|A bathing machine, of the sort at issue in Blundell v Catterall|
Some of my favorite parts of Lord Carnwath's concurrence:
106. At least since Brinckman v Matley  2 Ch 313, the decision of the Court of King’s Bench in Blundell v Catterall (1821) 5 B & Ald 268 has been taken as establishing at Court of Appeal level that under English law the public has no general right to go onto the foreshore for the purpose of bathing or other recreation.... Not even the strong dissenting judgment of Best J in the earlier case, the advocacy of a future Lord Chancellor (Buckmaster KC), nor the criticism of three textbook writers cited by him (p 320), were sufficient to persuade the court to revisit the issue, or even to call on opposing counsel. The members of the court were unanimous in their praise for the model judgment of Holroyd J, regarded it seems as “one of the finest examples” of how a judgment should be expressed (p 323)....
107. No doubt because judicial fashions have changed, I confess that I do not find the enthusiasm of the Court of Appeal for the judgment of Holroyd J altogether easy to share. Its erudite analysis of extracts from Justinian, Bracton, and Hale, and of obscure exchanges between the court and counsel in some early English cases, makes rather heavy reading to modern eyes.
108. It is also difficult to find the basis of the assertion by Vaughan Williams LJ that the majority judgments in the earlier case had been “recognised ever since by the whole of the profession as an accurate and binding assertion of the law” (p 322). In the intervening century, recreational use of the foreshore and the associated beaches had become an even more wide-spread and popular activity. As far as one knows, the public had continued to enjoy the pleasures of the beach without interference, and without anyone suggesting that they were mere trespassers. There is no record of anyone relying on the judgment in Blundell v Catterall to restrict such use. Nor were we referred to any evidence of support from legal commentators to set against the three sources relied on by the appellants (Hall on the Seashore, Phear’s Rights of Water, and Stuart Moore on the Foreshore).
123. Somewhat paradoxically, although the subsequent development of the law has varied between the states, it was to the English common law that the judges in later cases looked for the foundation for recognition of public rights of recreation over the foreshore. Thus in Florida, in White v Hughes 139 Fla 54, 59, 190 So 446 (1939), Brown J observed:
“There is probably no custom more universal, more natural or more ancient, on the sea-coasts, not only of the United States, but of the world, than that of bathing in the salt waters of the ocean and the enjoyment of the wholesome recreation incident thereto. The lure of the ocean is universal; to battle with its refreshing breakers a delight …”
After quoting Byron on the primeval quality of the “wild waves’ play” (Childe Harold’s Pilgrimage IV, 182) he continued:
“The constant enjoyment of this privilege of thus using the ocean and its fore-shore for ages without dispute should prove sufficient to establish it as an American common law right, similar to that of fishing in the sea, even if this right had not come down to us as a part of the English common law, which it undoubtedly has” (p 449 emphasis added).
130. This review of the comparative jurisprudence is of interest, on the one hand for the apparently universal recognition of the recreational use of the foreshore in practice, but on the other for the continuing uncertainty in many jurisdictions as to the legal basis for that use and the wide variety of legal methods (statutory or judicial) used to resolve it. This divergence seems surprising, given the universality of the practice, and the common roots of most of the systems of law considered, either in Roman law, or in the rights and obligations of the Crown under the English common law. In the common law jurisdictions this confusion seems in part to be the legacy of Blundell v Catterall. Although the authority of that decision has been acknowledged in some common law jurisdictions, there is little evidence of it being given practical application so as to restrict use on the ground. The development of the law in New Jersey is of particular interest as an illustration of how the law in this country might have developed (and might yet develop) if the view of Best J had prevailed over that of the majority.