therefore produces no injury to the owner of the soil, for he continues to enjoy what he had before, viz. the interest in the soil, and consequently the improvement of the shore, and the liberty of fishing; the only operation of the grant is to erect a port which is open to the public (1). So much for the interest of the owners of the port in the soil or in the franchise. There is another interest worthy of consideration, viz. the interest in the soil of the shore contiguous to the port. If a subject have the property in the ripa or bank of a port, the king cannot grant a liberty to unlade upon this bank without the consent of the owner, for that would be a prejudice to the private interest of A., which cannot be taken from him without his consent. And therefore in the creation of a new port, either by proclamation or charter, it has been usual, says Lord Hale, to secure the interest in the shore beforehand, for building wharfs and quays, and houses of reception for merchandize. Although therefore, he says, the interest of the owner of the port and the interest in the adjacent shore are in their nature several, yet it rarely happens, but that the king or other owner of the port has a convenient portion of the shore or adjacent land at which wharfs, and quays, and warehouses may be built (2). The remaining species of the jus privatum, mentioned by Lord Hale as incident to a port, is, independently of the various liberties which a port town may acquire by the king's charter, or by prescription, or by act of parliament, the privilege of furnishing, if it be able, the provisions for the ships and mariners that come to the port, so that the port is not allowed to be forestalled, either by supplying provisions before the vessels arrive at it, or by erecting new buildings between the port and the sea, which may withdraw the mariners from the port, and tend also to deprive the king of his customs (3). It is said to be otherwise, if the building be erected above and not below the port, or if they be erected without the precincts of the port.

The duties or charges incident to ports are divided into two species; viz. first, those which arise from the jus dominii, or right of ownership in the property or franchise of a port, and secondly, those that are derived from the property in the adjacent shore. They are enumerated by Lord Hale with his

(1) 1 Hargr. Tr. 73. Hale de Port. Mar. c. 6.

1 Harg. 73. 76.

(3) Hale de Port. Mar. c. 6.

usual elaborate exactness. Of the former description of duties some are termed ordinary, or common, being such as are incident to the ownership of almost every port; others arise by special usage or prescription. The ordinary duties are, 1. Anchorage, or a toll for every anchor cast there, and sometimes it is payable, although there is no anchor (1). This duty properly and prima facie arises in respect of the property in the soil, and is an evidence of it. Sometimes, however, the anchorage becomes due to the owner of the port, although the adjacent shore belongs to another person, as is said to be the case with respect to the harbour of Plymouth. A similar duty is mentioned called ballastage, or a toll for the privilege of taking up ballast from the bottom of the port. This arises from the property in the soil. Such a liberty in the Thames is said to have been granted by the king to the Trinity House without any toll for it (2). Other port duties that may be due to the owner of the port by special custom or prescription are termed by Lord Hale, russelage, keelage, average primage, and pettloading, lestage, and prisage (3). These duties were sometimes called tolls, sometimes consuetudines; and when they were in the king's hands, and not vested in a subject by grant or by prescription, the king by his charter might and often did grant discharges of them, as well as of other inland tolls; but when they had been previously vested in the subject by grant or prescription, the king could not discharge them by his charter (4). The duties which are considered by Lord Hale to be claimable in respect of the interest in the adjacent shore, though the property in the shore is usually vested in the owner of the port, are, 1. Towage. 2. Moorage. 3. Terrage (5). 4. Cranage (6). 5. Wharfage (7) or keyage. 6. Housellage. 7. Weighage (8), called either tronage for weighing wool at the king's beam, or pesage, for weighing other avoirdupoise goods. 8. Measurage (8); and there are some others of the same description (9). The statute

(1) Vide the case of the Loudon Wharfs, 1 Sir W. Bla. Rep. 413426.

(2) Harg. Hale de Port. Mar. c. 6. p. 74.

(3) Vide Abbott on Shipping, p. 3. c. 6. p. 282.

(4) Hale de Port. Mar. c. Harg. 75.

(5) See more of these, post.

6.

(6) Vide Bolt v. Stennett, 8T. R. 606. and post.

(7) Vide 1 Bla. Rep. 581. & post. (8) Mayor of Yarmouth v. Eaton, 3 Burr. 1402. Mayor, &c. of London v. Hunt, 3 Lev. 37. Assumpsit lies for weighage against the master of the ship, though he be not the owner.

(9) Harg, Hale de Port. Mar. c. 6. p. 76.

22 Car. 2. c. 11. having provided for the establishment of wharfs and quays at London, and rendered it lawful for any person to lade or unlade goods thereat, on paying wharfage and cranage to the respective proprietors, at the rates appointed by the king in council, it was determined that the wharfingers in London were not entitled to wharfage and cranage for goods unladen into lighters out of barges fastened to their wharfs. The act gives a duty for wharfage and cranage, not for anchorage or mooring; and therefore it seems necessary that the goods should arrive at the wharf. And the order in council cannot extend the claim beyond the meaning of the act of parliament. (1)

The title to these duties may arise, either first, by convention or agreement; or secondly, by prescription or custom; or thirdly, by charter or grant. With respect to conventional duties it has been before observed, that no man can erect a public port de novo without the king's licence; neither could he, at common law, take any fixed rates for landing goods without the precincts of a port, although he might make a particular agreement with every individual who came upon his property to land goods with his consent, provided it was not unlawful to land them there (2). Any subject, however, may, at common law, for his own private advantage, set up a wharf or crane in a port town, and take what rates he can agree upon with his customers for cranage, wharfage, housellage, pesage, although we have already shewn that this general right was limited for the purpose of securing the customs by the stat. of Eliz. and Car. (3) But if the king or a subject have a public wharf to which all persons that arrive at the port must come and lade or unlade goods, either because they are the only wharfs licensed by the queen (4), or because there is no other wharf at the port, in such a case no arbitrary or excessive duties can be taken for cranage, wharfage, or pesage, &c.; but the duties must be reasonable and moderate, although settled by the king's licence or charter, for the wharfcrane and - other conveniences are now affected with a public interest and cease to be merely juris privati, in the same manner, says Lord

(1) Stephen v. Coster, 1 Bla. Rep. 426.

