Chapter XXXIV: Part III: The Batture at New-Orleans (3)

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 ripis'. 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_.[97] In Latin I know of no terms which applies exactly to _the beach of a river_. _Litus_ is restrained 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 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 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 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 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.

[Sidenote: 46*]

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 quæ _plenissimum_ flumen 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.'

[Sidenote: 47*]

'Ripa autem ita rectè definietur, id quod flumen continet
naturalem* 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.

'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 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
_fullest_,' 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.'

'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.'

'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_, _bed_ and _bank_ of 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.'

'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.

[Sidenote: 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 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 yield 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 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.

[Sidenote: 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 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 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 the _extima alvei_, the _border of the bed_, within which bed the river flows when in its fullest state _naturally_, 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'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 _knowledge_, that the grants of lands on the borders of the Missisipi, have their fronts on the _edge_ of the river itself, and when its 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 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.

[Sidenote: Missisipi.]

[Sidenote: 50*]

[Sidenote: Nile.]

[Sidenote: 51*]

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 as _sui 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. The _bayous_ of 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 of the 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, 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 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 the flumen 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. The _Cypriores_ adjacent 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 the _plenissimum flumen_. The Nile and Missisipi, not being subject to accidental floods, the _flumen plenissimum_ with 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.

[Sidenote: 52*]

[Sidenote: 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?

[Sidenote: 53*]

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 proprietors;* the former law of France to the sovereign; 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.

'Impossibile est ut alveus fluminis publici non sit publicus.'
Dig. 43. 12. 7.

'Litus publicum est eatenùs qua maximus fluctus exæstuat.'
Dig. 50. 16. 96. 112.

'All rivers and ports are public.'

'It is impossible that the bed of a public river should not
be public.'

'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. And Prevost 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 grant it 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 the _maritima incrementa_. The _shore_ is the land lying between high water and low water mark in ordinary tides, and this land belongeth to the king _de 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.

[Sidenote: 54*]

'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 *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 no _common-law_ right 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.

[Sidenote: Limitations of the rights of property.]

[Sidenote: 55*]

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, 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 a _station_, from statuere, 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 ought _to be destroyed_. For it would
not be meet that the benefit of all men in common should be
disturbed for the benefit of some.'

The owner of lands on the bank of a river may, however, make or repair a bank to protect them from the river.

[Sidenote: 56*]

*'Quamvis fluminis naturalem cursum, opere manu facto alio,
non liceat avertere, tamen ripam suam adversus rapidi amnis
impetum, munire prohibitum, non est.' Codex L. 7. t. 41. §.
1.

'Although it is not allowed to turn the natural course of a
river by another made by hand, yet it is not prohibited to
guard one's bank against the force of a rapid river.'

But he is not permitted to do even this if it will affect the public right, or injure the neighboring inhabitants.

'In flumine publico, inve ripâ ejus facere, aut in id flumen
ripamve immittere, quo _aliter_ aqua fluat quam priore æstate
fluxit, veto.'

'I forbid any thing to be done in a public river, or on its
bank, or to be cast into the river or on its bank, by which the
water may be Dig. L. 43. tit. 13. §. 1. made to flow otherwise
than it flowed in the last season.'

'Quod autem ait, _aliter_ fluat non ad quantitatem aquæ fluentis
pertinet, sed ad modum, et ad rigorem cursûs aquæ referendum
est. Et si quod aliud vitii aecolæ ex facto ejus qui convenitur
sentient, interdicto locus erit.' Ib. §. 3.

'When he says, _to flow otherwise_, it relates, not to the
quantity of water, but to the manner and direction of the course
of the water. And if the neighbors experience any other evil
from the act of him who is convened, there will be ground for
interdict.'

'Sunt qui putent excipiendum hoc interdicto "quod ejus ripæ
muniendæ causa non flet," seilicet ut si quid fiat quo aliter
aqua fluat, si tamen muniendæ ripæ causâ fiat, interdicto
locus non sit. Sed ne hoc quibusdam placet; neque enim ripæ,
cum incommodo accolentium, muniendæ sunt.' Ib. §. 6.

