weight and inspection of bread.23 There it was stated. that statutes passed in 1807 and in 1814 conferred the power to regulate the price of butchers' meat and bakers' bread and these statutes were regarded as constitutional. Whether at common law this was done or not I find no cases bearing on the question, but can conceive that there may have been recognized regulations as to such occupations, sustained on principles analogous to those in common carrier, innkeeper and grist mill cases. In Alabama24 an ordinance under legislative power to regulate the weight and price of bread was sustained as constitutional, the court saying: "The practice has prevailed too long and has been too generally, not to say almost universally, acquiesced in, to permit us to doubt that some regulation on this interesting subject is necessary and proper."

A very recent case in the Supreme Court of Alabama in which a cotton gin devoted to a public use was involved, is very instructive upon the line hereinbefore treated.25

23 Guillotte v. City of New Orleans, 12 La. Am. 432.

24 Mobile v. Yuille, 3 Ala. 137, 36 Am. Dec. 441.

25 Tallassee Ore & F. Co. v. Holloway (Ala.), 76 So. 434.

CHAPTER VII.

TITLE TO JUS PUBLICUM IS IN TRUST

§ 35. Preliminary.

36. Use of inalienable public property.

37. Summary.

§ 35. Preliminary. I think there is no better method of closing examination of the effect at common law of use by a private citizen of any convenience, facility or property in which all have an equal right, than to investigate the nature of the title of the King to such convenience, facility or property. There is found in English decision regarding tide waters more frequent expression as to such nature than elsewhere, for the obvious reason, that these waters lying open, as nature placed them, riparian owners have claimed exclusive rights therein, when as to ordinary highways there exists little opportunity for such contentions to arise. Adjacent property is not affected by a road or a street as it is by a navigable stream. The public uses the former in a strictly defined method and those remote from it as well as those in proximity have, generally speaking, the same rights and owners of adjacent land have no peculiar status thereto, except on the theory of nuisance therein working special harm.

But tidal waters bear both a general relation to all the surrounding country and a particular relation to riparian owners and to owners of privileges on, or adjacent to, their shores. Claims of these owners have raised questions which have evoked decisions

as to the nature of the King's title in these waters, but that the description of title therein applies to any other public property seems too evident to need discussion. Incidentially this nature has appeared in some of the cases herein before considered, but I have thought the question deserved independent treatment.

$36. Use of Inalienable Public Property. It has been said that: "In tidal streams, although the King has the property, the people have likewise the use necessary. Rex habet proprietum, sed populus habet usum ibidem necessarium."" Lord Hale said: "The King hath the propriety as well as the jurisdiction of the narrow seas, for he is in a capacity of acquiring the narrow and adjacent sea to his dominion by a kind of possession which is not compatible to a subject," meaning that as no subject can hold in the same capacity as the king holds, there is no one to whom public property in the narrow seas may be aliened.

Lord Chancellor Westbury said: "The bed of all navigable rivers where the tide flows and reflows and all the estuaries or arms of the sea, is by law vested in the Crown. But this ownership of the Crown is for the benefit of the subject, and cannot be used in any manner so as to derogate from or interfere with the right of navigation, which belongs by law to the subjects of the realm.". The Lord Chancellor, therefore, said: "If the Crown grants part of the bed

1 Callis, Sewers, 13; Hall, Rights of the Crown, 14.

2 De Jure Maris, ch. 6, p. 31.

3 Garm v. Free Fishers, etc., 11 H. L. 192, 207.

or soil of an estuary or navigable river, the grantee takes subject to the public right, and he cannot in respect to his ownership of the soil make any claim or demand, even if it be expressly granted to him, which in any way interferes with the enjoyment of the public right." Lord Denman said: "The right of soil in arms of the sea and public navigable rivers which the Crown prima facie has, independently of any ownership in adjoining lands, must in all cases be considered as subject to the public right of passage however acquired, and any grantee of the Crown. must, of course, take subject to such right."

These cases were decided since our separation from the Mother Country, but long prior to that time Lord Hale, who died in 1676, in speaking of nuisances, said: "Not every building below the high-water mark, nor every building below the low-water mark is ipso facto in law a nuisance. For that would destroy all the Keyes that are in all the ports of England. Where the soil is the King's soil, which he may demolish or seize or arrent at his pleasure; but it is not ipso facto a common nuisance, unless, indeed, it be a damage to the port and navigation." "5

In 1819 there was a proceeding to restrain a purpresture on the River Thames and defendants relied on affidavits showing grants and licenses from the Corporation of London and the Court of Conservancy of the River for more than a century past to different persons to embank parts of the soil of the Thames between high and low-water mark. The Lord Chancellor said: "I consider it quite immaterial whether

4 Mayor of Colchester v. Brooke, 7 Q. B. 339.

Hale de Portibus Maris, p. 85.

or

the title to the soil between high and low-water mark be in the Crown or in the City of London whether either Lord Grosvenor or Mr. Johnson (defendant) have any derivative title by grant from any one having the power to grant. This is a record calling upon me to prevent a nuisance; and if the Court has jurisdiction to prevent nuisances, it is a jurisdiction which may be exercised, whatever may be the title to the soil. It is my present opinion, that the Crown has not the right either itself to use its title to the soil between high and low-water mark as a nuisance, or to place upon that soil what will be a nuisance to the Crown's subjects.

996

This case afterwards came on for trial under another title, and the Lord Chancellor instructed' the jury that: "The question here is, whether a public right has not been infringed. An embankment of considerable extent has been constructed for the purpose of building a wharf. Much evidence has been adduced on the part of the defendants for the purpose of showing that the alteration affords greater facility and convenience for loading and unloading; but the question is not whether any private advantage has resulted from the alteration to any particular individuals, but whether the convenience of the public at large, or of that portion of it which is interested in the navigation of the River Thames has been affected or diminished by this alteration." One of the defendants was acquitted and the rest convicted.

6 Attorney General v. Johnson, 2 Wils. Chan. 87.

7 Rex v. Lord Grosvenor, et al., 2 Stark. 511.

8 See also Attorney General v. Ridrow, 2 Anstr. 603, decided in 1795.