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mum 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 astivus. The Missisipi resembles our fresh water rivers in having only one regular swell or tide a year. It differs from them in not being 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 *46 other parts, so as never 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 it's tides, which are about three months later than in our rivers. It’s swell begins with February, is at it's greatest height in May. June and July, and the waters retire by the end of August. It's high tide, therefore, is in summer, and the low water in winter. Being regular in it's tides, it is regular also in the periods of it’s 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 determines 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 it's breadth. This river abounds with similar beaches, but this one alone, from it’s position and importance to the city, has called for a legal investigation of it’s 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 it's 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, què naturaliter flumen excurrit.” Grotius de jur. B. et P. 2 8.9. “Ripa ea putaturesse quae filemissimum flumen continet.” Dig. 43. 12. 3. And Vinnius's commentary on this passage is “ut significet, partem ripac non esse, spatium illud, ripac proximum, quod aliquando flumine, caloribus minuto aestivo tempore, non occupatur.” • Ripa autem ita recte definietur, id quod flumen continet, naturalem" rigoremt cursus sui tenens. Caeterúm si quando vel imbribus, vel mari, vel qua alia ratione, ad tempus excrevit, ripas non mutat. Nemo denique dixit Nilum, qui incremento suo IEgyptum operit, ripas suas mutare, vel ampliare. Nam cum ad perpetuam sui mensuram redierit, ripae alvei ejus muniendae sunt. Dig. 43. 12. § 5.
* Alveus fluminategitur.” Grot. de jur. B. ac P. 2. 8.9.
* Alveus est spatium illud flumini subjectum per quod fluit.” Winnii Partitiones jur. Civil. 1. 17.
* 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 when Jullest, and Vinnius's commentary on this passsage 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.” “The bank may be thus rightly defined, that which contains the river holding the natural direction of it’s course. But, if at any time, either from rains, the sea, or any other cause, it has overflowed a time, it does not change it's banks. Nobody has said that the Nile, which by it's increase, covers Ægypt, changes or enlarges it’s banks. For when it has returned to it’s usual height, the banks of it’s bed are to be secured.” “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 the ripa and alveus, the bed and bank of a river. In both cases what is covered by the highest tide belongs to the public, all
f Rigor, a rectitudine dicitur, et est cursus aqua rectum profluentis tenorem significans. Sic vigor stillicidii rectus ejus fluxus est. Calvini Lexicon juridicum, rigor. I have therefore translated it “direction.”
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 quatenus hibernus fluctus maximus excurrit.’ Inst. 2. l. 3. the paraphrase of Theophilus adds, “undé et aestate, usque ad ea localitus 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 from 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 Schuliast subjoins • not the wave of midsummer, but of winter; because in winter the sea is most agitated, and most swelled.”
“By shore, 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.
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 the fact on 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 the maximus fluctus, or highest wave, was in the winter; in the Missisipi it is in summer. Circumstance must always vield to substance. The object of 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 for 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 affo, sin salir de su yemay madre.” Curia Philipica. 2. 3. 1. cited Derb. 46.
This is the law correctly for all rivers, leaving to every one
it's 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
“Sera réputé bordet rivage de lamer, 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 connoitre 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 ou parvient quelque fois l'eau de la mer parles ouragans, et par les tempêtes. Ainsi jugé à Aix le 11. Mai 1742.” Boucher, Institut au droit Maritime 27 13. Nouveau Commentaire sur l’Ordonnance de la Marine. de 1681. tit. 7. Art. 1.
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.
* The bank of a river is understood to be the whole of what contains it’s waters, when most swelled, in whatsoever time of the year, without leaving it's bed or channel.”
“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.
12. 3. with Vinnius's comment will stand thus. “The bank ends at the line to which the water rises at it's full tide; and although the space next below it is sometimes uncovered by the river, when reduced by heats in the Summer season, yet that space 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 it's full tide: and altho’ the batture or beach next below that line is uncovered by the river, when reduced to it's 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 set aestate] we bound the bank at the line of high water. Inst. 2. 1. 3. ‘The bank being the extima alvei, the border of the bed, within which bed the river flows when in it’s fullest state naturally, that is to say, not when “imbribus, vel quá aliá 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 ano,” “when in it's full height, without leaving it's 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's bed, which is contained between the two banks, and the high water line on them; and all is bank which 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 his knolege, that the grants of lands on the borders of the Missisipi, have their fronts on the edge of the river itself, and when it's waters are at 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 it's greatest height.” Thus we see what the law is; that it has been perfectly understood in the territory, and has been constantly practised on,