sand, and other matter being slowly, gradually, and by imperceptible increase in long time, cast up, deposited, and settled by and from the flux and reflux of the tide and waves of the sea in, upon, and against the outside and extremity of the demesne land of the same manor, hath been formed, and hath settled, grown, and accrued upon and against and unto the said demesne lands of the same manor in manner and form as the defendant hath above in his plea in that behalf alleged ;" and the defendant in his rejoinder took issue upon that fact. The replication then took issue on the defendant's traverse, that the said piece of land in the plea of defendant mentioned, was and now is by the sea left, in manner and form as in the inquisition is above supposed and found;" and thereupon also the defendant joined issue. These issues were tried at the last assizes for the county of Derby, before Park, J., and a verdict found for the defendant. A rule nisi having been obtained to show cause why a new trial should not be had, the court directed, at the time of showing cause against the rule, that the facts proved at the trial should be stated in a special case for the opinion of the court, and that if judgment should be given for the king upon such case, the verdict obtained for the defendant should be set aside and a new trial had; and if judgment should be given for the defendant upon such case, judgment should be entered for the defendant upon the verdict. The case was as follows:

The land in question consists of four hundred and fifty acres of salt marsh called fittees, being the land covered with herbage, which, at the time of taking the inquisition set forth in the pleadings, lay between the sea wall and [$95 the sea opposite to North Cotes, in the county of Lincoln. It was proved that this land had been formed in the course of time by means of ooze, warp, silt, sludge, and soil carried down by the Humber, and deposited and cast up by the flux and reflux of the sea upon and against the adjacent land, whereby the land has been enlarged and increased, and the sea has receded. The matter thus deposited is at first soft and sludgy, but in the course of five or six years grows firm, and then produces herbage. With respect to the degree or rate of growth and increase of the land, the evidence produced on the part of the crown was as follows: the first witness proved that the sea had receded in parts one hundred and forty or one hundred and fifty yards within twenty-six or twenty-seven years; and that within the last four years he could see that it had receded much in parts, but could not say how much; and in parts he believed that it had not receded at all. The alteration, he said, had been slow and gradual, and he could not perceive the growth as it went on, though he could see there had been an increase in twenty-six or twenty-seven years of one hundred and forty or one hundred and fifty yards, and that it had certainly receded since he measured the land the year before. The second witness proved that in fifteen years there had been an increase of the fittees on the outside of the sea wall; in some parts from one hundred to one hundred and fifty yards; that it grows a little from year to year. That within the last five years there had been a visible increase in some parts during that period, of from thirty to fifty yards; that the gradual increase is not perceptible to the eye at the moment. The third witness said there had been some small increase in every year; and the fourth witness said the swarth increased every year very gradually, and that *perhaps it had gathered a quarter of a mile in breadth in some places within his recol- [*96 lection, or during the last fifty-four or fifty-five years, and in some places. It had gathered nothing. It was proved that the ground between the sea wall above mentioned, and another sea wall still more remote from the sea, appeared to have been covered over with the sea formerly.

Goulburn, for the crown. The principles of law which govern the rights of the crown to maratime accretions are laid down with great precision, by Lord Hale, in his treatise De Jure Maris. He states that "the king hath a title to maratime increments, or increase of the land by the sea, and this is of

