vantages derived. None of the plans recommended were ever adopted, and the matter has remained unsettled. As it will soon be necessary to complete the filling up and building of West street, your Committee, in fixing the terms, have inclined to place them so low that it is believed no dissatisfaction whatever can be felt by the proprietors, and have also fixed a period within which the grants shall be taken, so that, at the expiration of the period, no complaint can be made if the Corporation, on their own account, fill up and make those portions that may not be granted."

The Committee then recommended the rates, and period for the proprietors to take out the grants. The report was adopted.

NOTE 43.-PAGE 222.

The Right of the Crown to the Soil under Water.

Selden's Mare Clausum, 256; 1 Roll. Ab., 168-4; Hale, De Portubus, 12. The third subdivision is-" What evidence is there of the king's property in the shore; that is, the ground between the ordinary high water and low water mark?

"For the third, it is admitted that, de jure commune, land between the high water and low water mark doth belong to the king" (5 Rep. 107, Constable's case, Dyer, 326), although it is true that such shore may be, and commonly is, parcel of the manor adjacent, and so may belong to a subject; yet, prima facie, it is the king's. So the shore

of an arm of the sea belongs to him, as well as the shore of the sea."

The case cited by Lord Hale, Newcastle, and the Prior of Tinmouth, 20 Ed., 1, and that in the Exchequer, 8 Car., 1, are pertinent.

"The subject may acquire the right—1. By the king's charter or grant, he may grant a navigable river, that is, an arm of the sea, the water and port thereof. He may also grant a manor cum litore maris eidem adjacente; and the shore itself will pass, though in gross, and not parcel of the manor."

Other instances are mentioned of words in a grant sufficient to carry the soil.

"2. By prescription. The shore may belong to the subject, and not only belong to a subject in gross, which may possibly suppose a grant before time of meinory, but may be parcel of a manor."

The case of the Royal Fishery. (Davies' Rep., 149.) "The king hath the same prerogative and interest in the branches and arms of the sea, and navigable rivers, so high as the sea ebbs and flows in them, which he has in alto mare; and this is manifest by several authorities and records." (Citing Selden Mare Clausum, 251; 1 Roll., 168.) "The letters patent to the Lord High Admiral (4 Inst., 142) grant the goods, &c., in the sea, and infra fluxum et refluxum maris seu aquæ at plenitudinem." "The shore is that ground that is between ordinary high and low water mark. This doth, prima facie, and of common right, belong to the king, both in the shore of the sea, and the shore of the arm of the sea. It is certain that what the sea overflows, either at high spring tides, or at extraordinary tides, comes not, as to this purpose, under the

denomination of litus maris, and consequently the king's title is not to that large extent, but only to land that is usually overflowed at ordinary tides. That, therefore, I call the shore that is between low and high water mark." (Hale, De Portubus, cap. 4.)

The Supreme Court, in Rogers vs. Jones (1 Wendell, 237), thus states the law: "The right of the king extends over all lands, as well such as are covered by water as such as are not. In England, it hath always been holden that the king is the lord of the whole shore. He has the property tam aquæ quam soli, and all profits of the sea, and all navigable rivers. So also he has the property of the soil in all rivers which have the flux and reflux of the sea, and not the lord of the manor adjoining, without grant or prescription; but by a grant or prescription a subject may have the interest in the water and soil of navigable rivers."

Judge Strong, in delivering the opinion of the court in Whitney vs. Corporation, quotes this, as well as other parts of the opinion, and adds: "In the case of Rogers vs. Jones, the patent from the Colonial government conveyed within the boundaries which it described, the whole of the harbor of Oyster Bay, which was a navigable water; and it was decided that it was a valid conveyance of the land under water, and vested the title in the patentee. A principle of the common law, laid down and sanctioned by such eminent jurists as Chief Justice Hale, Chief Baron Comyn and Judge Blackstone, should be considered as settled."

Chief Justice Hosmer, in East Haven vs. Hemingway (7 Conn., 196), explicitly lays down the law: "There is no doubt concerning the competency of Charles II. to

convey the land in question to the Colony of Connecticut. A river, where the tide ebbs and flows, is an arm of the sea, and the shore is that space of ground which is between ordinary high water and low water mark. The title of the king, prima facie, to all ports and arms of the sea up to high water mark, and to the soil thereof, has long been established law; and, as an undoubted consequence, it is settled, that he may grant the property of the soil between high and low water mark to a subject or corporation."

Rex vs. Smith, Douglass, 425; Lansing vs. Smith, 4 Wendell, 20; Middleton vs. Prichard, 3 Scammon's Illinois Rep., 510; Middletown vs. Sage, 8 Conn. Rep., 221; Canal Comm. vs. The People, 5 Wendell, 423; Bell vs. Slack, 2 Wheaton, 508; Coles vs. Waddington, 2 McCord, 580; Cox vs. The State, 3 Blackford, 294; Ex-parte Jennings, 6 Cowen, 618.

Blundell vs. Catterall, 5 Barn. and Ald., 268, Bayley, J., says: "By the sea shore, I understand the shore between the high and low water mark, and the property of this is prima facie in the king. It may, indeed, by grant or prescription, belong to the subject; but, until the contrary is shown, the presumption is that it belongs to the king. See, also Lopez vs. Andrew, cited 3 -Manning & Ryland, 474. In the London Law Magazine (vol. 45, p. 70) is a notice of Sergeant Merewether's argument in the case of The Attorney General vs. The Corporation of London in 1844. The information set forth, that by the royal prerogative the ground and soil of the coast and shores of the sea around the kingdom, and the ground and soil of every port, haven and arm of the sea, creek, pool, and navigable river thereof, into which the sea ebbs and flows, and

also the shore lying between high and low water mark, belongs to her Majesty.

In 1849, December 8, the argument in question was addressed to the Lord Chancellor, and was afterward published.

The case is to be found in the 2d vol. of McNaughten and Gordon's Reports; but it came up merely on exceptions to a report of the insufficiency of the answer, and the Lord Chancellor observed that the question discussed did not then arise.

The writer cites the case of the Duke of Beaufort vs. The Mayor, &c., of Swansea, 3 Exch. Rep., 413 (1849), as incidentally settling the question against the right of the Crown.

Se

The case was trespass for breaking into the plaintiff's close. The place was between high and low water. veral charters from King John, Edward I., II. and III., were produced, and evidence of many acts of ownership, in modern times, was produced to show that the locus in quo was part of the seignory of Gower. The judge told the jury that the question was whether the locus was part of the seignory of Gower; that the documentary evidence in law did not necessarily carry a right, and that they must look to all the evidence and say whether, by grant or prescription, the land had passed to those under whom the Duke claimed.

The jury, in answering a distinct question put to them, found, that the land between high and low water mark was part of the seignory of Gower.

The decision of the court is thus expressed-Pollock, C. B.: "In substance, the direction of the court is thisHere is a grant of the seignory of Gower. What is the