Common Resource or Private Right: Contested Claims to Seaweed in 19th Century Prince Edward Island

It was a dark and stormy night in the fall of 1870, and waves were throwing seaweed onto the shores at Middleton Cove, on the Gulf of St. Lawrence, where Andrew Doyle owned a farm. At least that is probably what set the scene for an altercation between Andrew Doyle and William Toombs, his neighbour. When William Toombs went down the shore gather seaweed use for manure on his farm, Andrew Doyle attempted prevent him from doing so, leading Toombs bring assault charges against Andrew and three other men with the surname Doyle. The charges were one incident in a long-running dispute over who had the right gather seaweed cast up on the shore.1Toombs and Doyle each farmed several different plots of land on Lots 23 and 24 near Rustico, Prince Edward Island. Andrew Doyle had purchased one of these, called Middleton Farm, in 1869. Middleton Farm adjoined the inland farm where Doyle resided, but, more importantly, it fronted on the coast. Doyle said he bought the farm, and paid a premium for it, obtain the seaweed cast up on the shores of the cove what is known in that locality as 'storm-tides.' Before purchasing Middleton Farm, Doyle obtained advice from Island lawyers who said that, as the owner of land on the coast, he would have the exclusive right take any seaweed cast up on the shore on which his land fronted. That right, he estimated, added one-quarter the value of his property.2 When his neighbours treated the seaweed as a public resource, both they and Doyle looked the courts and the legislature legitimate and enforce their claims.The confrontation between Doyle and his neighbours was part of a broader struggle delineate the appropriate limits of exclusive private rights in what was widely perceived as a common resource. At common law, a Crown grant of property to the seashore or bounded by the sea granted rights land extending only as far as the landward side of the ordinary high water mark; the foreshore, the strip of land exposed at low tide, was retained by the Crown unless explicitly included in the grant. None of the original Crown grants on Prince Edward Island included a grant of the foreshore; indeed, in two-thirds of these grants, the Crown retained rights a fishery reserve in the first 500 feet of land above the high water mark.3 According English common law, the owner of land on the shore was entitled seaweed cast up above the ordinary high water mark. The property regime governing seaweed deposited on the foreshore was less clear, even without the legal complications of the fishery reserves and the factual complications of definitively delineating the ordinary high water mark.4 Despite judicial decisions upholding the rights of landowners seaweed deposited on the shore in front of their farms, and legislators' reluctance curtail those rights, many Islanders continued treat seaweed as a public resource. Legal rules allocating rights in the abstract did not definitively determine rights if facts presented possibilities for ambiguity, as was the case when winds and tides moved seaweed back and forth across the lines that mattered in determining who could claim the exclusive right gather the seaweed. In the centurylong struggle wrest control of Island land from the holders of large proprietorial estates, landowners discovered that they faced considerable barriers enforcing property rights articulated in formal legal rules that lacked popular support. Even after the resolution of the land question in 1875, with the forced sale of large estates, owners of shore properties met resistance their efforts assert monopoly control over the resources of the foreshore, which became increasingly important as the population spread across the Island's interior.5To understand why seaweed mattered settlers in nineteenth-century Prince Edward Island, one needs know something about the region's agricultural history. Early European agricultural settlement in Prince Edward Island and elsewhere in the Maritimes focused on marshlands and the possibilities they offered for hay production and cropland. …

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