Having no copy of this Ordinance, I quote it from Mr. Derbigny, p. 20. Duponçeau, p. 10. andl'Examen de la Sentence, p. 8, by putting together the parts they cite, for neither gives the whole of what I have cited. Other respectable authorities might be produced, to the same effect, were it necessary to multiply them: and it is also admitted that authorities of weight, and of a different aspect exist, among these is Dumoulin, as respectable as Pothier, Guyot, or any other who has been cited. Were it absolutely incumbent on me, more than on those who rely on the contrary authorities, to assign reasons for a difference of opinion among lawyers, on any point, it might be ascribed in this case to a difference of impression from views on the same subject, diversified as were the customs of the various provinces of France, on this very point. Dumoulin wrote a century and a half before the Ordinance of Louis XIV. In that course of time printing had become more diffused, books greatly multiplied, and a more correct collation of these customs could be made. So that had Dumoulin written in the days of Pothier and Guyot, and with their advantages, he would probably have concurred in the preceding observation, that, 'if there were any doubts, this Ordinance has dissipated them.' Be this as it may, Louis XIV. and his council have decided between these two opinions, and if it were not law before, his decision made it so. By this edict he declares the law of France, 'incontestably,' to be that 'Alluvions|30*|belong to the king in all navigable rivers.' But with a spirit* of indulgence, meriting more respect than he has found in the language of the adverse party who dislike the truths he has declared, he confirmed all anterior usurpations, on payment of certain compositions and future rents, re-establishing, by the example, the authority of the laws, and rights of the crown against these usurpations. This Ordinance was passed 19 years before the charter to Louisiana, and consequently was comprehended among the edicts and ordinances originally established as the law of the Province.Mr. Livingston and his advocates have asserted that the right to the beds and increments of rivers, is a gift of the feudal system to the sovereign, that is, to the nation, and is a peculiarity of that system: and further, that that system was never introduced into Louisiana. That the latter assertion is palpably erroneous, could be readily shown, were not the question altogether unnecessary. With respect to the former, surely it is putting the cart before the horse to say, that the authority of the nation flows from the Feudal system, instead of the Feudal system flowing from the authority of the nation. That the lands within the limits assumed by a nation belong to the nation as a body, has probably been the law of every people on earth at some period of their history. A right of property in moveable things is admitted before the establishment of government. A separate property in lands not till after that establishment. The right to moveables is acknowledged by all the hordes of Indians surrounding us. Yet by no one of them has a separate property in lands been yielded to individuals. He who plants a field keeps possession till he has gathered the produce, after which one has as good a right as another to occupy it. Government must be established and laws provided, before lands can be separately appropriated, and their owner protected in his possession. Till then the property is in the body of the nation, and they, or their chief as their trustee, must grant them to individuals, and determine the conditions of the grant. In certain countries, they have granted them on a system of conditions and principles whichhave acquired the appellation of Feudal. Surely then it is the sovereign which has created the Feudal principles, and not these principles which have created the rights of the sovereign. The Edinburgh Reviewers, [No. 30. 339. Jan. 1810.] who in the progress of their work have deservedly attained a high standing in the public estimation, reviewing the condition of land-tenures among the Hindoos, say, 'the territory of the nation, belonging in common to the nation, belongs, in this general sense, to the king, as the head and representative of the nation. As far accordingly as we have sufficient documents respecting rude|31*|nations*, we find their kings,without perhaps a single exception, recognized as the sole proprietors of the soil.' And they quote as their authorities,In Europe.For Wales,Leges Walliæ. c. 337.Great Britain. The Bretons while they held the whole island, Turner's Anglo Saxons, c. 3.Gaul and Germany. Cæsar, 4. 1. To which add Spain, Portugal, Italy, and all feudal states.In Asia.For China. Barrow. 397.India. Montesq. Sp. L. 14. 6. Scott's Ferishta, vol. 2. 148-495. 2. Bernier, 189.Persia. 3. Chardin, 340. Syria and the Turkish dominions. 2. Volney, 402.In Africa.For Egypt. Herodot. 2. 109. Volney passim.Other parts of Africa. 4. Hist. gen. des voyages 13. v. do. 7. 5. 17. Mod. Univ. Hist. 322. Parke, 260.In America.For the Spanish part. Acosta 6. 15. and 18. Garcilaso, 1. 5. 1. Carli. letter 15.For the United States and the Indian hordes of our continent, we cite our own knowledge.It seems then to be a principle of universal law that the lands of a country belong to its sovereign as trustee for the nation. In granting appropriations, some sovereigns have given away the increments of rivers to a greater, some to a lesser extent, and some not at all. Rome, which was not feudal, and Spain and England which were, have granted them largely; France, a feudal country, has not granted them at all on navigable rivers. Louis XIV. therefore was strictly correct when in his edict of 1693, he declared that the increments of rivers were incontestably his,as a necessary consequence of the sovereignty. That is to say, that where no special grant of them to an individual could be produced, they remained in him, as a portion of the original lands of the nation, or as new-created lands, never yet granted to any individual. They are unquestionably a regalian, or national right, paramount, and pre-existent to the establishment of the feudal system. That system has no fixed principle on the subject, as is evident from the opposite practices of different feudal nations. The position, therefore, is entirely unfounded, that the right to them is derived from the feudal law; and it is consequently unnecessary to go into the proof of what|32*|the grants in that country *exhibit palpably enough, that infeudations were partially at least, if not generally, introduced into Louisiana.It ought here to be observed however that, so far as respects the beds and navigation of rivers, the right vested in the sovereign is a mere trust, not alienable. It is not like lands, imposts, taxes, an article of public property constituting the revenues of the state, but like roads, canals, public buildings, reserved for the use of the individuals of the nation. See an explanation of this subject, Vattel 1. 235. 239.|M. Thierry.|I have now to advert, and I do it with extreme regret, to a passage in the very able Memoire of M. Thierry, a Memoire conspicuous for its learning and sound reasoning, and to which I acknowledge myself peculiarly indebtedfor information on the points he has discussed. He says, p. 30. 'To the ancestors of John Gravier the right of alluvion belonged, not only by virtue of the Coutumes de Paris, which for two centuries back acknowledged the principle of the Roman law, and against which, for that reason, the Ordinances of the kings of France could with no manner of success be pleaded, inasmuch as a royal ordinance specially made that Coutume the civil law of this colony; but also by virtue of the Spanish laws, which from 1769, have been constantly in force in Louisiana.' 1. That the Roman principle of Alluvion was acknowledged by the Coutumes de Paris has not been proved. The adverse counsel, [Dupon. p. 9.] has said indeed, that those Customs were silent on this subject. But I have considered Pothier, Guyot, and Le Rasle as better authority. 2. Mr. Thierry supposes that a Royal Ordinance having specially made that Coutume the civil law of Louisiana, the Ordinances of the kings of France were excluded from the system, and could not control what was Coutume. He had not, I presume, seen the charter of 1712, which makes the edicts andordinances, with the Coutume de Paris, the law of that province; nor sufficiently considered that had the Coutumes been alone established by one ordinance, another might change them. 3. He supposes the Spanish laws have given Alluvions to the riparian proprietor. But the laws of the province, established by their charter, were not annulled by the change of one king for another, as their legislator. The latter might change them. But has he done so? If he has, his edict must be produced, that we may weigh its words, and judge of its effects for ourselves. And we must guard against admitting that the example of a Spanish Governor, if such example has occurred, occasionally and incorrectly acting on the laws of Spain, amounted to a repeal of the whole system then existing, and a formal establishment of a different one. No such intention on|33*|his part, *to make so momentous a change, should be so slightly inferred; and no power of his could effect it, even if intended. Nothing less than an Ordinance of the Sovereign himself, signed with his own hand, and sanctioned by allthe solemnities attending their enactment and promulgation, was competent to reverse at once the legal condition of a whole people, and the laws under which their lives and properties were held. Again, even such an ordinance could not change the law as to past rights; and those now in question were vested before the Spanish government took place, and could not be annulled by a subsequent law. These gratuitous admissions, therefore, of Mr. Thierry, not at all necessary to his argument, and therefore probably not well considered, and in opposition to the opinions and demonstrations of an able brother counsellor (Mr. Derbigny), must be disavowed, and the authority of the Ordinance of 1693 insisted on with undiminished confidence. Mr. Thierry himself will perhaps the more readily abandon them, when he sees with what avidity his eagle-eyed adversary has pounced upon them in a letter to some member of the government, in which he considers them as giving up all ground of opposition to his claims.|Edict of Louis XIV.|To that edict then I shall now recur; and to the cavils raised against it by the advocates of the claims it annihilates. It is idle for them to call it bursal, fiscal, and the act of a tyrant, &c. [Duponc. 10.] as if the authority of laws was to be graduated by the character of the existing legislator; and as if we were to be the judges, for other nations, of the character and obligation of their laws. It is vain to pretend that because the word 'Alluvion,' inserted in the enacting clause of the edict, is not in the preamble, therefore it has no force in the body of the law: as if the preface, giving the general reason and views of the law, was alone to be the law, and its actual enactments a mere nullity. Although the preamble of a statute is considered as a key to open the mind of the makers as to the mischiefs in their view, yet in general it is no more than a recital of some inconveniences, which does not exclude any other for which the enacting clauses provide; nor must the general words of an enacting clause be restrained by the particular words of the preamble. 6. Bac. Abr. Statute. I. 2. and the authorities there stated. So says our law; so says reason; andso must say the Roman law, if it beratio scripta. But it is further to be observed that the words'attérrissementsandaccroissements,' accumulations and increments, used in this preamble are generic terms, of which 'Alluvion' is a species, and therefore strictly comprehended by it. This is proved|34*|by the Roman definition,'Alluvio estincrementum* latens,''alluvion est un accroissement ou crement imperceptible,'by the Napoleon code cited by Mr. Livingston:|Napoleon Code.|'Les attérissements et accroissements qui se forment successivement et imperceptiblement aux fonds riverains d'un fleuve, ou d'une rivière, s'appellent Alluvion.'§. 556'The accumulations and increments which form themselves successively and imperceptibly against the riparian lands of a river or stream are called Alluvion.' Sect. 556.|Portalis.|And by the edicts of 1686 and 1689, both of which have the expression'crémensqui s'y sont formés, soit paralluvion, ou par industrie,&c.' And here Portalis's rhetorical flourish, on presenting this law, is cited, [Duponc. 17. Liv. 22.] with triumph, as declaring that this law terminates the great question of Alluvion, and decides it conformably to the Roman law. It is very true indeed that it has terminated the question as to future cases, by changing the law, by transferring the right of Alluvion from the sovereign to the riparian proprietor, by giving the abandoned bed of a river, as an indemnification to him on whose land it has opened a new passage, and making this the future law of all the provinces. And had Louisiana then been subject to France, the law would have been changedthenceforward, for Louisiana also. I find no fault with Napoleon for this Roman predilection. I believe the change is for the better, so far as concerns rural possessions. A decision too of the parliament of Bordeaux is quoted by Mr. Duponceau 19. to prove that the law giving Alluvion to the adjacent possessor has been acknowledged in France by the decision of the parliament of Bordeaux, confirmed,as he has heard, on appeal by the parliament of Paris. This proves only that the Roman lawof alluvion was the law of the Generality of Bordeaux, not that it was then the law of all France. In the country called the Bordelois, Customary laws prevail. But'Lorsque la coutume de Bordeaux ne s'est pas expliquée sur certains points de droit, ce n'est ni à la coutume de Paris, ni à d'autres coutumes qu'on a recours pour les faire décider, mais au droit écrit.' Enc. Meth. Jurisp. Bordeaux.''When the Custom of Bordeaux has not sufficiently explained itself on certain points of law, it is neither to the Customs of Paris, nor to other customs that recourse is had for decision, but to the written law,' that is, the Roman law.The inference then is, either that the Coutume de Bordeaux was the same on this point as the Roman law, or, that being silent, the Roman law was referred to.