picage, terrage, and scot and gild, hildage, scuttage," &c. Then, is anchorage within the charter? There is no such word used; and "terrage," which is found in the charter, merely means bringing to land, a due "for unloading goods before they come up to the common key" (Hale de Portibus Maris; p. 76), and not a breaking of the soil. The plaintiffs' right must be assumed to have had existence prior to the statute of Quia Emptores (18 Ed. 1), and therefore, be it a claim of toll, or for a compensation for the use of the land, it was not competent to the Crown to derogate from its own grant: Chitty's Prerogatives of the Crown, p. 195.(a) [WILLIAMS, J.-It is quite clear that this is a claim of toll. You cannot have an uniform fixed *410] toll without a Royal grant. You may take a compensation for passing over your land, but not a uniform fixed toll.] This is not a claim of toll traverse.

Hawkins, Q. C., and Joyce, in support of the second rule.-The soil of the sea below low-water mark is vested in the Crown, and the Crown has no power to grant it to a subject, in derogation of the rights of the public. In an Anonymous Case, 1 Campb. 517, n., Wood B., says: "A navigable river is a public highway; and all persons have a right to come there in ships, and to unload, moor, and stay there as long as they please. The privilege of the plaintiff must be subservient to the rights of the public. It would be of very mischievous consequence if the owner of a fishery could prescribe to the public how and where they are to moor in a navigable river. The defendant had a right to moor and remain where his ship lay as long as convenience required: yet, if he acted wantonly and maliciously for the purpose of injuring the fishery, the plaintiff is entitled to a verdict, but not otherwise." The Crown itself could not claim anchorage in this spot: and, if so, it was not competent to it to grant such a right to a subject. A grant of the soil to a *411] *subject could only be made subservient to the rights of the public. The grant of a "fishery" conveys, not a territorial, but an incorporeal hereditament only: and "the holder of an exclusive prescriptive right of fishery in public waters enjoys it subservient to the superior and sacred right of the public to use an arm of the sea or river for the purposes of navigation:" Chitty's Prerogatives of the Crown, c. 8, s. 7, p. 143. The title under which the Company claim commences with the deeds of the 11th and 12th of October, 1791, which purport to be a grant, not by the Crown, but by Lord Bolinbroke to Foad and Smith: and the conveying part professes to grant the manor and the fishery; but not a word is said about the soil or about anchorage, nor as to the extent of either. The deed of 1792, by which the manor was divided, professes for the first time to convey (a) In Hale de Portibus Maris, p. 75, it is said: "These kinds of duties were sometimes called tolls, sometimes consuetudines; touching which, when they were in the King's hand, not lodged in a subject by grant or prescription, the King by his charter might, and often did, grant discharges, as well as of other inland tolls. But, when they were before lodged in a subject by grant or prescription, the King could not discharge these by his charter; and by this we may the better understand those ancient charters. Vide Cart. Antiq. E. E. n. 8, the grant of R. 1 to the Abbots of Peterborough to be quit of all toll in foris et nundinis et omni transitu pontium maris et portuum maris: the like, ibid. L. 11, 26, by Hen. 2 to the Abbot de loco Sancti Edmundi, to be quit of toll in omnibus foris et nundinis, et in omni transitu pontium viârum et maris per totum regnum; and in some cases to be quit de omnibus consuetudinibus, in tide and of tide, by strand and by stream, &c., which are not intended of customs properly so called, which is the business of the third part of this book."

"the ground and soil of the fishery." It recites, that, "within the limits of the manor of Whitstable there is, and for many hundred years now last past hath been, a fishery for the growth and improvement of oysters, extending from the sea-beach for a very considerable distance into the sea:" and then it professes to grant to the Company "all the said royalty of fishery or oyster-dredging, and the right of taking oysters and other fish within the said manor, and the ground and soil of the said fishery, extending as hereinafter is mentioned:" and then it goes on to define the boundary of the fishery, but it describes only the boundary between the fishery and the terrestrial part of the manor from which it is severed,- "from henceforth the south and south-east sides of the sea-beach at Whitstable aforesaid, as the same is and hereafter shall be thrown up by the sea from time to time, shall be considered and taken as the boundary between the lands of them the said Edward Foad, John Nutt, and Stephen Salisbury, their heirs and assigns, and the lands of the said Thomas Foord, his heirs and assigns." Then comes the conveyance of [*412 June, 1793, which vested the fishery, and the ground and soil thereof, in the Company. There was therefore no actual conveyance of the soil below low-water mark. If any right to anchorage-toll ever existed, it was a right vested in the lord of the manor as incident to the manor, and so lost by the severance. The defendant Gann, as a resident and shipowner at Whitstable, was by the words of the charter of Edward the 4th clearly exempted from this impost.

