Chapter VI of Vanishing Tidelands

by W. Keith Kavenagh, AB, MA, PhD, JD

The Public Trust Doctrine in England and America

In the histories of the customs and laws of the two great civilizations that strongly influenced the American legal system one can find innumerable examples of the existence of the concepts of the trust obligation and public lands held for public uses.

The Romans did not really have trusts or uses, per se, but their laws recognized that it was possible for a thing to have two owners with different degrees of rights, interests, and uses, a fundamental requirement of trusts as well as leases, mortgages, and the like.

It was for the English to develop and perfect the trust concept to a high degree of sophistication as we know it. Both civilizations, however, recognized that some lands were of such fundamental importance to the community at large that they should be owned and regulated for the public benefit.

Under Roman law the legal owner, the dominus ex jure civile or ex jure_ Quiritum, who was the holder of the fee title and the only one who. could dispose of it, could pass the beneficial use of a thing to another, who held baritarium ownership, without affecting the legal ownership (1). The Romans also recognized the existence of public land, in a sense common land, held by the government for the people.

As early as the fourth and third centuries BC, one finds that conquered territories were considered public lands to be held or distributed to the victorious Romans as the government deemed it in the best interest of the people (read here also Republic and later Empire) to do so and to reward military and political leaders.

One can interpret this practice in one of two ways: either the Romans acquired all conquered lands as public, to be distributed and conveyed to individuals for services rendered; or the Romana recognized privately held land of barbarians, transferred title to a loyal Roman, and retained what was left for the state until such time as any or all of it was conveyed into private hands. It would be difficult to read into this a trust obligation, but one can see a well-defined public land policy of using lands within Roman jurisdiction either to reward citizens or to be held for the use of the state for whatever beneficial purposes it deemed necessary.

With the advent of what is called the Dark Ages in Europe and its accompanying intellectual paralysis, the influence of Rome and its laws almost disappeared from large sectors of Western Europe. Even at its height, Roman law had had the least impact on England. It vanished entirely when Rome abandoned the island early in the fifth century AD, leaving it to successive waves of barbarian invasions. Nevertheless, some of it would eventually return, however indirectly, as the result of the efforts of the Roman emperor Justinian who, 100 years tater, attempted to codify the legal systems and laws of his widely scattered and culturally diverse empire.

The Corpus Juris Civile, or the Justinian Code, begun under the direction of Justinian a year after he ascended the throne of the eastern empire in 527, is [185] the principle source of knowledge of Roman law and the instrument that conveyed the Roman legal system to the modern world via the medieval scholars of the thirteenth and fourteenth centuries.

Although not a Legal code of laws as such but rather more of a commentary on the laws, the Corpus Juris consisted of the imperial constitutions of past centuries, the writings of jurists, and the old laws and known customs (consuetudo). The entire collection was published over a period of years in parts called the Code, Institutes, Digest, and Novels. Of these the Institutes served for centuries as an elementary textbook for the study of law.

Of interest to us here is the Institutes’ observations on public property. The second book of the Institutes begins by pointing out that “some things are by natural law common to all men, some are public, some belong to a corporate body, some belong to no one, most things belong to individuals and are acquired by various means...” In other words, certain things (res) are not susceptible to private ownership, such as (1) things common to all men (res communes)—the air, running water, the sea, and seashore^.; (2) things pubic (res publicae)—rivers and harbors; (3) things belonging to a corporate body (res universitatis)—theaters, race courses, and the like, found generally in cities; (4) things belonging to no one (res nullius)—sacred things (res sacrae) such as churches, religious things (res religiusae), as with graveyards, and sanctioned things (res sanctae) such as city walls and gates. As for shores and waterways, specifically, the Institutes interpreted former laws and customs to hold that:

1. By natural law the air, flowing water, the sea, and therefore the shores of the sea are common to all. Consequently, no one is forbidden to approach the shore, provided that he does not interfere with dwelling houses, monuments, and buildings, for these are not subject to the ius gentium, as the sea is.

2. All rivers and harbors are public; consequently the right of fishing in a harbor and rivers is common to everyone.

3. The seashore extends to the limit reached by the highest winter flood.

4. The use of riverbanks ius publicum and ius gentium, like the use of the river itself; and so every one is free to put in at the bank, to fasten ropes to trees growing an the bank, or to land a cargo, just as every one is free to navigate the stream. But the ownership of the banks and of trees of sea shores ton is public and ius gentium, like the use of the sea itself, and so any one may set up a hut to retire into, may dry his nets, and draw them up from the sea. But the ownership of the shores may he supposed to be vested in no one, and to be governed by the same law as the sea and the sea-bottom (2).

To say that Roman laws directly influenced English law to any extent, at least prior to the thirteenth century, would be misleading, but to say that the early Anglo-Saxons and later the conquering Normans independently evolved systems of public lands invested with a vague forerunner of a public trust obligation might not be wrong or even too outlandish to take into account. There was, of course, no direct carry-over of Roman law after the end of Roman occupation in 440 AD. The Teutonic tribes that overran the British Isles and virtually wiped out the Britons brought their own land systems with them. The District in which each tribal group lived was not considered to be private property but rather for the use of all in the community, although each head of a household actually owned the land on which his house stood. Under the dictates of the three-field system of agriculture then current, fallow [186] meadowland and the waste or common land, usually woods, was used by all for rights of pasturage, woodcutting, and similar basic needs of these primitive agricultural communities (3).

Eventually, the vast amount of wasteland in England came to he looked upon as a common stock from which the king and the Witan, the supreme council of the realm, had the right to make grants of land by charter. Gradually, this translated itself into a belief that unoccupied land belonged to the Crown and that the king was prima facie the owner, even of the seashore below high water mark (4).

As small weak kingdoms merged with or became absorbed by larger kingdoms and, eventually, the largest kingdom and its king encompassed the whole nation, the idea that all unoccupied land was the royal domain, terra regis, became more strongly developed. Concurrently, the claims of the kings to certain dues, services, and proprietary rights began to be recognized.

