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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.
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 55* 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.
Limitations of the rights of
“Ne quid in flumine publico, • You are not to do any thing in ripåve ejus, facias, ne quid in Alu a public river, or on its banks, you mine publico, neve in ripa ejus are not to cast any thing into a immittas, quo statio, iterve navigio public river, or on its banks, which deterior sit. Dig. L. 43. t. 12. l. 1. may render the station, or course Stationem dicimus a statuendo : is of a ship worse.
It is called a igitur locus demonstratur, ubicun- station, from statuere, to place: that que naves tutò stare possunt. ib. place is intended where ships may S. 13.
Deterior statio, itemque iter • The station and course of a ship navigio fieri videtur, si usus ejus seems to be rendered worse, if its corrumpatur, vel difficilior fiat, aut use be destroyed, or made more minor, vel rarior, aut si in totum difficult, or less, or scantier, or if it auferatur. Proinde, sive derivatur be wholly taken away. Moreover, aqua, ut exiguior facta minus sit if water be drawn ofl, so that, being navigabilis, vel si dilatetur, aut dif- scantier, it is less navigable, or if fusa, brevem aquam faciat; vel it be dilated, or spread out, so as contra sic coangustetur, et rapidius to make the water shallow, or if on flumen faciat ; vel si quid aliud fiat, the other hand it be so narrowed as quod navigationem incommodet, to make the river more rapid; or difficiliorem faciat, vel prorsus im- if any thing else be done which inpediat, interdicto locus erit.' Dig. commodes the navigation, makes it 43. 12. 15.
worse, or wholly impedes it, there “Molino, nin canal, nin casa, nin is ground for Interdict.' torre, nin cabaña, nin otro edificio “Mill, nor canal, nor house, nor ninguno, non puede ninguno home tower, nor cabin, nor other buildfacer nuevamente en los rios por ing whatsoever, may any man make los quales los homes andan con sus newly in the rivers along which navios, nin en las riveras dellos, men go with their vessels, nor on porque se embarrasse el uso comun their banks, by which their common dellos. E si alguno lo ficiesse y de use may be embarrassed. And if nuevo, ó fuesse fecho antiguamente, any one does it anew, or were it de que viniesse daño al uso comu- anciently done, so that injury is nal, debe ser deribado. Ca non seria done to the common use, it ought cosa guisada que el pro de todos to be destroyed. For it would not los omes communalmente se estor be meet that the benefit of all men
pro de algunos.' Par in common should be disturbed for tidas. 3. 28. 8. cited Derb. 48. the benefit of some.' Poydras 12.
The owner of lands on the bank of a river may, however, make or repair a bank to protect them from the river.
*. Quamvis fluminis naturalem Although it is not allowed to
cursum, opere manu facto turn the natural course of a river *56 alio, non liceat avertere, ta by another made by hand, yet it
men ripam suam adversus is not prohibited to guard one's rapidi amnis impetum, munire pro- bank against the force of a rapid hibitum, non est.' Codex L. 7. t. river.' 41. S. 1.
But he is not permitted to do even this if it will assect the public right, or injure the neighboring inhabitants.
In flumine publico, inve ripå 'I forbid any thing to be done ejus facere, aut in id flumen ri- in a public river, or on its bank, or pamve immittere, quo aliter aqua to be cast into the river or on its fluat quam priore æstate fluxit, veto. bank, by which the water may be Dig. L. 43. tit. 13. §. 1.
made to flow otherwise than it
flowed in the last season.' 'Quod autem ait, aliter fluat non • When he says, to flow otherwise, ad quantitatem aquæ fluentis per- it relates, not to the quantity of tinet, sed ad modum, et ad rigorem water, but to the manner and direccurslis aquæ referendum est. Et tion of the course of the water. And si quod aliud vitii accolæ ex facto if the neighbors experience any ejus qui convenitur sentient, inter- other evil from the act of him who dicto locus erit.' Ib. §. 3.
is convened, there will be ground
for interdict.' 'Sunt qui putent excipiendum "Some think liable to this interhoc interdicto “ quod ejus ripæ dict only “ what is not done for the muniendæ causa non fiet,” scilicet purpose of strengthening the bank," ut si quid fiat quo aliter aqua fluat, to wit, that if any thing be done by si tamen muniendæ ripæ causà fiat, which the water may otherwise interdicto locus non sit. Sed ne flow, if nevertheless it was to secure hoc quibusdam placet; neque enim the bank, there is no ground for inripæ, cum incommodo accolentium, terdict. But this is not approved muniendæ sunt.' Ib. §. 6.
by others, for that banks are not to be secured to the inconvenience of the inhabitants.'
