autem id videtur adjici, quod ita paulatim adjicitur, ut intelligi non. possit quantum quoquo temporis momento adjiciatur.'

be added by alluvion, which is so added by degrees, that you cannot conceive how much in each moment

of time is added.'

And in the Greek version of Theophilus, the words, 'Alluvio est incrementum latens are rendered - άλεβ ων ἐξιν ή πρόσκλυσις ἢ ngooyoos, translated by Curtius 'Alluvio est adundatio vel adaggeratio.' Retaining only the words of this paragraph which are definition it will stand thus.

'Alluvio est incrementum [adundatio, adaggeratio] agro tuo flumine adjectum, ita latens et paulatim, ut intelligi non possit quantum quoquo temporis momento adjiciatur.'

This is the Roman definition.

'Alluvion is an increment [adundation, adaggeration] added by the river to your field, so latent and gradual, that the quantity added in every moment of time cannot be known.'

In the Law Dictionary of the Encyclop. Method. voce Alluvion' by Le Rasle, the definition is:

6

Alluvion, un accroissement de terrein qui se fait peu-a-peu sur les bords de la mer, des fleuves, et des rivières, par les terres que l'eau y apporte, et qui se consolident pour ne faire qu'un tout avec la terre voisine.'

'Alluvion, an increment of ground which is made by little and little on the border of the sea, rivers or streams, by earth which the water brings, and which is consolidated so as to make but one whole with the neighboring ground.'

To reduce the essential members of the Roman and French definitions to a single one, according with our own common sense, for certainly we all understand what alluvion is, I should consider the following definition as comprehending the essential characteristics of both.

1. Alluvion is an extension which the waters add insensibly.

"Incrementum flumine adjectum latens et paulatim.

I take this to be rigorously conformable with the French and Roman definitions, as cited from the authorities before mentioned, and that it contains not one word which is not within their unquestionable meaning. Now let us try the batture by

this test.

1. Alluvion is an extension which the waters add insensibly. But the increment of the batture has by no means been insensible. Every swell of six months is said [Derb xix.] to deposit usually nearly a foot of mud on the whole surface of the batture, so that, *when the waters retire, the in- 44* crement is visible to every eye. And we have seen that, aided by Mr. Livingston's works, a single tide extended the batture from 75 to 80 feet further into the river, and deposited on it from 2 to 7 feet of mud, insomuch that a saw-scaffold, 7 feet high when the waters rose on it, was, on their retiring, buried to its top. This increment is, surely, not insensible. See the Mayor's answer to the Governor, Nov. 18, '08. MS.

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.

We will now proceed to shew what it is, which will further demonstrate what it is not.

Bed, Beach,
Bank.

*45

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 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 bat

bed.

ture, and sometimes platin.* 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 Commentatory 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

*Etymologies often help us to the true meaning of words; and where they agree in several languages, they shew the common sense of mankind as to the meaning of the word. In French Batture is derived from Battre, to beat, being the margin on which the surges beat. In English Beach, is from the Anglo-Saxon verb Beocian, Beacian, beatian, to beat: pronounced beachian, as christian, fustian, question, are pronounced chrischian, fuschian, queschion, &c.

Platin from ATTε, percuture. Perhaps from Plat, F. flat. Greek, ἀιγειαλὸς ἀκτή, from άγειν, agere.

dìv, Divòs, à Deivw, ferio, quia littus fluctibus feritur. Clav. Homer. A. 34. ‘Pnyμiv, à pńoow, frango. quia in litore fluctus frangitur. Ib. v. 437.

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

*46

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.

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.