three kinds, viz. first, increase per projectionem vel alluvionem; second, increase per relictionem vel desertionem; third, per insulæ productionem," Pt. 1, c. 4. p. 14, and 28, and he gives a description of each. The increase per alluvionem is now in question, and that he describes as follows: "The increase per alluvionem is when the sea, by casting up sand and earth, doth by degrees increase the land, and shut itself out further than the ancient bounds went. The reason why this belongs to the crown is, because, in truth, the soil where there is now dry land was formerly part of the very fundus maris, and consequently belonged to the king. But, indeed, if such alluvion be so insensible that it cannot be by any means found that the sea was there, idem est non esse et non apparere, the land thus increased belongs, as a perquisite, to the owner of the land adjacent." In page 28, Lord Hale, again describes the jus 97] alluvionis in nearly the same words, and then *cites the following passage from Bracton, lib. 2. c. 2. “Item quod per alluvionem agro tuo flumen adjecit jure gentium tibi acquirritur. Est autem alluvio latens incrementum. Et per alluvionem adjici dicitur quod ita paulatim adjicitur, quod intelligere non possis quo momento temporis adjiciatur, &c. Si autem non sil latens incrementum contrarium erit, ut vis fluminis, partem aliquam ex tuo prædio detraxit et vicini prædio appulit, certum est eam tuum permanere, &c.,” and then he observes, "but Bracton follows the civil law in this and some other following places;" and soon after he adds, "This jus alluvionis, as I have before said, is, de jure communi, by the law of England the king's." With respect to the increase per relictionem, or recess of the sea, Lord Hale, says, "This doth de jure communi belong to the king," P. 14, and he assigns the same reason as before, that the sea is part of the waste of the crown, and, therefore, that which lies under it belongs to the king; and he cites the case of an information against Oldsworth and others, "for intruding into three hundred acres of land which was relictum per mare, and now called Sutton Marsh; the defendants pleaded specially, and entitled themselves by prescription to the lands project by the sea; and upon demurrer adjudged against them, that, first, by the prescription or title made to lands project, which is jus alluvionis, no answer is given to the information for lands relict, for these were of several natures. Second, it was held that it lies not in prescription to claim lands relict per mare." This case proves two things; first, that it is necessary to plead specially a title to lands gained per alluvionem; and, secondly, that custom cannot give a right to lands per relitionem. In the case *of the Abbot of Peterborough, Hale, De Jure Mar. 29, he pleaded and *98] proved a title by custom to lands formed per alluvionem, and judgment was given for him. It is not contended that the defendant, in the present case, might not have shown a title to the lands in dispute if he had alleged and proved a custom, but he has not done so. In the Abbot of Ramsay's case, Dyer, 326. b. where the crown demanded sixty acres of land which the abbot had appropriated to himself; he pleaded that he held the manor of Brancaster, situate near the sea, and that there was there a certain marsh sometimes diminished and sometimes increased by the flux and reflux of the sea, and traversed the appropriation; and upon issue joined, a verdict was found for the abbot, and judgment given quod eat sine die. This case is cited by Lord Hale, P. 29, who observes upon it, "Here is no custom at all alleged, but it seems he relied upon the common right of his case, as that he suffered the loss, so he should enjoy the benefit, even by the bare common law, in case of alluvion." Upon that authority it must be conceded that a subject may be entitled to accretions by alluvion, if he pleads and proves that he has been subject to loss by the sea in the same place! At the commencement of that case Dyer puts a quære," whether lands left by the sea shall belong to the prince or the owner of the adjoining land," which is answered in a note supposed to be by Treby, C. J. "The prince shall have all lands left by or gained from the sea." There is another way also in which the subject may

[*99

be entitled to increase by alluvion, viz. if the alluvion is so insensible that it cannot be known that the sea ever was there. To this right Callis, On Sewers, p. 51, applies the principle "de minimis non curat lex." It is unnecessary to notice the increase per insulæ productionem. The right of the king to lands formed by alluvion, or left by the sea, is therefore clear. It is also admitted that where the land of a subject is overwhelmed by the sea, and again left dry, the right of the subject revives. Roll. Abr. 168. Prerog. du Roy, B. pl. 2. The crown, therefore, in claiming maritime increments takes nothing from the subject: it merely claims to retain, in a dry state, that which clearly belonged to it when covered with water. In the present instance the subject seeks to take something from the crown. Probably the passage cited from Bracton, by Lord Hale, may be relied on by the other side; but Lord Hale observes, that the passage in question follows the civil law, and in various other works Bracton, is spoken of as not being entitled to much weight as an authority in our law. See Fitz. Abr. Gard. pl. 71. Stowell v. Zouch, 1 Plowd. 357, Ball v. Herbert. Another authority relied upon by the defendant at the trial was 2 Bl. Com. p. 261, but that is plainly a very loose passage, for no distinction is made between the increment by alluvion and by dereliction: it cannot be contended that all increase by alluvion belongs to the subject if it be imperceptible to the eye whilst going on, for then the increase by alluvion must always belong to the subject for the actual formation of the land can never be observable at the moment. The right of the subject really depends on the principle, "de minimis non curat lex." Here the whole increase was four hundred and sixty acres, and it went on at the rate of eight or nine yards in width every year. The *principle before mentioned is here inapplicable; no customary or pre[*100 scriptive right was pleaded, nor was the defendant's case made to depend upon the liability to loss by the encroachment of the sea, the first issue should, therefore, have been found for the crown. On the second issue the only question was, whether the land had been left in the manner stated in the inquisition. Now, the only object of the inquisition was to find whether land which had originally been covered with the sea had been left dry. No technical distinction was made by the commissioners between lands formed by alluvion and those derelict by the sea. Their finding was in substance that the sea had receded from the lands in question, and that was supported by the evidence.