Even though a clear-cut theory of tenure may not have existed in Anglo-Saxon England, the Norman conquest of 1066 imposed one upon the country. Thereafter, all land was held of some lord and ultimately of the Crown throughout the entire nation. No allodial land remained (5).

With the conquest, William I assumed all the rights of the Anglo-Saxon kings and their possessions held in a private capacity. No longer did a distinction exist between the king’s ownership of land privately and his suzerainty over unoccupied lands as head of the nation. All became terra regis. Despite this change, certain customary common rights prevailed.

Even though all rights over the land within a district not expressly claimed by an individual came to be regarded as vested in the lord and he in turn was regarded as a tenant of the king, the common rights of pasturage, fishing, and wood gathering persisted (6).

The Normans and their successors wove into the socioeconomic fabric of England a theory and practice of feudalism that decreed that every occupant of a piece of land, legally possessed of it, held of some superior lord and ultimately of the king into whose hand the protection and well-being of his subjects was placed. In this system, certain common rights became an integral feature and incident of lands traditionally held to be beyond exclusive private ownership and vital to the existence of the community. That is to say, such lands could be held privately, but they were subject to the rights of the public to use them for essential activities such as wood gathering, fishing, livestock grazing.

Into this system came the Roman law, although it did not appear conspicuously until the middle of the thirteenth century. The growth of the study of Roman law in England began with the lectures of Vacarius at Oxford in 1149 and became quite popular thereafter until early in the next century when resistance to it developed. A general Opposition to its “cosmopolitan doctrines” arose among common law lawyers and the church resulting in laws that forbade the teaching of civil law at least in London. Nevertheless, through the writings of Bracton some of the concepts of the Roman law found their way into the English system (7). Quoting Justinian’s Institutes extensively, he used that work in support of his analysis of the prevailing English law with respect to common rights and their inalienability in certain lands, although he did not specify more than the known and accepted common rights of turbary, piscary, and the like. His influence, and correspondingly that of the Roman law, can be found most directly in the doctrine of seisin and possession of real and personal property. [187]

Under the technical rules of law that feudalism created after the Norman Conquest, real property could not be disposed of (devised) by will. Also, under the feudal system an heir to an estate in land had to pay the lord a relief in order to succeed to it; a tenant could lose his real property to his lord by forfeiture if convicted of treason or by escheat if gully of a felony. Creditors could attach the property for payment of debt„ Trusts, or uses as they were called, arose to circumvent these restrictions.

To overcome such feudal restrictions yet remain within the legal system without being hampered by the prevailing rules of law, a tenant would enfeoff the land to a trusted friend who then became seised of the land but who was bound only by friendship to manage the land for the benefit of the feoffor, members of the feoffor’s family, or a designated third party. The law recognized the feoffee as the legal owner of the land; yet the feoffer retained the benefits of ownership within the legal feudal burdens (8). Simply stated, A grants his land to B for the use of A or his family. A can then write a will instructing B to make use of the land for the benefit of his heir C, or to grant it to C upon A’s death. By passing title to B to be vested in C at some future time the land is never without a living tenant, for feudalism could not conceive of land being tenantless. This insured that A’s heirs would come into possession of the property which normally would revert to the superior lord upon A’s death. If C were underage, to insure that he would not become the ward of the mesne lord, A would enfeoff four, five, or even ten so that at least one or more would always be in his majority and be able to assume the governance of C the minor. This cut off the lord from all hopes of exercising his traditional rights of wardship. Similarly, if A owed a large debt, he would enfeoff to B for A’s use. A creditor then could not attach A’s property since B held the legal title even though A continued to enjoy all the benefits of that property. In this way landowners were able to circumvent feudal restrictions. However, it all depended upon the honesty and conscience of B, the feoffee, or, as he was later labeled, the trustee.

Most applications of the trust were entirely legitimate and reflected an effort on the part of society to get around the rigid feudal structure it had placed on itself. Trusts originated as personal trusts or confidence placed by one person in another. Once the land had been granted away the grantor lost his legal hold over it and only the trusted friend was recognized in law as being the owner. The grantor had but an inchoate equitable interest with no real remedies in the law to force the grantee to do or not to do something once the transfer had taken place. Unable to find relief in the common law courts, the beneficiary of the use had recourse only to petition to the king to redress his grievances. Under the early English system the King was the source of all justice and even the common law courts derived their authority from him. 1f one could find no remedy in the courts he appealed to the king who could da what the courts could not, that is, he could mete out justice based an equity where the law courts were otherwise restricted by their rules to either no remedy or an inadequate one. In this way equity jurisdiction came into being and slowly built up precedents and rules of its own, supplementing the workings of the common law courts (9).

During the reign of Edward I (1272-1307) the king usually referred all Petitions to the chancellor. Edward III (1326-1377) formalized this procedure by decreeing that all such petitions for relief be sent directly to the chancellor or to the keeper of the Privy Seal. It was not until the fifteenth [138] century, however, that such procedures became systematized. By that time the practice of creating trustees to uses had become common, particularly so since this century witnessed a major civil war in England and many persons resorted to the device to save their lands in the event they happened to find themselves on the currently losing side and accused of treason. Even then the trustee to use had only a moral obligation to fulfill the terms of the trust imposed upon him. Nevertheless, the chancellor’s court, the court of chancery, could instruct a trustee to carry out his duties and threaten him with contempt of court if he did not.

Until the reign of Henry VIII, Parliament paid little attention to trusts. By then large quantities of land had been transferred to trustees, thus subjecting it to two owners, one in law, the other in equity. Creditors found it difficult if not impossible to enforce claims against debtors; Lords with tenants were deprived of their rights of wardship and escheats; the King lost his rights of forfeitures, At the insistence of Henry VIII, Parliament passed the Statute of Uses in 1535 in an attempt to wipe out all those uses not active and proved to be a device to create a passive repository of the legal title (10). Unfortunately, the statute did not accomplish its purpose. The courts soon interpreted it as not applying to active uses, or trusts, where the trustees had certain specified duties to perform. Nor did they permit it to be applied to uses for a term of years, claiming the statute only covered freehold estates to uses.

