Chambers's Journal of Popular Literature, Science, and Art, Fifth Series, No. 34, Vol. I, August 23, 1884

by Various

IS THE SEASHORE FREE TO ALL?

To the ordinary visitor to the seacoast this question may seem unnecessary. To him it probably appears, if he ever gives the matter a thought, that the shore is free and open to everybody; and that no one person really has any more rights over it than another. If he were told that he was no more entitled to walk or be driven across the beach for the purpose of obtaining his morning dip in the sea than he was to cross the park of a private gentleman and bathe in his lake without permission, he would probably refuse all credence to the statement. If he were further told that when he picked up a shell off the sands and walked away with it, he was guilty of an unlawful act, his mental attitude would most likely be one of indignation, and in most cases his belief in his own indisputable right to be where he was, and to enjoy himself as seemed best to him, provided that he did not interfere with the comfort of his neighbours, would be in no way shaken.

It is the object of what follows to show how little ground there is for this belief. To begin with, a brief definition of the shore will be useful. Strictly speaking, it is that portion of the land adjacent to the sea which is alternately covered and uncovered by the ordinary flow and ebb of the tides. The fringe of rock, sand, or shingle, which is to be found on most parts of the English coast, and which is never under water except at the highest spring-tides, does not form a part of the ‘shore,’ though it is commonly spoken of as such; and the law only recognises as shore that portion of the coast which lies between the ordinary high and low water marks. All that portion of it which lies nearer to the land than the ordinary high-water mark is part of the terra firma, and, as such, is subject to the usual rights of ownership. This technical ‘shore’ throughout the coasts of England belongs, except as is mentioned afterwards, to the Crown. As is well known, the theory of the law is that the whole soil of England belonged originally to the sovereign, by whom it has, in process of time, been almost entirely granted to subjects. Some of our sovereigns have also occasionally exercised their rights of ownership in the seashore by making grants of it, in company with the adjoining terra firma; so that there are cases in which the shore, as well as the adjacent terra firma, is subject to private ownership.

So much by way of definition and explanation. Let us now briefly consider what rights the ordinary subject has to the use and enjoyment of the seashore. We will begin by considering his right to use it as a means of access to the sea for the purpose of bathing. The first time this question was raised in a court of justice in England was in the case of Blundell against Caterall, which was tried in the year 1821. If the reader will look at a map of England, he will find marked on the coast of Lancashire, a few miles north of Liverpool, the town of Great Crosby. In the year 1815 an hotel was built there. Before that time, people who lived at Great Crosby had bathed on the beach, but they had done so in a simple and primitive manner; they undressed themselves in some convenient spot, and then walked over the sands into the sea. When the hotel was built, the proprietor thought that it would be for the comfort of his guests and his own profit if a more convenient means of bathing were provided; and so he had built a number of ‘machines’ of the well-known type. Caterall was one of the hotel proprietor’s servants, and was employed by him to drive these machines into the sea. The plaintiff, Mr Blundell, was lord of the manor of Great Crosby, and he claimed that the shore there had been specially granted to him, and formed part of his manor. This grant of the shore was not proved, but it was not questioned by the counsel who appeared for Caterall, and so was taken for granted. The contention of Caterall’s counsel was what would probably be in accordance with the views of most people on the subject. He argued that there was a common-law right for all the king’s subjects to bathe on the seashore, and to pass over it for that purpose on foot or with horses and carriages.

The case was fully discussed and long judgments were delivered by the four judges before whom it was tried. The result was that it was decided by three judges against one that no such general right in the subject to frequent the shore for the purpose of bathing existed, whether on foot or in carriages. The dissenting judge, who seems to have taken a broad and common-sense view of the matter, based his judgment on the general grounds of the sea being the great highway of the world; of the importance of a free access to it; and of the necessity of a right to bathe in it, as essential to the health of so many persons. ‘It was clear,’ he said, ‘that persons had bathed in the sea from the earliest times, and that they had been accustomed to walk or ride on the sands.... The shore of the sea is admitted to have been at one time the property of the king, and from the general nature of the property, it could never be used for exclusive occupation. It was holden by the king, like the sea and highways, for all his subjects.’ Unfortunately for the subjects, however, the other three judges, and consequently the majority of the court, were convinced by the arguments of the counsel who opposed the claim to the right of bathing. This opposition was based on three grounds. ‘First,’ said Mr Blundell’s counsel, ‘there is no evidence to be found in any of the legal authorities for the existence of any such right; they are completely silent upon the matter. Secondly, such a right is contrary to analogies. Thirdly, such a right is contrary to acknowledged and established rights.’

The first and third of these arguments seem to have chiefly influenced the judges in coming to their decision. This decision, which must be taken as ruling the matter, up to the present time at anyrate, declares, as has been stated, that the subject has no right to pass over the shore for the purpose of bathing. The actual right to bathe in the sea does not seem to have been disputed; what was settled was, that a man has no right to pass over the shore in order to reach the sea. If any one chooses to take ship from Ireland to within a few yards of the Lancashire coast, and then bathe from the deck, there is nothing in the decision in the case of Blundell against Caterall to show that he would in any way be going beyond his strict legal rights. Such a course would, however, be inconvenient—and decidedly expensive.