'Some think liable to this interdict only "what is not done
for the purpose of strengthening the bank," to wit, that if
any thing be done by which the water may otherwise flow, if
nevertheless it was to secure the bank, there is no ground for
interdict. But this is not approved by others, for that banks
are not to be secured to the inconvenience of the inhabitants.'

More particularly full and explicit as to the inhibitions of the law against obstructing the bed, beach or bank of a sea or river, is Noodt, Probabil. Juris civilis. 4. 1. 1. After declaring that as to a house, or other such thing, built in a public river, the law is the same as obtains as to the sea and sea shore, he proposes to state, 1. The law respecting the sea and its shore, and 2. As it respects a river and its bank; and says,

'Ait Celsus maris communem usum esse, ut aëris; jactasque in
id pilas fieri ejus qui jecit: sed id concedendum non esse,
si deterior litoris marisve usus eo modo futurus sit. Adeo hoc
quod in mari exstructum est, facientis est. Ut tamen exstruere
liceat, et _decreto opus est_, et _ut innoxia ædificatio
sit_. Porrò ut usus maris, ita usus litoris, sive communis,
sive publicus est jure gentium; et ideò licet unicuique
in litore ædificare, litusque ædificatione suum facere. Si
tamen, ut in mari, ita in litore, _impetravit_: præterea si
non eo modo deterior futurus sit usus litoris; vel nisi usus
publicus _impedietur_. Hoc in mari litoribus jus est. Idem in
fluminibus publicis, Ulpiano teste, Dig. 39. 2. 24. cum sic
ait, 'fluminium publicorum communis est usus, sicut viarum
publicarum et litorum. In his igitur _publicè_ licet cuilibet
ædificare, et distruere, dum tamen hoc sine incommodo cujusquam
fiat.' Vult tamen Ulpianus, ut ædificari possit, ædificari
_publicè_ et _sine cujusquam incommodo_; pariter ut in mari et
litore definitum: _publicè_ inquam, seu _publicâ auctoritate_;
id enim hoc verbum, _publicè_ indigitat.' And (§. 2.) citing
Dig. 43. 12. 4. he says, 'quæsitum est, an is, qui in utrâque
ripâ fluminis publici domus habeat, pontem privati juris [vel
privato jure] facere potest; respondit non posse. Et si facit,
interdicto teneri. Causa responsi est quod, cum pontem facit,
usum fluminis publici facit deteriorem.' So far Noodt.

[Sidenote: 57*]

'Celsus says that the use of the sea is common, as is that of
the air: and that stones laid in it were his who laid them,
but that it was not to be admitted if the use of the shore or
sea would be *the worse. So what is constructed in the sea is
his who constructs it. But to make it lawful to construct, a
decree is necessary, and that the construction be innocent.
Moreover, as the use of the sea, so that of the shore, is
either common or public, by the law of nations. And therefore
it is lawful for any one to build on the shore, and to make the
shore his by the building; if however, as in the sea, so on
the shore, he has obtained permission: and provided besides,
the use of the shore will not thereby be rendered worse, nor
the public use be impeded. This is the law as to the sea and
its shores. It is the same as to public rivers, according to
Ulpian, Dig. 39. 2. 24. where he says, 'the use of public rivers
is common, as of highways and shores. In these, therefore,
any one may build up, or pull down, _publicly_, provided it
be done without _inconvenience to any one_.' That you may
build, however, Ulpian requires that you build _publicly_,
and _without inconvenience_ to any one; in like manner as is
prescribed as to the sea, and its shore: _publicly_, I say, or
_by public authority_; for that is what the word _publicly_,
indicates. And §. 2. citing Dig. 43. 12. 4. he says, 'it is
asked whether he who has houses on both banks of the river,
may build a bridge, of his own private authority. He answers,
he cannot; and if he does, he is bound by the interdict. The
reason of the answer is, that by building a bridge he injures
the use of a public river.' So far Noodt.

[Sidenote: 58*]

* The same is the law as to highways and public places. Dig. 43. 8. 2. 16.

'Si quis à principe simpliciter impetraverit ut in publico
loco ædificet, non est credendus sic ædificare ut cum incommodo
alicujus id fiat.'