This does not mean that the statute became a useless piece of paper. What it did, at least in terms of passive uses where the trustee had no duties to perform, was to transfer the legal estate to the cestui que use. No longer could the beneficiary dispose of his lands by will; he again became subject to the feudal dues of relief, wardship, and the like. To distinguish between an active and a passive use the former came to be called a trust and a whole body of modern law developed around it to insure that the trustee would carry out his duties on behalf of and for the benefit of the cestui que trust. It also caused the passage of the Statute of Wills which permitted a freeholder certain powers to devise his land where otherwise wider feudal custom he could not (11). Because it abolished the practice of livery of seisin, the tangible, open, and easily recognized act of transferring property (but a cumbersome one that made the grantee actually take physical possession of the land), it gave legal validity to bargain and sate deeds that required no open and notorious act, This opened up the possibility of covert transfers of property. Consequently, in the same year, Parliament passed the Statute of Enrollments, the object of which was to require that bargain and sate deeds be publicly enrolled in the locality in which the sale took place (12).

As a result of the Statute of Uses, the courts began to define and describe various types of trusts (13). For purposes of this study the active express trust is probably the least pertinent (14). An active express trust requires the performance of some active duty on the part of the trustee and comes into existence when the individual creating it did so with that express intent in mind (15). In contrast, a passive trust would be one where so active duty is required of the trustee, permitting the cestui que trust actually to possess, enjoy, and exercise all the benefits incident to ownership of the land.

Generally speaking, neither statutes of limitations nor adverse possession are a bar to express trusts. A rule of equity, in distinguishing between express and other forms of trust, states that “to an action based upon the [189] breach of an express trust the Statutes of Limitations are not a bar.” Once property has been vested with a trust none can claim adverse possession unless they can prove a good and legal title, or possession, over a period of years prior to the creation of the trust (16).

To return momentarily to Roman law, it is not beyond reason to claim that Roman law had an influence on seisin and possession of real and personal property in England. In fact, where there had been no clear distinction between these two types of property, those who studied the Roman law engrafted the two onto the laws of property. By the end of the fourteenth century the Court of Admiralty used Roman forms of written procedure along with Roman substantive law. Roman forms of interrogating witnesses in the Court of Chancery also became common practice. One must not neglect the work of Bracton and his efforts to systematize English taw through his writing which relied heavily an Justinian’s Institutes.

The sixteenth century conception of the commonweal finds its origins in the Roman principle of public policy (17).

The medieval idea of a natural law and a law of mankind, born of feudalism and Christianity, has a direct parallel in the Roman ius naturale and ius gentium. Above all, the fact that the two legal systems found it necessary to acknowledge that certain lands were vested with a public right which in general should not be sequestered by private individuals speaks to the point that neither was an isolated or parochial ideal but rather a somewhat more universal one.

The relevance of the Roman law, in the sense that it recognized the superior rights of the public over those of exclusive private rights in specific areas, should not be underestimated. At the very least, it underscores the ancient origin of such a concept in law and custom. At moat, it adds centuries of continuity to the theory, and later the belief in England that the kings held the terra regis not as their personal property, to be parceled out at their whims, other than what was needed for immediate income to sustain themselves and families in a manner befitting royalty, but rather for the benefit of their subjects, the people of England (18). The importance of this to Stuart-Hanoverian England and, by extension, the American colonies, specifically New York and its colonial charter towns on Lang Island, must now be taken into account.

In the centuries after the Roman conquerors left England, taking with them their laws and customs, the island population soon reverted to primitive tribal ways. Society slipped quickly into the intellectual, economic, and social morass that gripped all et Europe as successive waves of barbarians swept through and brought with them the Dark Ages. Gone was the unifying character of the Roman law; gone was its principle that the sea, seabed, and foreshore were a matter of ius gentium and not susceptible to private
ownership. Petty kings now dispensed justice based on local, tribal law and custom; trade and commerce virtually came to a standstill, followed by an a1most complete lack of interest in the sea and things appurtenant to it (19). Local Lords dominated the waterways, the foreshore, and the sea only insofar as they had the effective power to do so. Use of the waters and wetlands reduced itself to occasional fishing and fowling, although Saxon lords might build a fish weir in a river and extract tolls from the few adventurous souls who passed their way. The general public, if it can be called that, vanished to be replaced by little clusters of people huddled together in hamlets or small towns for security. There was no one to assert the ius publicum in [190] wetlands and the foreshore; that concept had been translated into common use of the forests and fields for wood gathering and grazing on the waste.

The battle of Hastings in 1066 changed all that. When William of Normandy crossed the Channel and defeated Harold’s troops, exhausted from a forced march after fighting the Danes in the north country, he brought with him the paraphernalia of feudalism. He took unto himself all the land in the realm, including the foreshore, waters, and the lands under them. Thereafter, all held immediately or mediately of the king in some feudal arrangement, he being the only one to hold land in allodium, that is, complete independence of ownership devoid of any feudal dues or services to any superior lord (20).

William and his successors could and did grant portions of the sea and other waters to vassals, bestowing upon them the right of a “several fishery” (the right of the grantee to fish and build weirs to the exclusion of all others) (21). William also laid the foundations for the centralization of power and authority in the Crown and thus paved the way for the revival of commerce, industry, and renewed interest in the use of waterways.