[93]|35*|*Surely never was the urgency of squeezing argument out of everything so apparent, as in the emphasis with which the adverse party presses and comments, [Liv. 32.] on the answers of the several tribunals, to which the Napoleon Code was referred for consideration and amendment. A dozen tribunals are named, with an &c. for more, who are acknowledged to have said nothing about alluvion: and this is produced as proof that it had belonged before to the riparian proprietor. But it proves more probably that these tribunals were contented with the change proposed, and had no amendment of it to offer. But, in truth, it proves nothing either the one way or the other. The tribunal of Paris is then quoted, with an acknowledgment that they do not make a single observation on the subject. Then long extracts from that of Rouen, proposing thatislands, rising in the rivers, shall be given to the riparian proprietors: and recommendations to the same effect from those of Toulouse and Lyons. Now it is remarkable that neither the word 'Alluvion,' nor the idea of the thing, is either expressed or referred to in any one ofthese quotations. And yet Mr. Livingston says, 'we find all these learned men either passing over these articles, as merely declaratory of the old law, or elseexpressly acknowledging themas such;' and again after the citation from Rouen, 'here we have the positive declaration of a learned tribunal, &c. deciding that the edicts did not extend to alluvions, but only to islands in navigable rivers.' And yet I repeat that neither the word nor the idea is to be found in any one of the quotations; for it is of these only I can speak, not possessing the book, but I presume Mr. Livingston's quotations are of the strongest passages. It is impossible to characterize such reasoning respectfully. I shall therefore leave it to the reflection of others. And I think myself authorized to conclude on the whole, that had the Batture been really an Alluvion, its ownership was to be decided by the laws of France; and that Louis XIV. with the advice of his council, certainly knew when they declared what the law of their country 'incontestably' was; and if we, with our scanty reading on the subject, at this day and distance, know better than they did, yet the enacting clause of the edict made it the lawthenceforward; that it came over as law for Louisiana, made the batture, if an alluvion, the property of the sovereign; and certainly the whole tenor of the conduct of the Spanish government proved that they did not mean to relinquish it.|36*|Before we quit this branch of the discussion, it is not amiss to *observe that the eloquent declamations of these learned men of Rouen, so much eulogized by Mr. Livingston, were not at all heeded. The Napoleon code, §. 560. retained theislandsrising in the beds of navigable or floatable rivers, and (changing the French law only as to alluvions) declares, §. 538. in opposition to the Roman law, that'Les fleuves et rivières navigable ou flottables, les rivages, lais et relais de la mer, les ports, les havres, les rades, &c. sont considérés comme le dépendances du domaine public.''Rivers and navigable or floatable streams, shores, increments and decrements of the sea, ports, harbors, roads, &c. are considered as dependances of the public domain.'So that notwithstanding the 'persuasive and conclusive arguments of these first lawyers of the country,' Liv. 31. the French law as it stands at this day, and stood before, would have given the batture to the public, being unquestionably the[94]rivage or shore of the river.[95]|37*38*|*I will now proceed further and say, that had the batture been an alluvion, and to be decided by the Roman, instead of the French law, the conversion of the plantationof Gravier into a *suburb, made it public property. And here I rejoin with pleasure the standard of M. Thierry, and avail myself of his luminous discussion of this point.|39*|Were I fully to go into it, I could *but repeat his matter. I shall therefore give but a summary view of it, and rest on his argument for its more detailed support.|Rural and Urban.|The position laid down is that the Roman law gave alluvion only to the rural proprietor of the bank; urban possessions being considered asprædia limitata, limited possessions. The law which gives this right is expressed in the Institutes in these words,'quod per alluvionemagrotuo flumen adjecit, jure gentium tibi adquiritur.'Inst. 2. 1. 20. 'What the river has added,agro tuo, becomes yours by the laws of nations.' And the Digest 41. 1. 7. 1. in almost the same words says,'quod per alluvionemagronostro flumen adjecit, jure gentium nobis adquiritur.'In both instances it is to the possessoragrionly that it is given. It becomes material therefore to understand rigorously the import of the wordager, in the Roman laws; and it happens that its definition is givencritically by the same authority which uses it.'Locus sine|40*|ædificio, in urbearea, *rure autemagerappellatur idemqueager, cum ædificio,fundusdicitur.'Dig. 50. 16. 211.'Quæstio est, fundus a possessione, vel agro, vel prædio quid distet?' Ib. 115in notis, 'fundus est ipsum solum: eo si utimur, prædium dicitur.Ageresse potest sine villâ.''Ground, without a building, in a city is calledarea, but in the countryager.' Pliny 1. 6. affirms thatageris derived from the GreekἀγÏὸςof the same import. And in the Greek Pragmatics of Attaliata tit. 45. the law of alluvion uses 'ἀγÏὸς' forager. 'Τὸ ἀνεπαισθήτως διὰ τοῦ ποταμοῦ Ï€Ïοστεθὲν Ï„á¿· ἀγÏá¿· μου Ï€Ïόσχωσις á¼ÏƒÏ„ὶν, ἤτοι Ï€Ïόσκλυσις, καὶ á¼Î¼Î¿á½¶ á¼Ïμόζει.' 'Quod insensibiliterÏ„á¿· ἀγÏá¿· μουper flumenadjectum est, alluvionis est, et mihi competit.'What is insensibly added by the riveragro meois alluvion [adundatio,adaggeratio] and belongs to me.' In the same title 'á½…Ï€ÎµÏ á¼Î½ Ï„á¿· ἀγÏá¿· σοῦ σπείÏω σόν á¼ÏƒÏ„ιν.' 'What I sowἀγÏá¿· σουagro tuo, in yourfield, is yours.' And Stephens, in his Thesaur. ling. Gr.voce'ἈγÏὸς' translates it'rus, ager,''á¼Î½ ἀγÏá¿·'in agro, ruri.Ἐξ ἀγÏου,ex agro, rure.'Εἰς ἀγÏον,in agrum, rus.' And he cites examples: 'Îηῦς δΠμοι ἥδ' ἕστηκεν á¼Ï€' ἀγÏοῦ, νόσφι πόληος'. Hom. Od. 1. 185. 'My vessel is stationed in thecountry, apart from the city.' 'Διὰ τὸ μὴ μεγάλας εἶναι τότε Ï„á½°Ï‚ ΠΟΛΕΙΣ, ἀλλ' á¼Ï€á½¶ τῶν ΑΓΡΩΠοἰκεῖν τὸν δῆμον ἄσχολον ὄντα.' Aristo. Polit. 5. 'Because, thecitiesnot being then large, the people were occupied in thecountry, whereἀγÏὸςis proved to be pointedly the contradiction toπόλις, to wit, thecountryto thecity. From these definitions it appears that the word ager, in the law, constantly means a field, or farm, in the country, and that a city lot is calledarea. In towns, the whole bank and beach being necessary for public use, the private right of alluvion would be inadmissible; and the adverse counsel have been challenged [Thierry, 33.] to produce a single instance, under the Roman law, of a claim of Alluvion allowed in a city. To this might be added a similar challenge as to the laws of England. These give alluvion on rivers, as the civil law does, to the riparian proprietor. Bracton L. 2. c. 2. § 1. Fleta. L. 3. c. 2. Can they from the volumes of English law, with which theyare so much more familiar, produce one single instance of the private right of alluvion allowed in a city? In England, I mean, and not in America, where special circumstances have prevented attention to the law on this subject, or the breach of it. And this must be from the reason of the thing alone, because the common law never having been, like the civil law, reduced to a text, no verbal criticisms on a text can have co-operated|41*|against the claim.[96]Repeating, *therefore, my reference to the reasoning and authorities of M. Thierryon this point, and my own conviction of their soundness, I consider it as established that, were this question to be decided by the Roman law, the conversion of the farm into a fauxbourg of the city passed to the public all the riparian rights attached to it while a rural possession, and among these the right of alluvion.|Principal and accessory42*|And, if the right of alluvion is not given to urban proprietors, much less would it to a mere holder of the bed of a road. But did any one ever hear of a *man's holding the bed of a road, and nothing else? Is it possible to believe that Bertrand Gravier, in selling his lotsface au fleuve, really meant to retain the bed of the road and levee? That a man, having a road on the margin of his land, which is its boundary, should mean to sell his land to the road, and to retain that by itself? a thing of no possibleuseto him, because theusebeing in the public, he could never employ it in agriculture or otherwise. Were all this possible, yet this bed of a road, this"labrum amnis"would be noager, no field to which the right of alluvion could attach. That right is but an accessory, or, in the language of our law, an appendage or appurtenance, and an accessory, not to a mere line, but to something of which it can become a part. Had the law, therefore,ever given alluvion to any but the holder of anager, of a field, yet the general doctrines of principal and accessory, would not have carried the benefit to Bertrand Gravier in this case.'Accessorium sequitur naturam sui principalis. Et in accessoriis, præstanda sunt quæ in principali. Accessorium non tenet sine principali. Sublato principali, tollitur et accessorium.'These are maxims of the civil law.Calvini lexicon jurid.'An accessory follows the nature of its principal.' If the accession then be to a field, it becomes part of the field; if to a town, it would become part of the town; if to a road, the use of which belongs to the public, it would be to the road, and to the public. It must follow the nature of its principal, and become a part of that, subject to the same rights, uses and servitudes with that: and Bertrand Gravier had no right of use in the principal, that is, of the road and levee.The equity on which the right of alluvion is founded is, that as the owner of the field is exposed to the danger of loss, he ought, as an equivalent, to have the chance of gain. But what equitable reason could there be, in the present case, for giving to Gravier the benefit of alluvion, when he could lose nothing by alluvion? If the levee and bank were washed away, they would not go to his plantation, back of the suburb, for a new one. The public would have to purchase a new bed for a road from the adjacent lot holders. Then'qui sentit onus, sentire debet et commodum.'|Beach or Batture not Alluvion.|But I do deny to the Batture every characteristic of Alluvion.The French and Roman law constituting that of the place, let us seek from them the definition of Alluvion. The Institute 2. 1. 20. gives it in these words, and the Digest. 41. 1. 7. §. 1. in almost verbatim the same.'Quod per alluvionem agro tuo flumen adjecit, jure gentium tibi adquiritur. Est autem alluvio incrementum latens. Per alluvionem autem id videtur adjici, quod ita paulatim adjicitur, ut intelligi non possit quantum quoquo temporis momento adjiciatur.''What the river adds by alluvion to your field becomes yours by the law of nature. Alluvion is a latent increase. That seems to be added by alluvion, which is so added by degrees, that you cannot conceive how much in each moment of time is added.'And in the Greek version of Theophilus, the words,'Alluvio est incrementum latens'are rendered 'ἀλουβιων á¼ÏƒÏ„ιν ἠπÏόσκλυσις á¼¢ Ï€Ïόσχωσις,' translated by Curtius'Alluvio est adundatio vel adaggeratio.'Retaining only the words of this paragraph which are definition it will stand thus.'Alluvio est incrementum [adundatio,adaggeratio] agro tuo flumine adjectum, ita latens et paulatim, ut intelligi non possit quantum quoquo temporis momento adjiciatur.''Alluvion is an increment [adundation,ad-aggeration] added by the river to your field, so latent and gradual, that the quantity added in every moment of time cannot be known.'This is the Roman definition.In the Law Dictionary of the Encyclop. Method,voce'Alluvion' by Le Rasle, the definition is:'Alluvion, un accroissement de terrein qui se fait peu-a-peu sur les bords de la mer, des fleuves, et des rivières, par les terres que l'eau y apporte, et qui se consolident pour ne faire qu'un tout avec la terre voisine.''Alluvion, an increment of ground which is made by little and little on the border of the sea, rivers or streams, by earth which the water brings, and which is consolidated so as to make but one whole with the neighboring ground.'To reduce the essential members of the Roman and French definitions to a single one, according with our own common sense, for certainly we all understand what alluvion is, I should consider the following definition as comprehending the essential characteristics of both.1. 'Alluvion is an extension which the waters add insensibly.'Incrementum flumine adjectum latens et paulatim.2. By apposition of particles of earth.Ï€Ïόσχωσις,adaggeratio.Ï€Ïόσκλυσις,adundatio.3. Against the adjacent field.Agro.4. And consolidate with it so as to make a part of it.Qui se consolide pour ne faire qu'un tout avec la terre voisine.'I take this to be rigorously conformable with the French and Roman definitions, as cited from the authorities before mentioned, and that it contains not one word which is not within their unquestionable meaning. Now let us try the batture by this test.|44*|1. 'Alluvion is an extension which the waters add insensibly.' But the increment of the batture has by no means beeninsensible. Every swell of six months is said [Derb xix.] to deposit usually nearly a foot of mud on the whole surface of the batture, so that, *when the waters retire, the increment is visible to every eye. And we have seen that, aided by Mr. Livingston's works, a single tide extended the batture from 75 to 80 feet further into the river, and deposited on it from 2 to 7 feet of mud, insomuch that a saw-scaffold, 7 feet high when the waters rose on it, was, on their retiring, buried to its top. This increment is, surely, not insensible. See the Mayor's answer to the Governor, Nov. 18, '08. MS.2. 'Byappositionof particles of earth,' or, by theiradhesion. But the addition to the batture is bydepositionof particles of earth on its face, not by theirappositionoradhesionto the bank. It is not pretended that the bank has extended by apposition of particles to its side, one inch towards the river. It remains now the same as when the levée was erected on it. The deposition of earth on the bottom of a river, can be no more said to be an apposition to its sides, than the coating the floor of a room can be said to be plastering its walls.3. 