More particularly full and explicit as to the inhibitions of the law against obstructing the bed, beach or bank of a sea or river, is Noodt, Probabil. Juris civilis. 4. 1. 1. After declaring that as to a house, or other such thing, built in a public river, the law is the same as obtains as to the sea and sea shore, he proposes to state, 1. The law respecting the sea and its shore, and 2. As it respects a river and its bank; and says,
· Ait Celsus maris communem Celsus says that the use of the usum esse, ut aëris; jactasque in sea is common, as is that of the air: id pilas fieri ejus qui jecit : sed id and that stones laid in it were his concedendum non esse, si deterior who laid them, but that it wa litoris marisve usus eo modo futur- not to be admitted if the use of us sit. Adeo hoc quod in mari ex the shore or sea would be structum est, facientis est. Ut *the worse. So what is con 57* tamen exstruere liceat, et decreto structed in the sea is his who opus est, et ut innoxia adi ficatio sit. constructs it. But to make it law. Porrò ut usus maris, ita usus lit- ful to construct, a decree is necesoris, sive communis, sive publicus sary, and that the construction be est jure gentium; et ideò licet uni- innocent. Moreover, as the use of cuique in litore ædificare, litusque the sea, so that of the shore, is either ædificatione suum facere. Si tamen, common or public, by the law of ut in mari, ita in litore, impetravit: nations. And therefore it is lawful præterea si non eo modo deterior for any one to build on the shore, futurus sit usus litoris ; vel nisi and to make the shore his by the usus publicus impedietur. Hoc in building; if however, as in the sea, mari litoribus jus est. Idem in so on the shore, he has obtained fluminibus publicis, Ulpiano teste, permission : and provided besides, Dig. 39. 2. 24. cum sic ait, 'flu the use of the shore will not thereminium publicorum communis est by be ren lered worse, nor the pubusus, sicut viarum publicarum et lic use be impeded. . This is the litorum. In his igitur publicè licet law as to the sea and its shores. It cuilibet ædificare, et distruere, dum is the same as to public rivers, actamen hoc sine incommodo cujus- cording to Ulpian, Dig. 39. 2. 24. quam fiat.” Vult tamen Ulpianus, where he says, “ the use of public ut ædificari possit, ædificari publicè rivers is common, as of highways et sine cujusquam incommodo; par- and shores. In these, therefore, iter ut in mari et litore definitum : any one may build up, or pull publicè inquam, seu publicâ auctori- down, publicly, provided it be done
tate ; id enim hoc verbum, publicè without inconvenience to any one.' indigitat.' And (S. 2.) citing Dig. That you may build, however, Ul. 43. 12. 4. he says, ' quæsitum est, pian requires that you build puban is, qui in utrâque ripå fluminis licly, and without inconvenience to publici domus habeat, pontem pri- any one; in like manner as is
prevati juris [vel privato jure] facere scribed as to the sea, and its shore: potest; respondit non posse. Et si publicly, I say, or by public author. facit, interdicto teneri. Causa re- ity; for that is what the word pub. sponsi est quod, cum pontem facit, licly, indicates. And §. 2. citing usum fluminis publici facit deterio- Dig. 43. 12. 4. he says, “it is asked rem.' So far Noodt.
whether he who has houses on both banks of the river, may build a bridge, of his own private authority. He answers, he cannot; and if he does, he is bound by the interdict. The reason of the answer is, that by building a bridge he injures the use of a public river.' So far Noodt.
*The same is the law as to highways and public places. Dig. 43. 8. 2. 16.
*Si quis à principe simpliciter 'If any one obtains leave, simply, impetraverit ut in publico loco from the prince, to build in a pubædificet, non est credendus sic ædifi- lic place, it is not to be understood care ut cum incommodo alicujus id he is so to build as to incommode fiat.'
We see then that the Roman law not only forbade every species of construction or work on the bed, beach or bank of a sea or river, without regular permission from the proper officer, but even annuls the permission after it is given, if, in event, the work proves injurious; not abandoning the lives and properties of its citizens to the ignorance, the facility, or the corruption, of any officer. Indeed, without all this appeal to such learned authorities, does not common sense, the foundation of all authorities, of the laws themselves, and of their construction, declare it impossible that Mr. Livingston, a single individual, should have a lawful