By 1215, the year of Magna_.Carta, most, if not all, of England’s tidal waters passed into the hands of private proprietors. They and the kings weired out or exacted tolls as the spirit moved them and the need arose (22). But, like the battle of Hastings, the confrontation between King John and the barons at Runnymede altered the status quo, John, who was obsessed with a need to recover lost lands in France, displayed a marked propensity to lose every campaign he fought there. At home the barons, who bore the brunt of raising men and money for these military dalliances, revolted under the burden of excessively high taxes, John sequestering of some of their castles and holding families hostage to insure good behavior, and general mismanagement of the powers of government (23). The result, of course, was the capitulation of John and his reluctant signing of Magna Carta,

Many things have been attributed to that document as if the had flowered full-blown on the field of Runnymede. In point of fact, It only served the purposes of the revolting barons who forced it on John; it was for later generations of Englishmen and Americans to read into it that which was not intended in 1215 (24). Of particular concern to us are are the sections purportedly dealing with use of the foreshore and lands under tidal waters, namely, chapters 13, 33, 41, and 47. In them can be found the vague beginning of the gradual opening up of the foreshore, waters, and lands under them to freer use by the general public.

Chapter 13 granted to London and all other cities, towns, boroughs, and ports “all their liberties and free customs,” both by land and water. This enabled trade and commerce to expand so that by the middle of the thirteenth century the general public acquired the right to use the foreshore for docking, towing, and cargo discharge.

Chapter 41 gave encouragement to international trade by promising safety to foreign merchants and protection from “evil tolls.” Superficially, these two chapters appear to be supportive of each other, but in reality they ware not.

Chapter 13 guaranteed to all towns their right to exact heavy taxes, to force foreign merchants to leave after 40 days, and to restrict them to wholesale trading only. Such were their “ancient liberties.” The latter chapter was a bar only against the king.

Because it was in the best interests of the barons to promote more open trade, for they were the greatest consumers of continental wines and luxuries, these two chapters eventually established a framework within which freer trade developed (25). [191]

Chapters 33 and 47 relate more directly to the use of wetlands, waters, and the lands under them, The former decreed that all weirs throughout England “shall be put down, except on the sea coast.” This had the effect of removing impediments to navigation and has been interpreted as prohibiting fishing monopolies in the realm, although the latter was not the intention of the barons at the time. Chapter 47 commanded that all forests set aside by the king for his exclusive use be disaforested, thus opening them to use by others, and that “a similar course hall be followed with regard to river banks that have been placed in defense,” by the king during his reign. The narrow intent of these two chapters in the thirteenth century was to remove obstructions to navigation in the form of fish weirs and low bridges, the latter type of obstruction being what some writers interpret the phrase “in defenso” to mean (26). The broader intent, as read into them by later generations, was to allow greater public access to navigable rivers and their banks for trading, fishing, and net drying.

Actually, trade did not flourish nor did the general public rush to the foreshore to exercise their rights there. In fact, they still really had no rights per_, se, because the feudal hierarchy of land ownership maintained its stultifying grip and the king retained his proprietary rights in the great wastes of the realm, of which land under water and wetlands were undifferentiated parts. He could, therefore, alienate from that land bank whatever he chose to whomever he wished (27). Over four centuries would have to pass before England would have a government sufficiently centralized and water borne trade expanded enough to fully reawaken public interest in asserting control over the foreshore and navigable waters. Nevertheless, Magna Carta did set the stage for later judicial decisions which, although not always historically accurate or n strictly logical interpretation of its terms, destroyed exclusive private proprietary claims to the foreshore and lands under water in the interests of more sophisticated economic conditions (28).

During the sixteenth century England overcame political strife internally to emerge as a contending power for supremacy in ocean-borne commerce and colonization of the western hemisphere. At that time, as in the past, the Crown held title to most of the lands under water in and around the realm, but much of the foreshore had been granted out piecemeal long since or had fallen under private control simply by long use. To further its own policies of

promoting trade, encouraging the fishing industry, and lending support to overseas ventures, all of which required use of large expanses of the foreshore, the Crown took steps to reassert its alleged ancient title in the foreshore and all lands under water.

In the last decade of the sixteenth century Queen Elizabeth commissioned Thomas Digges, a lawyer, to delve into the matter in the hopes that he would uncover sufficient historical evidence to justify taking the matter into the courts. He soon produced the desired material and wrote a treatise that argued that the Crown did indeed have, in fact always had, title in the foreshore as part of the great waste of the realm. Unless a specific grant could be produced, the claim of long user would not do (29). Initially, the Crown lost in the courts, but the Stuart dynasty, successor to the Tudors in the next century, pursued the matter aggressively. By imposing extraordinarily heavy taxes on the foreshore and granting monopolies’ therein to favored companies, Charles I forced the issue back into the courts. He too, lost, but by the simple expedient of replacing the judges and resubmitting his argument, [192] Charles won a favorable decision in 1634 in the notorious Attorney General v. Philpot case. In its decision the court accepted the Digges^-doctrine and laid down what is labeled the prima facie rule, that is, the Crown has the paramount title to the foreshore by royal prerogatives (30). Even though this decision and others like it, which Charles insisted on applying strictly to regain full control of the lucrative foreshore, eventually led him to a very brief acquaintance with the headsman in 1649, later courts and other judges have confirmed it as a fundamental principle of common law (31),

Arguments over who owned and thus had jurisdiction over the sea. seabed, and, therefore, the foreshore in the realm dragged on for decades both before and after Philpot. That case was simply a highwater mark because of its clear statement that title was vested in the Crown and probably because of its notoriety. As early as 1591 in the admiralty case of Officium Domini v. Dulinge the court accepted the argument that the Crown, by right of royal prerogative, owned as proprietor the fee and hence the foreshore (32). Eventually, the contending parties came to accept, with a few exceptions, the theory of Sir Mathew Hale as set forth in De Jure Maris published some seven years after the restoration of Charles II to the throne of England in 1660.