'Against the adjacent field,'la terre voisine. Not a particle has been added to the adjacent field. That remains as it was, bounded by the identical line,crepido, orora terræ, which has ever bounded it.4. 'And consolidated with the field so as to make part of it.'Un tout avec la terre voisine. Even supposing the continuity of the adjacent field not to be broken by the intervention of the levée and road, nothing is consolidated with it, not even with themargo riparum, orchemin de hallage, if there be any, between the levée and brim of the bank. No extension of its surface has taken place so as to form one with the former surface, so as to be a continuation of that surface, so as to be arable like that. The highest part of the batture, even where it abuts against the bank, is still materially below the level of the adjacent field. A terrass of some feet height still separates the field from the deposition called the batture. It is now as distinguishable from the adjacent field as it ever was, being covered with water periodically 6 months in the year, while that is dry. Alluvion is identified with the farmer's field, because of identity of character, fitness for the same use: but the batture is not fitted for ploughing or sowing. It is clear then that the batture has not a single feature of Alluvion; and divesting it of this misnomer, the whole claim of the plaintiff falls to the ground: for he has not pretended that it could be his under any other title than that of Alluvion.We will now proceed to shew what it is, which will further demonstrate what it is not.|Bed, Beach, Bank.45*|In the channel, or hollow, containing a river, the Roman law has distinguished thealveus, or bed of the river, and theripa, or bank, the river itself beingaqua, water.'Tribus constant flumina, alveo, aqua, et ripis'. Dig. 43. 12. *not. 1. All above high water mark they considered asripa, bank, and all below asalveus, or bed. The same terms have the same extent in the language of our law likewise. But we distinguish, by an additional name, that band, or margin of the bed of the river, which lies between the high and the low water marks. We call it thebeach. Other modern nations distinguish it also. In Spanish it isplaya, Ital.piaggia, in Frenchplage, in the local terms of Orleans it isbatture,and sometimesplatin.[97]In Latin I know of no terms which applies exactly tothe beach of a river.Litusis restrained tothe shore of the sea, and there comprehends the beach, going to the water edge, whether at high or low tide.'Litusest maris,ripafluminis,'says Vinnius in his Commentary on the Inst. 2. 1. 4. and he confirms this difference of extent towards the water, ibid. where he says,'Neque verò idem estripa in flumine, quodlitus in mari. Ripa flumini non subjicitur, ut litora subjiciuntur mari, et quotidianis accessibus ab eo occupantur.''Nor is the bank of a river, and the shore of the sea, the same thing. The bank is not subjacent to the river as the shores are to the sea, which are occupied by it in its daily accesses.'In our rivers, as far as the tide flows, the beach is the actual, as well as the nominal bed of the river, during the half of every day. Above the flow of tide, it is covered half the year at a time, instead of half of every day. The tide there being annual only, or one regular tide in a year. This, in the State where I am, begins about the first of November, is at its full tide during the months of January and February, and retires to its minimum by the end of April. In other States from North to South, this progression may vary a little. Hence we call them the Summer and Winter tides, as the Romans did theirs,hibernus et æstivus. The Mississippi resembles our fresh water rivers in having only one regular swell or tide a year. It differs from them in notbeing subject to occasional swells. The regions it waters are so vast that accidental rains and droughts in one part are countervailed by contrary accidents in other parts, so as never|46*|to become *sensible in the river. It is only when all the countries it occupies become subject to the general influence of summer or winter, that a regular and steady flood or ebb takes place. It differs too in the seasons of its tides, which are about three months later than in our rivers. Its swell begins with February, is at its greatest height in May, June, and July, and the waters retire by the end of August. Its high tide, therefore, is in summer, and the low water in winter. Being regular in its tides, it is regular also in the period of its inundations. Whereas in ours, although the natural banks rarely escape being overflowed at some time of the season, yet the precise time varies with the accident of the fall of rains. But it is not the name of the season but the fact of the rise and fall which determine the law of the case.Now the batture St. Mary is precisely within this band, or margin, between the high and low water mark of the Missisipi called the beach. It extended from the bank into the river from 122 to 247 yards, before Mr. Livingston began his works, and these have added in one year, from 75 to 80 feet to its breadth. This river abounds with similar beaches, but this one alone, from its position and importance to the city, has called for a legal investigation of its character. Every country furnishes examples of this kind, great or small; but the most extensive are in Northern climates. The beach of the Forth, for example, adjacent to Edinburgh, is a mile wide, and is covered by every tide with 20 feet water. Abundance of examples of more extensive beaches might be produced; many doubtless from New-Hampshire and Maine, where the tide rises 40 feet. This therefore of St. Mary is not extraordinary but for the cupidity which its importance to the city of New-Orleans has inspired.I shall proceed to state the authorities on which this division between the bank and bed of the river is established, and which makes the margin or beach a part of the bed of the river.'Ripa est pars extima alvei, quò naturaliter flumen excurrit.'Grotius de Jour. B. et P. 2. 8. 9.'Ripa ea putatur esse quæplenissimumflumen continet.'Dig. 43. 12. 3. And Vinnius's commentary on this passage is'ut significet, partem ripæ non esse, spatium illud, ripæ proximum, quod aliquando flumine, caloribus minuto æstivo tempore non occupatur.''The bank is the outermost part of the bed in which the river naturally flows.''That is considered to be bank, which contains the river whenfullest,' and Vinnius's commentary on this passage is 'this signifies that the space next to the bank, which is sometimes not occupied by the river, when reduced by heats in the summer season, is not a part of the bank.''Ripa autem ita rectè definietur, id quod flumen continet naturalem*|47*|rigorem[98]cursus sui tenons. Cæterùm si quando vel imbribus, vel mari, vel quâ alia ratione, ad tempus excrevit, ripas non mutat. Nemo denique dixit Nilum, qui incremento suo Ægyptum operit, ripas suas mutare, vel ampliare. Nam cum ad perpetuam sui mensuram redierit, ripæ alvei ejus muniendæ sunt.'Dig. 43. 12. §. 5.'The bank may be thus rightly defined, that which contains the river holding the natural direction of its course. But, if at any time, either from rains, the sea, or any other cause, it has overflowed a time, it does not change its banks. Nobody has said that the Nile, which by its increase covers Egypt, changes or enlarges its banks. For when it has returned to its usual height, the banks of its bed are to be secured.''Alveus flumine tegitur.'Grot. de jur. B. ac P. 2. 8. 9.'Alveus est spatium illud flumini subjectum per quod fluit.'Vinnii Partitiones jur. Civil. 1. 17.'The bed is covered by the river.''The bed is the space, subjacent to the river, through which it flows.'Littus, in the Roman law, being the beach or shore of the sea, 'rivage,' definitions of that will corroborate the division between theripaandalveus,bedandbankof a river. In both cases what is covered by the highest tide belongs to the public, all above it is private property.'Litus est quousque maximus fluctus à mari pervenit. Idque Marcum Tullium aiunt, cum arbiter esset. primum constituisse.'Dig. 50. 16. 96.'Est autem litus maris quatenùs hibernus fluctus maximus excurrit.'Inst. 2. 1. 3. the paraphrase of Theophilus adds,'undè et æstate, usque ad ea loca litus definimus,'and his Scholiast subjoins'non ut mediis caloribus solet, sed hibernus; quoniam hieme protissimum mare turbatur, mare est undabundum.''The shore is as far as the greatest wave of the sea reaches; and it is said that Marcus Tullius first established that when he was an Arbiter.''The shore of the sea is as far as the greatest winter wave reaches.' The paraphrase of Theophilus adds, 'wherefore, in summer also, we bound the shore by the same limits, and his Scholiast subjoins, 'not the wave of midsummer, but of winter; because the sea is most agitated, and most swelled.''Byshore, the Institutes mean up to the high-water mark, or (where little or no tides, as in the Mediterranean) as high as the highest winter wave washes. 1. Brown's Civil and Admiralty law. B. 2. c. 1.|48*|We must not, however, with Mr. Livingston, pa. 61. seize on the single word'hibernus,'in the last quotations, and sacrifice *to that both the fact, and the reason of the law. The substance of thefacton which the law goes, is that there is a margin of the bed of the river, covered at high water, uncovered at low. The season when this happens is a matter of circumstance only, and of immaterial circumstance. In the rivers familiar to the Romans themaximus fluctus, or highest wave, was in the winter; in the Missisipi it is in summer. Circumstance must always yield to substance. Theobjectof the law is to reserve that margin to the public. But to reduce, with Mr. Livingston, the public right to the Summer water-line would relinquish that object. The explanations quoted from Vinnius, from Theophilus and his Scholiast, prove from the reason of the law, that the law of the winter tide for the Po, and the Tyber, must be that of the Summer tide of the Missisipi. The Spanish law therefore, is expressed in more correct terms; and we have the authority of Mr. Livingston [ibidem] for saying that the Justinian code is the common law of Spain.'La ribera del rio se entiende todo lo que cubre el agua de el, quando mas crece, en qualquiera tiempo del año, sin salir de su yema y madre.'Curia Philipica. 2. 3. 1. cited Derb. 46.'The bank of a river is understood to be the whole of what contains its waters, when most swelled, in whatsoever time of the year, without leaving its bed or channel.'This is the law correctly for all rivers, leaving to every one its own season of flood or ebb.To these authorities from the Roman and Spanish law, I will add that of the French Ordinance of 1681. § 43. Art. 1. on the same subject.'Sera réputé bord et rivage de la mer, tout ce qu'elle couvre et découvre[precisely the beach or batture]pendant les nouvelles et pleines lunes, et jusqu'où le grand flot de mer cesse de s'y faire sentir. Il est facile de connoître jusqu'où s'étend ordinairement le grand flot de Mars, par le gravier qui y est déposé; ainsi il ne faut pas confondre cette partie avec l'espace où parvient quelque fois l'eau de la mer par les ouragans, et par les tempêtes. Ainsi jugé à Aix le 11. Mai 1742.'Boucher,Institut au droit Maritime 2713. Nouveau Commentaire sur l'Ordonnance de la Marine de 1681.tit. 7. Art. 1.'The border and shore of the sea shall be reputed to be the whole which it covers and uncovers [precisely the beach or batture] during the new and full moons, and as far as to where the full tide of the sea ceases to be perceived. It is easy to know how far ordinarily the full tide of March extends; by the gravel which is deposited there; therefore we must not confound that part with the space where the waters of the sea come sometimes in hurricanes and storms.' So adjudged at Aix, May 11, 1742.|49*|Let us now embody those authorities, by bringing together the separate members, making them paraphrase one another, and form a *single description. The Digest 43. 12. 3. with Vinnius's comment will stand thus. 'The bank ends at the line to which the water rises at its full tide; and although the space next below it is sometimes uncovered by the river, when reduced by heats in the Summer season, yet thatspace is not a part of the bank.' Now, substituting for 'the heats of the summer season' which is circumstance, and immaterial, the term 'low water,' which is the substance of the case, nothing can more perfectly describe the beach or batture, nor collated with the other authorities, make a more consistent and rational provision. 'The bank ends at that line on the levée to which the river rises at its full tide: and altho' the batture or beach next below that line is uncovered by the river, when reduced to its low tide, yet that batture or beach does not therefore become a part of the bank, but remains a part of the bed of the river,' for says Theophilus 'even in low water [et æstate] we bound the bank at the line of high water.' Inst. 2. 1. 3. 'The bank being theextima alvei, theborder of the bed, within which bed the river flows when in its fullest statenaturally, that is to say, not when'imbribus, vel quâ aliâ ratione, ad tempus, excrevit,'not when 'temporarily overflowed by extraordinary rains, &c.' Dig. 43. 12. 5. but'quando mas crece, sin salir de su madre, en qualquiera tiempo del año,''when in its full height, without leaving its bed, to whatsoever season of the year the period of full height may belong.' This is unquestionably the meaning of all the authorities taken together, and explaining one another.From these authorities, then, the conclusion is most rigorously exact, that all is river, or river'sbed, which is contained between the two banks, and the high water line on them; and all isbankwhich embraces the waters in their ordinary full tide.Agreeably to this has been the constant practice and extent of grants of lands on the Missisipi. Charles Trudeau swears [Liv. 57.] that 'during 28 years that he has performed the functions of Surveyor General of this province, it has always been in hisknowledge, that the grants of lands on the borders of the Missisipi, have their fronts on theedgeof the river itself, and when its waters areat their greatest height.' And Laveau Trudeau [Liv. 58.] that 'the concession to the Jesuits, he believes, was like all the others, that is, from the river at its greatest height.'Thus we see what the law is; that it has been perfectly understood in the territory, and has been constantly practiced on, and consequently that neither the grant to the Jesuits, nor to Bertrand Gravier, could have included the beach or batture.