The subject of navigable waters encumbered for the necessities of modern commerce defined by law that affects the ‘ancient usages of local custom’ and common law, needs to discover principles conductive to harmony, through authorities of both the ancient and modern, to be abridged into a ‘report for a conclusive examination’…
Maritime Law, Crown Rights, and Dominion
The Law of the Sea: An ‘article of value’ from the sea belongs to the finder by ‘discovery’ subject to the ‘law of the sea’ and the ‘law of the flag’. The ‘law of the sea’ is not prescribed by any superior power but just accepted as a ‘rule of conduct that appropriates as a nation’, with citizens trading under its accreditation.
Land Dominion and Contiguous Seas: It is to note the difference that it is the ‘dominion of land’ controls the contiguous seas, to enjoy the value acquired, including its ‘jurisdiction of property’ or both, having rights to prohibit foreign vessels from passing over its seas and to have rights of property in them. To acquire rights that are manoriable – Infra quatuor maria.
The Rights of the Crown: The Rights of the Crown to these waters, insisting that the title to the sea and to the Fundus maris (or bed of the sea) was in the King, England’s ancient sea usage of Quatuor maria (Les quatre mers d’Angleterre) upon the principle of Omne majus continet in se minus.
Estates, Franchises, and Royal Prerogative
Jus Privatum & Landing Rights: An Estate in Fee Simple tenant with a (Right in Rem) also has Jus privatum; an interest of property or franchise of jus applicandi offers authority by the Crown Jus regale by grant, charter, custom of prescription to establish an artificial ‘landing’.
Jus Regium: By Jus regium; prerogative is that the King hath for the realm or benefit of commerce or security of his customs…
Custody and Demesne: The King is supreme custos totius regni Angliae to take care of both sea and land as to proprietary as Lord. The King can appoint commissioners to inquire and to punish defaults. 28 Hen. 8. c.; 13 Eliz. c. 9; 1 Mar. c. 11. “Ancient demesne” is land under the title of terra regis.
Justices, Jurisdiction, and Nuisances
Itinerant Justices: When itinerant justices meet at certain places, they begin with the ‘pleas of the crown’. The King’s writ is read giving them authority Quidam major et discretior, to make a public address upon the necessity of peace and good order, at the utility of the charter.
Jus Publicum vs. Jus Privatum: Jus publicum is the Right of Jurisdiction for the benefit of its subject – similar to public highways (water or road). Right of soil is in the owners’ adjoining estate of Jus privatum right of property, is subject to Jus publicum… Jus privatum; under fiction of feudal law where all lands in the kingdom were derived from the King as Lord Paramount and held by ‘bounty vested’ in him in all cases where he has not especially granted them away.
Purprestures and Nuisances: Purprestures-Nuisances; There is a broad distinction between violation of the public right and an invasion of the proprietary interest of the Crown. The one creates a public nuisance; the other a purpresture – an encroachment on the King’s interest. If a structure (Native Title Consent Determination) causes injury to the public right, it is a common nuisance and abatable. ‘A corporate license cannot become a common nuisance’. A nuisance is to become a question of fact ipso facto.
Remedies for Purpresture: The remedy for a purpresture is either by a ‘discovery’ (Avalon Priestess report of a conclusive examination) of information, that of an intrusion at common law, or by information in equity at suit. The effect of a judgement at law is the ‘abatement of the erection’ complained of, whether it be a nuisance or not. When the ‘structure is both a purpresture and a nuisance’, the injury to the Rights of the King and of his Subjects may be redressed in the same proceeding…
Superintendence and Control: A common nuisance is abatable at suit of the Crown by virtue of its power of superintendence and control over public rights and the Attorney-General on the part of the Crown may proceed by information in equity for the protection of either the Jus privatum of the King from the purpresture, or the Jus publicum of his Subjects from the nuisance.
Writ of Ad Quod Damnum: A Writ of Ad quod damnum is the common law mode of taking private property for public use when the ‘act of incorporation is silent as to the mode of’ proceedings.
Prescription, Grants, and Ancient Title
Acquiring Interest: Prescription; 3 Black. Com. 257; “No time runs against the King”, yet by custom or prescription, a subject may ‘acquire certainty of interest.’ A constant of Ancient usage rights with permission of others to do so; enclosing and embanking of the enjoyment within, presentment and punishment in a ‘Court Manor’, evidence and walking perambulations, reputations, metes and divisions alike, to establish a Title to Land as a prescriptive right, must be governed by the rules of law applied to estates that does not disseise its owner.
Ancient Patents and Grants: Title acquired under an ‘ancient patent or grant as King John and Edward I’ from the Crown, modern usage is admissible to interpret the grant to establish a Title to adjoining lands. No usage however long can countervail the clear words of the instrument, for what is done under usurpation cannot constitute a legal usage over one of ‘remote antiquity of best exposition’ of the meaning within the grant. Ancient patents in which description of land is vague, may interpret the acts of those claiming the contiguous lands. ‘Ancient deeds’ may be introduced in evidence to show position of a creek to be vested in the Crown or state for itself. Property as parens patriae intimates that a Lost Grant of the Crown – Llawhaden Palace – will be more readily presumed than of the (bankrupt) state. The government cannot acquire the Title by adverse possession.