In his treatise Lord Chief Justice Hale averred that the king held the proprietary title, the jus privatum, to the sea as far is it ebbed and flowed, which included the foreshore. Yet he carried his argument one step farther than others and reasoned that the king as sovereign held it not for his personal use and enjoyment but for the benefit and use of his subjects, thereby engrafting upon the proprietary title the jus publicum. In other words, the king had title to the foreshore in his own right as a proprietor, but it was subject to the rights of the public for navigation and fishing. Hale believed the king could alienate portions of the foreshore, but could not thereby extinguish the public rights of use. An easement existed across the foreshore that a grantee could not obstruct except by express permission of Parliament (33).

It could be said that Lord Hale gave final form to the public trust doctrine as it relates to the foreshore (and possibly tidal marshes) and vindicated Bracton’s thirteenth century efforts to infuse the Roman legal concept, if not in whole then in part, into the common law. Since the seventeenth century, many court decisions and legal writers have cited Hale with approval as being the primary authority on the English law as it pertains to the foreshore (34).

At first glance one might conclude that De Jure Maris and its later general acceptance provided the general public with unrestricted access to and use of England’s tidal waters and the foreshore (35). This is not true for two reasons: the Crown granted away large segments of the foreshore and thus private proprietors allegedly had some rights that might bar certain public uses; and in the eighteenth and early nineteenth centuries English courts had a number of opportunities to apply Hale’s doctrine, hut did so in terms of specific public rights more in the nature of easements to be defined and categorized than as a blanket all-purpose use in complete derogation of private rights (36).

In 1667 Lord Hale reached the conclusion that “the jus privatum that is acquired to the subject by grant, patent, or prescription must not prejudice the ius publicum, wherewith public rivers and arms of the sea are affected for public use” (37). In 1703 an English Court concurred in Warren v. Matthews, by declaring that in its considered opinion “Every subject, of common right may fish with lawful nets in a navigable river, as well as in the sea; and the [193] King’s grant cannot bar them thereof” (38). But in 1741 a court, although agreeing that the king’s subjects had a common of piscary and freedom of navigation in public waters, was not prepared to include unrestricted use of privately held foreshore and upland.

Ward, the plaintiff, had been fishing in a river in Geswell Haven in the parish of Woodham and beached his boat on the shore; Creswell, the proprietor, confiscated six oars from Ward’s boat. The plaintiff initiated a replevin action to regain possession of his oars, claiming he was exercising the common right of fishery at the time. Creswell swore that the oars damaged his property. In Ward v. Creswell the court held that “the right of fishing in the sea is common to all the King’s subjects,” and every man may fish there of common right is well as in navigable rivers, but decided that the plaintiffs had not proven it was necessary, in the exercise of that right, to land his boat an the defendant’s land (39). CreswelI kept the oars.

Toward the end of the eighteenth century two cases came before the courts that dealt directly with use of the foreshore. During the 1770s the City of London undertook to build a horse towpath along the banks of the Thames River under the powers vested in the City by the statutes of 14 Geo. 3, c. 91 and 17 Geo. 3, c. 18. A property owner along the path right of way followed behind the workers and cut down the pilings driven into his land, claiming the mayor of the city had no right to place them there. In the resulting case of King v. Smith in 1730, the court held that the property owner had no right to destroy that which had been permitted by statute. Not content with that, Justice Butler added that the subjects of the Crown had a right to take fish found between high and low water mark on the seashore and, therefore, the actions of the defendant were contrary to long established common rights and that he, by removing the pilings, had indicated his intention to bar the public: from the use of the foreshore (40).

Yet, nine years inter another court took ^a different view in the belief that private owners had some rights maintainable against the general public. The court felt that if it were otherwise, those owning property along the seashore or banks of navigable rivers and streams could do nothing to stop the public from indiscriminately tramping across their land at any point. In 1789 in Ball v. Herbert a court was presented with a situation wherein the defendant had exercised an alleged common right by dragging barges down a river at
Wiggenhall in Norfolk by means of attaching ropes from them to horses walking along the shore. This, of course, required that the entire assemblage of horses, men, and ropes pass over the plaintiff’s foreshore, much to his annoyance and chagrin. The court held that the common law right of use of the foreshore did not extend to towing along the banks of ancient navigable rivers (41).

Other cases during this period dealt with not only specific rights of the public in the foreshore, but also the question of the extent to which a proprietor, who alleged title by either grant or prescription, could interfere with public use. Richards, who claimed he had the right by royal grant and by possession longer than 60 years, proceeded to build wharves, and other buildings on a section of the shoreline in Portsmouth. The Crown disputed his right to do so and sued in court to have the structures removed. In 1795 in Attorney General v. Richards, the court ruled in favor of the Crown based on the prima facie rule that the Crown had paramount rights in the area between high and low water marks under the common law. Thus, the defendant could not do what the Crown sought to enjoin. Not only did the Court decide that the [194] royal patent did not confer such a right upon the defendant, but it also ruled that his structures interfered with navigation and prevented mooring in the area. Because of this and the fact that the structures impeded free flow of the tide and restricted the carrying off of excess mud, the court declared them a purpresture, a nuisance, that must be removed (42).

A similar question came before the courts again 15 years later in Attorney General v. Parmeter. The court firmly declared that “It is perfectly clear that all the soil^. under the salt water between high-water mark and low-water mark is the property of the Crown,” and even though a king could dispose of his private rights therein, public rights remained intact “even if [they1 be within the grant.” The king could not “in any degree affect the public right of the subject passing and re-passing upon the salt water; he cannot affect

that by anything which can be done by him” (43).

Others who asserted that they had exclusive rights in the foreshore and adjacent waters frequently met with the same fate when they presented their claims in court. In 1822 the lords of the Manor of Brighton discovered someone taking sand from the seashore and accused him of trespass, since they claimed title to the land between high and low-water marks. At Hilary Term on 13 February 1323, on appeal, the Court of King’s Bench found for the defendant, holding that the right of “wreck”— the right of the adjacent landowner to collect for his own profit wrecks of the sea washed up an shore— on which the lords based their claim, among other assertions such as ancient rights and long user was not alone enough to confer title, by presumption or construction of law, to the ownership of the foreshore against the Crown. The court stated that the rights of the Crown to the sea and seashore were not “any beneficial interest to the Crown itself [and, then, by inference, not to the lords either by grant or otherwise], but for securing to the public certain privileges in the [foreshore].” A person could remove sand and stones and the Crown could not interfere if the act did not prejudice the interest of the public and become a nuisance (44).

