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A question has for some years been under discussion, as to whether the Crown or the Duchy of Cornwall is entitled to the minerals under the coast surrounding the County of Cornwall below high water ; and pending the settlement of this point, the leases which have been granted of such minerals, have been made conjointly by the Commissioners of Her Majesty's Woods and the Council of His Royal Highness the Prince of Wales, the royalties being paid to an account at Messieurs Coutts and Company's, opened in the joint names of one of the Commissioners of Her Majesty's Woods and the Treasurer of His Royal Highness.
A considerable fund has thus accumulated ; and as it is desirable that the question of right to the minerals and royalties should now be finally determined, the following statement is submitted for the joint opinion of the Law Officers of the Crown and of the Duchy on that point.
It is submitted, that for the purpose of determining this question, the minerals must be divided into two distinct classes, viz., .such as lie under land which is situate between high and low water mark ; and secondly, such as lie under land to the seaward of low water mark ; and between these two classes, there seems to be this very important distinction, viz., that the first class is within, and the second class is without, the County of Cornwall.
1st. As to the minerals under land between high and low water mark. All land lying between high and low water mark at ordinary tides, is primá facie the property of the Crown. Co. Litt. 107 & 260, b. ; Black. Com. 264 ; Hale, De Jure Maris, 11 & 18.
A subject may, however, acquire a right of property in such land, either by express Grant from the Crown or by the exercise of Acts of Ownership over it, sufficient either to induce the presumption of a Grant not now in existence, or to show that by a Grant of a manor or district, in general terms, the sea-shore was within such manor or district, and therefore passed to the Grantee. Hale, De Jure Maris, p. 17, 18 ; Callis on Sewers, p. 53 ; Constables Case, 5 Co. 107 ; the Duke of Beaufort v. the Corporation of Swansea, 3 Exch. Rep. 413.
2nd. As to the minerals under the bed of the sea below low water mark. The British seas, not only as regards the maritime jurisdiction, but also as to the ownership of the fundum or soil at the bottom of them, are vested in the Crown. 1 Roll, 5 Lib. 15,2, 168, 170, Lib. 42 and 45. Selden's Mare Clausum, Lib. 2, Chap. 2.
The jurisdiction and consequent ownership of the Crown, as Lord of the Sea, has been defined, with respect to the British Channel, to extend midway between England and France, and to the middle of the sea between England and Spain, 3 Leon. 73, 5 Com. Dig. 102.
The jurisdiction and limits of a county bordering upon the main sea terminate at low water mark. Beyond that boundary the jurisdiction of the Sovereign (as exercised by the Court of Admiralty) always exists, and is not dependant upon the flowing of the tide, as it is with regard to land between high and low water mark. Cross v. Diggs, , Siderfin´s Report, 158, when it was decided that a suit for the profits of the beaconage of a rock in the sea, near to the coast of Cornwall, was properly instituted in the Court of Admiralty.
A subject may have the grounds of the sea to low water mark by prescription, but no custom can extend the ownership of the, subject further. Callis on Sewers, p. 53, and in Constable's case, already referred to, it was held that the soil on which the sea ebbs "and flows, i.e. between the high water mark and low water mark, may be parcel of the manor of a subject."
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