BOOK I. CHAP. XXII. CHAP. XXII. OF RIVERS, STREAMS, AND LAKES. territories. WHEN a nation takes possession of a country, with a view 2266. A rito settle there, it takes possession of every thing included in ver that seit, as lands, lakes, rivers, &c. But it may happen that the parates two country is bounded and separated from another by a river; in which case, it is asked, to whom this river belongs. It is manifest, from the principles established in Chap. XVIII., that it ought to belong to the nation who first took possession of it. This principle cannot be denied; but the difficulty is, to make the application. It is not easy to determine which of the two neighbouring nations was the first to take possession of a river that separates them. For the decision of such questions, the rules which may be deduced from the principles of the law of nations are as follow: 1. When a nation takes possession of a country bounded by a river, she is considered as appropriating to herself the river also: for, the utility of a river is too great to admit a supposition that the nation did not intend to reserve it to herself. Consequently, the nation that first established her dominion on one of the banks of the river is considered as being. the first possessor of all that part of the river which bounds her territory. When there is question of a very broad river, this presumption admits not of a doubt, so far, at least, as relates to a part of the river's breadth; and the strength of the presumption increases or diminishes in an inverse ratio with the breadth of a river; for, the narrower the river is, the more does the safety and convenience of its use require that it should be subject entirely to the empire and property of that nation. (68) 2. If that nation has made any use of the river, as, for navigating or fishing, it is presumed with the greatest certainty that she has resolved to appropriate the river to her own use. 3. If, of two nations inhabiting the opposite banks of the river, neither party can prove that they themselves, or those whose rights they inherit, were the first settlers in those tracts, it is to be supposed that both nations came there at the same time, since neither of them can give any reason for claiming the preference; and in this case the dominion of each will extend to the middle of the river. (1) (68) As regards private rights, there is no legal presumption that the soil of a navigable river belongs to the owners of the adjoining lands, ex utraque parte, or otherwise. Rex v. Smith, 2 Doug. 411. {Palmer v. Hicks, 6 Johns. (1) {5 Wheat. Rep. 374, 379; 3 Mass. BOOK I. 4. A long and undisputed possession establishes the right CHAP. XXII. of nations, (69) otherwise there could be no peace, no stability between them; and notorious facts must be admitted to prove the possession. Thus, when from time immemorial a nation has, without contradiction, exercised the sovereignty [121] upon a river which forms her boundary, nobody can dispute with that nation the supreme dominion over the river in question. 8267. Of 5. Finally, if treaties determine any thing on this question, they must be observed. To decide it by accurate and express stipulations, is the safest mode; and such is, in fact, the method taken by most powers at present. If a river leaves its bed, whether it be dried up or takes the bed of a its course elsewhere, the bed belongs to the owner of the river which river; for, the bed is a part of the river; and he who had or takes an- appropriated to himself the whole, had necessarily approother course. priated to himself all its parts. is dried up, 2268. The If a territory which terminates on a river has no other right of al- boundary than that river, it is one of those territories that luvion. (70) have natural or indeterminate bounds (territoria arcifinia), and it enjoys the right of alluvion; that is to say, every gradual increase of soil, every addition which the current of the river may make to its bank on that side, is an addition to that territory, stands in the same predicament with it, and belongs to the same owner. For, if I take possession of a piece of land, declaring that I will have for its boundary the river which washes its side,-or if it is given to me upon that footing, I thus acquire, beforehand, the right of alluvion; and, consequently, I alone may appropriate to myself whatever additions the current of the river may insensibly make to my land:-I say "insensibly," because in the very uncommon case called avulsion, when the violence of the stream separates considerable part from one piece of land and joins it to another, but in such manner that it can still be identified, the property of the soil so removed naturally continues vested in its former owner. The civil laws have thus provided against and decided this case, when it happens between individual and individual; they ought to unite equity with the welfare of the state, and the care of preventing litigations. In case of doubt, every territory terminating on a river is presumed to have no other boundary than the river itself; because nothing is more natural than to take a river for a (69) As to what is a sufficiently long and undisturbed possession, by the law of France, Jersey, and England, in general, see Benest v. Pipon, Knapp's Rep. 67. (70) As to the rights of alluvion, or sudden derelict in general, see The King v. Yarborough, 1 Dow Rep. New Series, 178; 4 Dowl. & Ry. 790; 3 Barn. & Cres. 91, S. C.; 5 Bing. 163, 169; 1 Thomas Co. Lit. 47, note; Scultes on Aquatic Rights; Chitty's General Practice, 199, 200. {2 Johns. Rep. 322; 3 Mass. Rep. 325; 2 Hall's L. Journ. 