The Sun.
London, England, 1823-03-31 00:00:00

scription and usage time out of mind, parcel of a manor.—
Thereupon thedefendant was-put to his proofs, and insisted up-
on many badges of ownership or property (which are then de-
scribed.) One of them was, that the increases, happening by
the reliction of the river, were constantly enjoyed by the Lords
adjacent. -These and many other badges were opened, and
were most effectually made good by authenticated evidences
and witnesses. But before the defendant had gone through
one half of his evidence, the Court and the King's Attorney-
Generale Sir John Banks; and the rest of the King's Counsel,
were so well satisfied with the defendant's title, that they mov-
ed the defendant to withdraw a juror, which, though he were
very unwilling, yet at the earnest desire of the Court and the
King's Counsel, he did agree thereunto; so that matter rested
in peace. Would. the plaintiff ask
-him to withdraw a juror,
or to let the case rest in peace ? Perhaps not, and he was
glad of, it; because he trusted that the question would be
mole effettually set at rest by the verdict of a Jury, and
in that he was encouraged by thei, own evidence now pro-
duced. The lands now immediately in question, and many others,
should this attempt be successful, would be liable, - at any
distance of time, to the claims of the Crown. The same lan-
guage was-held in " Bacon's Abridgment," who, after setting
out that the King was considereditslaw to have been univer-
saloccupant, and to have parcelled Aateethe lands to those who
had served him with ability and faithfulness in war or peace,
went on to establish his right to lands relicted by the sca but
'with the same reservation for the right of the snbject to iinper.
ceptible increase. He was followed by Horn—treatise " Of
Sudden Dereliction." He maintained the King's right- gene-
rally, but not to accretion made by insensible degrees, which he
affirmed to belong to the adjacent manor. This great thesaurus
of the law, coming after and quoting cases and. judgments in
" Dyer and Roll's Abridgment," had conic to this conclusion.
Lord Hale put noobjection to this interpretation. He says—
" This ejus allnvionis is de jure woman* by the law of
England the King's viz., if by any marks or measures it can
be known what is so gained, For if the gain be so insensi-
ble and indiscernible, that by any limits or marks it can- •
not be known, ideas est non ease et non upparere as well in
maritime increases as in the increases by inland rivers. But
yet, custom may, in this case, give this ins idluvionis to -the,
land whereto it accrues." Then he cites the Abbot of
Ilarnsay'Peale, 48d Edward 111., and thereon remarks—
" ThomeV there were a verdict upon the issue whether
appropriont or not, yet it is plain that the tide stood upon,
that which the Abbot alleged by way of increment : anti
note, here is no custom at all alleged ; but it seems he relied
upon the common right of his ease, as bat he suffered the loss,
so lie should enjoy the benefit, even by the bare common law in
'case of aihreion. ln the case of the Abbot of Peterborough
next sited by his Lordship, custom was laid, and lie relied not
barely on the case without it. " In this case it was per incre-
ment:on temporis et permiare prt?jectu. It is not a sudden re.
liction or reeessus mans ; and though there is no eerie with.
out some kind of reliction—:for the sea shuts out itself—yet
the denomination is taken from that which predominates. It is
sn acquest per prldeetionent or alluvinetno not per recession or
releaioniem. For the jus alluvionis he quotes the ;message in
Bracton, leaving. out the figure of the pumpkin, which lie (Mr.
'Denman) thought a the greatest • use in illustrating the ques-
tion: c" Qt •Bracton," says Lord Hide, " follows the civil
law in tlfiVnhd some other following places." And well he
might-for, as they all knew, the civil law had much to do
with settling the foundations of the common law. " And yet,
even according to this, the common law doth regularly hold to
this day between party and party : yet it is doubted in case of
an arm of The sea." The same doctrines, upon a view of
all the cases and arguments, were asserted in that valuable
work " VTher's Abridgement," article " Prerogative of the
King," But, independent of this, they had'common reason
and their own senses to assure them.' 'These 450 acres—how
would the plaintiff proceed to take them ? Where would he
begin biteatimeasurement 'e No doubt that the land had in.
creased ; the evidence showed a gradual and imperceptible in-
crease, extending beyond thesesalt- marsh es i n wards. It was plain,
wherever there was a sea-wall, there the sea must have been
at some time or other. And the witnesses were all right enough
as to the natural history of the increase. It was greatest nearest
to the Humber t It was still very great at Tetney 4 it was con,
siderable at Northeotes ; then it went off until it became a mere
strip upon the shore of the sea. 'Pne quality of it fell off' in the
self-same ratio. At the extremity it was mere sand ; it would
not even grow crab grass ; it was by means the Andus marls ;
it never haul been ; the sand thrown up would lie for ever, and
