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namely, to assist mariners in distress. They acquire, by
Bluxor L1, against CATTERALL1821,
Blundell against Carrrkall.
the existence of an universal custom in favour of a public right of way over the sea shore. It has been at all times the policy of this country to encourage navigation. The free passage of the sea shore is essential to the convenience and safety of navigation. Cases of immediate necessity or imminent danger may be said to form exceptions to general rules; but there are many cases in which there is neither immediate necessity nor imminent danger, in which boats must pass between ships at sea and the shore, letters and provisions must be sent, passengers require to land or to embark, intelligence necessary to the further prosecution of a voyage is desired, or a pilot is wanted. For many leagues of coast, there is no public passage marked out, by which persons may go to or from the sea. But fixed places will not do. Winds or currents make it necessary, that the greatest part of the shore should be left open for persons to land on, and embark from. There is no statute, or rule of common law, that secures the right of passage over the shore for purposes connected with navigation; those who have passed over the shore for those purposes, have been trespassers, if they were not justified under the general common law right of free passage. Is it to be supposed, that, in a country, the prosperity and independence of which depends on mavigation, that which is so necessary to navigation as a road for all lawful purposes to the sea, should not have been secured to the public, particularly when it might be done without injury to the interest of any individual? There is no clear and express declaration on this point, either in the statutes or in the common law. But this right is so important to the best interests of
the country, that had not the constant exercise of it
been considered sufficient to establish it, the legislature would no doubt have declared it to be in the people of England. Bracton, lib. 1. cap. 12. sec. 6., says, “Publica vero sunt omnia flumina et portus. Ideoque jus piscandi omnibus commune est in portu et in fluminibus. Riparum etiam usus publicus est de jure gentium, sicut ipsius fluminis. Itaque naves ad eas applicare, funes arboribus ibi natis religare, onus aliquod in is reponere, cuivis liberum est, sicut per ipsum fluvium navigare: sed proprietas earum illorum est quorum prediis adherent, et efidem de causã arbores in eisdem natae eorundem sunt: et haec intelligenda sunt de fluminibus perennibus, quiá temporalia possunt, esse privata.” This passage proves all that I am attempting to establish. It shews that all persons have a common right on rivers; that the right of fishing exists only as a part of that common right, and that the banks of rivers are as much open to the use of the public as the rivers themselves. The passage has been supposed to prove too much, and therefore it has been said, that its authority cannot be relied on. Mr. Justice Buller, speaking of it, in Ball v. Herbert (a), says, “that it plainly appears to have been taken from Justinian, and is only part of the civil law; and whether or not it has been adopted by the common law, is to be seen by looking into our books; and there it is not to be found.” I admit that Bracton agrees with the civil law, and I must add, with the law of all civilized nations. Selden,
who wrote his “Mare clausum,” to prove that an ex
clusive right might be acquired in parts of the sea, admits that the sea was originally common to all, and
Bluspxll against CATTERAll.
in lib. I, cap. 2., he has collected from the works of
But our books shew, that this passage has been
and all of it that is adapted to the present state of things is good law now. It is objected, that Bracton says, “that any one may, in any river, fasten vessels with ropes to the trees on the banks, and unload the cargoes on the banks.” Undoubtedly the public cannot now pretend to claim this right in all navigable rivers, Many rivers have been rendered navigable since Bracton wrote, which in his time were private streams. The public have no greater right on the banks of such rivers, than the owners of the adjoining lands granted them when such rivers were made, from private streams, public rivers, and the extent of the grant must be ascertained from usage. This is the case with a new made road. If one dedicates to the public a right of way over his lands, the public must take the road with gates on such parts of it as the owner thinks proper to erect at the time he makes the dedication. But Braeton speaks not of newly made rivers, but of such as were always havigable, and the banks of which had been as open to the public as their waters. This I take to be the law with all inland navigations in the reign of Henry the Third. These, like the sea and its shores, were then
the property of the public, and the right of the public
in them was not acquired by any compromise with the
interest of any individual. On some rivers that have
been navigable from time immemorial, the public using
but one of the banks for a towing path, the other has been usefully occupied by the owner of the adjoining
land, and so an exclusive right has been established to,
the part so occupied. But the barrenness of the greatest part of the sea shore has prevented it from becoming the subject of exclusive property. It is useful only as a boundary and an approach to the sea; and therefore,
BLUN pell. against CAttkhall.