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We see then that the Roman law not only forbade every species of construction or work on the bed, beach or bank of a sea or river, without regular permission from the proper officer, but even annuls the permission after it is given, if, in event, the work proves injurious; not abandoning the lives and properties of it's citizens to the ignorance, the facility, or the corruption, of any officer. Indeed, without all this appeal to such learned authorities, does not common sense, the foundation of all authorities, of the laws themselves, and of their construction, declare it impossible that Mr. Livingston, a single individual, should have a lawful right to drown the city of New-Orleans, or to injure, or change, of his own authority, the course or current of a river which is to give outlet to the productions of two thirds of the whole area of the United States? Such, then, are the laws of Louisiana, declaratory of the public rights in navigable rivers, their beds and banks. For we must ever bear in mind that the Roman law, from which these extracts are made, so far as it is not controlled by the Customs of Paris, the Ordinances of France, or the Spanish regulations, is the law of Louisiana. Nor does this law deal in precept only, or trust the public rights to the dead letter of law merely: it provides also for enforcement. The Digest, L. 43. tit. 15. de ripá muniendā, provides
$. 1. ‘Ripas fluminum publicorum reficere, munire, utilissimum est-dûm ne ob id navigatio deterior fiat: illa enim sola refectio toleranda est, quae navigationi non est impedimento."
S. 3. ‘Is autem qui ripam vult munire, de damno futuro debet vel cavere, vel satisdare, secundum qualitatem' personae. Et hoc interdicto expressum est, ut damni infecti, in annos decem, viri boni arbitratu, vel caveatur,
Ş. 1. ‘To repair and strengthen the banks of public rivers, is most useful: provided the navigation be not by that deteriorated; for those repairs alone are to be permitted which do not impede the navigation.”
S. 3. ‘But he who would strengthen his his bank, should give either an engagement, or security against future injury, according to the quality of the person. And this "interdict establishes that the engagement, or security, against future injury, shall be for ten years, by the opinion of a good man.”
Ş. 4. ‘Dabitur autem satis vicinis; sed et his qui trans flumen possidebunt.”
“Ne quid in loco publico facias, inve eum locum immittas, quá ex re quid illi damni detur. Dig. 43.8. 2. Ad ea loca hoc interdictum pertinet, quae publico usui destinata sunt: ut si quid illic fiat, quod privato noceret, Praetor intercederet interdicto suo, S. 5–Adversus eum qui molem in mare projecit, interdictum utile competit ei, cui forte haec res nocitura sit: si autem nemo damnum sentit, tuendus est is, qui in litore aedificat, vel molem in mare jacit. §. 8. —Damnum autem pati videtur, qui commodum amittit, quod ex publico consequebatur, qualequale sit. § 11–Si tamen nullum opus factum fuerit, officio judicis continetur, ut caveatur non fieri. S. 18.
S. 4. ‘Security shall be given to the neighbours, and also to possessors on the other side of the river.”
“You are to do nothing in any public place, nor to cast any thing into that place, from which any damage may follow. This interdict respects those places, which are destined to public use: and that if any thing be there done, which may injure an individual, the Praetor may interpose by his interdict.—Against him who projects a mole into the sea, the interdictum utile lies for him to whom this may possibly do injury, but if nobody sustains damage, he is to be protected who builds on the sea shore, or projects a mole into the sea. —And he seems to suffer injury who loses any convenience, which he derived from the public, whatsoever it may be.—But if no work is done, he should be constrained by the authority of the judge to engage that none shall be done.”
* Seeing the use of rivers belongs to the public, nobody can
make any change in them that may be of prejudice to the said use. Thus one cannot do any thing to make the current of the water slower, or more rapid, should this change be any way prejudicial to the public, or to particular persons. Thus although one may divert the water of a brook, or a river, to water his meadows, or other grounds, or for mills and other uses; yet, every one ought to use this liberty so as not to do any prejudice either to the navigation of the river, whose waters he should turn aside, or the navigation of another river which the said water should render navigable by discharging itself into it, or to any other public use, or to neighbours who should have a 'ike want, and an equal right.' Dom. Pub. law. 220.127.116.11.
*The same laws make it peculiarly incumbent on the government and it's officers to watch over the public Property and rights, and to see that they are not injured or intruded on by private individuals. “In order to preserve the navigation of rivers, it is proper for the government to prohibit and punish all attempts which might hinder it, or render it inconvenient, whether it be by any buildings, fisheries, stakes, floodgates and other hindrances, or by diverting the water from the course of the rivers, or otherwise. And it is likewise forbidden to throw into the rivers any filth, dirt and other things, which might be of prejudice to the navigation, or cause other inconveniences.” Dom. Pub.L. 1.8. 2. 8.
