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. 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 in- lake. 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. BOOK I. But, 2. If the lake insensibly undermines a part of the CHAP. XXIL opposite territory, destroys it, and renders it impossible to be known, by fixing itself there, and adding it to its bed, that part of the territory is lost to its former owner; it no longer exists; and the whole of the lake thus increased still belongs to the same state as before. 3. If some of the lands bordering on the lake are only overflowed at high water, this transient accident cannot produce any change in their dependence. The reason why the soil which the lake invades by little and little belongs to the owner of the lake and is lost to its former proprietor, is, because the proprietor has no other boundary than the lake, nor any other marks than its banks, to ascertain how far his possessions extend. If the water advances insensibly, he loses; if it retires in like manner, he gains: such must have been the intention of the nations who have respectively appropriated to themselves the lake and the adjacent lands:-it can scarcely be supposed that they had any other intention. But a territory overflowed for a time is not confounded with the rest of the lake: it can still be recognised; and the owner may still retain his right of property in it. Were it otherwise, a town overflowed by a lake would become subject to a different government during the inundation, and return to its former sovereign as soon as the waters were dried up. 4. For the same reasons, if the waters of the lake, penetrating by an opening into the neighbouring country, there form a bay, or new lake, joined to the first by a canal, this new body of water and the canal belong to the owner of the country in which they are formed. For the boundaries are easily ascertained: and we are not to presume an intention of relinquishing so considerable a tract of land in case of its happening to be invaded by the waters of an adjoining lake. It must be observed that we here treat the question as arising between two states: it is to be decided by other principles when it relates to proprietors who are members of the same state. In the latter case, it is not merely the bounds of the soil, but also its nature and use, that determine the possession of it. An individual who possesses a field on the borders of a lake, cannot enjoy it as a field when it is overflowed; and a person who has, for instance, the right of fishing in the lake, may exert his right in this new extent: if the [125] waters retire, the field is restored to the use of its former owner. If the lake penetrates by an opening into the low lands in its neighbourhood, and there forms a permanent inundation, this new lake belongs to the public, because all lakes belong to the public. 8 276. Land formed on the banks of a lake. The same principles show, that if the lake insensibly forms an accession of land on its banks, either by retiring or in any other manner, this increase of land belongs to the country which it joins, when that country has no other boundary than the lake. It is the same thing as alluvion on the banks of the river. BOOK I. CHAP. XXII. dried up. But, if the lake happened to be suddenly dried up, either ? 277. Bed totally or in a great part of it, the bed would remain in the of a lake possession of the sovereign of the lake; the nature of the soil, so easily known, sufficiently marking out the limits. The empire or jurisdiction over lakes and rivers is subject 2 278. Juto the same rules as the property of them, in all the cases which we have examined. Each state naturally possesses it over the whole or the part of which it possesses the domain. We have seen (§ 245) that the nation, or its sovereign, commands in all places in its possession. risdiction over lakes and rivers. CHAP. XXIII. OF THE SEA. (76) CHAP. XXIII. use. IN order to complete the exposition of the principles of the 2 279. TE law of nations with respect to the things a nation may pos- sea, and its sess, it remains to treat of the open sea. The use of the open sea consists in navigation, and in fishing; along its coasts it is moreover of use for the procuring of several things found near the shore, such as shell-fish, amber, pearls, &c., for the (76) As to the dominion of the main seas, and right to limit the passage thereon, and the claim of the English in the British seas and elsewhere, in general, see the authorities collected in 1 Chitty's Commercial Law, 88 to 108. With respect to the view taken by the English law of rights in and connected with the sea and sea-shore, the doctrine is, that the sea is the property of the king; and that so is the land beneath, except such part of that land as is capable of being usefully occupied without prejudice to navigation, and of which a subject has either had a grant from the king, or has so exclusively used it for so long a time as to confer on him a title by prescription. In the latter case, a presumption is raised that the king has either granted him an exclusive right to it, or has permitted him to have possession of it, and to employ his money and labour upon it, so as to confer upon him a title by occupation, the foundation of most of the rights to property in land. This is the law of England, and also of Jersey, and some other islands belonging to Great Britain. Benest v. Pipon, Knapp's Rep. 67; Blundell v. |