|Missisipi.50*|It will perhaps be objected that, establishing the commencement of the bank at high water mark, leaves in fact no bank at all, as the high water regularly overflows the natural* bank or brim of the channel. And will it be a new phenomenon to see a river without banks sufficient to contain its waters at their full tide? The Missisipi is certainly a river of a character marked by strong features. It will be very practicable, by exaggerating these, to draw a line of separation between this and the mass of the rivers of our country, to consider it assui generis, not subject to the laws which govern other rivers, but needing a system of law for itself. And until this system can be prepared it may be abandoned to speculations of death and devastation like the present. But will this be the object of the sound judge or legislator? it is certainly for the good of the whole nation to assimilate as much as possible all its parts, to strengthen their analogies, obliterate the traits of difference, and to deal law and justice to all by the same rule and same measure. Thebayousof all that territory and of the country thence to Florida Point are without banks to contain their full tides. The Missisipi is in the like state as far as Bâton Rouge, where competent banks first rise out of the waters, and continue with intervals of depression to its upper parts. Many of the rivers of our maritime states are under circumstances resembling these. The channel which nature has hallowed for them is not yet deep enough, or the depositions of earth on the adjacent grounds not yet sufficiently accumulated, to raise them entirely clear of the flood tides. Extensive bodies of lands, still marshy therefore, are covered by them at every tide. In some of these cases, the hand of man, regulated by laws which restrain obstructions to navigation and injury to others, has aided and expedited the operations of nature, by raising the bank which she had begun, and redeeming the lands from the dominion ofthe waters. The same thing has been done on the Missisipi. An artificial bank of 3, 4, or 5 feet has been raised on the natural one, has made that sufficient to contain its full waters, and to protect a fertile and extensive country from its ravages. These are become the real banks of the river, on which the laws operate as if the whole was natural. The Nile,|Nile.|like the Missisipi, has natural banks, not competent in every part to the conveyance of its waters. In these parts artificial banks are, in like manner, raised, through which and the natural bayous and artificial canals the inundation, when at a given[99]height, is admitted; this being indispensable to fertilize the lands in a country where it never rains. And these banks of the Nile, natural and artificial, are recognized as such by the Roman|51*|law, as appears in *a passage of the Digest before cited, declaring that its banks, tho' inundated periodically, are not thereby changed. Nor are those of our rivers when temporarily overflowed by rains, or other causes. Wherever therefore the banks of the Missisipi have no high water line, the objection is of no consequence, because the lands there are not as yet reclaimed or inhabited; and wherever they are reclaimed, the objection is not true; for there a high water line exists to separate the private from public right.[100]1. The Upper Missisipi, like the Upper Nile, has competent natural banks through probably three fourths of its whole course. There then the Roman law is applicable in its very letter. 2. For about 400 miles more, the natural banks have been aided by artificial ones, on both sides, so as to contain all the waters of theflumen plenissimum: and the inhabitants there have no occasion as those of the Nile, to open their banks for the purpose either of fertilizing, or irrigating the lands. Here then there is still less reason, than in the case of the Nile, to say that 'the Missisipi has changed its bank.' 3. On the lower parts of the Missisipi and some of its middle portion, especially on the Western side, artificial banks have not yet been made, and the country is regularly inundated, as it is on those parts of our Atlantic rivers not yet embanked. But our increasing population will continue to extend these banks of our Atlantic rivers; and, for this purpose, our governments grant the lands to individuals. And the same, we know, is done on the Missisipi. TheCyprioresadjacent to New-Orleans, for example, though covered with the refluent water from the lake, we know have been granted to individuals, and will, with the rest of the drowned lands, be reclaimed in time, as all lower Egypt has been.Thus then we find the laws of the Tyber and Nile transferred and applied to the Missisipi with perfect accordance, and that all rivers may be governed by the same laws. Other rivers are subject to accidental floods, which are declared however not to disturb the law of theplenissimum flumen. The Nile and Missisipi, not being subject to accidental floods, theflumen plenissimumwith them is steady and undisturbed, and needs not the benefit of the exception. Nor will the reason of the law be changed, whether the cause of the inundation be the saturation of the earth and fountains, or rains, or melted snows, or the reflux of the ocean. The principle remains universally the same, that the land mark, when once established by a competent bank, is not changed by the inundation, or by any cause or circumstance of its high waters.|52*Property in bed and bank.|*Having ascertained what the batture is not, and what it is, and established the high water mark as the line of partition between the bed and bank of the river, we will proceed to examine to whom belongs ground on either side of that line?And 1. As to the bed of the river, there can be no question but that it belongs purely and simply to the sovereign, as the representative and trustee of the nation. If a navigable river indeed deserts its bed, the Roman law gave it to the adjacent|53*|proprietors;* the former law of France to thesovereign; and the new Code gives it as an indemnity to those through whose lands the new course is opened. But, while it is occupied by the river, all laws, I believe, agree in giving it to the sovereign; not as his personal property, to become an object of revenue, or of alienation, but to be kept open for the free use of all the individuals of the nation.'Flumina omnia, et portus, publica sunt.'Inst. 2. 1. 2.'All rivers and ports are public.''Impossibile est ut alveus fluminis publici non sit publicus.'Dig. 43. 12. 7.'It is impossible that the bed of a public river should not be public.''Litus publicum est eatenùs qua maximus fluctus exæstuat.'Dig. 50. 16. 96. 112.'The seashore is public as far as the greatest wave surges.'And'littus'we have seen is the beach or shore of the sea.'As to navigable streams and rivers, on which boats can ply, the property of them is in the king, as an incontestable right, naturally attached to the sovereignty; and since public things belonged to the people in the Roman republic, amongst us [in France] they must belong to our Sovereigns.' Julien, cited by Thierry 10. AndPrevost de la Jannès, in his Principles of French Jurisprudence, after having said that the property of public things belongs to the king adds 'subject to the use thereof that is due to the people.' Thierry, ib.In like manner, by the Common law of England, the property,tam aquæ quam soli, of every river, having flux or reflux, or susceptible of any navigation, is in the king; who cannot grantit to a subject, because it is a highway, except for purposes which will increase the convenience of navigation. 'The king has a right of property to the sea shore, and themaritima incrementa. Theshoreis the land lying between high water and low water mark in ordinary tides, and this land belongeth to the kingde jure communi, both in the shore of the sea, and shore of the arms of the sea. And that is called an arm of the sea where the tide flows and reflows, and so far only as the tide flows and reflows.'Hale de jure maris.c. 4. cited in Bac. Abr. Prærog. B. 3.So that I presume no question is to be made but that the bed of the Missisipi belongs to the sovereign, that is, to the Nation.2. In the bank, from the high water line inland, it is admitted that the property or ownership, is in the Riparian proprietor of the adjacent field or farm: but the use is in the public, for the purposes of navigation and other necessary uses.'Riparum quoque usus publicus est jure gentium [i. e. gentis humanæ] sicut ipsius fluminis: itaque naves ad eas appellere, funes arboribus ibi natis religare, onus aliquod in his reponere, cuilibet liberum est, sicut per ipsum flumen navigare. Sed proprietas earum, illorum est, quorum prædiis hærent: quâ de causâ arbores quoque in eisdem natæ corundem sunt.'Inst. 2. 1. 4. And Vinnius adds'non ut litora maris, ita ripas, conditionem fluminis sequi.''Publica sunt flumina, portus, alveus fluminis quamdiu à flumine occupatus, ripæ. Harum rerum omnium, proprietas nullius, si ripas exciperis, quarum proprietas eorum est qui propè ripam prædia possidunt.'Vinnii Part. jur. L. 1. c. 17.'The use of the bank is public by the law of nations [i. e. of nature] as to navigate the river itself. Therefore it is free for every|54*|*one to bring his ships to at them, to make fast ropes to the trees growing there, to discharge any load on them. But the property of them is in those to whose farms they adhere; for which reason the trees likewise growing on them, belong to the same.' And Vinnius adds 'the banks do not, like the shores of the sea, follow the condition of the river.''Rivers, harbors, the beds of rivers as long as occupied by the river, and the banks are public. The property of all these is in no one, if you will except the banks, the property of which is in those who possess the farms on the bank.''Rivers, streams, high roads belong to all men in common; and although the soil of the banks of the rivers be an accession to the property of the owners of the contiguous land, yet all men may make use of them so far as to make fast their vessels to the trees which grow there, to repair them, and spread their sails on the banks; and they may there discharge their goods. Fishermen have also a right to dry their nets there, to expose their fish for sale on the banks, and in general to use them for every purpose of their art, or the occupation by which they live.' 3 Part id. 28. 6. cited Thierry 9.'The same usefulness of the navigation of rivers demands the free use of their banks, so that in the breadth and length necessary for the passage and track of the horses which draw the boats, there be neither tree planted nor any other obstacle in the way.' Domat, Pub. law. 1. 8. 2. 9. To moor their vessels, spread their sails, unlade, sell their fish, &c. are here mentioned for example only, and not as a full enumeration of the variety of uses which, flowing from the public rights, may be exercised by them. In England it is said to have been decided that the public have nocommon-lawright to tow upon the banks of navigable rivers. 3 Term. Rep. 253. cited Bac. Abr. highways A.These authorities are so clear that they need no explanation. The text is as plain as any commentary can make it.But there is an important limitation to these rights. Every individual is so to use them as not to obstruct others in their equal enjoyment. The space every one occupies on the bank or bed, as in a highway, a market, a theatre, is his for reasonable temporary purposes,|Limitations of the rights of property.55*|but not to be held *permanently. The adjacent landholder may repair or fortify his bank to protect his land from inundation, but under the control of the magistrate, that his neighbors be not injured. He cannot divert the course of the stream, or even draw off water from it, to the injury of the navigation; nor erect any work which shall incommode the harbor or quai.'Ne quid in flumine publico, ripâve ejus, facias, ne quid in flumine publico, neve in ripa ejus immittas, quo statio, iterve navigio deterior sit. Dig. L. 43. t. 12. 1. 1. Stationem dicimus a statuendo: is igitur locus demonstratur, ubicunque naves tutò stare possunt. ib.§. 13.'Deterior statio, itemque iter navigio fieri videtur, si usus ejus corrumpatur, vel difficilior fiat, aut minor, vel rarior, aut si in totum auferatur. Proinde, sive derivatur aqua, ut exiguior facta minus sit navigabilis, vel si dilatetur, aut diffusa, brevem aquam faciat; vel contra sic coangustetur, et rapidius flumen faciat; vel si quid aliud fiat, quod navigationem incommodet, difficiliorem faciat, vel prorsus impediat, interdicto locus erit.'Dig. 43. 12. 15.'Molino, nin canal, nin casa, nin torre, nin cabaña, nin otro edificio ninguno, non puede ninguno home facer nuevamente en los rios por los quales los homes andan con sus navios, nin en las riveras dellos, porque se embarrasse el uso comun dellos. E si alguno lo ficiesse y de nuevo, ó fuesse fecho antiguamente, de que viniesse daño al uso comunal,debe ser deribado. Ca non seria cosa guisada que el pro de todos los omes communalmente se estorbasse por la pro de algunos.' Partidas.3. 28. 8. cited Derb. 48. Poydras 12.'You are not to do any thing in a public river, or on its banks, you are not to cast any thing into a public river, or on its banks, which may render the station, or course of a ship worse. It is called astation, fromstatuere, to place: that place is intended where ships may safely stay.'The station and course of a ship seems to be rendered worse, if its use be destroyed, or made more difficult, or less, or scantier, or if it be wholly taken away. Moreover, if water be drawn off, so that, being scantier, it is less navigable, or if it be dilated, or spread out, so as to make the water shallow, or if on the other hand it be so narrowed as to make the river more rapid; or if any thing else be done which incommodes the navigation, makes it worse, or wholly impedes it, there is ground for Interdict.''Mill, nor canal, nor house, nor tower, nor cabin, nor other building whatsoever, may any man make newly in the rivers along which men go with their vessels, nor on their banks, by which their common use may be embarrassed. And if any one does it anew, or were it anciently done, so that injury is done to the common use, it oughtto be destroyed. For it would not be meet that the benefit of all men in common should be disturbed for the benefit of some.'
