« PředchozíPokračovat »
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 givent height, is admitted ; this being indispensable to fertilize the lands in a country where it never rains. And these banks of the Nile, nat
ural and artificial, are recognized as such by the Roman *51 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. I
+ Justum incrementum [Nili] est cubitorum xvi; in XI. cubitis famem sentit: in xii etiamnum esurit: Xiv cubita hilaritatem afferunt: xv securitatem : XVI delicias: maximum incrementum, ad hoc ævi, fuit cubitorum xvIII, cum stetére aquæ, apertis molibus admittuntur. Plin. hist. nat. 5. 9.
* This part of our subject merits fuller development. That the periodical overflowings of some rivers do not differ from the accidental overflowings of others, in any circumstance which should affect the law of the high water line, in the one more than in the other, will be rendered more evident by taking a comparative view of them. To begin with ordinary rivers. 1. These have along their greater part, and some of them through their whole course, natural banks adequate to the confinement of their waters, in the high water season, except in cases of accidental inundation. Here, then, the Roman authorities tell us the inundation does not change the bank, nor the landmark on it. 2. Along other parts, where the natural bank was not high enough to contain the river in its season of steady high water, the hand of man has raised an artificial bank on the natural one, which effects this purpose, with the exception, as before, of accidental inundations, where such happen. This artificial bank performs all the func
*Having ascertained what the batture is not, and what it is and established the high water mark as the line of
2* partition between the bed and bank of the river, we will proceed to examine to whom belongs ground on
Property in bed either side of that line ?
tions of the natural, and is placed under the same law. 3. In other parts of them, the natural banks are still not high enough to contain the high tides, nor have they yet been made so by the hand of man. Here then the law cannot operate, because the local peculiarities, as yet, exclude the case from its provisions. The ground so covered by inundation, has been, or may yet be, public property. But the legislator, instead of holding it as the bed of the river, grants it to individuals as far as to the natural or incipient bank, that they, by completing the bank, may reclaim the land, for their own and the public benefit, and, this done, the law comes into action on it. Much of this reclaimed, and unreclaimed land exists in all these states.
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 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 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 ad*53 jacent proprietors ; * the former law of France to the
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 di. verge 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. i 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 34–48. 4 Bruce 366—407.]
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 Cyprieres 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.
Thus then we find the laws of the Tyber and Nile transferred and applied to the Missisipi with perfect accordance, and that all rivers may be governed by
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, pub. · All rivers and ports are public.' lica sunt.' Inst. 2. 1. 2.
Impossibile est ut alveus flu It is impossible that the bed of minis publici non sit publicus. Dig. a public river should not be pub43. 12. 7.
lie.' • Litus publicum est eatenus qua • The seashore is public as far as maximus fluctus exæstuat.' Dig. 50. the greatest wave surges.' 16. 96. 112.
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.
In like manner, by the Common law of England, the property, tam aquæ quam soli, of every river, having flux or reflux, or susceptible of any navigation, is in the king; who cannot grant
the same laws. Other rivers are subject to accidental floods, which are declared however not to disturb the law of the plenissimum flumen. The Nile and Missisipi, not being subject to accidental floods, the flumen plenissimum with them is steady and undisturbed, and needs not the benefit of the exception. Nor will the reason of the law be changed, whether the cause of the inundation be the saturation of the earth and fountains, or rains, or melted snows, or the reflux of the ocean. The principle remains universally the same, that the land mark, when once established by a competent bank, is not changed by the inundation, or by any cause or circumstance of its high waters.
it to a subject, because it is a highway, except for purposes which will increase the convenience of navigation. The king has a right of property to the sea shore, and the maritima incrementa. The shore is the land lying between high water and low water mark in ordinary tides, and this land belongeth to the king de jure communi, both in the shore of the sea, and shore of the arms of the sea. And that is called an arm of the sea where the tide flows and reflows, and so far only as the tide flows and reflows. Hale de jure maris. c. 4. cited in Bac. Abr. Prærog. B. 3.
So that I presume no question is to be made but that the bed of the Missisipi belongs to the sovereign, that is, to the Nation.
2. In the bank, from the high water line inland, it is admitted that the property or ownership, is in the Riparian proprietor of the adjacent field or farm : but the use is in the public, for the purposes of navigation and other necessary uses.
• Riparum quoque usus publicus “The use of the bank is public by est jure gentium [i. e. gentis hu- the law of nations [i. e. of nature] mana] sicut ipsius fluminis : itaque as to navigate the river itself.
naves ad eas appellere, funes Therefore it is free for every *54 arboribus ibi natis religare, *one to bring his ships to at them,
onus aliquod in his repon- to make fast ropes to the trees ere, cuilibet liberum est, sicut per growing there, to discharge any ipsum flumen navigare. Sed pro- load on them. But the property of prietas earum, illorum est, quorum them is in those to whose farms they prædiis hærent: quâ de causâ arbo- adhere; for which reason the trees res quoque in eisdem natæ eorun- likewise growing on them, belong to dem sunt. Inst. 2. 1. 4. And Vin the same.' And Vinnius adds - the nius adds ‘non ut litora maris, ita banks do not, like the shores of the ripas, conditionem fluminis sequi.? sea, follow the condition of the river.'
* Publica sunt flumina, portus, al · Rivers, harbors, the beds of veus fluminis quamdiu à flumine rivers as long as occupied by the occupatus, ripa.
Harum rerum river, and the banks are public. omnium, proprietas nullius, si ripas The property of all these is in no exciperis, quarum proprietas eorum one, if you will except the banks, est qui propè ripam prædia possi- the property of which is in those dunt.' Vinnii Part. jur. L. 1. c. 17. who possess the farms on the bank.