« AnteriorContinuar »
of Gravier into a “suburb, made it public property. And *38 here I rejoin with pleasure the standard of M. Thierry, and avail myself of his luminous discussion of this point. Were
mens, alluvions, &c. sur les rivières navigables, &c. as more at large pa. 28. 1710. Feb. An Edict confirming possessions of islands, &c. of the sea on specified terms, copied almost verbally from that of 1693, using the word alluvions as that does, and referring to the provisions of that edict. 1722. Sep. An Arret resuming isles, attérissemens, &c. formed since the edict of 1693. And those of anterior formation where the possessor has not made the payments provided by the edict of 1693. But this whole branch of the argument of M. Moreau must be read with attention. Its matter cannot be abridged, nor otherwise expressed, but for the worse. Having thus luminously reconciled the authorities which had been so illy understood, and victoriously established the public right to alluvions on navirable rivers, M. Moreau, with too much facility, gives back to his adversary one half the ground he has conquered, by a gratuitous admission, which those interested in the event of the cause are not ready to confirm. Led away, as it seems, by an expression in the edict of 1683, “tout ce qui se trouve renfermé dans leur lit nous appartient,’ and which is to be found in no other, and yielding to a single decision of the Parliament of Paris of 1765, found in a law dictionary, which adjudged that the Ordinances giving to the king the isles which are formed ‘dams le lit' des fleuves etrivières navigables, ne lui donnent pas les attérissements et alluvions qui peuvent se former hors le lit de ces mèmes fleuves,’ &c. He admits that though alluvions within the bed of a river belong to the king, those without the bed do not belong to him. M. Moreau is too reasonable to consider as a compliment to himself the adoption of an opinion on his authority alone, by any one not convinced by his reasonings. Certainly I do not feel myself competent to enter the lists with him, on any question of difficulty in the French law. Yet after maturely considering the authorities appealed to in this case, and which he has rendered so strong by reconciling and forming them into one mass, I cannot yield, as he does, so imposing a mass to a single decision of the single Parliament of Paris. I still must consider all alluvions on navigable rivers as belonging to the nation, and will briefly assign my reasons. 1. It is of the essence of Alluvion that it be, not in the bed of the river, but out of it; that is, adjacent to the bank. So say expressly the Roman and French definitions. “Alluvio est incrementum agro tuo flumine adjectum.” “I’Alluvion est un accroissement de terrein qui se fait sur les bords des fleuves, parles terres que l'eau y apporte, et qui se consolident pour ne faire qu'un tout avec la terre voisine.’ Ante. pa. 26. Increments within the bed of a river, though sometimes carelessly spoken of under the term alluvion, are never so in correct language, never in the well weighed diction of ordinances and statutes. They are termed accroissements, attérissements, assablissements, isles, islots, javeaux in French, and in our language shoals, shallows, flats, bars, islands. Without the bed of the river, they add to the beach, or to the adjacent
I fully to go into it, I could “but repeat his matter. *39 I shall therefore give but a summary view of it, and rest on his argument for it's more detailed support.