ERLE, C. J.-I am of opinion that the Company have established their right to the anchorage in contest in these cases. The first piece of evidence was the deed of October, 1791, by which the manor and fishery of Whitstable,-the latter being described as extending from the sea-beach for a very considerable distance into the sea,—were conveyed to one Edward Foad and one James Smith. As far as can be ascertained, the oyster-beds extended about two miles out to sea: and, though the first deed does not in terms profess to convey the soil of the fishery, the subsequent deeds, confirmed by the Act of parliament, do expressly convey the soil as far as the oyster-beds extend. Besides that conveyance, there was some evidence of user by taking 18. for anchorage from ships anchoring within the locus in quo so early as the year 1775; and there was strong evidence to show that since the date of the conveyance of the fishery to them the Company had uniformly enforced the claim against all ships dropping their anchors within the limits of the fishery. Every presumption is to be made in favour of long usage: and, though the evidence only went back to the year 1775, it has been repeatedly laid down, that, when a continuous user has been shown for a much shorter *period [*413 than that shown here (twenty years' user), in the absence of evidence to the contrary, the jury will be warranted in inferring its existence beyond the time of legal memory. There was therefore evidence in this case from which the jury were warranted in inferring that the anchorage in question had been enforced as far back as the time of legal memory: and there is nothing to prevent the plaintiffs from succeeding, unless it be shown that it is contrary to law to set up such a claim to be exercised below low-water mark. I have listened attentively to the arguments which have been urged on the part of Mr. Gann; but no authority has been brought to our notice

which negatives the possibility of the existence of such a right. The soil of the seashore to the extent of three miles from the beach is vested in the Crown: and I am not aware of any rule of law which prevents the Crown from granting to a subject that which is vested in itself. And, if the Crown did grant the soil of the shore in question, it may well be that the right of taking an anchorage-toll of 1s. was granted with it. Considering the nature of the property, an oysterfishery, it seems to me that there is the strongest possible presumption that the soil would be granted, and the right to the 1s. compensation for anchoring there likewise. Nothing has been cited to show that such a grant could not be made; and many of the passages cited from Hale go to show that a district or arm of the sea, or the soil of a navigable river, may be vested in a subject: and it is most clearly for the interest of the public that a grant should be made for the sustenance of a profitable fishery. There is no authority against it; and the case of The Duke of Somerset v. Fogwell, 5 B. & C. 875 (E. C. L. R. vol. 11), is an authority to show, that, where the terms of the grant under which the claim is made are unknown, the owner of a several *414] *fishery may be presumed to be the owner of the soil. Now, the existence of this fishery time out of mind is recited in the Act of 1793. There is nothing to show that at the time of the original grant the soil was not granted. The nature of the grant would render it necessary that the soil should be granted; and I think we are bound to infer from the usage that the toll was granted in respect of the use of the soil. Our attention was called to the case of The Mayor, &c., of Colchester v. Brooke, 7 Q. B. 339 (E. C. L. R. vol. 53), in which the Court lay down in very broad terms the right of the subject to the use of the seas and navigable rivers for the passage and mooring of vessels. But the decision we come to on the present occasion does not in the smallest degree interfere with the rights of all persons to navigate and moor their ships in the waters in question. That right is not inconsistent with their liability to pay a toll for the dropping of an anchor in the soil of the Company. There is nothing to show that the law prohibits the enforcement of such a toll by the owners of the soil, and there is authority to show that such a claim may lawfully be made.

Then it was contended, that, assuming that the right to take this toll for anchorage existed from time immemorial, it existed when that which has been called the terrestrial portion of the manor and the fishery were united, and was incident to the manor, and destroyed by the severance effected by the deed of October, 1792, as courts and services incident to a manor are destroyed by the severance of the manor by act of the parties. I think there are two decisive answers to that objection. In the first place, the 1s. for anchorage would not be a service incident to the manor, but a payment or compensation in respect of the use of the soil of that portion of the manor which was conveyed to the plaintiffs, and therefore, on the division of the *415] manor, would properly go with that part. And, further, if some rights are extinguished by severance of the manor by the act of the parties, the passages cited from Scriven on Copyholds show that they are not so extinguished where the severance takes place by the act of the law: and, the severance of this manor having been

effected under the sanction and authority of an Act of parliament, it may be said to have been severed by the act of the law. But the strongest answer is that before given, viz. that the 1s. toll for anchorage would go to the parties to whom the soil of that portion of the manor is conveyed.

