Chesterfield (Earl) v. Harris, post, p. 366.

(q) Mayor of Lynn v. Taylor, 3 Lev. 160.

(r) Pitts v. Kingsbridge Highway Board, 25 L. T. 195; Att.-Gen. v. Tomline, 14 Ch. D. 58.

(s) Baird v. Fortune, 4 Macq. 127, 151.

(t) Laird v. Briggs, 19 Ch. D. 22.

(u) See Charter Roll (45 Hen. 3), s. 2, No. 11.

(x) Hobart v. Southend-on-Sea Corporation, 75 L. J. K. B. 305; 94 L. T. 337; Foster v. Warblington Urban Council (1905) 21 T. L. R. 124; 69 J. P. 42; 3 L. G. R. 605; Owen v. Faversham Corporation (1909) 73 J. P. 33, C. A.; see post, pp. 163, 259.

(y) Hale de Portibus Maris, c. 2. Musselburgh Harbour, under a local Act, held to include the whole foreshore within its limits so as to preclude the owners from digging sand there: Musselburgh Real Estate Co. v. Musselburgh (Provost) [1905] A. C. 491, H. L. Sc.

more; it is a harbour where customs officers are established, and where goods are either imported or exported to foreign countries (z). All ports comprehend a ville or city or borough which is the caput portus, with a market and accommodation for sailors (a). A port is a place where a vessel can lie in a position of more or less shelter from the elements, with a view to the kading or discharge of cargo. The natural configuration of the land is, therefore, often a most important element in determining what are the limits of a port. All the waters within given boundaries which possess the common character of safety and protection would be generally admitted to be within its ambit. Where, however, a port is one of several situate on the same river, it is obvious that the natural configuration of the land is not of the same importance and does not afford the same guidance (b).

a port.

The limits of a port vary according to the purpose for which it Limits of is instituted; and a port for fiscal purposes is not the same as it is for municipal or local purposes or for pilotage or for commercial purposes (c).

This question was discussed in the recent case of AshetonSmith v. Owen (d), in which by two Acts, respectively passed in 1793 and 1809, the trustees of Carnarvon Harbour thereby appointed were authorised to levy specified rates or duties upon all ships loading or unloading within the limits of the port of Carnarvon, and upon all goods loaded or unloaded on or from vessels within the limits of that port. The plaintiff was the owner of a small port called Port Dinorwic, situate on the east side of the Menai Straits, about four miles to the north of Carnarvon. Since the passing of the Act of 1809 there had been constructed by the plaintiff's predecessors in title on the plaintiff's land, further inland than the natural high water mark at that date, docks and quays which were connected with the sea by an artificial channel and lock, so that at high water vessels could go into and come out from these docks and unload or load at the quays. The fiscal

(2) Houck's Navigable Rivers, 175.

(a) Hale de Port. Maris, c. 2; Harg. L. T. 46: A port is quid aggregatum consisting of somewhat that is natural, viz. an access of the sea whereby ships may conveniently come, safe situation against winds where they may safely lye, and a good shore where they may well unlade; something that is artificial, as keys and wharfs and cranes and warehouses and houses of common receipt and something that is civil, viz. privileges and franchises, jus applicandi, jus mercati, and divers other additaments given to it by civil authority. (b) Per Lord Herschell in Hunter v. Northern Marine Insurance Co., 13 App. Cas. 717, H. L. Sc.

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(c) See Sailing Ship Garstin Co. v. Hickie, 15 Q. B. D. 580; Hunter V. Northern Marine Insurance Co., 13 App. Cas. 717, H. L. Sc. See also Encyclopædia of Laws of England (2nd ed.), art. Port," vol. xi., pp. 300

et seq.

(d) [1906] 1 Ch. 179; 75 L. J. Ch. 181; affirmed [1907] A. C. 129; 76 L. J. Ch. 308; 96 L. T. 478.

Privilege of

erecting ports part of prerogative of the

Crown.

