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 InstitutesÕ observations on public property. The second book of the Institutes begins by pointing out that Òsome
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...Ó 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
kingÕs 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 Òcosmopolitan
doctrinesÓ 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 JustinianÕs 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 debtã 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
feofforÕs 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 AÕs
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 AÕs
heirs would come into possession of the property which normally would revert to the superior lord upon AÕs 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 AÕs use. A creditor then could not attach AÕs
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 chancellorÕs 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 Òto an action based upon the [189] breach of an express trust the Statutes of
Limitations are not a bar.Ó 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 JustinianÕs 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 HaroldÕs 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 Òseveral fisheryÓ (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 EnglandÕs 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 Òall their liberties
and free customs,Ó 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 Òevil tolls.Ó 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 Òancient liberties.Ó 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 Òshall
be put down, except on the sea coast.Ó 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 Òa similar course hall be followed
with regard to river banks that have been placed in defense,Ó 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 Òin defensoÓ 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 monopoliesÕ 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 BractonÕs 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 EnglandÕs
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 HaleÕs
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 Òthe 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 useÓ (37). In 1703 an English Court
concurred in Warren v. Matthews, by declaring that in its
considered opinion ÒEvery subject, of common right may fish with lawful nets in
a navigable river, as well as in the sea; and the [193] KingÕs grant cannot bar them thereofÓ (38).
But in 1741 a court, although agreeing that the kingÕs 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 WardÕs 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 Òthe right
of fishing in the sea is common to all the KingÕs
subjects,Ó 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
defendantÕs 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
plaintiffÕs 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 ÒIt 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,Ó and even
though a king could dispose of his private rights therein, public rights
remained intact Òeven if [they1
be within the grant.Ó The king
could not Òin 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 himÓ
(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 KingÕs Bench found for the
defendant, holding that the right of ÒwreckÓ— 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 Òany 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].Ó 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 kingÕs 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, Òthe king has the property,
but the people have the use necessaryÓ (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 mÕLordÕs 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, Òwith 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 closeÓ (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 Òa claim of public piscary is a claim for something serving to the
sustenance of man, not a matter of recreation only...Ó
(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 neighborsÉ 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 Òthere 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...Ó and described the shore as Òa highway for fishing... as public as the
sea itselfÓ (50). Twenty years earlier Wollrych claimed that Ònavigation
and public fisheries are the inheritance of the subject, by virtue of the general title, or jus publicum, which everyone possessesÓ (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; É 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 Òit 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 shoreÓ (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, CalvinÕs 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 kingÕs 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, Òso 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
EnglandÓ (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 Ònot 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 latterÓ (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 plaintiffÕs argument that his chain of title extended
back to the fee simple grants from the proprietors to Ôland 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, Òin his public and regal character as
the representative of the nation, and in trust for themÓ (63). Citing Blundell v. Catterall and Duke of Somerset v, Fogwell,
the court held that the
king, since Magna Carta, had no power Òto 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
grantÓ (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 stateÕ 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
Òupon which was to
be founded the institution of a
great political community,Ó and not a deed conveying private property per se. That is to say, the Duke, his heirs and assigns, were to Òstand in the place of the King, and administer the government according
to the principles of the British Constitution,Ó according to the laws of the realm as nearly as circumstances would permit (65). In its
decision, the court also accepted Lord HaleÕs 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 DukeÕs charters to others issued in the seventeenth century, the court declared
that they were subject to the same interpretation because none of them Òdiffered 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...Ó (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 cityÕs
main business district. Four years later the state legislature revoked the
grant by repealing legislation and brought suit to quiet title and confirm the stateÕs
ownership of the land granted. The court upheld the stateÕs 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, Òwhether 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,Ó
and Òwhether the railroad corporation can hold the lands and control the waters
by the grant, against any future exercise of power over them by the stateÓ (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. ÒThe
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 remainingÓ
(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. ÒThe state can no more
abdicate its trust over property in which the whole people are interested, É than it can abdicate its police powers in
the administration of government and the preservation of peaceÓ (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, Ònot only subject to, but in
same sense in trust for, the enjoyment of common liberty of taking fish, as
well as shellfish and floating fishÓ (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 stateÕs 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 Òthe citizen ought not (for other than the most compelling
reasons) to be deprived of those blessings which natureÕ s bounty has providedÓ
(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]