The third objection which was urged, was, that the defendant, Gann, as an inhabitaut of a limb or member of one of the Cinque Ports, was exempted from this toll by the charter of Edward the 4th, which exempts the barons and good men of the Cinque Ports from a great variety of tolls and imposts. Now, one answer to this objection is, that "anchorage" is not one of the tolls mentioned in that charter. That which approaches the nearest to it is "terrage," which Lord Hale defines to be a toll or custom for putting goods or merchandise on the land or shore, a thing entirely different from the claim here. I think it may be open to very great doubt whether any person coming to reside in any of the Cinque Ports could, assuming the exemption to exist, claim to be entitled to it. Moreover, the right to the toll must have existed as early at least as the statute Quia Emptores, 18 E. 1: and, if it existed in the reign of Edward the First, it was not competent to a subsequent monarch to derogate from the grant of his predecessor. For these reasons, I think Mr. Gann cannot set up any valid exemption by reason of the charter of the Cinque Ports.

In the other action of Gann v. Johnson, the main question was whether the Company were by law *authorized to distrain for the 1s. for anchorage. The evidence of usage undoubtedly is [*416 very slight. On three occasions the claim appears to have been disputed, and as many times was it enforced by distress. There was no evidence of any instance where the claim had been resisted and such resistance had not been followed by a distress, the vessel remaining within reach of the officers of the manor or of the Company. But I do not think my judgment would rest on the right being to be inferred from usage only. I think there is a very strong analogy between this and the case of goods brought upon the soil of the lord who has a market or fair, in which case it is laid down that such goods are distrainable for toll, inasmuch as if there were no market or fair the party bringing the goods upon the land would be a trespasser. The right to the toll and the right to distrain for it are incident to the right to bring the goods to the market or fair. As the lord, says Chief Baron Gilbert, might have distrained for the damage if they had come without a right, so it is to be presumed to be an incident to their right to come. that he should have a right to distrain for the toll. The law is clear, that, where a lord has a fair or market by prescription, and is used to take toll, if such toll be not paid the lord may seize any of the cattle. so sold, and retain them till satisfaction be made for the toll, for, the prescription is built on a grant from the King, and the grant is made for the public utility." I think the analogy to be drawn from that extends to the present case; and that, the right to the anchorage-toll existing, as I think it does, the right to enforce its payment by distress is an incident annexed thereto by law. The usage is only material as showing that there is nothing to prevent that presumption in this case. The result is, that, in my opinion, the Company are entitled to judg

ment in the action brought by them for the *toll, and that they

*417] are likewise entitled to judgment in the action brought virtually

against them for the distress.

WILLIAMS, J.-I am entirely of the same opinion. I do not propose to add anything to what the Lord Chief Justice has said upon the general points of the case. I will merely say a word as to the proposition contended for by Mr. Hawkins, that there could not be a legal right in a subject to claim a toll or due for dropping an anchor on a spot which is always covered by the sea. It is said that no amount of usage can establish such a claim, because it could not by possibility have a legal origin. That certainly is an argument which but for the history of our law would be a forcible one. It is said that the public have an unquestionable right to navigate at their free will and pleasure in all navigable rivers or arms of the sea; and that, if they have that right, it follows that they have the right, as incident thereto, to drop their anchors there. The same argument may be and has been urged as to several fisheries claimed in navigable rivers where the tide flows and reflows. The right of fishing in a navigable river or an arm of the sea primâ facie belongs to the public at large. But before Magna Charta the Monarchs of this realm sometimes thought themselves entitled to abridge the rights of the public in this respect: and that was the origin of the monopoly of several fisheries. Since Magna Charta, that can no longer be done. As to the power of the Crown to transfer to a subject the property in the seashore, there can be no doubt. This is distinctly laid down in the passage cited by Mr. Denman from Hale de Portibus Maris, p. 72, where it is said," As touching the first of these, the right of the lord to the port, we have before shown, that, though of common right the King is primâ facie owner and *lord of every public seaport, yet a

*418] subject may by charter or prescription be lord or owner of it."

That seems to show that by a grant in early times it may have happened that the soil of this marine manor, as it has been called, may have been transferred by the Crown to a subject, from whom the fishery Company derive their title in the manner shown by the evidence. It does not, however, follow, because a part of the soil of the seashore has by grant of the Crown become vested in a subject, that therefore the right to take a toll for anchorage is acquired. The conveyance or transfer of the soil from the Crown to a subject superinduces this consequence, that the owner may prevent the public from using his soil without his permission: but the right to demand and enforce a toll for its use does not necessarily follow. Toll is a matter of Royal grant. That is the reason of the passage from Hale to which I referred in the course of the argument, where it is said, "The ownership of propriety is, where the King, or a subject by charter or prescription, is the owner of the soil of a creek or haven where ships may safely arrive and come to shore. This interest of propriety may, as hath been shown, belong to a subject. But he hath not thereby the franchise of a port; neither can he so use or employ it, unless he hath had that liberty time out of mind, or by the King's charter. Indeed, he may bring thither for his own private use his own boats and vessels, to carry off and bring in his own goods that are not customable, as, fish, &c., but he may not use it as a public port, or admit