otherwise injured the said port and harbour, and rendered the same insecure and incommodious, whereby the said port and harbour then and there became, and was, and from thence hath been, and still is, greatly obstructed and choked up, narrowed, and rendered insecure and incommodious, so that the liege &c. of George III., could not, and the liege subjects of George IV., during the reign of &c., could not, and the liege subjects of William IV., now King, during the reign of &c., and other persons, could not, nor yet can, use the said port and harbour for the exportation and importation of goods and merchandizes. there, and for the receiving and sheltering of ships and vessels in times of tempests, and other times of danger and distress of weather, and for other purposes of safe and commodious navigation, and could not and cannot use the said port and harbour without imminent hazard and danger of destruction of their ships, lighters, boats and other vessels, and danger and peril of the lives of those navigating the same, and loss and damage of the goods and merchandizes laden on board thereof, to the great damage and common nuisance of all the liege &c. and other persons using the said port and harbour, as aforesaid; against the peace of his said late Majesty King George III., his crown and dignity; also against the peace of his said late Majesty King George IV., his crown &c.; also against the peace of our said lord the now King, his crown &c.

The second count stated that, before the committing &c. (not saying from time immemorial), there was, and still is, a certain other ancient harbour, &c. (not stating it to be a port); and that the defendants unlawfully, &c., did erect, &c., in the said lastmentioned harbour, divers stages, &c. (not stating that they projected into the harbour), composed of piles, &c., and also divers large quantities of earth, &c., to wit 100,000 cart loads &c., and unlawfully and injuriously kept and continued &c., and thereby &c. (describing the injury to the "harbour" as to the "port and harbour" in the first count).

The third count was like the second, except that it omitted all the statements relative to the importation and exportation. of goods.

The fourth count stated that there was, and from time

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whereof &c. had been, an ancient harbour; and in other respects was like the third count.

The fifth count stated the harbour, &c. (not port), to be adjoining to the town of Scarborough, and omitted all the statements relative to the importation and exportation of goods; and charged that the defendants unlawfully, &c., did erect, &c., in the said last-mentioned harbour divers stages, &c., projecting into the said last-mentioned harbour, composed of piles, &c., and also divers large quantities of earth, &c., to wit 100,000 cart loads &c., and unlawfully and injuriously kept and continued &c., and thereby &c. (as before, mutatis mutandis).

The sixth count described the commencement of the nuisance, by "divers persons," as in the first count; and charged that the defendants, well knowing &c., on the said 1st of February, &c., and for a long time afterwards, to wit from the day and year last aforesaid *until the taking of this inquisition, unlawfully, &c., kept and continued, and caused &c., the last-mentioned stages, &c.

The seventh count recited the existence and use of the harbour as in the third count; and charged the creation of the nuisance, described as in the fifth count, by divers persons, and its continuation by the defendants.

The eighth count charged that the defendants, on the said 1st of February, &c., and on divers other &c., wrongfully and injuriously did choak up and greatly obstruct a certain other ancient harbour within the said county of York, to wit at Scarborough in the said county, by casting and throwing into the same divers large quantities of timber, earth, stones, and sand, to the great danger and common nuisance of all the liege &c., against the peace &c.

Plea, Not guilty.

On the trial before Lord Denman, Ch. J., at the Yorkshire Summer Assizes, 1833, a special verdict was found to the following effect.

That, during all the time within mentioned, there was an ancient port and harbour, commonly called the harbour of Scarborough, in the county of York, much used and frequented, for the purpose as well of shelter as of repairs, by ships and vessels navigating along the northern coast of this kingdom;

and that the prosecutors of the indictment are the commissioners for executing the powers and authorities contained in certain Acts of Parliament hereinafter mentioned. The verdict then set forth certain provisions of several Acts of Parliament respecting the management of the harbour and the power of the commissioners, namely, stat. *5 Geo. II. c. 11, stat. 25 Geo. II. c. 44, stat. (U. K.) 41 Geo. III. c. 69 (local and personal, public), stat. 46 Geo. III. c. 33 (local and personal, public), stat. 3 Geo. IV. e. xxii. (local and personal, public); and the verdict then found that, in and subsequently to the year 1817, the commissioners, with a view to improve and preserve the said harbour, did cause the same to be excavated, by removing divers large quantities of sand from the bottom thereof, and thereby the said harbour hath been deepened about four feet all along the upper part of the harbour; and that this process of excavation and deepening was carried on by the commissioners, amongst other places, within from ten to twenty feet of, and immediately before, the line of the piles hereinafter mentioned: that, in 1819, the commissioners, with a view further to improve the harbour, removed a pier called an island pier, which had previously stood in the harbour, and, in 1820, erected or completed the pier called the western pier, being the same mentioned in stat. 3 Geo. IV. c. xxii., and that, by such excavation, the harbour was materially improved, and rendered more secure and commodious for shipping: that, for many years previously to 1817, the defendants were, and thence have been, and at the respective times of committing the acts within complained of were, the owners of certain premises on the edge of the upper part of the harbour which premises, during all the time hereinbefore mentioned, had been used and enjoyed by the said defendants as a ship building yard, and for the purpose of building and repairing ships therein, and, for 200 years last past and upwards, had been used and enjoyed in like manner, and for the like purpose, by the owners thereof for the time being: that, during the space of seventy years last past and upwards, divers piles have been placed and driven into the sandy bottom in face of the said yard and premises of the defendants; upon which piles, plank stages, during all the time aforesaid, have been erected and placed by the owners

