"De COMMUNI JURE"
and "PUBLIC TRUST"
Certain lands and resources were designated as "public" by longstanding tradition or specific dedication. Although the king held sovereign title to the land and resources themselves, he had a fiduciary responsibility to maintain them in trust for the public right of common use. In actuality, English kings, prior to the Magna Carta, occasionally granted private use rights that extinguished the public right. Three public trust responsibilities were those of:
Common piscary (fishery or fishing rights); and
Common right of "free" navigation.
A "public place" or "commons" is positively designated by the community as a place common to all, either by formal dedication or longstanding common use. It is in a civil state of common ownership, governed by public law, (jus publicum or de communi jure.) Such public places are reserved from appropriation (purpresture) by any individual. The naked title is generally held in "public trust," inalienable by the sovereign or chartered municipality, although subject to regulation of use.
COMMON PISCARY AND FREE NAVIGATION
Under English common law, navigable waters were only those effected by the ebb and flow of the tides. The "Crown" owned navigable riverbeds up to the ordinary high water mark. The public had the common right or "liberty" to use a navigable waterways as a public fishery, as well as a public highway. The public also had a right to use the river's banks to the high water mark for purposes of access, cleaning fish or towing barges by draft animals.
Lord Hale was cited in authority by both Justice Taney and Justice Thompson in the case Martin v. Waddell's Lessee, 41 U.S. 367 (1842):
"The rules and principles laid down by Lord HALE, as we find them in Hargrave's Law Tracts, are admitted as containing the correct common-law doctrine as to the rights and power of the king over the arms of the sea and navigable streams of water. We there find it laid down, that the king of England hath a double right in the sea, viz., a right of jurisdiction, which he ordinarily exercises by his admiral, and a right of propriety or ownership. Harg. 10. The king's right of propriety or ownership in the sea and soil thereof, is evinced principally in these things that follow. The right of fishing in the sea, and the creeks and arms thereof, is originally lodged in the crown; as the right of depasturing is originally lodged in the owner of the coast whereof he is lord, or as the right of fishing belongs to him that is the owner of a private or inland river. But though the king is the owner of this great coast, and as a consequence of his propriety, hath the primary right of fishing in the sea, and the creeks and arms thereof; yet the common people of England have regularly a liberty of fishing in the sea, or creeks or arms thereof, as a public common of piscary, and may not, without injury to their right, be restrained of it, unless in such places, creeks or navigable rivers, where either the king or some particular subject hath gained a propriety exclusive of that common liberty (p. 11). In many ports and arms of the sea, there is an exclusion of public fishing by prescription or custom (p. 12), although the king hath prima facie this right in the arms and creeks of the sea, communi jure, and in common presumption; yet a subject may have such a right in two ways. 1. By the king's charter or grant; and this is without question. The king may grant fishing within some known bounds, though within the main sea, and may grant the water and soil of a navigable river (p. 17); and such a grant ( when apt words are used) will pass the soil itself; and if there shall be a recess of the sea, leaving a quantity of land, it will belong to the grantee. 2. The second mode is by custom or prescription. There may be the right of fishing, without having the soil, or by reason of owning the soil, or a local fishery that arises from ownership of the soil (p. 18). That, de communi jure, the right of the arms of the sea belongs to the king; yet a subject may have a separate right of fishing, exclusive of the king and of the common right of the subject (p. 20). But this interest or right of the subject must be so used as not to occasion a common annoyance to the passage of the ships or boats; for that is prohibited by the common law, as well as by several statutes. For the jus privatum that is acquired to the subject, either by patent or prescription, must not prejudice the jus publicum, wherewith public rivers or arms of the sea are affected for public use (p. 22)-as the soil of a highway, in which, though in point of property, may be a private man's freehold, yet it is charged with a public interest of the people, which may not be prejudiced or damnified (p. 36)."
In his review of matters applying to the "sea and its arms," Justice Gray in Shively v. Bowlby, 152 U.S. 1 (1894) states:
'The shore is that ground that is between the ordinary high-water and low-water mark. This doth prima facie and of common right belong to the king, both in the shore of the sea and the shore of the arms of the sea.' Harg. Law Tracts, pp. 11, 12. And he afterwards explains: 'Yet they may belong to the subject in point of propriety, not only by charter or grant whereof there can be but little doubt, but also by prescription or usage.' 'But, though the subject may thus have the propriety of a navigable river part of a port, yet these cautions are to be added, viz.: ... (2) That the people have a public interest, a jus publicum, of passage and repassage with their goods by water, and must not be obstructed by nuisances;' 'for the jus privatum of the owner or proprietor is charged with and subject to that jus publicum which belongs to the king's subjects, as the soil of an highway is, which though in point of property it may be a private man's freehold, yet it is charged with a public interest of the people, which may not be prejudiced or damnified.' Id. pp. 25, 36.