The case cited above generally adhered to the accepted belief that the Crown had the dominium and imperium (proprietary rights in and jurisdiction over) the waters of the sea adjacent to the realm and as far as the tide ebbed and flowed. The king’s subjects had the right to use the resources thereof, indeed a right deemed to be an inherent privilege emanating from the Crown. In other words, “the king has the property, but the people have the use necessary” (45). However, much prior decisions tended to interpret rights in the foreshore favorably in the public interest, one judicial decision attempted to reverse the trend. In 1821 certain local activities of others disturbed the lord of Great Crosby manor, riparian owner of land along the tidal Mersey River. An employee of a hotel and manor land fell into the habit of driving hotel customers to the beach in bathing machines, for a fee, from which they could descend and disport themselves in the water. To do so he passed over m’Lord’s foreshore where stakes had been driven in to hold fishing nets strung out into the water. The lord of the manor sued for damages, accusing the hotel employee of breaking and entering between high and low water marks and, “with feet in walking, and with the feet of horses, and with the wheels of bathing machines, carts, and other carriages, passing over, tearing up, damaging the sand, gravel, and the soil of the said close” (46).

Upon reviewing the merits of the case (Blundell v. Catterall), searching the record for precedents, and ruminating^-upon their findings, three of the four [195] judges held for the plaintiff; one dissented. The majority on the bench found that the jus publicum_. in the sea and foreshore was restricted to activities associated with navigation and fishing and that “a claim of public piscary is a claim for something serving to the sustenance of man, not a matter of recreation only...” (47). Thus, they indicated quite clearly that recreation (for example, bathing in the seas and rivers) held a low place on their scale of values, a scale that apparently reflected their moral and social rather than their judicial values. The three agreed that Blundell did have exclusive stake-net fishery rights and Justice BayIey went so far as to write:

The practice of bathing may contribute to health, but it ought to be confined within reasonable Limits, and it is by no means necessary that the right should be coexistent with the whole shore of the sea, or that it should extend to places where the right of fishing with stake nets exists... It would be attended with great inconvenience to the public if a general right, free from all regulations by the owners of the soil, was to be exercised throughout the whole of the kingdom... (48).

In his dissenting opinion, Justice Best replied:

Free access to the sea is a privilege too important to Englishmen to be left dependent on the interest or caprice of any description of persons... The principle of exclusive appropriation must not be carried beyond things capable of improvement by the industry of man. If it be extended so far as to touch the right of walking over these barren sands, it will take from the people what is essential to their welfare, whilst it will give to individuals only the hateful privilege of vexing their neighbors… Magistrates are armed with authority to bring to punishment such as bathe indecently. I would rather reply on disinterested and responsible magistrates than on an interested and irresponsible lord of a manor (49).

The majority opinions in Blundell v. Catterall have not withstood the test of time. Written at a time when the Industrial Revolution was well underway in England and people were flocking to cities like Manchester and Birmingham in search of economic success through hard work, they took into account the gospel of work and profit espoused by a class of landed gentry that was profiting as never before from privately held real estate.

The public right to the use of the foreshore, the area between the high and low-water marks, found acceptance in the learned treatises of some of the leading authorities on the subject in the nineteenth century. Hall observed in 1875 that “there can he no doubt whatever but that the public have a right to fish on the shore, although the soil thereof may happen to be private property... The public fishery extends over sea and shore...” and described the shore as “a highway for fishing... as public as the sea itself” (50). Twenty years earlier Wollrych claimed that “navigation and public fisheries are the inheritance of the subject, by virtue of the general title, or jus publicum, which everyone possesses” (51). Even if the Crown had granted upland and seashore to a subject the public right to fish could not be restrained by virtue of the grant (52).

Traditionally, the two paramount public rights in the sea, seashore, arms of the sea, and navigable rivers were the rights of navigation and fishing. [196]

According to one authority on the subject (53), the public has a right of access across the foreshore to fully exercise its right to fish in the sea and navigable rivers. Obstructions that negate these rights are unlawful. Grants that included these are as came to be recognized as vested with the jus publicum. This principle was stated by Lord Hale in the seventeenth century and 200 years later Angell flatly stated it as a point of law asserting:

The King may doubtless grant the soil covered by tidewater to an individual, but the right of the grantee is always subservient to the public rights... The law... is, that where a part of the sea coast or shore, being the property of the Crown, giving jus privatum to the King, is granted to a subject for public use, and to he enjoyed so as to be detrimental to the jus publicum, therein such grant is void as to such parts as are open to such objection; … or it is a grant which does not divest the Crown or invest the grantee. The Crown may, by letters patent, grant to a municipal corporation, or the corporation of a town or borough which is caput portus, all the land which is between high and low water mark; but the subject matter of grant, as being a jus privatum in the King, must be subject to the jus publicum, or public rights of the people to the passing and repassing over herb land and water (54).

That is to say, where there was a conflict between the ius publicum and the jus privatum of the owner of the foreshore, the jus publicum was paramount and the owner could be restrained from encroaching on the rights of the public He would be confronted with the principle that “it is not true that the ownership of the shore by the subject tends to Limit either the rights or enjoyment of the public... The subject is as limited in his ownership as the Crown was before It granted him the shore” (55). He could not take away public rights by his actions. Nevertheless, it is likely that if a subject received a specific grant of the foreshore from the Crown in which was included permission to bulkhead and fill, thus obliterating the foreshore, his taking advantage of such a grant would extinguish the jus_.publicum in that part of the foreshore.