field, according to their elevation, and in this last case only, constitute Alluvion, within the bed of the river they lose that name. 2. “Les alluvions quise forment dans le lit des fleuves' is not the language of the edicts cited by Moreau himself, not even of that single one on which this opinion is founded. That has indeed the expression “dans les lits,” but-applied, not to alluvions, but to isles, accroissements, attérissements, to which it is applicable with truth and correctness. These are the kinds of increments it enumerates, and describes as being ‘dans le lit.” If they are enumerated exempli gratié only as the word comme seems to imply, and alluvions, though not named, were within the purview, as they are within the reason of the law, then, if the thing itself is to be understood as if expressed in the text, it’s true description also is to be understood as if expressed, that is to say, it's adjacence to the bank. The edicts of 1686 and 1689 mention ‘les isles des rivières navigables, ensemble les crémens qui s'y sont formés.' That of 1693 says, in like manner, “le droit &c. sur tout les fleuves, et les isles et crémens qui s'y sont formés,” and again ‘isles et alluvions sur les rivières navigables,” not “dans leurs lits.” That of 1710 says “possession des isles et alluvions sur les dites rivières.” Thus we see that wherever the edicts mention alluvions, they describe them as sur le fleuve, not dans le lit du fleuve. When they speak of those increments which are dans le lit des fleuves, they name them as accroissemens, attérissemens, &c. but not as alluvions. 3. This distinction is founded on a single decision of a single parliament, and on the authority of a king's advocate, Bacquet, and the dictum of Salvaing there cited, all perhaps influenced by the same and single expression in the edict of 1683. It is cited too from a Dictionary by Prost de Royer, where it is doubtless stated in abridgment only, and possibly with the omission of circumstances, arguments, and expressions which, were they before us, would change the aspect of the case, as M. Moreau himself has shewn to be so possible in his review of the mutilated authorities produced by the adversary. And are we, for this, to give up the doctrines of Pothier, Denisart, Ferriere, and the host of other great authorities, and all the definitions of the Roman and French laws, all of which when speaking of alluvions, place them exclusively on the borders, and not in the beds of rivers? I cannot do it. 4. This distinction is new in this cause, having never been claimed by the plaintiff or his counsel, or suggested by any other who has treated the question. This naturally begets a suspicion that it is peculiar; though doubtless the adversary will adopt it with avidity. And is he entitled to this gratuitous aid? Is it the equity of his cause, or even it's honesty, or it's utility, which gives him this claim on our tenderness? I cannot consent to a concession which gives the Batture from the public in the contingency of it’s being •onsidered as a real alluvion, consolidated with, and making part of, the adjacent field. On the contrary I insist on the public right in this case also, under the laws of France, as hitherto understood, and as declared by her highest authorities. 5. I adhere to this ground the more firmly, because I observe, from another
No. XVII. F
The position laid down is that the Roman law
"...a gave alluvion only to the rural proprietor of the bank; urban possessions being considered as praedia limitata, limited possessions. The law which gives this right is expressed in the Institutes in these words," quod per alluvionem agro tuo 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 alluvionem agro nostro flumen adjecit, jure gentium nobis adquiritur.” In both instances it is to the possessor agri only that it is given. It becomes material therefore to understand rigorously the import of the word ager, in the Roman laws; and it happens that it's definition is given critically by the same authority which 40* uses it. “Locus sine aedificio, in urbe area, *rure autem ager appellatur, idemque ager, cum aedificio, fundus dicitur.” Dig. 50. 16. 211. ‘Quaestio est, fundus a possessione, vel agro, vel praedio quid distet?” Ib. 115 in notis, “fundus est ipsum solum: eo si utimur, praedium dieitur. Ager esse potest sine villá.” “Ground, without a building, in a city is called area, but in the country ager.’ Pliny 1. 6. affirms that ager, is derived from the Greek *yths, of the same import. And in the Greek Pragmatics of Attaliata tit. 45. the law of alluvion uses “4-yo,' for ager.
part of his Memoire, pa. 99. that M. Moreau himself seems not very decided in this new opinion. After stating the mischief of Mr. Livingston's works, he says “it is to prevent a like abuse that the Roman and Spanish laws of haute police, which I have cited, are opposed to every species of works undertaken on the banks of rivers and navigable streams, the effect of which might be to extend the limits of riparian fields, compromiting the public safety, and injuring the facility of navigation. It was with this view, and not to create fiscal resources for himself that Louis XIV. renewed the Ordinances which ascribed to the sovereign the property in rivers and navigable streams, and of whatever is contained in their bed. For if it be advantageous to navigation that the king should be proprietor of the islands which form themselves in navigable rivers, the same interest requires still more that he should be proprietor of the alluvions and increments formed along the shore itself, since any ownership of these objects, except that of the sovereign, might oppose obstacles to the free landing on the shore, which every one ought to have, and to the use of it which the law gives to the public.” Considering this admission then, as doubted by M. Moreau himself on a second and sounder view of it, I conclude that the law is accurately laid down by Pothier [ante. pa. 26.] “By our French law, alluvions formed on the borders of navigable streams and rivers belong to the king. The proprietors of riparian heritages can have no claim to them, unless they have documents of the grant made them by the king, of the right of alluvion along their heritages. With respect to alluvions formed along the borders of a river not navigable, the property of which belongs to the proprietors of the neighbouring heritage, the dispositions of the Roman law are to be followed.”
