for no length of time can legalize a nuisance, which these would be, if this right existed, Vooght v. Winch, 2 Baru. & Ald, 662., Rex v. Cross, 3 Campb. 224, dis is a Joy, contrà, The case of Ball v. Herbert is very tinguishable from the present. That case only applied to the banks of a navigable river, which stand obviously on a different foundation from the sea-shore. On the banks of the river, where the right of towing was claimed, no general right of highway was contended for; whereas, in the present case, the locus in quo public highway. The claim there made, if maintainable, would have established the right to tow on both sides of all navigable rivers, although this is contrary to general practice, and although most of the navigable rivers in the kingdom have been made so under different acts of parliament, passed subsequently to the lawful construction of dwelling-houses, &c. upon their banks. Whereas the barren sands of the sea-shore, covered by the sea every tide, are no where so appropriated. The fact, too, that such acts have been repeatedly passed to make rivers navigable, and to appoint towing-paths on their banks, within certain limits, shews that such paths did not previously exist at common law. An act of parliament was not considered necessary to render the open sea navigable, or its shores accessible. The distinction between navigable rivers and the sea-shore is frequently noticed by Lord Hale, pp. 6 and 7. This right is not contrary to analogies; for the public, generally speaking, have a right to fish on the coast, and on arms of the sea, and to cross its shores for that purpose, although that right may, in some few instances, have been interfered with, where individuals claim under a grant from the crown, or by prescription, which presupposes a grant. 1821. BLUNDELL against CATTERALL 1821. BLUNDELL against CATTERALL. a grant. Lord Hale, pp. 11. 19, 20., and Bagott v. Orr. (a) The right to bathe in the sea is of great moment to the public, and less liable to private appropriation than the right of fishery. Although private individuals may possess advantages connected with the shore, still they cannot possess any which can authorize them to preclude the public from their permanent right of free passage over it. The erection of wears, although in some instances tolerated under ancient grants, has been repeatedly treated and considered by the law as a nuisance, on the ground that they interfere with the public rights of fishery. In Weld v. Hornby (b), the substitution of a stone wear for one of brush-wood, was held to be an illegal encroachment, because it prevented the ascent of fish up the river. In Bagott v. Orr, the right of the public to pass freely over the sea-shore for any common use and enjoyment thereof, is fully recognized. The authority of Bracton is expressly in point, and fully establishes the position, that the seashore is as common to all as the sea itself; and as the sea is open to every one, it follows, that if the passage from Bracton be good law, that the shore is equally so. His authority, indeed, was questioned in Ball v. Herbert. Lord Hale, however, in his History of the Common Law, mentions Bracton as a good authority. He was Chief Justice of England in the reign of Hen. 3., and from his station, therefore, must be taken to be no mean authority of what the common law was in his day. The passage referred to, is cited by Lord Hale in his treatise, De Portibus Maris, c. 7., p. 83., and also in Callis on Sewers, p. 54. It is no objection to the passage, that Bracton has availed himself of the very (a) 2 Bos. & Pull, 472. (b) 7 East, 195. words words of Justinian. It was impossible, that he should T ficulty 1821. BLUNDELL against CATTERALL 1821. BLUNDELL against CATTERALL. ficulty of reconciling the erection of wharfs or embankments, with the general right to pass over the shore, for the purpose of bathing, must apply equally against the right to pass over it for the purpose of fishing, which latter is admitted to exist. It is clear, that the common law right to bathe exists, from the universal practice of the whole realm, which is a proof of what the common law is, the usage of a place being a custom, but that of the whole realm being the common law. The authority of Bracton is expressly in point, and establishes the position, that the sea-shore is as common to all as the sea itself. If so, then the absence of any authorities, shews that it remains the common law now; for it cannot be shewn to have been since altered. The right to the shore was originally in the king, and when in his hands, was subject to this right. No subject claiming under him, can claim a greater right than the king had. As to the right to bathe from machines, it exists as an accessory to the general right, for many persons, from infirmity or other circumstances, might otherwise be deprived of this beneficial practice. Cur, adv. vult. And now, there being a difference of opinion, the Court delivered their judgments seriatim.. BEST J. The question in this case is, whether there be a common-law right to pass over the shore for the purpose of bathing in the sea. It will not be disputed that the sea, which has been called the "Great highway of the world," is common to all. Bathing in the sca, if done with decency, is not only lawful, but proper, and often necessary for many of the inhabitants of this coun try. try. There must be the same right to cross the shore in order to bathe as for any other lawful purpose. We are, therefore, now to decide, whether the public are precluded from passing, except at particular places, over the beach to the sea without the consent of some lord of a manor. That this will be the consequence of our deciding in favour of the plaintiff, has been already admitted at the bar, and must be conceded by every one. I am fearful of the consequences of such a decision; and, much as I dislike differing from the rest of the Court, I have thought it my duty to declare that I cannot assent to it. We have been told that lords of manors will find it their interest to indulge the public with the privilege of going on or over the sands of the sea, and that judges and juries will check the vexatious exercise of the right to exclude them. But the free access to the sea is a privilege too important to Englishmen to be left dependant on the interest or caprice of any description of persons. It is agreed by all, that the sea-shore was at first appropriated to the king, from whoin the right to it must be derived. The present state of the shore shews the manner in which the crown must have used it. Some parts of it were held exclusively by the crown for the purposes of fisheries, harbours, warehouses, &c. But the greatest part was left open as a common highway between the sea and the land. This is the state in which it continues to this day, and in which, from its general sterility, it must ever continue. From the state of the greatest part has arisen the general rule, or common-law right, and the state of the portions exclusively occupied has occasioned the exceptions. claim of the public to a right of way over the beach T 2 The stands 1821. BLUNDELL against CATTERALL. |