'If any one obtains leave, simply, from the prince, to build
in a public place, it is not to be understood he is so to
build as to incommode another.'

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 its 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 ripâ muniendâ; provides

§. 1. 'Ripas fluminum publicorum reficere, munire, utilissimum
est,--_dùm ne ob id navigatio deterior fiat_: illa enim sola
refectio toleranda est, quæ navigationi non est impedimento.'

§. 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.'

[Sidenote: Surety.]

[Sidenote: 59*]

§. 3. 'Is autem qui ripam vult munire, de damno futuro debet
vel cavere, vel satisdare, secundum qualitatem personæ. Et hoc
interdicto expressum est, ut damni infecti, in annos decem,
viri boni arbitratu, vel caveatur, vel satisdetur.'

§. 3. But he who would strengthen 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.'

§. 4. 'Dabitur autem satis vicinis; sed et his qui trans flumen
possidebunt.

§. 4. 'Security shall be given to the neighbors, and also to
possessors on the other side of the river.'

'Ne quid in loco publico facias, inve cum locum immittas, quâ
ex re quid illi damni detur. Dig. 43. 8. 2. Ad ea loca hoc
interdictum pertinet, quæ publico usui destinata noceret, Prætor
intercederet interdicto suo. §. 5. Adversus eum qui molem in
mare projecit, interdictum utile competit ei, cui forte hæc
res nocitura sit: si autem nemo damnum sentit, tuendus est is,
qui in litore ædificat 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.' §. 18.

'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 for public
use: and that if anything be there done, which may injure an
individual, the Prætor 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 neighbors who should have a like want, and an equal right.' Dom. Pub. law. 1. 8. 2. 11.

[Sidenote: 60*]

*The same laws make it peculiarly incumbent on the government and its 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 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 or other things, which might be of prejudice to the navigation, or cause other inconveniences.' Dom. Pub. L. 1. 8. 2. 8.

'Quoique la mer et 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 étre 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'orden. de
1681. tit. 7. art. 2. Note.

'Although the sea and its 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 liberty, 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, can 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 of France have regulated the use of navigation, and of fishing, in the sea and in rivers.' Dom. P. L. 1. 8. 2. 1. note. Observe that the work of Domat was published 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 its charter of 1712.

[Sidenote: 61*]

[Sidenote: Levées and Police of Missisipi.]

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 harbor 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 superintendence 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, too, to the French laws for the protection of the bed 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 present time of passing this act shall happen to be commenced in front of others already existing, shall be continued or finished without a like authorization;* that those who act in contravention 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.

[Sidenote: 62*]

This act is partly declaratory of the existing law, and partly additional. Application to the Prætor was 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 neighbors, but of those also on the opposite bank 'trans flumen possidentibus.' The Governor and Cabildo seem to have held this Prætorian 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, gave 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 regulations for the government of this river and its inhabitants, regulations adapted to their present political regulations, as well as to the peculiar character and circumstances of the river, and the adjacent country. Their power is amply given in the act of Congress of 1804. c. 38. §. 11. 'The laws in force in the said territory at the commencement of this act, and not inconsistent with the provisions thereof, shall continue in force, until altered, modified, or repealed by the legislature. §. 4. The Governor, by and with advice and consent of the said legislative council, or of a majority of them, shall have power to alter, modify, and repeal the laws which may be in force at the commencement of this act. Their legislative powers shall extend to all the rightful subjects of legislation;' with special exceptions, none of which take away the authority to legislate for the police of the river. And if ever there was a rightful subject of legislation, it is that of restraining greedy individuals from destroying the country by inundation.

[Sidenote: Suspension of Liv.'s works, by whom?]

[Sidenote: 63*]

And here it must be noted that Mr. Livingston's works were arrested by the Marshal and posse comitatus, by an order from the Secretary of State on the *25th of January 1808, and on the 15th of the ensuing month, the legislature took the business into the hands of their own government, by passing this act. From this moment it was in Mr. Livingston's power to resume his works, by obtaining permission from the legal authority. The suspension of his works therefore by the general government was only during these 21 days.

[Sidenote: Their nature.]

[Sidenote: 64*]