belonging to the king, and another of public interest, or belonging to the people in general.

ID., Cap. III. There be some streams or rivers that are private, not only in propriety or ownership, but also in use, as little streams and rivers that are not a common passage for the king's people. Again, there be other rivers, as well fresh as salt, that are of common or publick use for carriage of boats and lighters. And these, whether they are fresh or salt, whether they flow and reflow or not, are prima facie publici juris, common highways for man or goods or both, from one inland town to another. Thus the rivers of Wey, of Severn, of Thames, and divers others, as well above the bridges and ports as below, as well above the flowings of the sea as below, and as well where they are become to be of private propriety as in what parts they are of the king's propriety, are publick rivers juris publici. And therefore all nuisances and impediments of passages of boats and vessels, though in the private soil of any person, may be punished by indictments and removed; and this was the reason of the statute of Magna Charta, cap. 23.

2 B. & P., 472. [In trespass for entering upon plaintiff's sea-shore and digging and taking shell-fish and shells therefrom] The COURT were of opinion that if the plaintiff had it in his power to abridge the common law right of the subject to take sea-fish, he should have replied that matter specially, and that, not having done so, the defendant must succeed upon his plea so far as related to the taking of the fish; but observed that as no authority had been cited to support his claim to take shells, they should pause before they established a general right of that kind.-Bagott v. Orr (1801).

(2) HIGHWAYS.

LEAKE, USES OF LAND, 482. The rights in alieno solo above treated1 belong to a person in a private or corporate

'The reference is to Easements, Profits a prendre and Rents; Leake, Uses of Land, 185-481.

capacity, and are rights of property in the strict meaning of the term. The rights in alieno solo here treated belong to a person only as one of the public; and they differ from rights of property in having no determinate owner, personal or corporate. They are common to the public at large, or to a part of the public limited by a certain locality or description, and they are distinguished accordingly as being general or local. Of the former kind are all public rights of way, highways, bridges and the like, which are for the use and accommodation of all subjects of the realm. Of the latter kind are privileges of persons within some limited district of using land for purposes of local convenience, such as a right of way to church or market, or a right of enjoying an open space for exercise or recreation. The former kind of public rights are founded upon the general custom of the realm or common law; the latter upon the special custom of the district, or lex loci. The public, as such, can acquire no right to take profits in alieno solo.

A public way or highway is a right of passage for the public in general. It resembles an easement in regard to the servient tenement, but differs from an easement in there being no dominant tenement, without which there can be no easement properly so called. But "in truth, a public road or highway is not an easement; it is a dedication to the public of the occupation of the surface of the land for the purpose of passing and repassing, the public generally taking upon themselves (through the parochial authorities or otherwise) the obligation of repairing it. It is clear that that is a very different thing from an ordinary easement, where the occupation remains in the owner of the servient tenement subject to the easement."

487. In the absence of evidence to the contrary, the presumption is that the soil of the highway belongs to the owner of the inclosed lands between which it passes; and if the land on each side of the road is held by different owners, the presumption is that each side of the highway to the 'Cairns, L. J., Rangeley v. Midland Ry., L. R. 3 Ch. 3 11.

medium filum viae belongs to the owner of the adjoining land.

490. "The owner, who dedicates to public use as a highway a portion of his land, parts with no other right than a right of passage to the public over the land so dedicated, and may exercise all other rights of ownership not inconsistent therewith."1 Thus, trees growing upon the highway, though they may be removeable as obstructions to the traffic, presumptively belong to the owner of the soil..

The owner of the soil may bring an action of trespass for an invasion of his possession; and he may maintain an action of ejectment to recover possession of an encroachment wrongfully made. The court will also grant an injunction to restrain a continuing trespass to the soil of a highway; as where a person opened the surface and laid waterpipes in the soil without the consent of the owner. A person

using a highway for any purpose other than passing and repassing according to the lawful use, is a trespasser against the owner of the soil; as if he puts his cattle upon the highway to feed.

495. The public are entitled to use a highway for passing and repassing, on foot, or with horses, carts and cattle, according to the species of highway; any other use of the highway that obstructs the public use of any part of the highway for passing and repassing is a nuisance, which may be met by indictment on behalf of the public, or by action at the suit of a person suffering damage, or in some cases by summary proceedings for penalties.

1 Per cur., St. Mary Newington v. Jacobs, L. R. 7 Q. B. 47.

BOOK V.

THE CREATION AND TRANSFER OF INTERESTS

IN LAND.

A. AT COMMON LAW.

I. Title by Act of the Parties.

CHAPTER I.

PURCHASE AND DESCENT.

LIT., § 12. Also, purchase is called the possession of lands or tenements that a man hath by his deed or agreement, unto which possession he cometh not by title of descent from any of his ancestors, or of his cousins, but by his owne deed.

Co. LIT., 18, b. A purchase is alwayes intended by title, and most properly by some kinde of conveyance either for money or some other consideration, or freely of gift; for that is in law also a purchase. But a descent, because it commeth meerely by act of law, is not said to be a purchase; and accordingly the makers of the act of parliament in I H. 5, ca. 5, speake of them that have lands or tenements by purchase or descent of inheritance. And so it is of an escheate or the like, because the inheritance is cast upon, or a title vested in the lord by act in law, and not by his

own deed or agreement, as our author here saith. Like law of the state of tenant by the curtesie, tenant in dower, or the like. But such as attaine to lands by meere injury or wrong, as by disseisin, intrusion, abatement, usurpation, &c., cannot be said to come in by purchase, no more than robbery, burglarie, pyracy, or the like, can justly be termed purchase.

ID., 18, b. An escheat in appearance participates of the nature both of a purchase and a descent; of the former because some act by the lord is requisite to perfect his title, and the actual possession of the land cannot be gained till he enters or brings his writ of escheat; of the latter, because it follows the nature of the seigniory, and is inheritable by the same persons. But strictly speaking, an escheat is a title neither by purchase nor descent. . It would be more accurate to say, that the title to land is either by purchase, to which the act or agreement of the party is essential, or by mere act of law, and under the latter to consider first descent and then escheat, and such other titles not being by descent, as yet like them accrue by mere act of law.-Hargrave's note.

2 BL. COM., 201. The methods therefore of acquiring on the one hand, and of losing on the other, a title to estates in things real, are reduced by our law to two: descent, where the title is vested in a man by the single operation of law; and purchase, where the title is vested in him by his own act or agreement.

ID., 241. Purchase, perquisitio, taken in its largest and most extensive sense, is thus defined by Littleton;1 the possession of lands and tenements, which a man hath by his own act or agreement, and not by descent from any of his ancestors or kindred. In this sense it is contradistinguished from acquisition by right of blood, and includes every other method of coming to an estate, but merely that by inheritance: wherein the title is vested in a person, not by his own act or agreement, but by the single operation of law.