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[ *148 ]

for the time being of the yard and premises, and timber and
other materials used in building and repairing ships kept thereon;
and the same, during the time aforesaid, have been and are
proper and necessary for the purpose of carrying on the business.
of building or repairing ships on the said yard and premises:
that, until the planking of the same by the defendants as herein-
after mentioned, the said piles had always stood at certain
distances from one another, and that the water might flow freely
between them, and might spend itself on the sloping beach:
that the defendants, in order to protect their said premises,
afterwards, to wit, on 1st January, 1826, and on divers other
days and times between that day and 1st January, 1828, con-
nected together the said piles, by nailing transverse planks from
pile to pile, and inclosed the area contained within the said piles,
the same being thus rendered impervious to the tide, and pre-
senting perpendicular lines of frontage, five feet high from the
sand; and at ordinary spring tides there is now, at high water,
a depth of from two to three feet of water against and along the
said frontage: that, by the aforesaid works of the commissioners,
a greater rush of tide was and thence hath been caused to and
against the beach and sand in front of the said ship building
yard and premises of the defendants than had ever previously
been experienced, insomuch that, by reason thereof, the land
was washed down from before the front of the said yard and
premises of the defendants; and the said yard and premises,
and their plank stages aforesaid, at the times of the defendants
committing the acts within complained of, had become and were
thereby in danger of being swept away by the sea: that, "by the
defendants' works, the harbour is in some extreme cases rendered
less secure : that the said defendants have done nothing more
than is necessary to protect their property against the sea, in
consequence of the alterations made by the commissioners.
The case was argued in Trinity Term last (1).

Alexander, for the Crown, contended, first, that the acts of the commissioners were lawful; secondly, that the defendants

(1) June 1st, 1836. Before Lord Denman, Ch. J., Littledale, Patteson, and Williams, JJ.

were not entitled to interfere with the public rights in the harbour, even if the acts of the commissioners were illegal; thirdly, that the finding of the jury showed a legal nuisance, inasmuch as an injury was done to the harbour, and as none of the facts stated in the verdict afforded an answer.

Cresswell, for the defendants, contended, first, that every count charged the act to have been committed in the harbour, but that the verdict did not support this; secondly, that not public right was shown legally to exist which made the acts of the defendant unlawful; thirdly, that, at any rate, a contingent or trifling injury, like that shown by the verdict, was not the subject of indictment.

Alexander, in reply, contended that to render the harbour less commodious in extreme cases, as, for instance, of violent tempest, was a nuisance.

The following authorities were cited: Rex v. Pease (1). Hale, de Portibus Maris, c. 7 (2). Hale, de Jure Maris, c. 6 (3). The Attorney-General v. Burridge (4). The Attorney-General v. Parmeter (5). The Attorney-General v. Richards (6). Rex v. Lord Grosvenor (7). Rex v. Russell (8). Rex v. Ward (9). Rex v. Trafford (10). Trafford v. Rex (11). Rex v. The Commissioners of Sewers for Pagham, Sussex (12). Maris, c. 6 (13). Hale, de Jure Maris, c. 4 (14).

Blundell v. Catterall (15). Ball v. Herbert (16).

Hale, de Portibus
HOLROYD, J. in
Note (1) to Co.

Litt. 261 a. Sutton v. Clarke (17). 2 Roll. Abr. 564. Trespass (I.) pl. 1. Chichester v. Lethbridge (18). Williams's case (19). Hawk.

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(3) Harg. L. T. 36.

(4) 24 R. R. 705 (10 Price, 350).
(5) 24 R. R. 723, 745 (10 Price,
378, 412).

(6) 3 R. R. 632 (2 Anstr. 603).
(7) 20 R. R. 732 (2 Stark. 511).
(8) 30 R. R. 432 (6 B. & C. 366).
(9) 43 R. R. 364 (4 Ad. & El. 384).
(10) 1 B. & Ad. 874.