The position laid down is that the Roman law gave alluvion only to the rural proprietor of the bank; Rural and Urban.. urban possessions being considered as prædia lim

itata, limited possessions. The law which gives this right is expressed in the Institutes in these words, 'quod per alluvionem agro tuo flumen adjecit, jure gentium tibi adquiritur.' Inst. 2. 1. 20. 'What the river has added, agro tuo, becomes yours by the laws of nations.' And the Digest 41. 1. 7. 1. in almost the same words says, 'quod per alluvionem agro nostro flumen adjecit, jure gentium nobis adquiritur.' In both instances it is to the possessor agri only that it is given. It becomes material therefore to understand rigorously the import of the word ager, in the Roman laws; and it happens that its definition is given

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.'

critically by the same authority which uses it.

*40

Tò

Locus sine ædificio, in urbe area, *rure autem ager appellatur idemque ager, cum ædificio, fundus dicitur.' Dig. 50. 16. 211. "Quæstio est, fundus a possessione, vel agro, vel prædio quid distet?' Ib. 115 in notis, ' fundus est ipsum solum : eo si utimur, prædium dicitur. Ager esse potest sine villà.' 'Ground, without a building, in a city is called area, but in the country ager.' Pliny 1. 6. affirms that ager is derived from the Greek yoos, of the same import. And in the Greek Pragmatics of Attaliata tit. 45. the law of alluvion uses yoòs' for ager. ἀνεπαισθήτως διὰ το ποταμό προστεθέν τῷ ἀγρῷ με πρόσχωσις ἐξὶν, ἤτοι πρόσκλυσις, καὶ ἐμοὶ ἁρμόζει, Quod insensibiliter τῷ ἀγρῷ με per fumen adjectum est, alluvionis est, et mihi competit. What is insensibly added by the river agro meo is alluvion [adundatio, adaggeratio] and belongs to me.' In the same title ‘ὅπερ ἐν τῷ ἁγρῷ σοῦ σπείρω σόν ἐξιν. 'What I sow &¡g@ oa agro tuo, in your field, is yours.' And Stephens, in his Thesaur. ling. Gr. voce "Ayoos' translates it 'rus, ager,''¿ ¿yo in agro, ruri. 'E§ ¿¡o̟×, ex agro, rure. Els yoor, in agrum, rus.' And he cites examples: Nvs δέ μοι ἥδ' ἔφηκεν ἐπ' αγρέ, νόσφι πόληος". Hom. Od. 1. 185. My vessel is stationed in the country, apart from the city.' · Διὰ τὸ μὴ μεγάλας είναι τότε τὰς ΠΟΛΕΙΣ, ἀλλ' ἐπὶ τῶν ̔ΑΓΡΩΝ δικεῖν τὸν δῆμον ἄσχολον ὄντα, Aristo. Polit. 5. Because, the cities not being then large, the people were occupied in the country, where yoòs is proved to be pointedly the contradiction to róis, to wit, the country to the city. From these definitions it appears that the word ager, in the law, constantly means a field, or farm, in the country, and that a city lot is called area. In towns, the whole bank and beach being necessary for public use, the private right of alluvion would be inadmissible; and the adverse counsel have been challenged [Thierry, 33.] to produce a single instance, under the Roman law, of a claim of Alluvion allowed in a city. To this might be added a similar challenge as to the laws of England. These give alluvion on rivers, as the civil law does, to the riparian proprietor. Bracton L. 2. c. 2. § 1. Fleta. L. 3. c. Can they from the volumes of English law, with which they

2.

are so much more familiar, produce one single instance of the private right of alluvion allowed in a city? In England, I mean, and not in America, where special circumstances have prevented attention to the law on this subject, or the breach of it. And this must be from the reason of the thing alone, because the common law never having been, like the civil law, reduced to a text, no verbal criticisms on a text can have cooperated against the claim. Repeating, therefore, my reference to the reasoning and authorities of M. Thierry

41*

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,

on this point, and my own conviction of their soundness, I consider it as established that, were this question to be decided by the Roman law, the conversion of the farm into a fauxbourg of the city passed to the public all the riparian rights attached to it while a rural possession, and among these the right of alluvion.

Principal and accessory

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And, if the right of alluvion is not given to urban proprietors, much less would it to a mere holder of the bed of a road. But did any one ever hear of a *man's holding the bed of a road, and nothing else? Is it possible to believe that Bertrand Gravier, in selling his lots face au fleuve, really meant to retain the bed of the road and levee? That a man, having a road on the margin of his land, which is its boundary, should mean to sell his land to the road, and to retain that by itself? a thing of no possible use to him, because the use being in the public, he could never employ it in agriculture or otherwise. Were all this possible, yet this bed of a road, this "labrum amnis" would be no ager, no field to which the right of alluvion could attach. That right is but an accessory, or, in the language of our law, an appendage or appurtenance, and an accessory, not to a mere line, but to something of which it can become a part. Had the law, there

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, not admitting it on the shores bordering the city.

6

fore, ever given alluvion to any but the holder of an ager, of a field, yet the general doctrines of principal and accessory, would not have carried the benefit to Bertrand Gravier in this case. 'Accessorium sequitur naturam sui principalis. Et in accessoriis, præstanda sunt quæ in principali. Accessorium non tenet sine principali. Sublato principali, tollitur et accessorium.' These are maxims of the civil law. Calvini lexicon jurid. An accessory follows the nature of its principal.' If the accession then be to a field, it becomes part of the field; if to a town, it would become part of the town; if to a road, the use of which belongs. to the public, it would be to the road, and to the public. must follow the nature of its principal, and become a part of that, subject to the same rights, uses and servitudes with that: and Bertrand Gravier had no right of use in the principal, that is, of the road and levee.

It

The equity on which the right of alluvion is founded is, that as the owner of the field is exposed to the danger of loss, he ought, as an equivalent, to have the chance of gain. But what equitable reason could there be, in the present case, for giving to Gravier the benefit of alluvion, when he could lose nothing by alluvion? If the levee and bank were washed away, they would not go to his plantation, back of the suburb, for a new one. The public would have to purchase a new bed for a road from the adjacent lot holders. Then 'qui sentit onus, sentire

debet et commodum.'

But I do deny to the Batture every characteristic of Alluvion.

Beach or Batture not Alluvion.

The

The French and Roman law constituting that of the place, let us seek from them the definition of Alluvion. Institute 2. 1. 20. gives it in these words, and the Digest. 41. 1. 7. §. 1. in almost verbatim the same.

6

Quod per alluvionem agro tuo flumen adjecit, jure gentium tibi adquiritur. Est autem alluvio incrementum latens. Per alluvionem

'What the river adds by alluvion to your field becomes yours by the law of nature. Alluvion is a latent increase. That seems to