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right to drown the city of New-Orleans, or to injine, or change, of his own authority, the course or current of a river which is to give outlet to the productions of two-thirds of the whole area of the United States ?
Such, then, are the laws of Louisiana, declaratory of the public rights in navigable rivers, their beds and banks. For we must ever bear in mind that the Roman law, from which these extracts are made, so far as it is not controlled by the Customs of Paris, the Ordinances of France, or the Spanish regulations, is the law of Louisiana. Nor does this law deal in precept only, or trust the public rights to the dead letter of law merely : it provides also for enforcement. The Digest. L. 43. tit. 15. de ripâ muniendâ, provides
$. 1. “Ripas fluminum publico $. 1. “To repair and strengthen rum reficere, munire, utilissimum the banks of public rivers, is most est,—dim ne ob id navigatio deterior useful: provided the navigation be fiat: illa enim sola refectio toler- not by that deteriorated; for those anda est, quæ navigationi non est repairs alone are to be permitted impedimento
which do not impede the naviga
tion.' §. 3. “Is autem qui ripam vult $. 3. But he who would strength.
munire, de damno fu en his bank, should give either an Surety.
turo debet vel cavere, engagement, or security against vel satisdare, secundum qualitatem future injury, according to the
personæ. Et hoc interdicto quality of the person. And this *59
expressum est, ut damni in. *interdict establishes that the en
fecti, in annos decem, viri gagement, or security, against fuboni arbitratu, vel caveatur, vel sa ture injury, shall be for ten years, tisdetur.'
by the opinion of a good man.' S. 4. ‘Dabitur autem satis vi S. 4. Security shall be given cinis ; sed et his qui trans flumen to the neighbors, and also to pospossidebunt.
sessors on the other side of the
river.' “Ne quid in loco publico facias, • You are to do nothing in any inve eum locum immittas, quâ ex public place, nor to cast any thing re quid illi damni detur. Dig. 43. into that place, from which any 8. 2. Ad ea loca hoc interdictum damage may follow. This inter
pertinet, quae publico usui destinata dict respects those places, which are sunt: ut si quid illic fiat, quod pri- destined for public use: and that vato noceret, Prætor intercederet if anything be there done, which interdicto suo. §. 5. Adversus eum may injure an individual, the Præqui molem in mare projecit, inter tor may interpose by his interdict.dictum utile competit ei, cui forte Against him who projects a mole hæc res nocitura sit: si autem nemo into the sea, the interdictum utile damnum sentit, tuendus est is, qui
lies for him to whom this may posin litore ædificat vel molem in mare sibly do injury, but if nobody susjacit. S. 8.-Damnum autem pati tains damage, he is to be protected videtur, qui commodum amittit, who builds on the sea shore, or quod ex publico consequebatur, projects a mole into the sea.-And qualequale sit. $. 11.—Si tamen he seems to suffer injury who loses nullum opus factum fuerit, officio any convenience, which he derived judicis continetur, ut caveatur non from the public, whatsoever it may fieri.' ş. 18.
be.—But if no work is done, he should be constrained by the author. ity of the judge to engage that none shall be done.'
Seeing the use of rivers belongs to the public, nobody can make any change in them that may be of prejudice to the said
Thus one cannot do any thing to make the current of the water slower, or more rapid, should this change be any way prejudicial to the public, or to particular persons. Thus although one may divert the water of a brook, or a river, to water his meadows or other grounds, or for mills and other uses; yet, every one ought to use this liberty so as not to do any prejudice either to the navigation of the river, whose waters he should turn aside, or the navigation of another river which the said water should render navigable by discharging itself into it, or to any other public use, or to neighbors who should have a like want, and an equal right. Dom. Pub. law. 1. 8. 2. 11.
*The same laws make it peculiarly incumbent on the government and its officers to watch over the public property and rights, and to see that they are not injured or intrud 60* ed on by private individuals. In order to preserve the navigation of rivers, it is proper for the government to prohibit
and punish all attempts which might hinder it, or render it inconvenient, whether it be any buildings, fisheries, stakes, floodgates and other hindrances, or by diverting the water from the course of the rivers, or otherwise. And it is likewise forbidden to throw into the rivers any filth, dirt or other things, which might be of prejudice to the navigation, or cause other inconveniences.' Dom. Pub. L. 1. 8. 2. 8.
