The Writings of Thomas Jefferson, Vol. 8 · Thomas Jefferson
FOOTNOTES:
On rivers _not navigable_, the rights of the riparian proprietor prevail as under the Roman law. See Pothier ante. pa. 26. Very early however these rights were drawn into question by the Feudal Superiors, who, looking to the example of the king in the case of navigable rivers in his kingdom, claimed similar rights on those _not navigable_ within their Seignories. But repeated decisions have condemned their claims, and confirmed the rights of the riparian tenant. 2. By the laws of France, as by those of England, lands received by inheritance, descend, on the death of the tenant, to the heirs of that branch, paternal or maternal, from which they came to him. But those he acquires by purchase (acquets) pass to that line of heirs of which himself is the root. When therefore, to a maternal inheritance an acquisition happened to be made by means of Alluvion, a question would arise, between heirs of different lines, to which of them the Alluvion would descend; whether to the direct heirs of the decedent, as being an acquisition first vesting in him, or to the maternal heir as an accessory to his inheritance. The decisions were that it united with the inheritance, became a part of that, and passed with it.
'Incrementum alluvionis nobis adquiritur, jure quo ager augmentatus primum ad nos pertinebat; nec istud merementum censetur novus ager sed pars primi.' 'The increment of Alluvion is acquired to us in the right in which the field augmented first belonged to us.' Nor is the increment considered as a new field, but a part of the first, Renusson. It follows that questions of Alluvion would often arise in cases wherein the king's rights were not at all concerned. They would arise between Lord and vassal, and between individual heirs of different lines. These explanations premised, M. Moreau takes a review of the passages quoted from Henrys, Bourjon, Dumoulin, Ferriere, Pothier, Le Rasle, Renusson, Dargentré, Denisart, and Guyot, and shews that in every instance where the question concerned a _navigable_ river, there was no division of opinions as to the validity of the king's right; and that in every instance where the riparian right is asserted, the question has been between private individuals, or concerning rivers _not navigable_. Recurring then to the edicts and Ordinances placing this right of the king beyond cavil, he observes that a practice had prevailed from early times among riparian proprietors of usurping on the rights of the crown to the increments adjacent to them, and a necessary reaction of the crown, by reclamations and resumptions, to preserve its own. And he gives a detail of the edicts on this subject, proving that that of 1693, instead of being the singular act of a particular prince, whom the adverse party delights to revile, was one only of a long series preceding and following it.
1554. An edict was issued requiring the proper officers to be vigilant in watching over the king's rights in islands, attérissements, et _alluvions_, comme ils l'ont accoutumés faire d'ancienneté.' So that it was even then a law and practice d'ancienneté, and expressly including _alluvions_. 1664. An Ordinance for making enquiries concerning islands, accroissements, &c. 1668. Apr. An Edict quieting possessions of these objects of 100 years continuance, on paying a vingtiéme annually. 1669. The Ordinance des eaux et forêts, 'qui accorde au roi la propriété de toutes _les rivières navigables_, de leur lit, _rives_, et de tous les terreins qui peuvents s'y former.' Guyot, ante. pa. 27. 'granting to the king the property in _all navigable rivers_, their bed, _banks_, and the grounds forming there.' 1683. Apr. A declaration, reciting that as the rivers belong to the king 'tout ce qui se trouve renfermé dans leur lit, comme les isles, accroissemens et attérissements lui appartient aussi,' confirms _title_ anterior to 1566 without condition, possessions anterior to 1566 on conditions, and reunites all others to the crown. 1686. Apr.} Two edicts for Languedoc and Bretagne, 1689. Aug.} confirming possessors in the said islands, 'ensemble des crémens qui s'y sont formés, et de ceux qui pourraient s'y former à l'avenir, soit par _alluvion_, ou par industrie.' 1693. An edict general for the kingdom 'le droit de propriété que nous avons _sur tous les fleuves et rivières navigables_ étant incontestable, &c. Ordonnons que les détenteurs des isles, islots, attérissemens, aceroissemens, alluvions, &c. _sur_ les _rivières navigables_, &c. as more at large, pa. 28.
