The plaintiffs claim that among the privileges of the riparian proprietor is also that of the exclusive right to the sea-weed which is cast upon the shore and left there by the receding tide.
In respect to the weed cast by extraordinary floods upon the land of the proprietor and there left above ordinary high-water mark, the law of this state is settled, in conformity with what we understand to be the common law of England. The owner of the sod has it ratione soli. No other person can then take it without a trespass upon the owner's land, and as owner of the land he is deemed to be constructively the first occupant.
But below high-water mark the soil does not belong to the owner of the upland. The sea-weed in dispute was not taken from the plaintiff's land, and their title, if they have a title, is not ratione soli. No trespass on the plaintiff's land was committed by the defendant in taking the weed, for the taking of which recovery is sought in this court.
Upon what ground then can the plaintiffs sustain the title which they claim to the weed? While it was floating on the tide it was publici juris. Why, when it is left on the shore by the receding tide, should it become their property?
In Massachusetts and Maine, by virtue of the Colonial Ordinance of 1641, the individual title of proprietors adjoining navigable water extends to low-water mark. [Citing and discussing Barker v. Bates, reported at p. 355, below.]
The cases therefore in Massachusetts and Maine which decide that sea-weed left on the shore belongs to the riparian proprietor have no application here. In New Hampshire the Massachusetts ordinance is adopted as law.
In New York the common-law rule is adopted, as with us, in relation to the boundary line between the public and the riparian proprietor, and it is claimed that, in Emans v. Tumbull, 2 Johns. R. 313, the question before us is decided in conformity with the plaintiffs' claim. The judgment in that case is pronounced by a judge of profound learning, whose opinion upon the point now under discussion, if really given, would be entitled to great weight; but we are inclined to think that the sea-weed in that case was cast upon the land of the plaintiff. The main argument at the bar and on the bench relates to the title to the locus in quo. Chief Justice Kent says: " If the marine increase be by small and imperceptible degrees, it goes to the owner of the land. The sea-weed must be supposed to have accumulated gradually."
In the case we are called on to decide, the sea-weed could not be regarded as a marine increase of the plaintiff's land, for it had not reached their land and was not attached to it nor connected with it. To be a marine increase it must form part and parcel of the land itself. Being between high and low-water mark, at each returning tide it would be afloat, and even in Massachusetts sea-weed when afloat is publici juris, although floating over soil which is private property.
The sea-weed in this suit is not treated as part of the real estate which by small and imperceptible degrees had become part of the plaintiff's land. It is treated as personal property, and the defendant is sued for taking it as such and converting it to his own use. In the case of Emans v. Turnbull the plaintiff's title was held good upon a liberal construction of the jus alluvionis which implies that the weed had then become part and parcel of the plaintiff's land and must therefore have been above or upon ordinary high-water mark. Title to personal property jure alluvionis would be a novelty in the law. 2 Black. Com. 262. Title by accretion is substantially the same as by alluvion. Both are modes of acquiring title to real property.
Title, however, to personal property may be acquired by what in law is called accession, but to acquire title by accession the accessory thing must be united to the principal, so as to constitute part and parcel of it. "Accessio" is defined by Bouvier as "a manner of acquiring the property in a thing which becomes united with that which a person already possesses." The plaintiffs, therefore, seem to us to have no title by alluvion, or by accretion, or by accession, certainly none ratione soli, and they cannot be regarded as first occupants by construction merely because of the propinquity of their land to the property in dispute.
The question under discussion does not seem to be fully settled in England. The soil of the seashore is there, as with us, prima facie in the public, but it may become private property, and frequently is so, where the adjoining lands are part of the manor. The authority of Bracton is clearly in favor, (1st) of the common right of all to the shores of the sea as part of the sea itself. (2d) In Liber 2, speaking of the right of first occupancy, he says: " Item, locum habet eadem species occupationis, in iis quoe communia sunt, sicut in mare et littore maris, in lappillis et geminis et ceteris in littore maris inventis." Sea-weed must be included within the et ceteris of Bracton in this passage, and upon his authority belongs to the first occupant.
The opinion of Lord Hale in favor of the common right to take sea-weed on the shore is shown by the following passage in chapter 6 of Hale, de Jure Maris. After speaking of three kinds of shore he says: "This kind of shore, to wit, that which is covered by the ordinary flux of the ocean, may belong to a subject, and may be parcel of a manor, and the evidence to prove it parcel of a manor are commonly these, constant and usual fetching of gravel and seaweed and sea-sand, between high and low-water mark, and licensing others so to do."
In the case, however, of Bagott v. Orr, 2 Bos. & Pul. 472, the court expressed doubts upon the right of the public to come upon the shore and take shells which had been thrown up and left there by the tide.
In the case of Blundell v. Catterall there occurs a very learned and interesting discussion upon the right of the public between high and low-water mark, but the precise question now under our consideration is not made the subject of comment.