Having no copy of this Ordinance, I quote it from Mr. Derbigny, p. 20. Duponçeau, p. 10. andl'Examen de la Sentence, p. 8, by putting together the parts they cite, for neither gives the whole of what I have cited. Other respectable authorities might be produced, to the same effect, were it necessary to multiply them: and it is also admitted that authorities of weight, and of a different aspect exist, among these is Dumoulin, as respectable as Pothier, Guyot, or any other who has been cited. Were it absolutely incumbent on me, more than on those who rely on the contrary authorities, to assign reasons for a difference of opinion among lawyers, on any point, it might be ascribed in this case to a difference of impression from views on the same subject, diversified as were the customs of the various provinces of France, on this very point. Dumoulin wrote a century and a half before the Ordinance of Louis XIV. In that course of time printing had become more diffused, books greatly multiplied, and a more correct collation of these customs could be made. So that had Dumoulin written in the days of Pothier and Guyot, and with their advantages, he would probably have concurred in the preceding observation, that, 'if there were any doubts, this Ordinance has dissipated them.' Be this as it may, Louis XIV. and his council have decided between these two opinions, and if it were not law before, his decision made it so. By this edict he declares the law of France, 'incontestably,' to be that 'Alluvions|30*|belong to the king in all navigable rivers.' But with a spirit* of indulgence, meriting more respect than he has found in the language of the adverse party who dislike the truths he has declared, he confirmed all anterior usurpations, on payment of certain compositions and future rents, re-establishing, by the example, the authority of the laws, and rights of the crown against these usurpations. This Ordinance was passed 19 years before the charter to Louisiana, and consequently was comprehended among the edicts and ordinances originally established as the law of the Province.
Mr. Livingston and his advocates have asserted that the right to the beds and increments of rivers, is a gift of the feudal system to the sovereign, that is, to the nation, and is a peculiarity of that system: and further, that that system was never introduced into Louisiana. That the latter assertion is palpably erroneous, could be readily shown, were not the question altogether unnecessary. With respect to the former, surely it is putting the cart before the horse to say, that the authority of the nation flows from the Feudal system, instead of the Feudal system flowing from the authority of the nation. That the lands within the limits assumed by a nation belong to the nation as a body, has probably been the law of every people on earth at some period of their history. A right of property in moveable things is admitted before the establishment of government. A separate property in lands not till after that establishment. The right to moveables is acknowledged by all the hordes of Indians surrounding us. Yet by no one of them has a separate property in lands been yielded to individuals. He who plants a field keeps possession till he has gathered the produce, after which one has as good a right as another to occupy it. Government must be established and laws provided, before lands can be separately appropriated, and their owner protected in his possession. Till then the property is in the body of the nation, and they, or their chief as their trustee, must grant them to individuals, and determine the conditions of the grant. In certain countries, they have granted them on a system of conditions and principles whichhave acquired the appellation of Feudal. Surely then it is the sovereign which has created the Feudal principles, and not these principles which have created the rights of the sovereign. The Edinburgh Reviewers, [No. 30. 339. Jan. 1810.] who in the progress of their work have deservedly attained a high standing in the public estimation, reviewing the condition of land-tenures among the Hindoos, say, 'the territory of the nation, belonging in common to the nation, belongs, in this general sense, to the king, as the head and representative of the nation. As far accordingly as we have sufficient documents respecting rude|31*|nations*, we find their kings,without perhaps a single exception, recognized as the sole proprietors of the soil.' And they quote as their authorities,
In Europe.
In Asia.
In Africa.
In America.
For the United States and the Indian hordes of our continent, we cite our own knowledge.
It seems then to be a principle of universal law that the lands of a country belong to its sovereign as trustee for the nation. In granting appropriations, some sovereigns have given away the increments of rivers to a greater, some to a lesser extent, and some not at all. Rome, which was not feudal, and Spain and England which were, have granted them largely; France, a feudal country, has not granted them at all on navigable rivers. Louis XIV. therefore was strictly correct when in his edict of 1693, he declared that the increments of rivers were incontestably his,as a necessary consequence of the sovereignty. That is to say, that where no special grant of them to an individual could be produced, they remained in him, as a portion of the original lands of the nation, or as new-created lands, never yet granted to any individual. They are unquestionably a regalian, or national right, paramount, and pre-existent to the establishment of the feudal system. That system has no fixed principle on the subject, as is evident from the opposite practices of different feudal nations. The position, therefore, is entirely unfounded, that the right to them is derived from the feudal law; and it is consequently unnecessary to go into the proof of what|32*|the grants in that country *exhibit palpably enough, that infeudations were partially at least, if not generally, introduced into Louisiana.
It ought here to be observed however that, so far as respects the beds and navigation of rivers, the right vested in the sovereign is a mere trust, not alienable. It is not like lands, imposts, taxes, an article of public property constituting the revenues of the state, but like roads, canals, public buildings, reserved for the use of the individuals of the nation. See an explanation of this subject, Vattel 1. 235. 239.
|M. Thierry.|I have now to advert, and I do it with extreme regret, to a passage in the very able Memoire of M. Thierry, a Memoire conspicuous for its learning and sound reasoning, and to which I acknowledge myself peculiarly indebtedfor information on the points he has discussed. He says, p. 30. 'To the ancestors of John Gravier the right of alluvion belonged, not only by virtue of the Coutumes de Paris, which for two centuries back acknowledged the principle of the Roman law, and against which, for that reason, the Ordinances of the kings of France could with no manner of success be pleaded, inasmuch as a royal ordinance specially made that Coutume the civil law of this colony; but also by virtue of the Spanish laws, which from 1769, have been constantly in force in Louisiana.' 1. That the Roman principle of Alluvion was acknowledged by the Coutumes de Paris has not been proved. The adverse counsel, [Dupon. p. 9.] has said indeed, that those Customs were silent on this subject. But I have considered Pothier, Guyot, and Le Rasle as better authority. 2. Mr. Thierry supposes that a Royal Ordinance having specially made that Coutume the civil law of Louisiana, the Ordinances of the kings of France were excluded from the system, and could not control what was Coutume. He had not, I presume, seen the charter of 1712, which makes the edicts andordinances, with the Coutume de Paris, the law of that province; nor sufficiently considered that had the Coutumes been alone established by one ordinance, another might change them. 3. He supposes the Spanish laws have given Alluvions to the riparian proprietor. But the laws of the province, established by their charter, were not annulled by the change of one king for another, as their legislator. The latter might change them. But has he done so? If he has, his edict must be produced, that we may weigh its words, and judge of its effects for ourselves. And we must guard against admitting that the example of a Spanish Governor, if such example has occurred, occasionally and incorrectly acting on the laws of Spain, amounted to a repeal of the whole system then existing, and a formal establishment of a different one. No such intention on|33*|his part, *to make so momentous a change, should be so slightly inferred; and no power of his could effect it, even if intended. Nothing less than an Ordinance of the Sovereign himself, signed with his own hand, and sanctioned by allthe solemnities attending their enactment and promulgation, was competent to reverse at once the legal condition of a whole people, and the laws under which their lives and properties were held. Again, even such an ordinance could not change the law as to past rights; and those now in question were vested before the Spanish government took place, and could not be annulled by a subsequent law. These gratuitous admissions, therefore, of Mr. Thierry, not at all necessary to his argument, and therefore probably not well considered, and in opposition to the opinions and demonstrations of an able brother counsellor (Mr. Derbigny), must be disavowed, and the authority of the Ordinance of 1693 insisted on with undiminished confidence. Mr. Thierry himself will perhaps the more readily abandon them, when he sees with what avidity his eagle-eyed adversary has pounced upon them in a letter to some member of the government, in which he considers them as giving up all ground of opposition to his claims.