* Quoique la meret ses bords soient, suivant les principes du droit naturel, des choses publiques et communes à tous, avec faculté à chacun d'en user selon sa destination, neanmoins il ne doit pas etre permis aux uns d'en jouir au préjudice des autres. Ainsi pour prévenir les inconveniens qui seroient résultés de la liberté d'user de la chose commune, il a fallu que cette liberté fut limitée par la puissance publique, ainsi que s'en explique Domat, &c. Nouv. Comment. sur l'ordon. de 1681. tit.7. art. 2. Note.
.* Although the sea and it's shores, according to the principles of natural law, are things public and common to all, with liberty to every one to use them according to their destination, nevertheless it ought not to be permitted to some to enjoy them to the prejudice of others. Therefore to prevent the inconveniences which would result from the liberty of using the public property, it is necessary that that liberty be limited by the public authority, as explained by Domat,’ &c.
“It is likewise agreeable to the law of nature, that this liber
ty, which is common to all, being a continual occasion of quarrels, and of many bad consequences, should be regulated in some manner or other; and there could be no regulation more equitable, nor more natural, than leaving it to the sovereign to provide against the said inconveniences. For as he is charged with the care of the public peace and tranquillity, as it is to him the care of the order and government of the society belongs, and it is only in his person that the right to the things which may belong in common to the public, of which he is the head, tan reside; he therefore as head of the commonwealth, ought
to have the dispensation and exercise of this right, that he may render it useful to the public. And it is on this foundation that the Ordinances in France have regulated the use of navigation, and of fishing, in the sea and in rivers.” Dom. P. L. 18.104.22.168. note. Observe that the work of Domat was published *61 in 1689, and he died in 1696. *Dict. hist. par une société. verbo Domat. We know then from him the state of the laws of France, at a period a little anterior only to the establishment of the colony of Louisiana, and the transfer of the laws of France to that colony by it's charter of 1712. To the provisions which have been thus made by the Roman and French laws and transferred to Louisiana, no particular additions, by either the French or Spanish government, have been produced on the present occasion. We know the fact, and thence infer the law, that from a very early period, the governors of that province were attentive especially to whatever respected the harbour of New Orleans, which included the grounds now in question. We see them forbidding inclosures, or buildings on them, pulling down those built, publishing bans against future erections, forbidding earth for buildings and streets to be taken from the shore adjacent to the city, and assigning the beach Ste. Marie for that purpose, protecting all individuals in the equal use of it as a Quai, in which cares and superintendance the Cabildo, or City Council, participated; and on the change of government we see that council pass an Ordinance declaratory of the limits of the port of N. Orleans, and come forward in defence of the public rights, in the first moment of J. Gravier's intrusion, by pulling down his inclosure; and when that intrusion under the enterprise of Mr. Livingston, assumed a more serious aspect, they, as municipal guardians of the interests of the city, made an immediate appeal to the Judiciary, the Executive and Legislative authorities. In addition, Levees and too, to the French laws for the protection of the bed Police of and bank of the river, the territorial legislature, on * the 15th of Feb. 1808, passed an Act, reciting that inasmuch as “the common safety of the inhabitants of the shores of the river Missisipi depends not only on the good condition of the levées or embankments, which contain the waters of the said river; but also on the strict observance of the laws concerning the police of rivers and their banks, which are in force in this territory, and by which it is forbidden to make on the shores of the rivers, any work tending to alter the course of the waters, or increase their rapidity, or to make their navigation less convenient, or the anchorage less sure, [almost in the words of the Roman law ‘ne quid in flumine publico’] they therefore enact that no levée shall be made in front of those which exist at present, but on an inquisition by 12 inhabitants, proprietors of plantations situate on the banks of the river, convoked for that purpose, by the Parish judge; that no such levée, which at the time of passing this act shall happen to be commenced in front of others already existing, shall be continued or finished, without a like authorisation;* that those who act in con- *62. travention shall be fined 100 dols. for every offence in contravention, and pay the expenses of removing the nuisance, and costs of suit; and prohibiting the receiving compensation for the use of the shores under a penalty of 500 dols. A law of wonderful, not to say imprudent and dangerous tenderness to the riparian proprietors, who are thus made the sole judges in cases where their own personal interests may be in direct opposition to the interests, and even the safety of the city, to which it gives no participation or control over the power which may devote it to destruction. This act is partly declaratory of the existing law, and partly additional. Application was to the Praetor under the Roman law (Dig. 43. 13. 6.) for permission to fortify a bank for the protection of a farm. He might refuse permission if injurious; but if he thought it would not be injurious, the party was to give security to make good all damages which should accrue within ten years; and this security was for the protection, not only of immediate neighbours, but of those also on the opposite bank ‘trans flumen possidentibus.” The Governor and Cabildo seem to have held this Praetorian power in Louisiana, as well as that of demolishing what was unlawfully erected. This act of the Legislature, without taking the power from the Governor and City Council, gives a concurrent power to the parish judge, and a jury of 12 riparians: and without dispensing with the security required by the existing law, adds penalties against ContraVenerS. And surely it is the territorial legislature, which not only has the power, but is under the urgent duty, of providing regula