To oviratošāra's 31& re rolaug reedlišt, ra *Yeş us, reirza ris isiy, olai weizzavois, xa, inci &tou Guod insensibiliter r; ove; as per flumen adjectum est, alluvionis est, et mihi competit. “What is insensibly added by the river agro meo is alluvion [adundatio, adaggeratio) and belongs to me.” In the same title ‘ows: i, to ove; •e rorsical air iris.’ “What I sow &ye; ru, agro tuo, in your field, is yours.” And Stephens, in his Thesaur. ling. Gr. voce ‘’Aytos' translates it ‘rus, ager,’ ‘i, ove; in agro, ruri. 'E: *yes, ex agro, rure. “Fis oyeev, in agrum, rus.’ And he cites examples: ‘Navs 34 uot #3 rows, ir' ayes, virt, riage;’. Hom. Od. 1.185. “My vessel is stationed in the country, apart from the city.’ ‘At& reak *ydaas itva rols rês noAEI2, 4xx' ir, rä, Arron sixty roy ozov *zeae isla' Aristo. Polit. 5. “Because, the cities not being then large, the people were occupied in the country,’ where ovo; is proved to be pointedly the contradistinction to orials, to wit, the country to the city. 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 called area. 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 they are 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 against the claim.f Repeating, *therefore, my 41*
#Since this was written, I have seen the case of Smart v. the magistrates, town council and community of Dundee, reported in 8 Brown's Reports of
reference to the reasoning and authorities of M. Thierry on this point, and my own conviction of their soundness, I consider it as established that, were this question to be decided by
Appeals in parl. 119. This was an appeal from the court of Session in Scotland to the H. of Lords. The crown of Scotland had, in very antient times, granted to the corporation of Dundee, on the river Tay, the borough, with all the lands and partinents, the privileges, profits, customs, ports, and liberties of the river on both sides, as freely in all respects as is possessed by the borough of Edinburgh over that of Leith, and in a word, as it seems, every right, power and trust which the crown could grant.—Smart, the proprietor of a lot bounded on one side per fluxum maris, or the sea flood, admitting that the sovereign, as trustee for the public, has a right to prevent all such appropriation of the sea shore, or the banks of navigable rivers as would impede navigation, ren: der it dangerous or hurt the interests of commerce, either inland or foreign, and that all private persons or corporations, having a grant of a port and harbour, possess to a certain extent, the same privileges as derived from the sovereign within a defined space, still he insisted on the right of the adjacent proprietor to ground gained from the sea by it's recess, or by his own industry in embanking, or by any other opus manufactum, not prejudicial to navigation or the established rights of others. On the other hand the corporation claimed, by their grant, a right to the seashore adjacent to the town, in trust for the benefit of the community, to make harbors, basons, and works for securing , them, market places, wharves, wood yards, and other repositories for the accommodation of the trade, and, for these different works, to take in scites from the water by embankment, in short, as standing in the place of the crown, that they succeeded to all the cares and powers of the crown, in the territory and it’s waters, for the public good; and, for that object, were now engaged in making an embankment adjacent to the Appellant's lot, for the benefit of navigation and commerce. They admit the general doctrine of the riparian right to the soil which may be acquired from a sea or river, by it's receding naturally, or by industry: but that this does not apply to the site of a renement within a burgh, where the corporation is entitled to all the soil not expressly granted away: that the words, “per fluxum maris' are but words of description, which were accurate too at the date of the grant, but have since become otherwise by a change of character in the boundary, not in the area granted. They are a limitation of the subject of the grant in the same way as a road would be, which, if removed farther off, would not carry the granted subject with it; or as the tenement of another would be; and make it an ager Iimitatus, not an ager arcifinius; the particular boundaries being named, not to limit the coterminous property, but the property granted. The Appeal was accordingly dismissed by the House of Lords. No arguments of counsel, other than the written pleadings, nor reasons of the Lords, are reported: but, from this case, (crowded as it is with circumstances, many of which are irrelevant to the merits of the question, and of those relevant, not the words but the condensed substance is here given,) the book says, that the general principle to be gathered is that “where the sea flood is stated as the boundary of pre‘mises granted on the shore of a sea-port being an incorporated borough, this does ‘not give the grantee a right to follow the sea, or to the land acquired from