produce nothing. %net, then, Trould be the effect of a verdict
for the plaintift ?—to unsettle the titles of land—to lead to a
seizure and new parcelling out of any or all the lands in the
kingdom ut the caprice of the Crown. It was quite dear
that the Crown took no interest in these accumulations,
from one simple circumstance—that the expences of the
sea walls had always been left with the adjacent manors ;
the Crown had never taken any precautions to secure
the tie-quest. He would cite one authority more which was de-
servedly familiar to and revered by them. It was that of Justice
Blackstone, book if. rap. 16. Title, by Occupancy. " And as to
lands gainel from the sea eitheiby alluvion, by the washing up
of sand and earth, so as in time to make terrafirma; or by dere-
lict fon, as when the sea shrinks below the usual water-mark ; in
these ,case the law Is held to be, that if this gain be by little and
little, by 4411 and impeeceptible degrees, it shall go to the
owner of .tie land adjoining : for de minimis rum easel
ter ; and' besides, these owners being often losers by the
breaking in. of the sea, or at charges to keep it out, this possible
gain is therefore a reciprocal consideration' for such possible
charge or loss. But it' the allovion- or' dereliction be sudden
and considerable, in this case it belongs tothe King; for as the
King is lord of the sea, and so owner of the sojl while it is
covered with water, it is but reasonable that he should have the
soil when the water has left it dry. So that the quantity of
ground gained, and the time during which it is gaining, ere
what make it either the King's or the subject's property. ' He
trusted the Jury would by their verdict confirm that which had
been held by the whole stream of authorities. 'rime inquiry
Was curious considered only as a question of law, and in what
he said he did not wish to excite prejudice against any of the
amarties interested or engaged in the suit. Every thing; had
been done with, propriety as yet. As to the inquisition, he could
.not have received.it as time tiolenin and authentic proceeding for
which it was offered. Adverting to the evidence, he said it was
deficient as to the point of time. It was quite clear that a date
Must be given to time derelict*. To-talk of a di veliction which
could not bee marked in its occurrence, they might as well tell
him of a clandestine earthquake, or a secret volcano, or any other.
shock by which the bounds and possession of property might be
altered. There was a total want of power to 'define the time
and quantities of increase. Ile tied asked evert witness ; not
one of them could fix on a Inomentnni temporis. No one could
discern the rate or manner of increase, unless they were to go on
Lord Yarborough's estate, and set up a mark now, by which they
would be able to show at any future time how far they might
claim. As to the observations of time Learned Serjeant upon
the nature of the proceeding, and what he seemed to treat as a
matter of favour, the traverse of the inquisition, there could he
no acknowledgment made of' obligation or favour by the de-
fendants. It was not a permission, but a right which they tobk,
and fortunately for them it was a right, to debar them from
which. the plaintiff left no argument unused in, the Court of
Chancery. An endeavolir was there made to stifle all farther
inquiry, anti that upon - old and long exploded precedents,
which application theVice-Chancellor, in terms of great energy
and justice, refused. Referring to the proceedings of the pre-
ceding day, he justified the artier in which the defendants had
entered the cases for trial. This one had been brought first,
because the merits of the whole were comprised in Their
argument was, that the land'ln question was not derelict sand,
which was barren and could never produce tiny thing, but an
accretion orvaluable soil, severed and brought down from the
borders of estates on the Humber, which, conflicting with
the currents of. the ocean, was spread over these fiats or
salt marshes, called the Fitters, adjacent to the manors of
time defendants. The proof of this must be plain to all who
had observed the course of that river, and how heavily it was
burdened with the stealth which it made from the banks on
either aide atilt rolled on to meet the sea. There was, besides,
the Derwent at their own doors. If they remarked how deeply
it was dyed with dissolved soil, and reflected for a moment on
what became of the moss and dirt which It was continually
bringing down from the country it traversed, they would ob.
serve a inure, reasonable cause for the growth and 'increase of
the, salt marshes than in the throwing up of the barren sands
of the ocean. There was one question which he had put to
all the witnesses respecting the exercise of ownership. Ile
had established that Lord N arboroagh was Lord of the Illanor
of Northeotes, and that lie had " wreck," which, though itself
a royalty, might be grunted to a subject, and in fact generally
was in nuinors upon the Coast. Even in eases where the {,raft
had been lost, the exercise of tile right might be proveel ; arid if
so, would be taken as proof that the grant haul been math,.
—The authority of Lord Hale in the treatise before quoted

