Note 95 — PART III. THE BATTURE AT NEW-ORLEANS.

Little versed in French jurisprudence, possessing few of the authors teaching it, and, of some of those quoted by the adverse party, so much only as they have thought to their advantage to quote, I had apprehended it possible (pa. 29.) that there might be among those authors, that conflict of opinions on the law of alluvions, which these quotations indicate. But I have lately had an opportunity of reading in MS. a Memoire on the subject of the Batture, written by M. Moreau de Lislet of New Orleans, a French lawyer of regular education in the profession, who has treated the subject, generally with great learning and abilities, and especially that branch of it which relates to the laws of France in cases of Alluvion. He has proved that the doctrines of these great authorities are not contradictory, and that a proper attention to the different questions under contemplation in the passages quoted, will show that all are right, and all in perfect harmony. To elucidate this he explains certain principles of French law, which mingling themselves with this subject, have occasioned the misunderstanding with which we have been perplexed. 1. The laws of France leave to the king a right to navigable rivers only, and their increments. On rivers not navigable, the rights of the riparian proprietor prevail as under the Roman law. See Pothier ante. pa. 26. Very early however these rights were drawn into question by the Feudal Superiors, who, looking to the example of the king in the case of navigable rivers in his kingdom, claimed similar rights on those not navigable within their Seignories. But repeated decisions have condemned their claims, and confirmed the rights of the riparian tenant. 2. By the laws of France, as by those of England, lands received by inheritance, descend, on the death of the tenant, to the heirs of that branch, paternal or maternal, from which they came to him. But those he acquires by purchase (acquets) pass to that line of heirs of which himself is the root. When therefore, to a maternal inheritance an acquisition happened to be made by means of Alluvion, a question would arise, between heirs of different lines, to which of them the Alluvion would descend; whether to the direct heirs of the decedent, as being an acquisition first vesting in him, or to the maternal heir as an accessory to his inheritance. The decisions were that it united with the inheritance, became a part of that, and passed with it. 'Incrementum alluvionis nobis adquiritur, jure quo ager augmentatus primum ad nos pertinebat; nec istud merementum censetur novus ager sed pars primi.' 'The increment of Alluvion is acquired to us in the right in which the field augmented first belonged to us.' Nor is the increment considered as a new field, but a part of the first, Renusson. It follows that questions of Alluvion would often arise in cases wherein the king's rights were not at all concerned. They would arise between Lord and vassal, and between individual heirs of different lines. These explanations premised, M. Moreau takes a review of the passages quoted from Henrys, Bourjon, Dumoulin, Ferriere, Pothier, Le Rasle, Renusson, Dargentré, Denisart, and Guyot, and shews that in every instance where the question concerned a navigable river, there was no division of opinions as to the validity of the king's right; and that in every instance where the riparian right is asserted, the question has been between private individuals, or concerning rivers not navigable. Recurring then to the edicts and Ordinances placing this right of the king beyond cavil, he observes that a practice had prevailed from early times among riparian proprietors of usurping on the rights of the crown to the increments adjacent to them, and a necessary reaction of the crown, by reclamations and resumptions, to preserve its own. And he gives a detail of the edicts on this subject, proving that that of 1693, instead of being the singular act of a particular prince, whom the adverse party delights to revile, was one only of a long series preceding and following it.

1554. An edict was issued requiring the proper officers to be vigilant in watching over the king's rights in islands, attérissements, et alluvions, comme ils l'ont accoutumés faire d'ancienneté.' So that it was even then a law and practice d'ancienneté, and expressly including alluvions.

1664. An Ordinance for making enquiries concerning islands, accroissements, &c.

1668. Apr. An Edict quieting possessions of these objects of 100 years continuance, on paying a vingtiéme annually.

1669. The Ordinance des eaux et forêts, 'qui accorde au roi la propriété de toutes les rivières navigables, de leur lit, rives, et de tous les terreins qui peuvents s'y former.' Guyot, ante. pa. 27. 'granting to the king the property in all navigable rivers, their bed, banks, and the grounds forming there.'

1683. Apr. A declaration, reciting that as the rivers belong to the king 'tout ce qui se trouve renfermé dans leur lit, comme les isles, accroissemens et attérissements lui appartient aussi,' confirms title anterior to 1566 without condition, possessions anterior to 1566 on conditions, and reunites all others to the crown.

1686. Apr. Two edicts for Languedoc and Bretagne, confirming possessors in the said islands, 'ensemble des crémens qui s'y sont formés, et de ceux qui pourraient s'y former à l'avenir, soit par alluvion, ou par industrie.'

1689. Aug.

1693. An edict general for the kingdom 'le droit de propriété que nous avons sur tous les fleuves et rivières navigables étant incontestable, &c. Ordonnons que les détenteurs des isles, islots, attérissemens, aceroissemens, alluvions, &c. sur les rivières navigables, &c. as more at large, pa. 28.

1710. Feb. An edict confirming possession of islands, &c. of the sea on specified terms, copied almost verbally from that of 1693, using the word alluvions as that does, and referring to the provisions of that edict.

