own defence, the governments of the refpective countries neceffarily have a controul touching the ufe that is made of fuch things; which, therefore, are termed public ". AMONG public things are reckoned the feas, which wash the coafts of any state. Hence the king's fovereignty in the British feas. So a fhore, which, in the civil law, is explained to be fo far as the greatest winter tides do run, ("which must be understood of ordinary tides, and not of extraordinary fpring tides P"), to that extent is public, fo far as it may be used, either for navigation, or the protection of trade, or the defence of the state; and, by our conftant practice, proprietors who border on the fea inclofe, as Sir George Mackenzie defines pall things to be those which are common only to a nation or people." This, indeed, is the most usual defition among the civilians. Yet the precife criterion feems to lie, not in extent of the ufe, but in the property being vested in the state; which, on the one hand, may controul, and limit, and reftrain, the native inhabitants in the ufe thereof, and, as we fhall fee, does fo in various inftances; and, on the other, neither can jusly nor reafonably exclude foreigners from the fame ufe thereof, unless particular circunftances render it neceffary to do fo. Accordingly, Mr. Erskine, Seeing the defect, adds, "and to thofe ftrangers to whom it allows the liberty of trade." (B. ii, t. I, § 4.) But that the gift of the description lies in the property and power of reasonable controul in the government, and not in any diftinction between natives and foreigners as to the actual enjoyment of the ufe, appears from the very examples which ar George Mackenzie gives of his own definition, " rivers, harbours, and the right of fishing." Now, on the one hand, it is notorious, that all the native inhabitants do not enjoy this right of fishing; and, on the other hand, a foreigner, from whom no reasonable ground of danger is apprehended, is entitled to the use of the harbour, to fail up the river, and to travel on the high roads. To prevent him would be an act of arbitrary power, not more reconcilable to justice than in the cafe of a native. Accordingly, while Mr. Erskine mentions highways among other examples of public things, lord Stair fays exprefsly, "ways and paffages in land are common to all, and may not justly be refufed by one nation to another." (laft. B. ii, t. 1, 5.) Indeed, the famous controversy, mare liberum an mare claufum, resolves into a question of majus aut minus. Even the Dutch jurifconfults do not deny the legitimate appropriation of creeks, and small corners of the fea. P Stair, B. ii, t. 1, § 5. § 3 DIVISION DIVISION $3. their own property, grounds far within the sea mark 9. So OF THINGS alfo public rivers, by which writers generally understand PUBLIC. navigable rivers, or thofe on which floats may be carried to navigable rivers; or, perhaps, any river which is beneficial to the public, by affording a conveyance by rafts for commodities to the feas, wherein, therefore, no building or in. Ersk. B. ii, t. 6, § 17. And pref. Balfour, concerning the flood mark, observes, “ It is leafym to ony mariner, mafter of fhip, or uther perfoun, to loufe or laiden his fhip, or boat, and lay or place the famin, or feftin his anchor within ye flood mark, in all partis of this realm, but impedi. ment or obstacle to be made to him yairanent be ony perfoun; bot he may do nane of ye premiffes outwith ye flood mark in ony man's landis, poffeffions, or heretage, except he do ye famin with licence and good will. 4th July 1498, Al. Meldrum of Segie, Contra Burgh of Cowper, i t. c. 98. (Sea Lawis, c. 56, Practics, p. 626.) "It is leafum to all our foverane lordis liegees to ufe and exerce ony induftrie within ye flood mark of ye fea; quia ufus littoris eß communis omnium. And thairfor gif ony man has ony landis lyand adjacent and contigue to ye fea, he may not stop nor mak impediment to ony perfoun to gather wilkis, cockles, limpettis, mufcles, and uther small fish, or bait for taking of fish, upon ye fandis or craigis within ye flood mark foiranent his landis. 24th May 1549, the Town of Craill against Grefill Meldrum, i t. c. 680." (Ibid.) "Na man havand landis pertenand to him, lyand adjacent to ye fea, may mak ftop, troubill, or moleft ye king, or his lieges, to win ftanes, quarrel, or ony uther thing to his awin profit or commoditie within ye flude mark of the fea foiranent the faidis landis, except he quha stoppis ye uther be speciallie infeft within the faid flood mark, als weill as without ya famin. 