|Edict of Louis XIV.|To that edict then I shall now recur; and to the cavils raised against it by the advocates of the claims it annihilates. It is idle for them to call it bursal, fiscal, and the act of a tyrant, &c. [Duponc. 10.] as if the authority of laws was to be graduated by the character of the existing legislator; and as if we were to be the judges, for other nations, of the character and obligation of their laws. It is vain to pretend that because the word 'Alluvion,' inserted in the enacting clause of the edict, is not in the preamble, therefore it has no force in the body of the law: as if the preface, giving the general reason and views of the law, was alone to be the law, and its actual enactments a mere nullity. Although the preamble of a statute is considered as a key to open the mind of the makers as to the mischiefs in their view, yet in general it is no more than a recital of some inconveniences, which does not exclude any other for which the enacting clauses provide; nor must the general words of an enacting clause be restrained by the particular words of the preamble. 6. Bac. Abr. Statute. I. 2. and the authorities there stated. So says our law; so says reason; andso must say the Roman law, if it beratio scripta. But it is further to be observed that the words'attérrissementsandaccroissements,' accumulations and increments, used in this preamble are generic terms, of which 'Alluvion' is a species, and therefore strictly comprehended by it. This is proved|34*|by the Roman definition,'Alluvio estincrementum* latens,''alluvion est un accroissement ou crement imperceptible,'by the Napoleon code cited by Mr. Livingston:
|Napoleon Code.|
|Portalis.|And by the edicts of 1686 and 1689, both of which have the expression'crémensqui s'y sont formés, soit paralluvion, ou par industrie,&c.' And here Portalis's rhetorical flourish, on presenting this law, is cited, [Duponc. 17. Liv. 22.] with triumph, as declaring that this law terminates the great question of Alluvion, and decides it conformably to the Roman law. It is very true indeed that it has terminated the question as to future cases, by changing the law, by transferring the right of Alluvion from the sovereign to the riparian proprietor, by giving the abandoned bed of a river, as an indemnification to him on whose land it has opened a new passage, and making this the future law of all the provinces. And had Louisiana then been subject to France, the law would have been changedthenceforward, for Louisiana also. I find no fault with Napoleon for this Roman predilection. I believe the change is for the better, so far as concerns rural possessions. A decision too of the parliament of Bordeaux is quoted by Mr. Duponceau 19. to prove that the law giving Alluvion to the adjacent possessor has been acknowledged in France by the decision of the parliament of Bordeaux, confirmed,as he has heard, on appeal by the parliament of Paris. This proves only that the Roman lawof alluvion was the law of the Generality of Bordeaux, not that it was then the law of all France. In the country called the Bordelois, Customary laws prevail. But
The inference then is, either that the Coutume de Bordeaux was the same on this point as the Roman law, or, that being silent, the Roman law was referred to.[93]
|35*|*Surely never was the urgency of squeezing argument out of everything so apparent, as in the emphasis with which the adverse party presses and comments, [Liv. 32.] on the answers of the several tribunals, to which the Napoleon Code was referred for consideration and amendment. A dozen tribunals are named, with an &c. for more, who are acknowledged to have said nothing about alluvion: and this is produced as proof that it had belonged before to the riparian proprietor. But it proves more probably that these tribunals were contented with the change proposed, and had no amendment of it to offer. But, in truth, it proves nothing either the one way or the other. The tribunal of Paris is then quoted, with an acknowledgment that they do not make a single observation on the subject. Then long extracts from that of Rouen, proposing thatislands, rising in the rivers, shall be given to the riparian proprietors: and recommendations to the same effect from those of Toulouse and Lyons. Now it is remarkable that neither the word 'Alluvion,' nor the idea of the thing, is either expressed or referred to in any one ofthese quotations. And yet Mr. Livingston says, 'we find all these learned men either passing over these articles, as merely declaratory of the old law, or elseexpressly acknowledging themas such;' and again after the citation from Rouen, 'here we have the positive declaration of a learned tribunal, &c. deciding that the edicts did not extend to alluvions, but only to islands in navigable rivers.' And yet I repeat that neither the word nor the idea is to be found in any one of the quotations; for it is of these only I can speak, not possessing the book, but I presume Mr. Livingston's quotations are of the strongest passages. It is impossible to characterize such reasoning respectfully. I shall therefore leave it to the reflection of others. And I think myself authorized to conclude on the whole, that had the Batture been really an Alluvion, its ownership was to be decided by the laws of France; and that Louis XIV. with the advice of his council, certainly knew when they declared what the law of their country 'incontestably' was; and if we, with our scanty reading on the subject, at this day and distance, know better than they did, yet the enacting clause of the edict made it the lawthenceforward; that it came over as law for Louisiana, made the batture, if an alluvion, the property of the sovereign; and certainly the whole tenor of the conduct of the Spanish government proved that they did not mean to relinquish it.
|36*|Before we quit this branch of the discussion, it is not amiss to *observe that the eloquent declamations of these learned men of Rouen, so much eulogized by Mr. Livingston, were not at all heeded. The Napoleon code, §. 560. retained theislandsrising in the beds of navigable or floatable rivers, and (changing the French law only as to alluvions) declares, §. 538. in opposition to the Roman law, that
So that notwithstanding the 'persuasive and conclusive arguments of these first lawyers of the country,' Liv. 31. the French law as it stands at this day, and stood before, would have given the batture to the public, being unquestionably the[94]rivage or shore of the river.[95]
|37*38*|*I will now proceed further and say, that had the batture been an alluvion, and to be decided by the Roman, instead of the French law, the conversion of the plantationof Gravier into a *suburb, made it public property. And here I rejoin with pleasure the standard of M. Thierry, and avail myself of his luminous discussion of this point.|39*|Were I fully to go into it, I could *but repeat his matter. I shall therefore give but a summary view of it, and rest on his argument for its more detailed support.
|Rural and Urban.|The position laid down is that the Roman law gave alluvion only to the rural proprietor of the bank; urban possessions being considered asprædia limitata, limited possessions. The law which gives this right is expressed in the Institutes in these words,'quod per alluvionemagrotuo flumen adjecit, jure gentium tibi adquiritur.'Inst. 2. 1. 20. 'What the river has added,agro tuo, becomes yours by the laws of nations.' And the Digest 41. 1. 7. 1. in almost the same words says,'quod per alluvionemagronostro flumen adjecit, jure gentium nobis adquiritur.'In both instances it is to the possessoragrionly that it is given. It becomes material therefore to understand rigorously the import of the wordager, in the Roman laws; and it happens that its definition is givencritically by the same authority which uses it.'Locus sine|40*|ædificio, in urbearea, *rure autemagerappellatur idemqueager, cum ædificio,fundusdicitur.'Dig. 50. 16. 211.'Quæstio est, fundus a possessione, vel agro, vel prædio quid distet?' Ib. 115in notis, 'fundus est ipsum solum: eo si utimur, prædium dicitur.Ageresse potest sine villâ.''Ground, without a building, in a city is calledarea, but in the countryager.' Pliny 1. 6. affirms thatageris derived from the GreekἀγÏὸςof the same import. And in the Greek Pragmatics of Attaliata tit. 45. the law of alluvion uses 'ἀγÏὸς' forager. 'Τὸ ἀνεπαισθήτως διὰ τοῦ ποταμοῦ Ï€Ïοστεθὲν Ï„á¿· ἀγÏá¿· μου Ï€Ïόσχωσις á¼ÏƒÏ„ὶν, ἤτοι Ï€Ïόσκλυσις, καὶ á¼Î¼Î¿á½¶ á¼Ïμόζει.' 'Quod insensibiliterÏ„á¿· ἀγÏá¿· μουper flumenadjectum est, alluvionis est, et mihi competit.'What is insensibly added by the riveragro meois alluvion [adundatio,adaggeratio] and belongs to me.' In the same title 'á½…Ï€ÎµÏ á¼Î½ Ï„á¿· ἀγÏá¿· σοῦ σπείÏω σόν á¼ÏƒÏ„ιν.' 'What I sowἀγÏá¿· σουagro tuo, in yourfield, is yours.' And Stephens, in his Thesaur. ling. Gr.voce'ἈγÏὸς' translates it'rus, ager,''á¼Î½ ἀγÏá¿·'in agro, ruri.Ἐξ ἀγÏου,ex agro, rure.'Εἰς ἀγÏον,in agrum, rus.' And he cites examples: 'Îηῦς δΠμοι ἥδ' ἕστηκεν á¼Ï€' ἀγÏοῦ, νόσφι πόληος'. Hom. Od. 1. 185. 'My vessel is stationed in thecountry, apart from the city.' 'Διὰ τὸ μὴ μεγάλας εἶναι τότε Ï„á½°Ï‚ ΠΟΛΕΙΣ, ἀλλ' á¼Ï€á½¶ τῶν ΑΓΡΩΠοἰκεῖν τὸν δῆμον ἄσχολον ὄντα.' Aristo. Polit. 5. 'Because, thecitiesnot being then large, the people were occupied in thecountry, whereἀγÏὸςis proved to be pointedly the contradiction toπόλις, to wit, thecountryto thecity. From these definitions it appears that the word ager, in the law, constantly means a field, or farm, in the country, and that a city lot is calledarea. In towns, the whole bank and beach being necessary for public use, the private right of alluvion would be inadmissible; and the adverse counsel have been challenged [Thierry, 33.] to produce a single instance, under the Roman law, of a claim of Alluvion allowed in a city. To this might be added a similar challenge as to the laws of England. These give alluvion on rivers, as the civil law does, to the riparian proprietor. Bracton L. 2. c. 2. § 1. Fleta. L. 3. c. 2. Can they from the volumes of English law, with which theyare so much more familiar, produce one single instance of the private right of alluvion allowed in a city? In England, I mean, and not in America, where special circumstances have prevented attention to the law on this subject, or the breach of it. And this must be from the reason of the thing alone, because the common law never having been, like the civil law, reduced to a text, no verbal criticisms on a text can have co-operated|41*|against the claim.[96]Repeating, *therefore, my reference to the reasoning and authorities of M. Thierryon this point, and my own conviction of their soundness, I consider it as established that, were this question to be decided by the Roman law, the conversion of the farm into a fauxbourg of the city passed to the public all the riparian rights attached to it while a rural possession, and among these the right of alluvion.
|Principal and accessory42*|And, if the right of alluvion is not given to urban proprietors, much less would it to a mere holder of the bed of a road. But did any one ever hear of a *man's holding the bed of a road, and nothing else? Is it possible to believe that Bertrand Gravier, in selling his lotsface au fleuve, really meant to retain the bed of the road and levee? That a man, having a road on the margin of his land, which is its boundary, should mean to sell his land to the road, and to retain that by itself? a thing of no possibleuseto him, because theusebeing in the public, he could never employ it in agriculture or otherwise. Were all this possible, yet this bed of a road, this"labrum amnis"would be noager, no field to which the right of alluvion could attach. That right is but an accessory, or, in the language of our law, an appendage or appurtenance, and an accessory, not to a mere line, but to something of which it can become a part. Had the law, therefore,ever given alluvion to any but the holder of anager, of a field, yet the general doctrines of principal and accessory, would not have carried the benefit to Bertrand Gravier in this case.'Accessorium sequitur naturam sui principalis. Et in accessoriis, præstanda sunt quæ in principali. Accessorium non tenet sine principali. Sublato principali, tollitur et accessorium.'These are maxims of the civil law.Calvini lexicon jurid.'An accessory follows the nature of its principal.' If the accession then be to a field, it becomes part of the field; if to a town, it would become part of the town; if to a road, the use of which belongs to the public, it would be to the road, and to the public. It must follow the nature of its principal, and become a part of that, subject to the same rights, uses and servitudes with that: and Bertrand Gravier had no right of use in the principal, that is, of the road and levee.
The equity on which the right of alluvion is founded is, that as the owner of the field is exposed to the danger of loss, he ought, as an equivalent, to have the chance of gain. But what equitable reason could there be, in the present case, for giving to Gravier the benefit of alluvion, when he could lose nothing by alluvion? If the levee and bank were washed away, they would not go to his plantation, back of the suburb, for a new one. The public would have to purchase a new bed for a road from the adjacent lot holders. Then'qui sentit onus, sentire debet et commodum.'
But I do deny to the Batture every characteristic of Alluvion.
The French and Roman law constituting that of the place, let us seek from them the definition of Alluvion. The Institute 2. 1. 20. gives it in these words, and the Digest. 41. 1. 7. §. 1. in almost verbatim the same.
And in the Greek version of Theophilus, the words,'Alluvio est incrementum latens'are rendered 'ἀλουβιων á¼ÏƒÏ„ιν ἠπÏόσκλυσις á¼¢ Ï€Ïόσχωσις,' translated by Curtius'Alluvio est adundatio vel adaggeratio.'Retaining only the words of this paragraph which are definition it will stand thus.