"So in the second part, De Portibus Maris, Lord Hale says that 'when a port is fixed or settled by' 'the license or charter of the king, or that which presumes and supplies it, viz. custom and prescription,' 'though the soil and franchise or dominion thereof prima facie be in the king, or by derivation from him in a subject, yet that jus privatum is clothed and superinduced with a jus publicum, wherein both natives and foreigners in peace with this kingdom are interested, by reason of common commerce, trade, and intercourse.' 'But the right that I am now speaking of is such a right that belongs to the king jure prerogativae, and it is a distinct right from that of propriety; for, as before I have said, though the dominion either of franchise or propriety be lodged either by prescription or charter in a subject, yet it is charged or affected with that jus publicum that belongs to all men, and so it is charged or affected with that jus regium, or right of prerogative of the king, so far as the same is by law invested in the king.' Id. pp. 84, 89.
"In England, from the time of Lord Hale, it has been treated as settled that the title in the soil of the sea, or of arms of the sea, below ordinary high-water mark, is in the king, except so far as an individual or a corporation has acquired rights in it by express grant, or by prescription or usage, (Fitzwalter's Case, 3 Keb. 242, 1 Mod. 105; 3 Shep. Abr. 97; Com. Dig. 'Navigation,' A, B; Bac. Abr. 'Prerogative,' B; King v. Smith, 2 Doug. 441; Attorney General v. Parmeter, 10 Price, 378, 400, 401, 411, 412, 464; Attorney General v. Chambers, 4 De Gex, M. & G. 206, 4 De Gex & J. 55; Malcomson v. O'Dea, 10 H. L. Cas. 591, 618, 623; Attorney General v. Emerson, [152 U.S. 1, 1891] App. Cas. 649;) and that this title, jus privatum, whether in the king or in a subject, is held subject to the public right, jus publicum, of navigation and fishing, (Attorney-General v. Parmeter, above cited; Attorney General v. Johnson, 2 Wils. Ch. 87, 101- 103; Gann v. Free Fishers, 11 H. L. Cas. 192.) The same law has been declared by the house of lords to prevail in Scotland. Smith v. Stair, 6 Bell, App. Cas. 487; Lord Advocate v. Hamilton, 1 Macq. 46, 49. It is equally well settled that a grant from the sovereign of land bounded by the sea, or by any navigable tide water, does not pass any title below high-water mark, unless either the language of the grant, or long usage under it, clearly indicates that such was the intention. Lord Hale, in Harg. Law Tracts. pp. 17, 18, 27; Somerset v. Fogwell, 5 Barn. & C. 875, 885, 8 Dowl. & R. 747, 755; Smith v. Stair, 6 Bell, App. Cas. 487; U. S. v. Pacheco, 2 Wall. 587.
"By the law of England, also, every building or wharf erected, without license, below high-water mark, where the soil is the king's, is a purpresture, and may, at the suit of the king, either be demolished, or be seized and rented for his benefit, if it is not a nuisance to navigation. Lord Hale, in Harg. Law Tracts, p. 85; Mitf. Eq. Pl. (4th Ed.) 145; Blundell v. Catteral, 5 Barn. & Ald. 268, 298, 305; Attorney General v. Richards, 2 Anstr. 603, 616; Attorney General v.Parmeter, 10 Price, 378, 411, 464; Attorney General v. Terry, 9 Ch. App. 425, 429, [152 U.S. 1, 14] note; Weber v. Commissioners, 18 Wall. 57, 65; Barney v. Keokuk, 94 U.S. 324, 337.
Stated Justice Baldwin in his assenting opinion in Proprietors of Charles River Bridge v. Proprietors of, 36 U.S. 420 (1837) 36 U.S. 420 (Pet.):
"By the common law, it is clear, that all arms of the sea, coves, creeks, etc. where the tide ebbs and flows, are the property of the sovereign, unless appropriated by some subject, in virtue of a grant, or prescriptive right which is founded on the supposition of a grant' (6 Pick. 182); 'the principles of the common law were well understood by the colonial legislature.' 'Those who acquired the property on the shore, were restricted from such a use of it, as would impair the public right of passing over the water.' 'None but the sovereign power can authorize the interruption of such passages, because this power alone has the right to judge whether the public convenience may be better served by suffering bridges to be thrown over the water, than by suffering the natural passages to remain free.' Ibid. 184. By the common law, and the immemorial usage of this government, all navigable waters are public property, for the use of all the citizens, and there must be some act of the sovereign power, direct or derivative, to authorize any interruption of them.' 'A navigable river is, of common right, a public highway, and a general authority to lay out a new highway must not be so extended as to give a power to obstruct an open highway, already in the use of the public.' Ibid. 185, 187." (Emphasis mine.)
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