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 allu

vion.

And, if the right of alluvion is not given to ur

accessory.

42*

ban proprietors, much less would it to a mere holder Principal and 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 lots, face 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 it's boundary, should mean to sell his land to the road, and to retain that by itself? a thing of no possible use to him, because the use being in the public, he could never employ it in agriculture orother wise. Were all this possible, yet this bed of a road, this "labrum amnis" would be no ager, 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 appurte nance, 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 an ager, 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 it's 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 it's 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.

'it, or left by it where it has receded, in prejudice of the corporation having, 'by their charter, a right vested in them to the whole territory of the burgh.' And consequently, in prejudice of the king, or public, where no such grant has substituted others in their place: and it authorises a strong inference that the English, like the Roman law, restrains the right of alluvion to the prædium rusticum, not admitting it on the shores bordering the city.

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 can. not 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 ' ἀλυβιων ἰσιν ἡ πρόσκλυσις ἢ ixos, 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 Rumine adjectum, ita latens et paulatim, ut intelligi non possit quantum quoquo temporis momento adjiciatur.'

This is the Roman definition.

'Alluvion is an increment [an ad-undation or 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.'

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 neighbouring 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.

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 been insensible. Every swell of 6 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, at their retiring, buried to it's top. This increment is, surely, not insensible. See the Mayor's answer to the Governor, Nov. 18, '08. MS.

2. By apposition of particles of earth,' or, by their adhesion. But the addition to the batture is by deposition of particles of earth on it's face, not by their apposition, or adhesion to the bank. It is not pretended that the bank has extended by apposition of particles to it's 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 it's sides, than the coating the floor of a room can be said to be plaistering it's 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, or ora terra, 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 the margo riparum, or chemin de hallage, if there be any, between the levée and brim of the bank. No extension of it's sur face 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.

In the channel, or hollow, containing a river, the Roman law has distinguished the alveus, or bed of the river, and the ripa, or bank, the river itself being aqua, water. Tribus constant flumina, alveo, aqua, et ri

*45

pis.' Dig. 43. 12. *not. 1. All above high water mark! they considered as ripa, bank; and all below as alveus, 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 the beach. Other modern nations distinguish it also. In Spanish it is playa, Ital. piaggia, in French plage, in the local terms of Orleans it is batture, and sometimes platin.† In Latin I know of no term which applies exactly to the beach of a river. Litus is rest ained to the shore of the sea, and there comprehends the beach, going to the water edge, whether at high or low tide. Litus est maris, ripa fluminis,' 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 est ripa in flumine, quod litus in mari. Ripa Alumini 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 it's 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 it's full tide during the months of January and February, and retires to it's mini

Etymologies often help us to the true meaning of words; and where they agree in several languages, they shew the common sense of mankind as to the meaning of the word. In French Batture is derived from Battre, to beat, being the margin on which the surges beat. In English Beach, is from the AngloSaxon verb Beotian, Beatian, beatian, to beat: pronounced beachian, as christian, fustian, question, are pronounced chrischian, fuschian, queschion, &c. In Spanish Playa,

Italian Piaggia

French Plage,

}

are from πλαγὰ, πληγείς.

Platin from lav, percutere. Perhaps from Plat, F. flat.

Greek. ȧyards' å×1n, from äyev, agere.

Div, Divòs, à Deiva, ferio, quia littus fluctibus feritur. Clav. Homer. A. 34. “Phyμïv, à phoow, frango. quia in litore fluctus frangitur. Ib. v. 437.

No. XVII.

G