This is the Roman definition.
In the Law Dictionary of the Encyclop. Method,voce'Alluvion' by Le Rasle, the definition is:
To reduce the essential members of the Roman and French definitions to a single one, according with our own common sense, for certainly we all understand what alluvion is, I should consider the following definition as comprehending the essential characteristics of both.
I take this to be rigorously conformable with the French and Roman definitions, as cited from the authorities before mentioned, and that it contains not one word which is not within their unquestionable meaning. Now let us try the batture by this test.
1. 'Alluvion is an extension which the waters add insensibly.' But the increment of the batture has by no means beeninsensible. Every swell of six months is said [Derb xix.] to deposit usually nearly a foot of mud on the whole surface of the batture, so that, *when the waters retire, the increment is visible to every eye. And we have seen that, aided by Mr. Livingston's works, a single tide extended the batture from 75 to 80 feet further into the river, and deposited on it from 2 to 7 feet of mud, insomuch that a saw-scaffold, 7 feet high when the waters rose on it, was, on their retiring, buried to its top. This increment is, surely, not insensible. See the Mayor's answer to the Governor, Nov. 18, '08. MS.
2. 'Byappositionof particles of earth,' or, by theiradhesion. But the addition to the batture is bydepositionof particles of earth on its face, not by theirappositionoradhesionto the bank. It is not pretended that the bank has extended by apposition of particles to its side, one inch towards the river. It remains now the same as when the levée was erected on it. The deposition of earth on the bottom of a river, can be no more said to be an apposition to its sides, than the coating the floor of a room can be said to be plastering its walls.
3. 'Against the adjacent field,'la terre voisine. Not a particle has been added to the adjacent field. That remains as it was, bounded by the identical line,crepido, orora terræ, which has ever bounded it.
4. 'And consolidated with the field so as to make part of it.'Un tout avec la terre voisine. Even supposing the continuity of the adjacent field not to be broken by the intervention of the levée and road, nothing is consolidated with it, not even with themargo riparum, orchemin de hallage, if there be any, between the levée and brim of the bank. No extension of its surface has taken place so as to form one with the former surface, so as to be a continuation of that surface, so as to be arable like that. The highest part of the batture, even where it abuts against the bank, is still materially below the level of the adjacent field. A terrass of some feet height still separates the field from the deposition called the batture. It is now as distinguishable from the adjacent field as it ever was, being covered with water periodically 6 months in the year, while that is dry. Alluvion is identified with the farmer's field, because of identity of character, fitness for the same use: but the batture is not fitted for ploughing or sowing. It is clear then that the batture has not a single feature of Alluvion; and divesting it of this misnomer, the whole claim of the plaintiff falls to the ground: for he has not pretended that it could be his under any other title than that of Alluvion.
We will now proceed to shew what it is, which will further demonstrate what it is not.
|Bed, Beach, Bank.45*|In the channel, or hollow, containing a river, the Roman law has distinguished thealveus, or bed of the river, and theripa, or bank, the river itself beingaqua, water.'Tribus constant flumina, alveo, aqua, et ripis'. Dig. 43. 12. *not. 1. All above high water mark they considered asripa, bank, and all below asalveus, or bed. The same terms have the same extent in the language of our law likewise. But we distinguish, by an additional name, that band, or margin of the bed of the river, which lies between the high and the low water marks. We call it thebeach. Other modern nations distinguish it also. In Spanish it isplaya, Ital.piaggia, in Frenchplage, in the local terms of Orleans it isbatture,and sometimesplatin.[97]In Latin I know of no terms which applies exactly tothe beach of a river.Litusis restrained tothe shore of the sea, and there comprehends the beach, going to the water edge, whether at high or low tide.'Litusest maris,ripafluminis,'says Vinnius in his Commentary on the Inst. 2. 1. 4. and he confirms this difference of extent towards the water, ibid. where he says,
In our rivers, as far as the tide flows, the beach is the actual, as well as the nominal bed of the river, during the half of every day. Above the flow of tide, it is covered half the year at a time, instead of half of every day. The tide there being annual only, or one regular tide in a year. This, in the State where I am, begins about the first of November, is at its full tide during the months of January and February, and retires to its minimum by the end of April. In other States from North to South, this progression may vary a little. Hence we call them the Summer and Winter tides, as the Romans did theirs,hibernus et æstivus. The Mississippi resembles our fresh water rivers in having only one regular swell or tide a year. It differs from them in notbeing subject to occasional swells. The regions it waters are so vast that accidental rains and droughts in one part are countervailed by contrary accidents in other parts, so as never|46*|to become *sensible in the river. It is only when all the countries it occupies become subject to the general influence of summer or winter, that a regular and steady flood or ebb takes place. It differs too in the seasons of its tides, which are about three months later than in our rivers. Its swell begins with February, is at its greatest height in May, June, and July, and the waters retire by the end of August. Its high tide, therefore, is in summer, and the low water in winter. Being regular in its tides, it is regular also in the period of its inundations. Whereas in ours, although the natural banks rarely escape being overflowed at some time of the season, yet the precise time varies with the accident of the fall of rains. But it is not the name of the season but the fact of the rise and fall which determine the law of the case.
Now the batture St. Mary is precisely within this band, or margin, between the high and low water mark of the Missisipi called the beach. It extended from the bank into the river from 122 to 247 yards, before Mr. Livingston began his works, and these have added in one year, from 75 to 80 feet to its breadth. This river abounds with similar beaches, but this one alone, from its position and importance to the city, has called for a legal investigation of its character. Every country furnishes examples of this kind, great or small; but the most extensive are in Northern climates. The beach of the Forth, for example, adjacent to Edinburgh, is a mile wide, and is covered by every tide with 20 feet water. Abundance of examples of more extensive beaches might be produced; many doubtless from New-Hampshire and Maine, where the tide rises 40 feet. This therefore of St. Mary is not extraordinary but for the cupidity which its importance to the city of New-Orleans has inspired.
I shall proceed to state the authorities on which this division between the bank and bed of the river is established, and which makes the margin or beach a part of the bed of the river.
'Ripa est pars extima alvei, quò naturaliter flumen excurrit.'Grotius de Jour. B. et P. 2. 8. 9.
'Ripa ea putatur esse quæplenissimumflumen continet.'Dig. 43. 12. 3. And Vinnius's commentary on this passage is'ut significet, partem ripæ non esse, spatium illud, ripæ proximum, quod aliquando flumine, caloribus minuto æstivo tempore non occupatur.'
'The bank is the outermost part of the bed in which the river naturally flows.'
'That is considered to be bank, which contains the river whenfullest,' and Vinnius's commentary on this passage is 'this signifies that the space next to the bank, which is sometimes not occupied by the river, when reduced by heats in the summer season, is not a part of the bank.'
'Alveus flumine tegitur.'Grot. de jur. B. ac P. 2. 8. 9.
'Alveus est spatium illud flumini subjectum per quod fluit.'Vinnii Partitiones jur. Civil. 1. 17.
'The bed is covered by the river.'
'The bed is the space, subjacent to the river, through which it flows.'
Littus, in the Roman law, being the beach or shore of the sea, 'rivage,' definitions of that will corroborate the division between theripaandalveus,bedandbankof a river. In both cases what is covered by the highest tide belongs to the public, all above it is private property.
'Litus est quousque maximus fluctus à mari pervenit. Idque Marcum Tullium aiunt, cum arbiter esset. primum constituisse.'Dig. 50. 16. 96.
'Est autem litus maris quatenùs hibernus fluctus maximus excurrit.'Inst. 2. 1. 3. the paraphrase of Theophilus adds,'undè et æstate, usque ad ea loca litus definimus,'and his Scholiast subjoins'non ut mediis caloribus solet, sed hibernus; quoniam hieme protissimum mare turbatur, mare est undabundum.'
'The shore is as far as the greatest wave of the sea reaches; and it is said that Marcus Tullius first established that when he was an Arbiter.'
'The shore of the sea is as far as the greatest winter wave reaches.' The paraphrase of Theophilus adds, 'wherefore, in summer also, we bound the shore by the same limits, and his Scholiast subjoins, 'not the wave of midsummer, but of winter; because the sea is most agitated, and most swelled.'
'Byshore, the Institutes mean up to the high-water mark, or (where little or no tides, as in the Mediterranean) as high as the highest winter wave washes. 1. Brown's Civil and Admiralty law. B. 2. c. 1.
|48*|We must not, however, with Mr. Livingston, pa. 61. seize on the single word'hibernus,'in the last quotations, and sacrifice *to that both the fact, and the reason of the law. The substance of thefacton which the law goes, is that there is a margin of the bed of the river, covered at high water, uncovered at low. The season when this happens is a matter of circumstance only, and of immaterial circumstance. In the rivers familiar to the Romans themaximus fluctus, or highest wave, was in the winter; in the Missisipi it is in summer. Circumstance must always yield to substance. Theobjectof the law is to reserve that margin to the public. But to reduce, with Mr. Livingston, the public right to the Summer water-line would relinquish that object. The explanations quoted from Vinnius, from Theophilus and his Scholiast, prove from the reason of the law, that the law of the winter tide for the Po, and the Tyber, must be that of the Summer tide of the Missisipi. The Spanish law therefore, is expressed in more correct terms; and we have the authority of Mr. Livingston [ibidem] for saying that the Justinian code is the common law of Spain.
This is the law correctly for all rivers, leaving to every one its own season of flood or ebb.
To these authorities from the Roman and Spanish law, I will add that of the French Ordinance of 1681. § 43. Art. 1. on the same subject.
|49*|Let us now embody those authorities, by bringing together the separate members, making them paraphrase one another, and form a *single description. The Digest 43. 12. 3. with Vinnius's comment will stand thus. 'The bank ends at the line to which the water rises at its full tide; and although the space next below it is sometimes uncovered by the river, when reduced by heats in the Summer season, yet thatspace is not a part of the bank.' Now, substituting for 'the heats of the summer season' which is circumstance, and immaterial, the term 'low water,' which is the substance of the case, nothing can more perfectly describe the beach or batture, nor collated with the other authorities, make a more consistent and rational provision. 'The bank ends at that line on the levée to which the river rises at its full tide: and altho' the batture or beach next below that line is uncovered by the river, when reduced to its low tide, yet that batture or beach does not therefore become a part of the bank, but remains a part of the bed of the river,' for says Theophilus 'even in low water [et æstate] we bound the bank at the line of high water.' Inst. 2. 1. 3. 'The bank being theextima alvei, theborder of the bed, within which bed the river flows when in its fullest statenaturally, that is to say, not when'imbribus, vel quâ aliâ ratione, ad tempus, excrevit,'not when 'temporarily overflowed by extraordinary rains, &c.' Dig. 43. 12. 5. but'quando mas crece, sin salir de su madre, en qualquiera tiempo del año,''when in its full height, without leaving its bed, to whatsoever season of the year the period of full height may belong.' This is unquestionably the meaning of all the authorities taken together, and explaining one another.
From these authorities, then, the conclusion is most rigorously exact, that all is river, or river'sbed, which is contained between the two banks, and the high water line on them; and all isbankwhich embraces the waters in their ordinary full tide.
Agreeably to this has been the constant practice and extent of grants of lands on the Missisipi. Charles Trudeau swears [Liv. 57.] that 'during 28 years that he has performed the functions of Surveyor General of this province, it has always been in hisknowledge, that the grants of lands on the borders of the Missisipi, have their fronts on theedgeof the river itself, and when its waters areat their greatest height.' And Laveau Trudeau [Liv. 58.] that 'the concession to the Jesuits, he believes, was like all the others, that is, from the river at its greatest height.'