307; 5 Hall's L. Journ. 1, 113.} boundary, when a settlement is made; and wherever there is BOOK I. a doubt, that is always to be presumed which is most natural CHAP. XXII. and most probable. 8269. Whe duces any change in As soon as it is determined that a river constitutes the boundary line between two territories, whether it remains com- ther allumon to the inhabitants on each side of its banks, or whether vion proeach shares half of it, or, finally, whether it belongs entirely to one of them, their rights with respect to the river are in the right to no wise changed by the alluvion. If, therefore, it happens, a river. that, by a natural effect of the current, one of the two territories receives an increase, while the river gradually encroaches on the opposite bank, the river still remains the natural boundary of the two territories, and notwithstanding the progressive changes in its course, each retains over it the same rights which it possessed before; so that, if, for instance, it be divided in the middle between the owners of the opposite banks, that middle, though it changes its place, will continue to be the line of separation between the two neighbours. The one loses, it is true, while the other gains; but nature alone produces this change: she destroys the land of the one, [122] while she forms new land for the other. The case cannot be otherwise determined, since they have taken the river alone for their limits. case when the river changes its But if, instead of a gradual and progressive change of its 270. bed, the river, by an accident merely natural, turns entirely What is the out of its course, and runs into one of the two neighbouring states, the bed which it has abandoned becomes, thenceforward, their boundary, and remains the property of the for- bed. mer owner of the river (§ 267); the river itself is, as it were, annihilated in all that part, while it is reproduced in its new bed, and there belongs only to the state in which it flows. This case is very different from that of a river which changes its course without going out of the same state. The latter, in its new course, continues to belong to its former owner, whether that owner be the state, or any individual to whom the state has given it; because rivers belong to the public in whatever part of the country they flow. Of the bed which it has abandoned, a moiety accrues to the contiguous lands on each side, if they are lands that have natural boundaries, with the right of alluvion. That bed (notwithstanding what we have said in § 267) is no longer the property of the public, because of the right of alluvion vested in the owners of its banks, and because the public held possession of the bed only on account of its containing a river. But, if the adjacent lands have not natural boundaries, the public still retains the property of the bed. The new soil over which the river takes its course is lost to the proprietor, because all the rivers in the country belong to the public. 8 271. It is not allowable to raise any works on the bank of a river, which have a tendency to turn its course, and to cast Works BOOK I. CHAP. XXII. it upon the opposite bank: this would be promoting our own advantage at our neighbour's expense. Each can only secure tending to himself, and hinder the current from undermining and carrying away his land. (72) turn the current; (71) ? 272. or, in general, (73) 273. Rules ing rights. In general, no person ought to build on a river, any more than elsewhere, any work that is prejudicial to his neighprejudicial bour's rights. If a river belongs to one nation, and another to the rights has an incontestible right to navigate it, the former cannot of others. erect upon it a dam or a mill which might render it unfit for navigation. The right which the owners of the river possess in this case is only that of a limited property; and, in the exercise of it, they are bound to respect the rights of others. But, when two different rights to the same thing happen to in relation clash with each other, it is not always easy to determine to interfer- which ought to yield to the other: the point cannot be satisfactorily decided, without attentively considering the nature of the rights, and their origin. For example, a river belongs to me, but you have a right to fish in it: and the question is, whether I may erect mills on my river, whereby