Of course, when the shore remains undisputedly in the possession of the Crown, no interference with the subject’s privilege of bathing, under fitting conditions, is to be apprehended. The decision in Blundell v. Caterall, however, shows that where a portion of the shore has been made the subject of a grant, there is nothing to hinder the person in whose favour the grant has been made from entirely preventing it from being used for the purpose of bathing, or from allowing it to be so used only on payment of any tax he may choose to demand. It is scarcely necessary to say that no such claim on the part of a private subject to such property in the shore, carrying with it, as it does, the right to tax, or even prevent altogether, sea-bathing, should be allowed without the strictest possible examination of it. Whether a man is possessed of the shore will entirely depend upon the exact words used to describe the boundaries of the land granted to him. If the deed of grant describes the land to be granted ‘down to the sea,’ or if any similar words be used, such grant would not include the shore; for it, as we have said, is what lies between high-water and low-water marks; and ‘down to the sea’ would be taken to mean down to the ordinary high-water mark, and so would just fall short of the ‘shore.’ If, on the other hand, it should be distinctly stated that the land is granted down to low-water mark, or to any definite distance out to sea, which would include the low-water mark, then undoubtedly the shore, with its attached rights, has been granted. Because it has been held judicially that the subject has no right to use the shore as a means of access to the sea for the purpose of bathing, it must not, however, be inferred that he has no right to be there at all. From time immemorial it has been recognised that the ownership by the Crown of the sea-shore is limited by a common-law right on the part of the subject to pass over it to reach the sea, for the purposes of fishing and navigation; and as the Crown cannot transfer to other persons more than it possesses itself, these rights of the general public still exist when the shore has passed into private hands.

The right of bathing is not the only right which most people are apt to take for granted which has been disputed, and disputed successfully, in the courts. How many people know that when they pick up a shell or a piece of seaweed and take it home with them, they are rendering themselves liable to an action? Yet it is so, as what follows will show. In the year 1801, one Bagott was the owner of a certain manor in the parish of Keysham, and this manor included—or at anyrate, Bagott claimed that it did, and his claim was not disputed—a portion of the seashore. In cases such as those here cited, there seems to have been far too great readiness to admit claims to the shore. It appears that on this part of the coast shellfish were found in great numbers, and it was the custom of the people in the neighbourhood to take them for the purpose of selling them, or using them as food. Amongst those who did so was a man called Orr. He employed other men to help him, and took away great quantities of the shellfish in carts, and seems, by the magnitude of his operations, to have exhausted Bagott’s patience. At anyrate, Bagott commenced an action against him, alleging that he (Orr) had entered certain closes of his (Bagott’s) ‘lying between the flux and reflux of the tides of the sea, in the plaintiff’s manor of Keysham, and the said shellfish and fish-shells there found, caught, took, and carried away, and converted, and disposed thereof, when the said closes were left dry and were not covered with water.’ To this Orr urged in defence, that what the plaintiff called his closes were, as a matter of fact, rocks and sand of the sea, lying within the flux and reflux of the tides of the sea, and that the shellfish and fish-shells which he had taken away were ‘certain shellfish and fish-shells which were in and upon the said rocks and sands of the sea, and which were, by the ebbing of the tides of the sea, left there in and upon the said closes; and that every subject of this realm of right had the liberty and privilege of getting, taking, and carrying away the shellfish and fish-shells left by the said ebbing of the sea.’ The judgment of the court, as it appears in the Report of the trial, gives none of the reasons upon which it was founded, but merely declares in the baldest manner possible that the defendant had a right to take the shellfish; but that, as no authority had been brought forward to support his claim to take shells, the court would pause before establishing a general right of that kind!

Of course, this judgment cannot be taken quite literally, for the shellfish cannot be taken unless their shells are taken also. What it must be understood to lay down is this, that we may take the shells so long as they are attached to, and form, as it were, part of the living fish; but that we must not take a shell when it has become detached from its inmate, and is nothing more than a shell. This prohibition to take empty shells is really equivalent to a prohibition to take not shells only, but also sand or pebbles, or indeed any other part of the soil of the shore. It may be added here, by way of parenthesis, that, by an Act of Parliament passed in 1620, a special privilege is granted to all persons living in the counties of Devon and Cornwall ‘to fetch and take sea-sand at all places under the full sea-mark.’ Why this privilege was specially granted to the inhabitants of these two counties is not at all clear. At anyrate, the passing of the Act shows that the right did not previously exist.

The last case to which we shall refer is that of Howe against Stowell. It was tried in the year 1833. Here, as in the case of Bagott against Orr, the plaintiff was the owner of a portion of the shore, upon which, at different times, the sea cast up great quantities of seaweed. The farmers in the neighbourhood were in the habit of carting this seaweed away, using it for the purpose of manuring their land. Stowell had taken some, and Howe brought an action against him. Stowell urged that, as a subject of the king, he had full and perfect liberty to go upon the shore and take the seaweed, which had been left there by the reflux of the tide. The court, however, found that no such right as Stowell claimed existed. Their judgment to some extent supplements and explains the one delivered in the case of Bagott v. Orr. The court referred to that case, and said that the taking of fish was for the immediate sustentation of man—a reason which did not apply to the taking of seaweed. Whatever the reasons may have been which caused the court to make a distinction between the fish and their shells, the distinction certainly now exists; and while it is unlawful to take away from the shore any shells, sand, pebbles, or seaweed, it is perfectly lawful to carry away any shellfish that may be found there.

Here we may leave the subject. Sufficient has been said to show the reader how much of the liberty of doing what he likes on the seashore is entirely due to the goodwill of such as have the power, if they choose to use it, of very seriously curtailing that liberty. Happily, by far the greater portion of our shore is still the property of the Crown, which is never likely to enforce its strict rights to the curtailing of the reasonable liberty of the subject. These rights might, however, with general advantage, be much more strictly enforced than they are on some parts of our coasts, where sand, pebbles, and stones are being constantly carted away in large quantities, to the detriment of the beach and adjacent land.