(2) Morgan's case, 11 Car. K. B. ante, 7, 8. Hale L. Tr. c. 3.

1 Harg. 51. 77. 2 Roll. Abr. 171.
1. 10. Com. Dig. Toll, F.
(3) Ante, 8.

(4) 1 Eliz. c. 11. & ante, 8. 10.

Hale, as if a man set out a street in new building on his own land, the public acquire an interest in it. But, it is further observed by the same author, the king may, by his charter, license the owner to take reasonable tolls, when a new port or wharf is dedicated to the public, because the owner is to be at the charge of maintaining and repairing it, and is to find the conveniences for using it, as cranes and weights (1). If an action be brought for a trespass in using a crane, it is sufficient for the defendant to plead, that the quay on which the crane was erected was a public, open, and lawful quay, within the port and city of London, between London bridge and Blackwall, for the landing of all customable goods of the merchants importing them, for a reasonable compensation to be paid by the merchants to the owner of the quay, that the crane was necessary for unlading goods, and was used by the defendant for that purpose (2). 2. The second species of title by which duties of this nature may be claimed, is by prescription. Thus, in almost all antient ports, the duties above-mentioned of cranage, wharfage, housellage, &c. are settled by long usage and prescription; and the sums to be paid are limited: sometimes they remain vested in the king or lord of the port, but they are more frequently granted to the towns, called the capita portuum, and become parcel of their farms, as in Newcastle, Kingstonupon Hull, and other places. It was held, therefore, in an action brought for port duties by the corporation of Yarmouth, that it was a sufficient title for the corporation to shew that the mayor, aldermen, burgesses, and commonalty of the borough of Great Yarmouth, were entitled to a duty or toll called measurage from every merchant exporting corn or grain from the port of Great Yarmouth; that is to say, to a duty of two-pence for every last of corn or grain measured and exported; and so to shew that the defendant became liable to the duty for corn exported by him, without stating that the corporation was the owner of the port, or that there was any consideration for the claim, or any other title but the prescriptive right (3). And the same point was determined in favour of the corporation of Exeter (4). So a claim by the corporation of London, for weighage of goods brought

(1) Hale de Port. Mar. c. 6. p. 78.

(2) Bolt v. Stemett, 8 T. R. 606. 608. note b.

(3) Mayor, &c. of Yarmouth v.

Eaton, 3 Burr. 1402. Mayor of
Exeter v. Trimlet, id. 1405.

(4) Mayor of Exeter v. Trimlet, 3 Burr. 1405. C. P.

into the port of London, was holden good; for it was said, the liberty of bringing goods into a port which is of itself a place of security for vessels, affords a sufficient consideration for the payment of the duty (1). A prescription, therefore, for toll as incident to a port, is valid, without alleging any other consideration; and, indeed, the owner of a port is bound to repair it, and if he neglect, is liable to be indicted (2). For a similar reason, a custom in the city of London that the porterage from any vessel on the river, and meterage of corn, roots, &c. imported or exported upwards from Staines bridge to London bridge, and downwards as far as Yendal in Kent, and that none but porters free of the city shall carry such corn, &c. has been held good, principally on account of the obligation of the city to provide porters skilful in such employment, and of the consequent benefit derived by the merchant from having proper persons ready to assist him as soon as he comes into port, and not being obliged to search for porters who may be strangers to him (3). And where the lord of a manor, in consideration of keeping and repairing a wharf within his manor, presumed for toll on all goods landed within the manor though not at the wharf, such prescription was holden good, as an easement of the manor, all the lands of which must be presumed to have been originally in the hands of the lord, and therefore such toll was not to be considered as a toll traverse and not a toll thorough (4). But where the lord, in consideration of repairing a quay, claimed toll on all goods brought into the river, although landed at a distance from the quay and without the manor, the prescription was held void, although Lord Hale said the case might have been different, if such a claim had been made in respect of a port, and for goods brought within it (5). Independently, therefore, of a benefit derived from the use of a port, quay, or wharf, &c. no claim can be supported for a toll for passing along a public navigable river running through the claimant's manor, for such a prescription is against the common right of all subjects of the realm (6);

(1) Mayor, &c. of London v. Hunt, 3 Lev. 37.

(2) Wilkes v. Kirby, 2 Lutw. 1519. 1523.

(3) Per Pratt, C. J. in Fazakerly v. Wiltshire, 1 Stra. 468.

(4) Colton v. Smith, Cowp. 47. Crispe v. Belwood, 3 Lev. 424.

cited Prideaux v. Warne, 2 Lev. 97.

(5) Prideaux v. Warne, 2 Lev. 96. 1 Mod. 104. S. C. Freeman's Rep. 355. S. C.

(6) Mavor, &c. of Nottingham v. Lambert, Willes, 111.