« ZurückWeiter »
Ripa est pars extima alvei, quo The bank is the outermost part naturaliter flumen excurrit.' Grotius of the bed in which the river nade Jour. B. et P. 2. 8. 9.
turally flows. • Ripa ea putatur esse quæ ple * That is considered to be bank, nissimum flumen continet.' Dig. 43. which contains the river when full12. 3. And Vinnius's commentary
est,' and Vinnius's commentary on on this passage is ' ut significet, par- this passage is “this signifies that tem ripæ non esse, spatium illud, the space next to the bank, which ripæ proximum, quod aliquando flu- is sometimes not occupied by the mine, caloribus minuto æstivo tem- river, when reduced by heats in the pore non occupatur.'
summer season, is not a part of the
bank.' • Ripa autem ita rectè definietur, * The bank may be thus id quod flumen continet naturalem* rightly defined, that which 47* rigoremt cursus sui tenens. Cæte- contains the river holding rùm si quando vel imbribus, vel the natural direction of its course. mari, vel quâ alia ratione, ad tem- But, if at any time, either from pus excrevit, ripas non mutat. rains, the sea, or any other cause, Nemo denique dixit Nilum, qui in- it has overflowed a time, it does cremento suo Ægyptum operit, not change its banks. Nobody has ripas suas mutare, vel ampliare, said that the Nile, which by its inNam cum ad perpetuam sui men covers Egypt, changes or suram redierit, ripæ alvei ejus mun- enlarges its banks. For when it iendæ sunt.' Dig. 43. 12. §. 5. has returned to its usual height, the
banks of its bed are to be secured.' • Alveus flumine tegitur.' Grot. • The bed is covered by the de jur. B. ac P. 2. 8. 9.
river.' 'Alveus est spatium illud flu * The bed is the space, subjacent mini subjectum per quod fluit.' to the river, through which it Vinnii Partitiones jur. Civil. 1. 17. 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.
| Rigor, à rectitudine dicitur, et est cursus aquæ rectum profluentis tenorem significans. Sic vigor stillicidii rectus ejus fluxus est. Calvini Lexicon juridicum, rigor. I have therefore translated it direction.'
• Litus est quousque maximus • The shore is as far as the greatfluctus à mari pervenit. Idque est wave of the sea reaches; and Marcum Tullium aiunt, cum arbiter it is said that Marcus Tullius first esset, primum constituisse. Dig. established that when he was an 50. 16. 96.
Arbiter.' • Est autem litus maris quatenùs
• The shore of the sea is as far as hibernus fluctus maximus excurrit.' the greatest winter wave reaches.' Inst. 2. 1. 3. the paraphrase of The paraphrase of Theophilus adds, Theophilus adds, " undè et æstate, wherefore, in summer also, we usque ad ea loca litus definimus,' bound the shore by the same limits, and his Scholiast ubjoins non ut and his Scholiast subjoints, not the mediis caloribus solet, sed hibernus; wave of midsummer, but of winter; quoniam hieme protissimum mare because the sea is most agitated, turbatur, mare est undabundum.' and most swelled.'
* By shore, the Institutes mean up to the high-water mark, or (where little or no tides, as in the Mediterranean) as high as the highest winter wave washes. 1. Brown's Civil and Admiralty law. B. 2. c. 1.
We must not, however, with Mr. Livingston, pa. 61. seize on the single word "hibernus,' in the last quotations, and sacrifice *to that both the fact, and the reason of the law. 48* 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 marimus 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 Jus: tinian code is the common law of Spain.
• La ribera del rio se entiende • The bank of a river is undertodo lo que cubre el agua de el, stood to be the whole of what conquando mas crece, en qualquiera tains its waters, when most swelled, tiempo del año, sin salir de su in whatsoever time of the year, yema y madre.' Curia Philipica. 2. without leaving its bed or channel.' 3. 1. cited Derb. 46.
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 • The border and shore of the mer, tout ce qu'elle couvre et dé. sea shall be reputed to be the whole couvre [precisely the beach or bat- which it covers and uncovers (preture] pendant les nouvelles et cisely the beach or batture] during pleines lunes, et jusqu'où le grand the new and full moons, and as far flot de mer cesse de s'y faire sentir. as to where the full tide of the sea Il est facile de connoître jusqu'où ceases to be perceived. It is easy s'étend ordinairement le grand flot to know how far ordinarily the full de Mars, par le gravier qui y est tide of March extends ; by the déposé ; ainsi il ne faut pas con- gravel which is deposited there; fondre cette partie avec l'espace où therefore we must not confound parvient quelque fois l'eau de la that part with the space where the mer par les ouragans, et par les waters of the sea come sometimes tempêtes. Ainsi jugé à Aix le 11. in hurricanes and storms.' So adMai 1742.' Boucher, Institut au judged at Aix, May 11, 1742. droit Maritime 2713. Nouveau Com. mentaire sur l’Ordonnance de la Marine, de 1681. tit. 7. Art. 1.
Let us now embody those authorities, by bringing together the separate members, making them paraphrase one another, and form a *single description. The Digest 43. 12. 49* 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 live 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.
It will perhaps be objected that, establishing the commencement of the bank at high water mark, leaves in fact
Missisipi. no bank at all, as the high water regularly overflows the natural* bank or brim of the channel. And will
50* 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