Phillipps, contra. The word "imperceptible," in the first issue, must be understood in the sense which the term commonly bears. It has not any legal or technical meaning in contradistinction from the sense which it bears in common parlance. The same meaning will be collected from the context. The issue is, whether the piece of land in dispute has been formed upon the demesne lands of the manor by the "slow, gradual, and imperceptible projection, alluvion, subsidence, and accretion of ooze, soil, and other matter being slowly, gradually, and imperceptibly deposited by the flux and reflux of the tides." The words "slow, gradual, and imperceptible accretion and alluvion," must be understood to describe an alluvion so gradual as not to be observed at the time, as not to be perceived in its progress. The deposition being thus imperceptible, the increase must be the same. By the operation of the tides, then, a small increment has been deposited from day to [*101 day, until, in the course of time, a considerable piece of land has been formed; still, however, composed of minute increments, each part being to the whole as the fluxion to the fluent. If the words of the issue are to be understood in their ordinary sense, the evidence completely established the defendant's allegation, and the jury could only find their verdict for him. One

+ 3 T. R. 263. But see a different opinion of Bracton, in Pref. to 9 Co. p. 13, and Doddridge's Eng. Lawyer. 41.

witness stated, that the alteration had been slow and gradual, and he could not perceive the growth as it went on. Another said, that the land grows a little from year to year, and that the gradual increase is not perceptible to the eye at the moment. If there be in rerum natura, such a thing as imperceptible alluvion, it was that which the witnesses in this case proved to have taken place. It exactly corresponds with Bracton's definition of alluvion: “Latens incrementum quod ita paulatim adjicitur ut intelligere non possis quo momento temporis adjiciatur." The jury, therefore, could not do otherwise than find the first issue for the defendant, and if so, all question as to the second is at once disposed of; for that describes the lands as left by the sea. Now Lord Hule and Callis, in a variety of passages, speak of lands formed by alluvion and those left by the sea, as totally different in nature, and subject to different rules of law. If, therefore, the first issue was properly found for the defendant, the jury could not have done right had they found the second for the crown. The principle point made on the other side was, that even supposing the land in question to have been deposited by imperceptible degrees, still the defendant cannot be entitled to the judgment of the court, inasmuch as he has not stated on the record any custom or prescription, or other legal title to it. But, upon a careful examination of the authorities, it will be

*found, that the subject is entitled to such lands of common right. *102] There is little to be found touching the point in the old books. Neither Brooke's or Fitzherbert's Abr. contains any trace of such a prerogative as that now claimed, nor is it mentioned in Staunford de Prerog. Regis. Dyer, C. J., puts it as a doubtful question, whether a great quantity of land relinquished by the sea shall belong to the prince by his prerogative, or to the owner of the adjoining land, as a perquisite, Dyer, 326, b; and, after referring to several text writers, he cites the Abbot of Ramsay's case, and afterwards Digges v. Hammond, as a like case. In both judgment was given for the subject against the crown, although the record did not contain any allegation of a customary or prescriptive title; and it appears by Callis, pp. 50, and 53., that the lands were formed by alluvion. With respect to the note by Treby, C. J., it is plain, that if it was meant as a solution of C. J. Dyer's doubt, it applies to derelict lands only; but if it is to be taken in a larger sense, still it can only apply to derelict lands, and those from which the sea has been excluded by artificial means. It cannot be supposed to include lands formed by alluvion; that is contrary to the natural meaning of the words, and in opposition to the two cases reported immediately after the quære put in the text: now it is not probable that Treby, C. J., would have expressed an opinion inconsistent with those cases, without making some observation upon them. In 2 Roll. Abr. Prerog. B. pl. 9, 10, the cases cited by Dyer, are adopted, and then follows, pl. 11. If the salt water leave a great quantity of land