Woolrych observed that a grant to exclude the public from taking fish in a navigable river or in the sea was considered, by this time (¹⁸53), ^to be invalid and that anyone misusing a grant of the foreshore voided such portions of that grant as invaded the public rights (56). Yet, Hall modified unrestricted public access to the foreshore to the extent that the public could be required to follow a certain right of way to reach the shore. Once there, however, there existed a common law right of way along the dry sand above the high—water mark to the nearest road, subject only to what might be sufficient to protect private property rights (57).

How much of the letter of the English common law and the public trust doctrine journeyed across the ocean with the early colonists has not been fully determined by historians. Yet, the spirit of them, if not their exactitude, arrived with the settlers as surely as did the Susan Constant, Goodspeed, and Discovery at the site of Jamestown in 1607; of that few historians have any doubts (58). On the eve of colonization, Calvin’s Case laid down the rule that the Law in the new colonies would be what the king said it would be. In commenting on this, Julius Goebel, Jr., a noted legal historian, observed that the rights of the Crown in the new settlements were attributed by a legal fiction to conquest, thus reasserting the old medieval dogma respecting the king^’s prerogative of legislation in his dominions by [197] conquest (59). To insure the continuity of the law between the realm and the dominions, almost all colonial charters contained a provision that laws were to be passed by a governor and council with the advice of an assembly of freemen, “so always as the said statutes, ordinances, and proceedings, as near as conveniently may be, be agreeable to the laws, statutes, government, and policy of this our realm of England” (60). From this it follows that, as one nineteenth century legal authority stated categorically, the American colonies were considered parts of the dominion belonging to the Crown, and “not only the jurisdiction of the British sovereign extended over the territory acquired by the colonists from the native occupants, but also the same jus proprietatis or right of property in all the tidewaters included by such territory, existed in the Crown, to the same extent as in the tidewaters of the realm, and were held like the latter” (61).

The US Supreme Court and lower federal courts have generally followed this principle in interpreting colonial charters that involve the seashore and lands overflowed by tidal waters. The Supreme Court dealt with it in Martin et al v. The Leasee of Waddell in 1842, an ejectment action concerning ownership of land below the high-water mark in the Raritan River and Bay in New Jersey (62). The plaintiff alleged title to land under water there as successor under grants from Charles II through the Duke of York to the proprietors of the Jerseys; while the defendant, who leased oyster lots from the state, claimed rights under a New Jersey statute that reserved some of the lands in controversy for purposes of oyster cultivation. The royal charters of 1664 and 1676 to the Duke gave him, his heirs, and assigns a large stretch of territory along the Atlantic coast, together with all lands, islands, soils, rivers, harbors, marshes, waters, lakes, hunting, hawking, fishing, and fowling therein. The Duke conveyed part of this territory to the proprietors of East New Jersey, including the lands in question, for a valuable consideration, along with all the rights of property and government that had been conferred an the Duke by his charters.

The court found that in 1702 the proprietors surrendered all of the customary powers and privileges under these charters to Queen Anne and held that the people of New Jersey then succeeded to the prerogatives and regalities that had been re-invested in the Crown or Parliament in 1702. It thus upheld the power of the state to allow the use of submerged tidelands for growing oysters and rejected the claim of the plaintiff. In considering the plaintiff’s argument that his chain of title extended back to the fee simple grants from the proprietors to ‘land below the high-water mark, the court based its final decision upon a construction of the letters patent and the effect of the surrender by the proprietors to the Queen in 1702, ruling that the territory had been owned originally by Charles II, “in his public and regal character as the representative of the nation, and in trust for them” (63). Citing Blundell v. Catterall and Duke of Somerset v, Fogwell, the court held that the king, since Magna Carta, had no power “to grant to a subject a portion of the soil covered by the navigable waters of the kingdom, so as to give him an immediate and exclusive right of fishery, either for shellfish or floating fish within the limits of his grant” (64).

The court interpreted the charter as not granting the dominium in the navigable waters and the lands under them as private property to be parceled out and state’ to individuals for their own benefit, hut rather construed it as in the nature of a trust for the common use of the community to be established in the new colony, The justices reached this conclusion by considering the [198] patent to be an instrument “upon which was to be founded the institution of a great political community,” and not a deed conveying private property per se. That is to say, the Duke, his heirs and assigns, were to “stand in the place of the King, and administer the government according to the principles of the British Constitution,” according to the laws of the realm as nearly as circumstances would permit (65). In its decision, the court also accepted Lord Hale’s statements on tidal waters and the public trust.

What if... the shores, and rivers, and bays, and arms of the sea, and the land under them, instead of being held as a public trust for the benefit of the whole community, to be freely used by all for navigation and fishery, as well as for shellfish as floating fish, had been converted by the charter itself into private property, to be parceled out and sold by the Duke for his own individual emolument? There is nothing... in the terms of the letters patent, or in the purposes for which it was granted, that would justify this construction... The land under the navigable waters passed to the grantee as one of the royalties incident to the powers of the government; and were to be held by him in the same manner, and for the same purposes that the navigable waters of England, and the soil under them, are held by the Crown (66).

Extending this beyond 1775, the court pointed out that when the Revolution occurred the people of each state became sovereign and thereafter held the absolute right within the territorial limits of each to all the navigable waters and soils under them for their own common use, subject only to whatever rights they later surrendered to the federal government in the Constitution. Extrapolating from the Duke’s charters to others issued in the seventeenth century, the court declared that they were subject to the same interpretation because none of them “differed materially from it in the terms in which the bays, rivers, and arms of the sea, and the soils under them, were conveyed to the grantee...” (67).