supported him here. " The ordinary ;here at neap tides
may belong to a subject. It may not only, belong to a subject
in gross, but it may be parcel of a mannor. And the evidences
to prove this fact are commonly these—constant and usual
fetching gravel and sea-weed, and sea-sand. between the high
and low water-mark, and licensing others to do so--enclosing
and embanking against the sea, and enjoying of what is so
inned—,enjoying of wrecks happening upon the sand, and such
like. And as it may he parcel of a manor, so it may be parcel
of a viii or parish, and the evidence for that will be usual
perambulations, common reputation, known metes and divi-
stens, and the like." "On this account the parson of Sutton
had a verdict, for the tithes of Sutton Marsh, in. Lincolnshire,
upon a long and great evidence ; though it appeared that, within
time of memory, it was mere shore of the sea, covered at ordin.
ary tides, and without the old sea bank." Again, " It may not
only be parcel of a manor, but de facto it many tunes i 5.146 ; and
perchance it is parcel of almost all such manors as by prescrip.
tion have royal fish or wrecks of the sea within their manor.—
llethat bath wrecks of the sea or royal fish by prescription
manerium, it is a great presumption that the shore is
part of the manot;" -He left the application of the law to the
facts in evidence with them. One word more as to the inqui.
salon of Queen Anne's time.. Why had not the Crown pro.
seeded upon the finding ? Evidently there must have been some
(rants, in the title. The fact was, that if the claim was good for
any thing, it would reach to the whole country round about_
He had caused a profile of the lands to be taken, and they would
see, that from the fittees to the high lands, including a distance
of eight miles, there were sea-banks which Marked the aequest
of the territory from time to time, and proved that the whole of
it was holed from the sea, on its gradual accretion in the course
of ages, which now could not be counted. Would they suffer
themselves to be made instrumental in shaking the title to all
these lands, and hundreds like them round the coast? Yet this
must result from a verdict for the plaintiff. He would not waste
their time in going particularly through the evidence. All the
witnesses disavowed the knowledge of any particular time or
rate of increase. Suppose for a moment, then,' the right of the
plaintiff—holy and,.when. would they have served an eject-
ment ? 't.Vhen the estate was an inch wide, or after ? Would
they have prepared a sea-wall to guard it when it wa, three
feet over ? How would they have secured this invisible here-
ditamentbefore its creation ; and when it did begin to appear,
,at what time would they have entered upon the possession
of it ? He zooid find, no better way of enforcing the right
of his clients, than by reference to the facts iu issue, that it was
by glow, gradual, and impecceptible degrees of alluvion and
increase of the ooze, soil, and sand, &c. If he took the evidence
in chief, he found that it affirmed this very description of the
lands. Had it been otherwise, the witnesses would have known
it, and could have spoken to it; the chronicles of the land
would have discovered it: Dereliction of land by the sea
must be a thing open and notorious, and then the claim of the
King could not be brought into the dispute 'No one doubted
that the right to Sunk Island, in the Humber, was always in
the right of the Crown. But they knew when to stretch forth,
and when to withhold the strong arm of prerogative. Be would
abide by their own definition of that prerogative—he would
take their evidence—he could not make. the case clearer if lie
called the whole of the 4t) witnesses in waiting for the defence.
He left the issue to the Jury, in perfect confidence- that their
verdict would be for the defendants.

Mr. Sergeant VAUGHAN rose, apparently to address the
Jury. _

Air. Justice PARK said, " What are you going to do—re.
ply ? What subject is there for reply ?"
Mr. Sergeant VAUGHAN said that the King always had a
right of reply.
Mr. Justice PARK.—Not where the King is plaintiff: I never
knew of such a right. How is that in the the Exchequer, Mr.
Clarke ?

Mr. CLARICE said in all cases in the Exchequer the King
had the right to reply.
Mr. Justice PARK—But yours are penal actions ; how is it
in eases ?