1722. Sep. An Arret resuming isles, attérissemens, &c. formed since the edict of 1693. And those of anterior formation where the possessor has not made the payments provided by the edict of 1693.

But this whole branch of the argument of M. Moreau must be read with attention. Its matter cannot be abridged, nor otherwise expressed, but for the worse.

Having thus luminously reconciled the authorities which had been so illy understood, and victoriously established the public right to alluvions on navigable rivers, M. Moreau, with too much facility, gives back to his adversary one half the ground he has conquered, by a gratuitous admission, which those interested in the event of the cause are not ready to confirm. Led away, as it seems, by an expression in the edict of 1683, 'tout ce qui se trouve renfermé dans leur lit nous appartient,' and which is to be found in no other, and yielding to a single decision of the Parliament of Paris of 1765, found in a law dictionary, which adjudged that the Ordinances giving to the king the isles which are formed 'dans le lit,' des fleuves et rivières navigables, ne lui donnent pas les attérissements et alluvions qui peuvent se former hors le lit de ces mêmes fleuves,' &c. He admits that though alluvions within the bed of a river belong to the king, those without the bed do not belong to him. M. Moreau is too reasonable to consider as a compliment to himself the adoption of an opinion on his authority alone, by any one not convinced by his reasonings. Certainly I do not feel myself competent to enter the lists with him, on any question of difficulty in the French law. Yet after maturely considering the authorities appealed to in this case, and which he has rendered so strong by reconciling and forming them into one mass, I cannot yield, as he does, so imposing a mass to a single decision of the single Parliament of Paris. I still must consider all alluvions on navigable rivers as belonging to the nation, and will briefly assign my reasons.

1. It is of the essence of Alluvion that it be, not in the bed of the river, but out of it; that is, adjacent to the bank. So say expressly the Roman and French definitions. 'Alluvio est incrementum agro tuo flumine adjectum.' l'Alluvion est un accroissement de terrein qui se fait sur les bords des fleuves, par les terres que l'eau y apporte, et qui se consolident pour ne faire qu'un tout avec la terre voisine.' Ante. pa. 26. Increments within the bed of a river, though sometimes carelessly spoken of under the term alluvion, are never so in correct language, never in the well weighed diction of ordinances and statutes. They are termed accroissements, attérissements, assablissements, isles, islots, javeaux, in French, and in our language shoals, shallows, flats, bars, islands. Without the bed of the river, they add to the beach, or to the adjacent field, according to their elevation, and in this last case only, constitute Alluvion, within the bed of the river they lose that name.

2. 'Les alluvions qui se forment dans le lit des fleuves' is not the language of the edicts cited by Moreau himself, not even of that single one on which this opinion is founded. That has indeed the expression 'dans les lits,' but applied, not to alluvions, but to isles, accroissements, attérissements, to which it is applicable with truth and correctness. These are the kinds of increments it enumerates, and describes as being 'dans le lit.' If they are enumerated exempli gratiâ only as the word comme seems to imply, and alluvions, though not named, were within the purview, as they are within the reason of the law, then, if the thing itself is to be understood, as if expressed in the text, its true description also is to be understood as if expressed, that is to say, its adjacence to the bank. The edicts of 1686 and 1689 mention 'les isles des rivières navigables, ensemble les crémens qui s'y sont formés.' That of 1693 says, in like manner, 'le droit, &c., sur tout les fleuves, et les isles et crémens qui s'y sont formes,' and again, 'isles et alluvions sur les rivières navigables,' not 'dans leurs lits.' That of 1710 says 'possession des isles et alluvion sur les dites rivières.' Thus we see that wherever the edicts mention alluvions, they describe them sur le fleuve, not dans le lit du fleuve. When they speak of those increments which are dans le lit des fleuves, they name them as accroissemens, attérissemens, &c., but not as alluvions.

3. This distinction is founded on a single decision of a single parliament, and on the authority of a king's advocate, Bacquet, and the dictum of Salvaing there cited, all perhaps influenced by the same and single expression in the edict of 1683. It is cited too from a Dictionary by Prost de Royer, where it is doubtless stated in abridgment only, and possibly with the omission of circumstances, arguments, and expressions which, were they before us, would change the aspect of the case, as M. Moreau himself has shown to be so possible in his review of the mutilated authorities produced by the adversary. And are we, for this, to give up the doctrines of Pothier, Denisart, Ferriere, and the host of other great authorities, and all the definitions of the Roman and French laws, all of which when speaking of alluvions, place them exclusively on the borders, and not in the beds of rivers? I cannot do it.

4. This distinction is new in this cause, having never been claimed by the plaintiff or his counsel, or suggested by any other who has treated the question. This naturally begets a suspicion that it is peculiar; though doubtless the adversary will adopt it with avidity. And is he entitled to this gratuitous aid? Is it the equity of his cause, or even its honesty, or its utility, which gives him this claim on our tenderness? I cannot consent to a concession which gives the Batture from the public in the contingency of its being considered as a real alluvion, 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.'