May be granted to a subject.

port of Carnarvon extended along the Straits some way to the north of Port Dinorwic, and the trustees claimed to be entitled to the payment of duties in respect of vessels loading or unloading at the plaintiff's quay. The plaintiff claimed a declaration that Port Dinorwic, including his docks and quays, was not within the limits of the Port of Carnarvon, and that the trustees were not entitled to claim payment of the duties upon vessels which passed through the north end of the Straits to or from Port Dinorwic or the plaintiff's docks and quays, or any rates or duties on goods loaded or unloaded on or from vessels at Port Dinorwic or on or from the plaintiff's docks or quays. There was evidence that the duties claimed by the trustees had been for many years, and up to a short time before the commencement of the action, paid by the plaintiff and his predecessors in title without dispute. The evidence also satisfied the Court that those who made use of Port Dinorwic derived some benefit from the works which the trustees had executed under their statutory powers. It was held by the House of Lords, affirming the Court of Appeal and Kekewich, J., that, on the construction of the Acts, and having regard to the above facts, the words "the limits of the port " in the Act must be taken to have been used in the sense of the limits of the fiscal port; that the plaintiff's docks and quays were within those limits; and that the trustees were entitled to payment of the duties they claimed (e).

The privilege of erecting ports at which customable goods may be landed, and of taking dues and tolls as incident thereto, is part of the royal prerogative, and can only belong to a subject as a franchise by grant or prescription from the Crown, or by Act of Parliament (f). No subject has therefore a right to land customable goods on his own land, or elsewhere than at a public port. There is no restriction in the landing of goods not customable at private wharves, even in public ports (g), on the taking of such tolls for landing, &c., as may be agreed upon between the parties (h); but no general toll can be taken at such wharves, a right to a toll depending in all cases on grant, prescription, or Act of Parliament.

The Crown may grant to a subject the right to erect a port

(e) Per Cozens-Hardy, L.J., [1906] 1 Ch. p. 212: "It is clear that exemption cannot be claimed simply on the ground that goods are loaded or unloaded by the plaintiff on his own land adjacent to the sea. And if by artificial means, such as the construction of a dock, the line of high tide is carried further inland, I think the limits of the fiscal port must follow that line."

(f) Hale de Port. Maris, c. 2; Houck, 176; 2 Stephen's Blackstone (7th ed.), 499; Foreman V. Free Fishers of Whitstable, L. R. 4 H. L. 266.

(g) See per Stirling, L.J., in Asheton-Smith v. Owen [1906] 1 Ch. at p. 211. (h) Hale de Port. Maris, c. 6; Houck on Navigable Rivers, 184; Baltimore Wharf Case, 3 Bland Rep. 383 (American).

on his own land, or on the land of another, provided, in the latter case, no vested interests are interfered with (i).

The ownership of the soil of all ports (k), as well as of the sea Ownership of soil of ports. shore between high and low water mark, is vested primâ facie in the Crown, and the Crown might formerly have conveyed the soil to a subject by grant or royal charter, either apart from or in conjunction with the franchise (1). Where a subject has, by grant or prescription, the franchise of a port, it would appear to be evidence that he has the soil also, though this evidence will not be conclusive, as the franchise may exist apart from the soil (m). A port may, it would seem, pass as parcel of a manor (n).

vested in

trustees.

The ports of this country are now almost exclusively the pro- Ports now perty of corporate bodies by ancient grant or charter from the generally Crown, or by Act of Parliament, by which the powers and duties of the trustees and the public in each particular port are regulated, and to which, in all cases of disputes, reference must be made (o). The Crown, in virtue of its prerogative, and of its office of Conservancy of ports. Lord High Admiral, is conservator of all ports, havens, creeks, and arms of the sea, and protector of the navigation thereof (p). Although, formerly, the king had a power of granting the franchise of havens and ports, yet he had not the power of narrowing and confining their limits when once established; but any person had a right to load or discharge his merchandise in any part of the haven, whereby the revenue of customs was much impaired and diminished by fraudulent landing in obscure corners. This abuse caused statutes to be passed, enabling the Crown to ascertain the limits of all ports, and to assign proper quays for the exclusive landing and loading of merchandise; and this duty, as well as those of appointing ports and sub-ports, and declaring the limits thereof, was confided, by the Customs Consolidation Act,

(1) Mayor of Exeter v. Warren, 5 Q. B. 773.

(k) See Denaby and Cadeby Main Colliery Co. v. Anson, infra.