Profit à Prendre: Profit à prendre; title to locus in quo by inter alia is where the subject is in possession by ‘patent or grant’ or prescription by evidence of inference.
Discovery, Colonies, and Federal Jurisdiction
Rights of Settlers: In territories acquired by ‘Discovery’, the Rights of Settlers are determined by the laws of the mother country, a grant from the King could alone confer title to soil and the only source of authority for exercising powers of government over laws granted. A corporation who ‘purchased lands from aboriginals, including waterways’, is insufficient by common law to convey as such. Colonial patents do not convey titles to different corporations purchased from indigenous people, and to those strangers to common law.
Grants to and from Colonies: Grant to and from Colonies; A grant by the Crown of extensive foreign domains with civil and political powers to establish complete through subordinate sovereignty, to all land described as havens, ports, rivers, waters, fishing, mining etc.: commodities, jurisdictions, royalties, privileges, franchises and pre-eminence. Such powers of legislation and administration, are adopted through the Supreme Courts. Principles of English laws are Rights of private property and of Jurisdiction in the Crown, for the protection of the public, is not applicable to a Republic institutionalised province.
Federal vs. State Waters: The rights of respective States with respect to navigable waters within its limits is restricted by Federation Jurisdiction and its courts, defined and regulated in Admiralty and Maritime causes of foreign interests and among several states. A common law remedy is expressly saved to suitors where the ‘common law is competent to give it’, through jurisdiction of the subject-matter.
Commerce and U.N. Admiralty Modules: Commerce that is differed between various Federations is by its (U.N.) Admiralty modules, possessing all powers necessary for the channels of intercourse. The Federal State body may lawfully empower a private corporation through a Free Trade Treaty to occupy the internal waters of a local State for the purpose of interstate commerce without the consent of the Local State and against its protest. A State cannot restrict navigation of foreign corporations to have a known place of business where it is licensed under a Federal Government.
Fresh Rivers, Springs, and Riparian Rights
Ad Filum Aquae: Fresh river or springs of property are private property and the title to the river bed ad filum aquae is in the ‘Riparian’ proprietors in severalty and not in common, whether the tenant is freehold, copyhold or leasehold.
Hale and Davies Authorities: Hale’s De Jure Maris (1789) ascribed to Sir Matthew Hale (died 1679): “Fresh rivers belong to the owner of soil adjacent”. By Sir John Davies: “Streams le Roy” are of public use under the King’s special care and protection, whether the soil be his or not, by a special charter, acquired by prescription. The right of the prerogative, the King has jurisdiction to reform or punish ‘nuisances’ in all rivers, fresh or salt, that are a common passage, called Highways by water fluvi regales and huat streame le Roy; is considered Royal not in reference to the proprietary of the river, but to the public use under the King’s special care and protection.
Alluvion and Reconciling Ownership: Early common law, “Any man may justify the removal of a common nuisance either at land or by water, because man is concerned by it”… The alluvion is de jure communi by the laws of England, the King’s; if by any marks or measure it can be known what is so gained: to be shown by ‘right of prescription’, there to have an exclusive right. All laws are to be an adaption of ‘principles of action’, to the state or condition of a country and to its ‘moral and social position’ located to recognise as law. – The soil is prima facie in the ‘riparian owner’ ad filum aquae… Prescription is the only ground upon which the right of navigation can be reconciled with private ownership of the soil.
Harmony of Jus Privatum and Jus Publicum: Perfect harmony is to be prescribed between the Jus privatum of Riparian ownership in public fresh water streams and the Jus publicum of free navigation thereof, that can be appropriated upon. The soil is granted to the Riparian proprietor, subject to this public easement deriving Title under common law rights. By deed of cession for the ‘Crown to acquire jurisdiction’ and property of its navigation, controlled by a treaty or of a grant (Royal Assent) is to establish a Territory. The Crown right of property is subject to the Jus publicum – Treaty of Innocence – for the Jus privatum to receive the Acquired Title to Territory.
The Mohawk River Example: The Mohawk River, New York has Riparian Owners bearing common law ownership, where the commissioners of navigation operate upon the easement by statute, amounting to a reservation for the Mohawk Indian public purpose.
Surveys, Nuisances, and Land Boundaries
Admiralty and Supreme Court Decisions: Private rights in navigable fresh rivers are affected through ‘Supreme Court decisions,’ with respect to Admiralty jurisdiction of the ebb and flow of the tide, under the protection of the King’s prerogative Rights in the sea.
Topography vs. Sovereign Capacity: Difference between ‘extent and topography’ with regards to ownership of the soil in navigable waters above tide waters, at variance with sound principle of public policy of Riparian proprietor rights of sovereign capacity, depending upon the local laws of the state where the land is situated.
