The Writings of Thomas Jefferson, Vol. 8 · Thomas Jefferson
THE BATTURE AT NEW-ORLEANS.
2. 'By _apposition_ of particles of earth,' or, by their _adhesion_. But the addition to the batture is by _deposition_ of particles of earth on its face, not by their _apposition_ or _adhesion_ to the bank. It is not pretended that the bank has extended by apposition of particles to its side, one inch towards the river. It remains now the same as when the levée was erected on it. The deposition of earth on the bottom of a river, can be no more said to be an apposition to its sides, than the coating the floor of a room can be said to be plastering its walls. 3. 'Against the adjacent field,' la terre voisine. Not a particle has been added to the adjacent field. That remains as it was, bounded by the identical line, _crepido_, or _ora terræ_, which has ever bounded it.
4. 'And consolidated with the field so as to make part of it.' Un tout avec la terre voisine. Even supposing the continuity of the adjacent field not to be broken by the intervention of the levée and road, nothing is consolidated with it, not even with the _margo riparum_, or chemin de hallage, if there be any, between the levée and brim of the bank. No extension of its surface has taken place so as to form one with the former surface, so as to be a continuation of that surface, so as to be arable like that. The highest part of the batture, even where it abuts against the bank, is still materially below the level of the adjacent field. A terrass of some feet height still separates the field from the deposition called the batture. It is now as distinguishable from the adjacent field as it ever was, being covered with water periodically 6 months in the year, while that is dry. Alluvion is identified with the farmer's field, because of identity of character, fitness for the same use: but the batture is not fitted for ploughing or sowing. It is clear then that the batture has not a single feature of Alluvion; and divesting it of this misnomer, the whole claim of the plaintiff falls to the ground: for he has not pretended that it could be his under any other title than that of Alluvion.
'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.
'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.
'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.
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.
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.
'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.'
'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.
Ideas discussed in this chapter
Text from Project Gutenberg, public domain in the United States.