29th July 1500. The King against the Laird of Seafield." (lb.) Erk. B. ii, t. 6, § 17. $ Sir James Grant'against the duke of Gordon, 9th March 1781. The river Spey is navigated by rafts, and the inhabitants of the adjacent country have for ages made use of it for conveying downwards to the fea their timber and other commodities. The duke having interrupted the naviga tion by fome erections of cruives for his falmon fishing, fome adjacent heritors brought a procefs of declarator, concluding to have it found, "that they had a right at all times to fend floats of timber down tạc river, and to the navigation thereof, in every way of which it was capable, and to have every obitrustion to this right removed; and that the duke of Gordon fhould be obliged to remove all dikes, bracs, and other bulwarks impeding the navigation, and fhould be prohibited from erecting fuch for the future.” The learned reporter fays: "The court, in giving their opinions, did not feem to regard the diftinction betwixt public or navigable, and privat $3. DIVISION OF THINGS terruption is allowable; and highways and bridges, which, for the fame reason, the king cannot demolish, unless that measure shall become neceffary for the public safety, in cafe -PUBLIC. of a hoftile invafion, or other fuch exigency ". MINORA. BUT the king may, by a fpecial grant, transfer the right -REGALIA of a public ferry or a free port: the grantee, on the one hand, having right to levy anchorage, fhore dues, and other fuch reasonable impofitions; and, on the other hand, being bound to keep boats for the accommodation of the public, and the harbour in fufficient repair. In like manner, the crown can grant a right to the wreck or fea-ware and seaweeds within the fea-mark; or a right to a muffel-fcalp, either in the fea or public rivers; the patrimonial advanages which arife from fuch rights being confidered as regalia minora. Such alfo are forefts, woods, and parks, (or large tracts of ground where deer have been in ufe to be kept * ;) rivers. They confidered a river, by Sir James Colquhoun against the gation of a public river." Obferved u Erfk. B. ii, t. 6, § 17. * 15th June 1769, magistrates of THINGS PUBLIC. -REGALIA MINORA. BOOK IV. $3. and falmon fishings which are not carried by charter withDIVISION OF out an exprefs claufe; but the falmon themselves, like other game, belong to the catcher. Large whales, and fuch leier ones as may not be drawn from the water to the nearest part of the land on a wain with fix oxen, belong to the king as royal fishes. So, in like manner, treasures hid under ground, ftrayed or waif cattle, if no owner appear within a year, belong to the king, or to the theriff as his donator: wreckgoods, that is, where the wreck has been fo total, that no living creature has efcaped alive, fall under the rights of admiralty. Treasure. Wreck. -RES UN1 TIS. RES univerfitatis, which our writers take notice of after VERSITA- the civilians, are things' proper only to a corporation or city, or trading company; as town houses, market places, &c. &c. Such is the more general claffification, which may here fuffice, without pursuing things (as poffeffed by individuals) through their various other defcriptions, fuch as heritable and moveable, urban and rural. a Leg. Forreftarum, § 17. But no whales have, for at least a century past, been claimed either by the king, or by the admiral his donatary, but fuch as were of a fize confiderably larger than that there defcribed. 17 Ed. II, c. 11. This right has feldom been ftri&ly enforced; the property is reftored to the owners, claiming within a reaionable period, and paying a falvage. In the cafe of ftranded veffels, it is the duty of juftices of peace, and all other magiftrates and officers of the law, to give their affiftance in faving and protecting the veffels and cargoes for those interested therein, under abundance of ftatutes, as acts 12 Anne, feff. 2, c. 18; 4 Geo. I, c. 12; 26 Geo. II, c. 19. They are d rected to command the conftables to fummon as many men as shall be thought neceffary for the affistance of the ship. A veffel was lately stranded in Orkney. An agent for the owners was taking measures for felling the cargo. The vice-admiral-depute interdicted him from doing fo. The court of feffion found the whole proceedings of the said vice-admiral and procurator fifcal, tending to obstruct the fale, were illegal and unwarrant. ed, and found the defender confequently liable in damages. Ift Feb. 1805, Courney against the vice-admiral of Orkney and Shetland, the vice-admiral-depute, and the procurator fifcal. CHAP. II. R Common Property. IGHTS in common, as matres difcordiarum, are no favourites of the Scottish law, which, indeed, interpofes chiefly to diffolve them, and feparate the interests of individuals. The wife and falutary expedient, so happily devifed for attaining this object in the cafe of landed property poff ffed in commonty, will come under our view among other measures employed for the improvement of the country. Here, however, it may be proper to take notice of fuch rights and obligations as obtain in those instances, where the community does not admit of being separated and disolved. ST. IN GEN ERAL. § 2. TENEMENT FERENT II. WHERE the different floors of the fame tenement belong to different proprietors, "the house cannot be faid to WITH DIFfuffer a full or complete divifion. The proprietor of the ground-floor is bound, merely by the nature and condition LONGING of his property, without any fervitude, not only to bear the weight of the upper ftory, but to repair his own property, TO DIF FERENT |