Thus we see what the law is; that it has been perfectly understood in the territory, and has been constantly practiced on, and consequently that neither the grant to the Jesuits, nor to Bertrand Gravier, could have included the beach or batture.
|Missisipi.50*|It will perhaps be objected that, establishing the commencement of the bank at high water mark, leaves in fact no bank at all, as the high water regularly overflows the natural* bank or brim of the channel. And will it be a new phenomenon to see a river without banks sufficient to contain its waters at their full tide? The Missisipi is certainly a river of a character marked by strong features. It will be very practicable, by exaggerating these, to draw a line of separation between this and the mass of the rivers of our country, to consider it assui generis, not subject to the laws which govern other rivers, but needing a system of law for itself. And until this system can be prepared it may be abandoned to speculations of death and devastation like the present. But will this be the object of the sound judge or legislator? it is certainly for the good of the whole nation to assimilate as much as possible all its parts, to strengthen their analogies, obliterate the traits of difference, and to deal law and justice to all by the same rule and same measure. Thebayousof all that territory and of the country thence to Florida Point are without banks to contain their full tides. The Missisipi is in the like state as far as Bâton Rouge, where competent banks first rise out of the waters, and continue with intervals of depression to its upper parts. Many of the rivers of our maritime states are under circumstances resembling these. The channel which nature has hallowed for them is not yet deep enough, or the depositions of earth on the adjacent grounds not yet sufficiently accumulated, to raise them entirely clear of the flood tides. Extensive bodies of lands, still marshy therefore, are covered by them at every tide. In some of these cases, the hand of man, regulated by laws which restrain obstructions to navigation and injury to others, has aided and expedited the operations of nature, by raising the bank which she had begun, and redeeming the lands from the dominion ofthe waters. The same thing has been done on the Missisipi. An artificial bank of 3, 4, or 5 feet has been raised on the natural one, has made that sufficient to contain its full waters, and to protect a fertile and extensive country from its ravages. These are become the real banks of the river, on which the laws operate as if the whole was natural. The Nile,|Nile.|like the Missisipi, has natural banks, not competent in every part to the conveyance of its waters. In these parts artificial banks are, in like manner, raised, through which and the natural bayous and artificial canals the inundation, when at a given[99]height, is admitted; this being indispensable to fertilize the lands in a country where it never rains. And these banks of the Nile, natural and artificial, are recognized as such by the Roman|51*|law, as appears in *a passage of the Digest before cited, declaring that its banks, tho' inundated periodically, are not thereby changed. Nor are those of our rivers when temporarily overflowed by rains, or other causes. Wherever therefore the banks of the Missisipi have no high water line, the objection is of no consequence, because the lands there are not as yet reclaimed or inhabited; and wherever they are reclaimed, the objection is not true; for there a high water line exists to separate the private from public right.[100]
1. The Upper Missisipi, like the Upper Nile, has competent natural banks through probably three fourths of its whole course. There then the Roman law is applicable in its very letter. 2. For about 400 miles more, the natural banks have been aided by artificial ones, on both sides, so as to contain all the waters of theflumen plenissimum: and the inhabitants there have no occasion as those of the Nile, to open their banks for the purpose either of fertilizing, or irrigating the lands. Here then there is still less reason, than in the case of the Nile, to say that 'the Missisipi has changed its bank.' 3. On the lower parts of the Missisipi and some of its middle portion, especially on the Western side, artificial banks have not yet been made, and the country is regularly inundated, as it is on those parts of our Atlantic rivers not yet embanked. But our increasing population will continue to extend these banks of our Atlantic rivers; and, for this purpose, our governments grant the lands to individuals. And the same, we know, is done on the Missisipi. TheCyprioresadjacent to New-Orleans, for example, though covered with the refluent water from the lake, we know have been granted to individuals, and will, with the rest of the drowned lands, be reclaimed in time, as all lower Egypt has been.
Thus then we find the laws of the Tyber and Nile transferred and applied to the Missisipi with perfect accordance, and that all rivers may be governed by the same laws. Other rivers are subject to accidental floods, which are declared however not to disturb the law of theplenissimum flumen. The Nile and Missisipi, not being subject to accidental floods, theflumen plenissimumwith them is steady and undisturbed, and needs not the benefit of the exception. Nor will the reason of the law be changed, whether the cause of the inundation be the saturation of the earth and fountains, or rains, or melted snows, or the reflux of the ocean. The principle remains universally the same, that the land mark, when once established by a competent bank, is not changed by the inundation, or by any cause or circumstance of its high waters.
|52*Property in bed and bank.|*Having ascertained what the batture is not, and what it is, and established the high water mark as the line of partition between the bed and bank of the river, we will proceed to examine to whom belongs ground on either side of that line?
And 1. As to the bed of the river, there can be no question but that it belongs purely and simply to the sovereign, as the representative and trustee of the nation. If a navigable river indeed deserts its bed, the Roman law gave it to the adjacent|53*|proprietors;* the former law of France to thesovereign; and the new Code gives it as an indemnity to those through whose lands the new course is opened. But, while it is occupied by the river, all laws, I believe, agree in giving it to the sovereign; not as his personal property, to become an object of revenue, or of alienation, but to be kept open for the free use of all the individuals of the nation.
And'littus'we have seen is the beach or shore of the sea.
'As to navigable streams and rivers, on which boats can ply, the property of them is in the king, as an incontestable right, naturally attached to the sovereignty; and since public things belonged to the people in the Roman republic, amongst us [in France] they must belong to our Sovereigns.' Julien, cited by Thierry 10. AndPrevost de la Jannès, in his Principles of French Jurisprudence, after having said that the property of public things belongs to the king adds 'subject to the use thereof that is due to the people.' Thierry, ib.
In like manner, by the Common law of England, the property,tam aquæ quam soli, of every river, having flux or reflux, or susceptible of any navigation, is in the king; who cannot grantit to a subject, because it is a highway, except for purposes which will increase the convenience of navigation. 'The king has a right of property to the sea shore, and themaritima incrementa. Theshoreis the land lying between high water and low water mark in ordinary tides, and this land belongeth to the kingde jure communi, both in the shore of the sea, and shore of the arms of the sea. And that is called an arm of the sea where the tide flows and reflows, and so far only as the tide flows and reflows.'Hale de jure maris.c. 4. cited in Bac. Abr. Prærog. B. 3.
So that I presume no question is to be made but that the bed of the Missisipi belongs to the sovereign, that is, to the Nation.
2. In the bank, from the high water line inland, it is admitted that the property or ownership, is in the Riparian proprietor of the adjacent field or farm: but the use is in the public, for the purposes of navigation and other necessary uses.
'Riparum quoque usus publicus est jure gentium [i. e. gentis humanæ] sicut ipsius fluminis: itaque naves ad eas appellere, funes arboribus ibi natis religare, onus aliquod in his reponere, cuilibet liberum est, sicut per ipsum flumen navigare. Sed proprietas earum, illorum est, quorum prædiis hærent: quâ de causâ arbores quoque in eisdem natæ corundem sunt.'Inst. 2. 1. 4. And Vinnius adds'non ut litora maris, ita ripas, conditionem fluminis sequi.'
'Publica sunt flumina, portus, alveus fluminis quamdiu à flumine occupatus, ripæ. Harum rerum omnium, proprietas nullius, si ripas exciperis, quarum proprietas eorum est qui propè ripam prædia possidunt.'Vinnii Part. jur. L. 1. c. 17.
'The use of the bank is public by the law of nations [i. e. of nature] as to navigate the river itself. Therefore it is free for every|54*|*one to bring his ships to at them, to make fast ropes to the trees growing there, to discharge any load on them. But the property of them is in those to whose farms they adhere; for which reason the trees likewise growing on them, belong to the same.' And Vinnius adds 'the banks do not, like the shores of the sea, follow the condition of the river.'
'Rivers, harbors, the beds of rivers as long as occupied by the river, and the banks are public. The property of all these is in no one, if you will except the banks, the property of which is in those who possess the farms on the bank.'
'Rivers, streams, high roads belong to all men in common; and although the soil of the banks of the rivers be an accession to the property of the owners of the contiguous land, yet all men may make use of them so far as to make fast their vessels to the trees which grow there, to repair them, and spread their sails on the banks; and they may there discharge their goods. Fishermen have also a right to dry their nets there, to expose their fish for sale on the banks, and in general to use them for every purpose of their art, or the occupation by which they live.' 3 Part id. 28. 6. cited Thierry 9.
'The same usefulness of the navigation of rivers demands the free use of their banks, so that in the breadth and length necessary for the passage and track of the horses which draw the boats, there be neither tree planted nor any other obstacle in the way.' Domat, Pub. law. 1. 8. 2. 9. To moor their vessels, spread their sails, unlade, sell their fish, &c. are here mentioned for example only, and not as a full enumeration of the variety of uses which, flowing from the public rights, may be exercised by them. In England it is said to have been decided that the public have nocommon-lawright to tow upon the banks of navigable rivers. 3 Term. Rep. 253. cited Bac. Abr. highways A.
These authorities are so clear that they need no explanation. The text is as plain as any commentary can make it.
But there is an important limitation to these rights. Every individual is so to use them as not to obstruct others in their equal enjoyment. The space every one occupies on the bank or bed, as in a highway, a market, a theatre, is his for reasonable temporary purposes,|Limitations of the rights of property.55*|but not to be held *permanently. The adjacent landholder may repair or fortify his bank to protect his land from inundation, but under the control of the magistrate, that his neighbors be not injured. He cannot divert the course of the stream, or even draw off water from it, to the injury of the navigation; nor erect any work which shall incommode the harbor or quai.
'Ne quid in flumine publico, ripâve ejus, facias, ne quid in flumine publico, neve in ripa ejus immittas, quo statio, iterve navigio deterior sit. Dig. L. 43. t. 12. 1. 1. Stationem dicimus a statuendo: is igitur locus demonstratur, ubicunque naves tutò stare possunt. ib.§. 13.
'Deterior statio, itemque iter navigio fieri videtur, si usus ejus corrumpatur, vel difficilior fiat, aut minor, vel rarior, aut si in totum auferatur. Proinde, sive derivatur aqua, ut exiguior facta minus sit navigabilis, vel si dilatetur, aut diffusa, brevem aquam faciat; vel contra sic coangustetur, et rapidius flumen faciat; vel si quid aliud fiat, quod navigationem incommodet, difficiliorem faciat, vel prorsus impediat, interdicto locus erit.'Dig. 43. 12. 15.
'Molino, nin canal, nin casa, nin torre, nin cabaña, nin otro edificio ninguno, non puede ninguno home facer nuevamente en los rios por los quales los homes andan con sus navios, nin en las riveras dellos, porque se embarrasse el uso comun dellos. E si alguno lo ficiesse y de nuevo, ó fuesse fecho antiguamente, de que viniesse daño al uso comunal,debe ser deribado. Ca non seria cosa guisada que el pro de todos los omes communalmente se estorbasse por la pro de algunos.' Partidas.3. 28. 8. cited Derb. 48. Poydras 12.
'You are not to do any thing in a public river, or on its banks, you are not to cast any thing into a public river, or on its banks, which may render the station, or course of a ship worse. It is called astation, fromstatuere, to place: that place is intended where ships may safely stay.
'The station and course of a ship seems to be rendered worse, if its use be destroyed, or made more difficult, or less, or scantier, or if it be wholly taken away. Moreover, if water be drawn off, so that, being scantier, it is less navigable, or if it be dilated, or spread out, so as to make the water shallow, or if on the other hand it be so narrowed as to make the river more rapid; or if any thing else be done which incommodes the navigation, makes it worse, or wholly impedes it, there is ground for Interdict.'
'Mill, nor canal, nor house, nor tower, nor cabin, nor other building whatsoever, may any man make newly in the rivers along which men go with their vessels, nor on their banks, by which their common use may be embarrassed. And if any one does it anew, or were it anciently done, so that injury is done to the common use, it oughtto be destroyed. For it would not be meet that the benefit of all men in common should be disturbed for the benefit of some.'