Surveys, Plats, and Meandering Lines: The system of surveys and grants are impracticable even when patented (by which register) when it becomes impracticable of the true situation UPON THE QUALITY OF LANDS. Field books should return to the office who has transmitted the sales of the public information… A government grant does not reserve a right or interest that would ordinarily pass, by the rule of law locus in quo. A surveyor’s plat in land of topography is not as the “Laws of Extent” of the County boundaries. A meandering line determines the quantity of land in fractions being marked by government survey maps, and are not Crown boundary lines.
Prerogative Protection and Structures: A Riparian proprietor requires title usque ad filum aquae… Due regard of Riparian proprietors would be damnum absque injura as to the retard-ness of current. Protection of the right of navigation is always jealously guarded as a great public interest. The King can grant ‘commissions for surveying’ and repairing banks and rivers. The prerogative of the Crown is of Right and duty to protect the realm, entrusted to corporate bodies of trustees.
Public Nuisances and Structures: Public nuisances, all annoyances and impediments to navigation are prima facie public nuisances, whether created by Riparian owners ‘or by strangers (foreign corporation interests)’. The public may enforce their abatement or removal by indictment or by information in equity, to recover damages at law against those who created them… Riparian proprietors extend usque ad filum aquae and are at liberty to erect any structure with respect to the water, provided it does not interfere with navigation and unmolested passage.
Landings, Corporations, and Municipal Duties
Landing Usage and Dedication: Landing, dedication, prescription, by immemorial usage, acquires a right to use the banks of a river for a ‘landing’, as a town uses land as a park. A customary dedication for a formal acceptance to become prescriptive as to be valid… Public landing evidence that landings have been used as a landing place is sufficient to establish a right to be commissioned upon.
Equitable Boundaries: If a ‘riparian owner improves the river/spring’ and the public has rights to its usage for all purposes to which in its improved condition, a Bill in Equity may be maintained to establish a boundary between public and private… Judicial notice (Discovery) takes notice of characteristics of streams/springs which are matters of general history or common knowledge.
Municipal Liabilities: Municipal (quasi) corporations created by legislature for public purposes are subject to indictment at common law for neglect of public duty imposed upon them, but not liable to a private action for such neglect unless given by statute, or a liability arises by prescription; unless they hold the property by emolument like a private owner upon the ground of prescription. A corporation is liable to a person who has lost his navigation.
Assessments and Obligations: Special assessments made by municipal corporations upon city lots for improvements in adjoining highways by land, the same applies for improvements in water highways. An assessment may be authorised upon Riparian proprietors whose estates are benefited thereby… A municipal corporation is under no obligation at common law to keep adjacent waters safe for navigation…
Private Landing Places: Landing places (ceremony dance floor) may be private in an individual owner as ‘like owning an Inn’. The privacy depends upon the purpose for which it is built, for its application, location, and nature characteristic of its structure. The exercise of eminent domain.
Articles of Eyre, Remedies, and Legislation
Articles of Eyre: Articles of Eyre – Ancient liberties and free customs, by land and by water, to appoint a civic chief who bore the name of mayor, so as to establish a firma comitatus to collect annual rent payable to the Exchequer through a municipal government. Those of the firma comitatus have the right to nominate a Royal Justiciar, to balance out a magistrate’s office. To create its own municipal constitution is to create its own metropolis, Communea est tumor plebis, timor regni, tepor sacerdotii by popular association guised as a commune concilium.
Charges and Liabilities: Who is liable for, are those who ‘avail themselves of the use’, the right to collect charges, to carry the correlative duty to repair, by an agreed price per diem charge for the goods upon the landing, upon a ‘just and reasonable remuneration’ for the use of the property and the benefit concerned. An individual owner may permit others to do so on such terms as he thinks proper to impose and of which he gives notice.
Nuisance Remedies: Public nuisances – remedy; a common nuisance is remedial by indictment or by abatement, ‘or a court of equity may take jurisdiction upon information filed’, through a treasurer solicitor and to be tried before a jury. When the nuisance causes both a public and private injury, a suit in equity may be brought by the (Discovery) information and (Treasury Bill). A bill of restraint when an appropriate method of redress is provided into a statute for a failure to observe its requirements, it is exclusive of the common law remedies, as by an abatement to the nuisance…
State Legislation and Military Control: State legislation upholds authorised obstructions upon navigable streams for the commercial power in regard to intercourse with foreign nations. Commerce is as an intercourse between nations or citizens connected with navigation and to be regulated between states by governments. Rivers become subjected to the commercial powers of the state interest, through its assent. It is to note militarily, Engineers of the war department have the control of the appropriations as for the mode of improvements.
Easements and Trespass: Legislation does not authorise taking the lands of such owners, as it operates only as an easement through the justification only with respect to public interest. It gives by implication of authority to appropriate, but the purpose of the lands belongs to the state, but offers no protection for a private injury without tenor of compensation. The owner may maintain trespass quare clausum upon the unlawful invasion of land.
Legislative Tolls and Franchises: Grants from the Crown and prescriptive rights, being in nature of a common charge upon the public, can be exacted upon rivers/springs only under the structure of acts of the legislature, with effect to enforce a toll. A Riparian owner may improve an unnavigable stream/spring upon his own land… The privilege created is a franchise and it is necessary to its validity that the grantee shall be certain.