1710. Feb. An edict confirming possession 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 _navigable 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 _'dans le lit_,' des fleuves et rivières navigables, ne lui donnent pas les attérissements et _alluvions_ qui peuvent se former _hors_ le lit de ces mêmes 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.' l'Alluvion est un accroissement de terrein qui se fait _sur les bords_ des fleuves, par les 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 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 qui se 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 gratiâ_ 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, its true description also is to be understood as if expressed, that is to say, its 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 formes,' and again, 'isles et alluvions _sur_ les rivières navigables,' not '_dans leurs lits_.' That of 1710 says 'possession des isles et _alluvion sur_ les dites rivières.' Thus we see that wherever the edicts mention _alluvions_, they describe them _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 shown 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 its honesty, or its 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 its being considered 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 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, compromising 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 neighboring heritage, the dispositions of the Roman law are to be followed.' [96] 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 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 ancient times, granted to the Corporation of Dundee, on the river Tay, the borough, with all the lands and pertinents, 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, render 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 harbor, 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 its recess, or by his own industry in embanking, or by any other opus manu factum, _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 place of the crown, that they succeeded to all the cares and powers of the crown, in the territory and its 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 its receding naturally, or by industry: but that this does not apply to the site of a _tenement 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 limitatus_, 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 premises 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 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 authorizes a strong inference that the English, like the Roman law, restrains the right of alluvion to the _prædium rusticum__$1_, not admitting it on the shores bordering the city.
I proceed next to rivers of particular character. Of which among those analogous to the Missisipi, the Nile is best known to us, and shall be described. That river entering Upper Egypt at its Cataracts, flows through a valley of 20 or 30 miles wide, and of 450 miles in length, bounded on both sides by a continued ridge of mountains. Through most of this course, its natural banks are sufficient to contain its waters in time of flood, till they rise to that height, at which, by their law, they are to be drawn off. In low parts, where the natural banks are not sufficient, they have been raised by hand to the necessary height. In addition also to the natural _bayous_, like those of the Missisipi, they have opened numerous canals, leading off at right angles from the river towards the mountains, and sufficient to draw off the greatest part of the current passing down the river. These, in ordinary times, are closed by artificial banks raised to the level of the natural ones. When the flood is at a height sufficient for irrigating and fertilizing the fields, which by the Nilometer is at 16 cubits above the bed of the river, these artificial banks are cut, and the waters let in.
The plain declining gently from the banks of the river, (which, like those of the Missisipi, are the highest ground,) towards the mountains, the waters are there stopped, as by a dam, and continue to rise, and diffuse themselves till they reflow nearly to the bank of the river. If the rise ceases there, the waters remain stagnant, and deposit a fertilizing mud, over the whole surface. But if uncommon rains above occasion a continuance of the rise till all the waters meet over the summits of the banks, then the motion of that in the river is communicated to the stagnant water on the plains, a general current takes place, and instead of a depositum left, the former soil is swept away to the ocean, and famine ensues that year. This, the traveller Bruce informs us, had happened three times within the 30 years preceding his being in that country. When the waters have withdrawn, and the river is returned into its natural bed, the banks are repaired in readiness to restrain the floods of the ensuing year. Such is the case in Upper Egypt.
When the river enters Lower Egypt, it parts into two principal branches, the Pelusian and Canopic, which diverge and reach the Mediterranean at about 200 miles apart, including between them the triangle called the Delta. Besides these, there are, within the Delta, three natural _Bayous_, and two canals, dry at low water, which make up the famed seven mouths of the Nile. The mountains diverge so as do the main branches of the river, the eastern going off to the isthmus of Suez, and the Western to the sea near Alexandria. The waters lessened by depletion, and spreading over a widening plain are reduced, by the time they reach the base of the triangle at the sea, to one or two cubits depth. Banks, therefore, of 3 to 4 feet high, are sufficient to protect the country until here also they open the _bayous_ and canals which intersect the triangle. Here then the case recurs of a river whose natural banks are partly competent to contain its high waters in common floods, and are partly made so by the hand of man; so as to furnish an ordinary high water line. In extraordinary floods it overflows these banks, and in ordinary ones is let through them. Yet these inundations as the Digest declares, do not change the banks. 'Nemo dixit Nilum ripas suas mutare,' &c. But when the river retires within its natural bed, the banks are again repaired: 'cum ad perpetuam sui mensuram redierit, ripæ alvei ejus muniendæ sunt,' ib. [See 2. Herodot. 6-19. Strabo 788. 1 Univ. Hist. 391-413. 1 Maillet Description de l'Egypte 14-121. 1 De la Croix 338. Encyclop. Meth. Geographie. Nil. 1 Savary 3-14. 2 Savary 185-275. 1 Volney 34-18. 4 Bruce 364-407.
Text from Project Gutenberg, public domain in the United States.