the fishery will become more difficult and less advantageous? The na123]ture of our rights seems to determine the question in the affirmative. I, as proprietor, have an essential right over the river itself:-you have only a right to make use of it-a right which is merely accessory, and dependent on mine; you have but a general right to fish as you can in my river, such as you happen to find it, and in whatever state I may think fit to possess it. I do not deprive you of your right by erecting my mills: it still exists in the general view of it; and, if it becomes less useful to you, it is by accident, and because it is dependent on the exercise of mine. (74) The case is different with respect to the right of navigation, of which we have spoken. This right necessarily supposes that the river shall remain free and navigable, and therefore excludes every work that will entirely interrupt its navigation. The antiquity and origin of the rights their nature, to determine the question. (71) This principle of the law of nations has been ably discussed as part of the municipal law of Scotland and England in Menzies v. Breadalbane, 3 Wils. & Shaw, 235; and see The King v. Lord Yarborough, 1 Dow. Rep., New Series, 179; and Wright v. Howard, 1 Sim. & Stu. 190; Rex v. Trafford, 1 Barn. & Adolph. 874, and Chitty's General Practice, 610. {4 Dall. Rep. 211; 13 Mass. 420, 507; 3 Har. & McHen. 441; 2 Conn. Rep. 584; Coxe's Rep. 460. (72) That is permitted as well as a bank or groove to prevent an alteration serve, no less than The more ancient in the current. Rex v. Pagham, 8 Barn. & Cress. 355; Rex v. Trafford, 1 Barn. & Adolph. 874; 2 Man. & Ryl. 468; 1 Moore & Scott, 401; 8 Bing. 204, (in error.) (73) See note 72. (74) But this doctrine seems questionable. See Wright v. Howard, 1 Sim. & Stu. 190; and Mason v. Hill, 3 Barn. & Adolph. 304; Chitty's General Prac. 191, 192. Even a right of irrigating at reasonable times may qualify the absolute and general right to the use of the water for working a mill, right, if it be absolute, is to be exerted in its full extent, and the other only so far as it may be extended without prejudice to the former; for, it could only be established on this footing, unless the possessor of the first right has expressly consented to its being limited. In the same manner, rights ceded by the proprietor of any thing are considered as ceded without prejudice to the other rights that belong to him, and only so far as they are consistent with these latter, unless an express declaration, or the very nature of the right, determine it otherwise. If I have ceded to another the right of fishing in my river, it is manifest that I have ceded it without prejudice to my other rights, and that I remain free to build on that river such works as I think proper, even though they should injure the fishery, provided they do not altogether destroy it. (75) A work of this latter kind, such as a dam that would hinder the fish from ascending it, could not be built but in case of necessity, and on making, according to circumstances, an adequate compensation to the person who has a right to fish there. BOOK I. CHAP. XXII. Lakes. What we have said of rivers and streams, may be easily? 274. applied to lakes. Every lake, entirely included in a country, belongs to the nation that is the proprietor of that country; for in taking possession of a territory, a nation is considered as having appropriated to itself every thing included in it; and, as it seldom happens that the property of a lake of any considerable extent falls to the share of individuals, it remains common to the nation. If this lake is situated between two states, it is presumed to be divided between them at the middle, while there is no title, no constant and manifest custom, to determine otherwise. in lake. What has been said of the right of alluvion, in speaking of 275. Inrivers, is also to be understood as applying to lakes. When crease of a a lake which bounds a state belongs entirely to it, every crease in the extent of that lake falls under the same predicament as the lake itself; but it is necessary that the increase should be insensible, as that of land in alluvion, and moreover that it be real, constant, and complete. To explain myself more fully,-1. I speak of insensible increase: this is the reverse of alluvion; the question here relates to the increase of a lake, as, [124] in the other case, to an increase of soil. If this increase be not insensible, if the lake, overflowing its banks, inundates a large tract of land, this new portion of the lake, this tract thus covered with water, still belongs to its former owner. Upon what principles can we found the acquisition of it in behalf of the owner of the lake? The space is very easily identified, though. it has changed its nature: and it is too considerable to admit a presumption that the owner had no intention to preserve it to himself, notwithstanding the changes that might happen to it. (75) See note 74, ante, p. 122. |