Mr. CLARKE said the rule was the same in extents in the
Exchequer Court.
Mr. Justice PARK said that was very bewildering, as the case
was so uncommon ; esp eiall as the ride in the Exchequer
Was contrary to every thing of the kind in the other courts.
Mr. Serjeant V.satotrocs said he would wave his own privi-
lege of reply, but he could not surrender the right of the Crown.
Air. DENMAN said be wished he bad known this point would
.have been started, he would have concluded his address in a
very diftreut manner..
Air. Justice PARK said, in fairness the point ought certainly
to have been discussed before the defence.. • •

It was agreed, however, that, the individual right being
waved, the right.of the Crown to reply, evidence not being of.
fered for the defence, tifiould.be left out of the case. .
Mr: Justice PARE: proceeded to sum up. He complimented
both sides on the conduct of the case, and described the parti-
cular proceedings. He considered that there was only one
issue, though, in form, it stood as two. Having set forth the
question as it stood in the issues, he would proceed to state the
law of the case derived to them from the highest authorities;
then he would expound the evidence, and without :Whig 'one
chnunent.of his own, leave the matter to their determination.
He began with the passage in Bruton, which was again quoted
by Lord Bale, who left out the figure of the gourd or puinpkin,
seemingly to the regret of the Learned Counsel for the defence. '
The second authority warts M r. Callis, who, in the reign ofiamee,
held a situation which, he was sorry to say, was now no longer
retained—that ofreader to the Society of Gray's-inn. This gentle-
man chose for the subject of his lectures a law passed in the On-
of Henry VIII., called the Statute of Sewers, to which the coune
try was greatly indebted at this very hour, for much of the clean-
liness and comfort of our populous ielaces. The writings in
the time of James I. were said to be tinctured' with pedantry,
mid Mr. Collis, in his comments upon the statute, did not seem
to have perfectly escaped the infection. There was excellent
sense and sound argument, however, to be found in his book,
from which he could cite a little more at large that which bore
upon the case before them :—Now occasion and time give
me fit opportunity to treat of grounds which be newly
gained from the sea. If, as I have formerly declared, the grounds
lie the King's, when they are covered with the water, so Must
they remain viten the sea bath left them. If by little the
sea sometimes decrease and leave some parcels to the land,
and some other times run over the same again, this ground be.:
longs not to the King. For these are grounds wereto the sub-
ject may have a property as in the grounds of the sea shore ;
but otherwise" it is Where quantity of ground that bath always
been drowned before, is left—that belongs to the King. The
words int-rententum et deeremenewn marls are to be described
by the said record of 49 Edw. IlDof the Abbot of Ramsey—.
that is, that if the decrease of the sea he by little and imper-
ceivable means, and the land grown only in long tract of time,
whereby some addition is made to the lands to the manor ad.
junet, that is a perquiSite to the subject, and the King takes ne.
thing—for de minimis non enrol Rex. The other writers have is
Lex. "He then goes on to show that the right to any consider-
able increase must be in the King. So it is not fitting that a
subject should have the grounds left by the sea, when so much
may happen to be left as the King's own lands in the realm
come to ; and so because trimium se exoltat in prerogativom
Regis, I am of opinion that the new gained grounds from the
sea appertain to ,the King as a royal escheat, and not to the
subject. But in my case here is a prescription, where the
owner of the manor bath ineronenttim et deerementoot moth
of what force this is, is now to be argued,". &c. Then citing
Sir Henry Constable's case, he says, " It is taken anti re-
ceived for law, that a subject's .manor may 'extend to low
water-mark by prescrintion ;t' and again, "The lands where-
upon the sea flows, as they were the King's while covered by the
waters, it must needs be held an inftilliiile ground, that they be
also the Kings when the waters have left them dry. And when
the waters lutd their being on thesame, the whole profit there aris.
ing did appertain to the King. Yet 1 have known in some coon
tries, wherethe frontagers have claimed thhe grounds, so left by
pretended instances of frontage, and some probable reason might
be shewn, wherefore they should have the seine for,as the ground
las nearest the sea, and so next to the charge to repair the de-
fence, and next to the loss where any overflow bappened, it
might, therefore, seem reasonable, that ae they were put to the
lneatest charge, and in peril of the loss of their lands, that so if
ands were left by the sea affront them, that these lands might
accrue unto them, as a reciprocal consideration for their charge
and loss. But I take it, that of late the law bath in these eases
been sometimes ruled for the king, against the subject. For
at Croft, in the county of Lincoln, 1,60' acres were gained
from the sea, affront the manor of Sir Valentine Brown there;
yet 1-'was but to obtain a grant from the king thereof. Anti one
.11Ushey, of St. Kegneys' claimed grounds left by the sea by the
mouth pretoded custom offrontage but they were decreed against
him. For it were inconvenient that the subject should; have
froitage, and yet no bounds prescribed thereto; so that 10,000
acres mat be left ufront it man's metior, which were not fit a
subject should have this large' inheritance by pretence of such