(h) See ante, pp. 23 et seq.

(m) See ante, pp. 25-29.

(n) See Hale de Port. Maris, 57; Foreman v. Free Fishers of Whitstable, L. R. 3 C. P. 584; 21 L. T. 804.

(0) E.g., the Port of London is regulated by the Port of London Consolidation Act, 1920. The Port of London extends from an imaginary straight line drawn from high water mark on the bank of the River Thames at the boundary line between the parishes of Teddington and Twickenham, in the county of Middlesex, to high water mark on the Surrey bank of the river immediately opposite the first-mentioned spot," to an imaginary line drawn from the pilot mark at the entrance of Havengore Creek in the County of Essex to the Lands End at Warden Point in the Isle of Sheppey in the County

of Kent."

(p) See Hale de Jure Maris, Harg. Tr. 23; as to the right of a king's harbour master to remove a ship permanently anchored for the sale of coal in a dockyard port, see Denaby and Cadeby Main Collieries Co. v. Anson [1911] 1 K. B. 171; 80 L. J. K. B. 320.

1853, 8. 9, to the Commissioners of the Treasury (q). This Act was repealed by the Customs Consolidation Act, 1876, but the power of appointing the ports remained entrusted to the Commissioners of the Treasury (r). By the Harbours, Docks, and Piers Clauses Act, 1847 (s), the provisions ordinarily inserted in local Acts of Parliament, passed for the construction and improvement of particular harbours, docks, and piers, are consolidated into a single statute, so as to be embodied by way of reference in any special Act without needless repetition; and with the object of obviating the necessity in certain cases of obtaining, at great expense, a special local Act for such construction, the Board of Trade is now enabled, when the works are not estimated to exceed £100,000, to make provisional orders (t) authorising the construction of any pier, harbour, quay, wharf, jetty, or excavation by private undertakers, upon application made to the Board, but such orders are of no validity or force until confirmed by Act of Parliament (u). By the Harbours Transfer Act, 1862 (25 & 26 Vict. c. 69), various powers and duties relative to harbours and navigation were transferred from the Admiralty to the Board of Trade; section 5 of which enacts, that with respect to any special Act that may be passed after the end of the present session of Parliament, the following sections of the Harbours, Docks and Piers Clauses Act, 1847, and all provisions relative thereto in that Act, or in any future special Act contained, shall be construed as if the Board of Trade were named in the said sections instead of the Admiralty, viz., in sections 12, 13, 16, 18, 19." Some of the powers of the Board of Trade under these Acts relating to harbours, docks and piers have been transferred to the Minister of Transport (x). Harbour authorities have also special facilities for keeping their harbours in good order and clear of obstructions. Thus by 23 Hen. 8. c. 8 and 27 Hen. 8. c. 23, provision was made for guarding harbours in Devon and Cornwall from being injured

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(q) 16 & 17 Vict. c. 107; 2 Stephen's Blackstone's Com. (7th ed.), p. 535. (r) 39 & 40 Vict. c. 36, ss. 11-16.

(s) 10 & 11 Vict. c. 27, extends to such harbours, docks or piers as shall be authorised by Acts hereafter to be passed which shall declare that this Act shall be incorporated therewith (section 1). The Lands Clauses Consolidation Acts are to apply as to the purchase of lands, and the Railway Clauses Consolidation Acts with respect to recovery of damages. Plans are to be deposited with clerks of the peace, and approved by the Admiralty and Commissioners of Woods and Forests. Powers are also given to the undertakers to make and enforce bye-laws. As to rights of steam trawlers to have their own tugs under section 33 of this Act, see Great Central Rly. Co. v. N. E. Steam Co. (1906) 22 T. L. R. 520.

(t) As to the effect of a provisional order and certificate of the Board of Trade which has not been complied with, see Liverpool and N. Wales Steamship Co. v. Mersey Trading Co. [1909] 1 Ch. 209; 99 L. T. 863.

(u) See the General Piers and Harbours Act, 1861 (24 & 25 Vict. c. 45); General Piers and Harbours Act Amendment Act (25 & 26 Vict. c. 19). (x) Ministry of Transport Act, 1919 (9 & 10 Geo. 5. c. 50).