on the shore, the king shall have the land by his prerogative, and the *103] owner of the adjoining soil shall not have it as a perquisite." Whence it may be inferred, that Rolle thought, land formed gradually by alluvion, would go to the owner of the adjoining land, of common right, as a perquisite; and it has been so understood; Com. Dig. Prerog. (D. 61.) and 2 Bl. Com. 261. Lord Hale, in his treatise De Jure Maris, manifestly speaks of two different kinds of gain by alluvion; the one where a considerable increase takes place at one time, the other where it is gradual and by insensible degrees. In the former case it belongs to the crown, in the latter to the subject; and he does not cite any case to show, that, under such circumstances, the right of the subject depends on custom or prescription. In the Abbot of Peterborough's case, a custom was certainly alleged, but it is not stated that his right could not have been established without it; and in the Abbot of Ramsay's case no such title was stated on the record. Lord Hale, cannot be taken to mean that the increment belongs to the subject only when it is so inconsiderable as to be scarcely perceptible; for in the Abbot of Ramso'

case, which he cites, the dispute was for sixty acres; and unless the land is, after the lapse of many years, clearly discernible, a dispute respecting it can hardly arise. The true and only sensible meaning is, that where the increase is imperceptible in its progress, there the land becomes the property of the subject as it is formed; it is then vested in him de die in diem; and what is once vested in him cannot be divested by the circumstance of a still further increase afterwards taking place. This agrees with the case cited in Callis 51, from the 22 Lib. ass, pl. 93. "The case was, that a river of [*104 water did run between two lordships, and the soil, of one side, together with the river of water, did wholly belong to one of the said lordships, and the river, by little and little, did gather upon the soil of the other lord, but so slowly, that if one had fixed his eye a whole day thereon together, it could not be perceived. By this petty and imperceptible increase the increasement was got to the owner of the river; but if the river, by a sudden and an unusual flood, had gained hastily a great parcel of the other lord's ground, he should not thereby have lost the same; and so of petty and imperceivable increasements from the sea, the king gains no property for de minimis non curat lex." The case of the river clearly explains the mode in which Callis intends to apply the maxim, viz. that the king has no claim to the land where the increase is by imperceptible degrees, however large it may ultimately become. There is not, then, either upon authority or principle, any ground for disturbing the verdict found for the

defendant.

The judgment of the court was now delivered by

Cur. adv. vult.

ABBOTT, C. J. Upon this case the only question for the judgment of the court is, whether the evidence given at the trial was such as to justify the verdict of the jury upon the issues joined. Whether the pleadings have been correctly framed on either side, or what may be the legal consequence and effect of the verdict, supposing it to stand, are points not now before us. I notice this, because some part of the argument at the bar was more properly applicable to a matter of law upon admitted facts, than to the question whether particular issues are maintained by the evidence; or in other words, whether particular facts are found to exist.

[*105

The second issue upon the record arises upon a traverse of the matter found by the inquisition. The matter thus found, is, that the land now claimed by the crown was in times past covered with the water of the sea, but is now, and has been for several years, left by the sea. Now, the distinction between land derelict, or left by the sea, acquiring a new character in consequence of the mere subsidence and absence of the salt water; and land gained by alluvion or projection of extraneous matter, whereby the sea is excluded and prevented from overflowing it, is easily intelligible in fact, and recognised as law by all the authorities on the subject. Upon the evidence it is very plain, that the land in question is of the latter description, and therefore, the issue joined upon this point was properly found for the defendant.

The principal question arose upon the first issue and it is, as I have before intimated, merely a question of fact. The defendant has pleaded, that the land in question, by the slow, gradual, and imperceptible projection, alluvion, subsidence, and accretion of ooze, soil, sand, and other matter, being slowly, gradually, and by imperceptible increase, in long time cast up, deposited, and settled by and from the flux and reflux of the tide and water of the sea in, upon, and against the outside and extremity of the demesne lands of the manor, hath been formed, and hath settled, grown and accrued upon, against and unto the said demesne lands. This allegation has been denied on the part of the crown, and an issue taken upon it. The allegation regards only the manner in which the land has been formed; it contains nothing as to the