• Quoique la mer et ses bords * Although the sea and its shores, soient, suivant les principes du droit according to the principles of natnaturel, des choses publiques et ural law, are things public and comcommunes à tous, avec faculté à mon to all, with liberty to every chacun d'en user selon sa destina one to use them according to their tion, neanmoins il ne doit pas étre destination, nevertheless it ought permis aux uns d'en jouir au préju- not to be permitted to some to endice des autres. Ainsi pour pré- joy them to the prejudice of others. venir les inconveniens qui seroient Therefore to prevent the inconrésultés de la liberté d'user de la veniences which would result from chose commune, il a fallu que cette the liberty of using the public liberté fut limitée par la puissance property, it is necessary that that publique, ainsi que s'en explique liberty be limited by the public Domat, &c. Nouv. Comment, sur authority, as explained by Domat, l'orden. de 1681. tit. 7. art. 2. Note. &c.
It is likewise agreeable to the law of nature, that this liberty, which is common to all, being a continual occasion of quarrels, and of many bad consequences, should be regulated in some manner or other; and there could be no regulation more equitable, nor more natural, than leaving it to the sovereign to provide against the said inconveniences. For as he is charged with the care of the public peace and tranquillity, as it is to him the care of the order and government of the society belongs, and it is only in his person that the right to the things which may belong in common to the public, of which he is the head, can reside ; he therefore as head of the commonwealth, ought to have the dispensation and exercise of this right, that he may render it useful to the public. And it is on this foundation that
the Ordinances of France have regulated the use of navigation, and of fishing, in the sea and in rivers. Dom. P. L. 1. 8. 2. 1. note. Observe that the work of Domat was published in 1689, and he died in 1696. *Dict. hist. par une so
61* ciété. verbo Domat. We know then from him the state of the laws of France, at a period a little anterior only to the establishment of the colony of Louisiana, and the transfer of the laws of France to that colony by its charter of 1712.
To the provisions which have been thus made by the Roman and French laws and transferred to Louisiana, no particular additions, by either the French or Spanish government, have been produced on the present occasion. We know the fact, and thence infer the law, that from a very early period, the governors of that province were attentive especially to whatever respected the harbor of New Orleans, which included the grounds now in question. We see them forbidding inclosures, or buildings on them, pulling down those built, publishing bans against future erections, forbidding earth for buildings and streets to be taken from the shore adjacent to the city, and assigning the beach Ste. Marie for that purpose, protecting all individuals in the equal use of it as a Quai, in which cares and superintendence the Cabildo or City Council, participated ; and on the change of government we see that council pass an Ordinance declaratory of the limits of the port of N. Orleans, and come forward in defence of the public rights, in the first moment of J. Gravier's intrusion by pulling down his inclosure, and when that intrusion under the enterprise of Mr. Livingston, assumed a more serious aspect. they, as municipal guardians of the interests of the city, made an immediate appeal to the Judiciary, the Executive, and Legislative authorities. In addition, too, to the French laws for the protection of the bed and bank of the Levecs and Police
of Missisipi. river, the territorial legislature, on the 15th of Feb. 1808, passed an Act, reciting that inasmuch as the common safety of the inhabitants of the shores of the river Missisipi depends not only on the good condition of the levées or embankments, which contain the waters of the said river ; but also on
the strict observance of the laws concerning the police of rivers and their banks, which are in force in this territory, and by which it is forbidden to make on the shores of the rivers, any work tending to alter the course of the waters, or increase their rapidity, or to make their navigation less convenient, or the anchorage less sure, (almost in the words of the Roman law, 'ne quid in flumine publico'] they therefore enact that no levée shall be made in front of those which exist at present, but on an inquisition by 12 inhabitants, proprietors of plantations situate on the banks of the river, convoked for that purpose, by the Parish judge; that no such levée, which at the present time of passing this act shall happen to be commenced in front of others al
ready existing, shall be continued or finished without a *62
like authorization ;* that those who act in contravention
shall be fined 100 dols. for every offence in contravention, and pay the expenses of removing the nuisance, and costs of suit ; and prohibiting the receiving compensation for the use of the shores under a penalty of 500 dols. A law of wonderful, not to say imprudent and dangerous tenderness to the riparian proprietors, who are thus made the sole judges in cases where their own personal interests may be in direct opposition to the interests, and even the safety of the city, to which it gives no participation or control over the power which may devote it to destruction.
This act is partly declaratory of the existing law, and partly additional. Application to the Prætor was under the Roman law (Dig. 43. 13. 6.) for permission to fortify a bank for the protection of a farm. He might refuse permission if injurious ; but if he thought it would not be injurious, the party was to give security to make good all damages which should accrue within ten years; and this security was for the protection, not only of immediate neighbors, but of those also on the opposite bank “trans flumen possidentibus.' The Governor and Cabildo seem to have held this Prætorian power in Louisiana, as well as that of demolishing what was unlawfully erected. This act of the Legislature, without taking the power from the Governor