CHAPTER II.

PUBLIC RIGHTS.

(a) In Public Lands and Waters.

HALE, DE JURE MARIS, Cap. IV. The narrow sea, adjoining to the coast of England, is part of the wast and demesnes and dominions of the king of England, whether it lie within the body of any county or not.

But though the king is the owner of this great wast, and as a consequent of his propriety hath the primary right of fishing in the sea and the creekes and armes thereof; yet the common people of England have regularly a liberty of fishing in the sea or creekes or armes thereof, as a publick common of piscary, and may not without injury to their right be restrained of it, unless in such places, creeks or navigable rivers, where either the king or some particular subject hath gained a propriety exclusive of that common liberty.

The shore is that ground that is between the ordinary high-water and low-water mark. This doth prima facie and of common right belong to the king, both in the shore of the sea and the shore of the arms of the sea. That is called an arm of the sea where the sea flows and reflows, and so far only as the sea so flows and reflows; so that the river of Thames above Kingston and the river of Severn above Tewkesbury, &c., though there they are publick rivers, yet are not arms of the sea.

5 B. & ALD., 268. By the common law, all the king's subjects have in general a right of passage over the sea with their ships, boats and other vessels, for the purposes of navigation, commerce, trade and intercourse, and also in navigable rivers; and they have also, prima facie, a common

of fishery there.

These rights are noticed by Lord Hale; but whatever further rights, if any, they may have in the sea or in navigable rivers, it is a very different question whether they have or how far they have, independently of necessity or usage, public rights upon the shore (that is to say, between the high and low water-mark) when it is not sea, or covered with water. -Per Holroyd, J., in Blundell v. Catterall (1821).

98 N. Y. REP., 642. The seashore is not a highway for public travel upon foot or with vehicles. It is a part of the ocean, and that is a public highway for vessels. Every one can, however, unless the public authorities by lawful action interfere, go upon the seashore between high and low watermark to fish, to bathe, or for any other lawful purpose. But obviously he must use the shore as he finds it, and he can look to no one for any damages he sustains there from any defects therein.-Per Earl, J., in Murphy v. City of Brooklyn (1885).

(b) In Private Lands and Waters.

(I) RIVERS.

HALE, DE JURE MARIS, Cap. I. Fresh rivers, of what kind soever, do of common right belong to the owners of the soil adjacent; so that the owners of the one side have, of common right, the propriety of the soil, and consequently the right of fishing, usque filum aquae; and the owners of the other side the right of soil or ownership and fishing unto the filum aquae on their side. And if a man be owner of the land of both sides, in common presumption he is the owner of the whole river, and hath the right of fishing according to the extent of his land in length. With this agrees the common experience.

Though fresh rivers are in point of propriety as before prima facie of a private interest; yet as well fresh rivers as salt, or such as flow and reflow, may be under these two servitudes, or affected with them; viz., one of prerogative,

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 ler 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." 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.

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