The doctrines of _.jus publicum and public trust came before the Supreme Court sufficiently often and at widely spaced intervals so that it had a number of opportunities over the years to clarify and refine its stand. In the famous case of the Illinois Central Railway Company v. State of Illinois in 1892 the court dealt with the power of state to alienate property held in trust (68). Back in 1869 the state granted title to more than 1,000 acres of submerged land in Lake Michigan, comprising most of the commercial waterfront of the City of Chicago, to the railroad company without receiving a valuable consideration. The grant included all submerged land for 1 mile out from the waterfront extending 1 mile in length along the city’s main business district. Four years later the state legislature revoked the grant by repealing legislation and brought suit to quiet title and confirm the state^’s ownership of the land granted. The court upheld the state’s revocation of the grant, rejecting the claim of the railroad that the grant was an absolute conveyance of title to the submerged lands giving it as full power to use and dispose of the land in any manner it chose as if it were uplands. The court observed that the grant gave the railroad the complete power to manage and control the harbor of Chicago for its own profit and posed the questions, “whether the legislature was competent to thus deprive the state of its ownership of the submerged lands in the harbor of Chicago, and of the consequent control of its waters,” and “whether the railroad corporation can hold the lands and control the waters by the grant, against any future exercise of power over them by the state” (69). [199]

That each state had ownership and dominion of and sovereignty over its tidewaters and navigable waters, with the right to use or dispose of any portion thereof, was not questioned by the court. However, it noted that whether or not navigable waters and the lands under them are privately owned, they are subject to the right of the public to use the waters and to the power of Congress to regulate navigation under the commerce clause. Also, the power of the state to alienate such property, which was held in trust, was limited. Pointing out that public trust property could not, by grant, be placed entirely beyond the direction and control of the state, the court attempted to clarify grants of land which would materially benefit the public. While condoning grants that would permit the construction of commercial docking facilities and thus any commerce, the court flatly stated that the state, by such grants, could not abdicate its control or trust responsibility over navigable waters or the lands under them to the extent of an entire bay or harbor. “The control of the state for purposes of the Trust can never be lost except as to such parcels is are used in promoting the interests of the public therein or can be disposed of without any substantial impairment of the public interest in the lands and waters remaining” (70).

Simply stated, the court declared that there could be no irrepealable contract to convey property in disregard of a public trust if the trustee is bound to hold and manage it for the benefit of the cestui que trust, in this particular case the people of the State of Illinois. “The state can no more abdicate its trust over property in which the whole people are interested, … than it can abdicate its police powers in the administration of government and the preservation of peace” (71).

Shively v, Bowlby_. ranks with Martin v. Waddell and Illinois Central in importance with respect to pubic^-rights in the^-sea and seashore. This case was a suit to quiet title to lands below the high-water mark in the Columbia River in Oregon. One party claimed title under a patent from the United States, while the other party claimed title under a deed issued by Oregon that authorized the sale of tidelands, with the state reserving the public right of easement to remove oysters and other shellfish and the right to regulate the building of wharves, docks, and similar structures. The court held that rights and interest in the tidelands, which are subject to the sovereignty of the state, are questions of local law (72). Because the suit involved the foreshore, the court reviewed the English common law with respect to public rights therein.

The court noted that under common law where the title, the jus privatum, to the soil below high-water mark in the sea or arms of the sea was in the Crown, or in private individuals, or a corporation by express grant, prescription, or usage, the _.jus privatum was held subject to the public right, the jus publicum, of navigation and fishing. Pointing out that the king had held possessions in America as representative of and in trust for the nation, the court claimed that the colonial charters under the Stuart dynasty conveyed both territory and the powers of government, including the property and the dominion of lands under tide water, charged with a like trust (73).

In two cases that ^,came before it in the latter part of the nineteenth century, the US Supreme Court found it necessary to extend the principles enunciated in Martin v. Waddell to all navigable waters, thus modifying the English common law in that respect. The question of what waters were navigable was decided on the basis of whether the waters were navigable in fact. Rather [200] than by the English common law that defined them as only those in which the tide ebbed and flowed (74). The court felt such a modification was necessary because the only waters in England navigable in fact were considered to be those in which tidal action occurred, whereas, in America there happened to be a great many bodies of water, such as inland rivers, Lakes, and streams not subject to tides but nevertheless navigable. Navigability, not tidal flow, became the rule (75).

Beginning in 1855 the Supreme Court considered a number of cases that dealt with the regulation of fishing and sheilfishing. In that year a ship owned by a citizen of Pennsylvania, engaged in dredging for oysters in the Chesapeake Bay, was seized by a Maryland law officer. The ship became forfeit under a Maryland statute that regulated the means of harvesting oysters in state waters. In Smith v. Maryland the court upheld the statute which was within the power of the state to enact as trustee of its navigable waters and lands under them, because the state had title to all such areas within its boundaries, “not only subject to, but in same sense in trust for, the enjoyment of common liberty of taking fish, as well as shellfish and floating fish” (76).

In its sovereign capacity, the state enacted the ordinance to conserve the public right of fishery so as to prevent destruction of that resource; therefore, it was in furtherance of and not in conflict with that public right. The question of whether a state could regulate fisheries and shellfishing within its own waters had been answered in favor of the states.

State regulations, of course, could extend beyond preservation of Local water resources to prohibiting private citizens from obstructing the right of the general public to fish and to use the waters for legitimate purpose. In 1934 some property owners along the Pine River in Michigan sought to enjoin the state’s attorney general from making them remove obstacles from a stream, claiming it was their property and the public had no right of passage or Fishing. The federal district court disagreed, stating that there could be no narrowing of rights of the public to fish in public waters in light of the increasing private ownership of lands bordering lakes and streams . In Ne-Bo-Shone Association v. Hogarth, the court thus held firmly to the principle that “the citizen ought not (for other than the most compelling reasons) to be deprived of those blessings which nature’ s bounty has provided” (77). This was yet another way of saying what a South Carolina federal court had declared in 1894 in Chisholm v. Caines, in subordinating the rights of riparian owners an navigable streams to the rights of the public, that the sovereign could not grant exclusive use of public navigable streams, bays, and harbors, or the beds thereof, because they must always be kept open for public use, commerce, trade, and pleasure (78). [201]