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which constituted this batture, it was said, that New Orleans would probably never have existed, or that it would have been built but very slowly. The earth which it afforded, it was impossible to find elsewhere in the vicinity, so that the whole city, with its levees and streets, was completely dependent on it for its growth, safety, and protection.
The suit was brought in the superior court of the territory of Orleans, by Jean Gravier, against the corporation of New Orleans. It was a fact of public notoriety, that before the plaintiff set up his claim to the batture, which was in 1804, the inhabitants of New Orleans had always enjoyed the liberty of gratuitously taking from the batture all the earth which they required for their buildings, and that the Spanish government had ever taken the earth for public uses, such as raising the streets and repairing the levees of the city. It was further proved, that the Spanish government and the French government, which had preceded, had always evinced a settled determination to preserve to the inhabitants of New Orleans the free use of the batture, so useful and indispensable, not only for obtaining earth there, but to supply various other necessities not less urgent. To have permitted any individual to have appropriated the batture to himself, would have also devoted the population of the city to ravaging epidemics, and been of
great detriment to the navigation and commerce. Accordingly, the Spanish government con
stantly opposed the forming of any establishment on the batture, and at different times caused to be demolished the houses and other buildings which divers persons had ventured to erect there, at different periods.
In this situation of affairs, Louisiana was ceded to the United States. The great increase of commerce which succeeded this change of dominion, rendered it still more necessary to leave the batture free to the public, as it had till then been. This consideration suggested to Gravier, who was the former proprietor of the plantation on which the suburb St. Mary had been formed, the idea of raising a claim, which before he had not thought of, and prompted him to maintain that batture being real alluvions, the one in dispute belonged to him as riparian proprietor; and he was maintained by the court in the possession and enjoyment of the batture against the claim of the corporation of New Orleans. Afterwards, it became a question, whether Gravier, as the riparian proprietor, or whether the United States, were entitled to the batture.'
In New Orleans v. United States, it was held, that land bounding upon the river Mississippi having
1 See the opinion of Edward Livingston, Esq. in 2 Hall's Am. Law Journ. 307; and for other arguments and opinions, Ib. 295. For the defence of Mr. Jefferson, in taking possession of the batture, when President, in behalf of the United States, and Mr. Livingston's reply, 5 Ib. 1, and 113.
been dedicated to public use, or to the use of the city of New Orleans, the accumulations, by alluvial formations partake of the same character, and are subject to the same use as the soil to which they become united. If this were not the case, by the continual deposits of the river Mississippi, the city of New Orleans would, in the course of a few years, be cut off from the river, and its prosperity impaired. As the city has a just claim to the original dedication to the river, it has all the rights and privileges of a riparian proprietor; and this, in this case, not only upon the consideration, that every proprietor whose land is thus bounded, is subject to loss by the same means which may add to his territory, for which loss he is without remedy; but upon another consideration of much weight, viz: the city, from time immemorial, had been compelled to construct at great expense, and keep in repair, levees, which resist the waters of the river, and preserve the city from inundation.'
In the case of the King v. Lord Yarborough, the argument was upon the word “imperceptibly;” and in behalf of the crown two passages were cited from Hale's De Jure Maris, wherein that writer speaks of land gained by alluvion, as belonging generally to the crown, unless the gain be so insensible, that it cannot by any means, according to the words of one of the passages, or by any limits or marks, according
· New Orleans o. United States, 10 Peters (U. S.) R. 662.
to the words of the other passage, be found, that the sea was there; idem est non esse et non apparare. This led to the following interpretation of the legal meaning of the word " imperceptible” by the court, the opinion of which was delivered by Abbott, J., as follows: “In these passages, Sir Matthew Hale is speaking of the legal consequence of such an accretion, and does not explain what ought to be considered as accretion insensible or imperceptible in itself, but considers that as being insensible, of which it cannot be said with certainty that the sea ever was there. An accretion extremely minute, so minute as to be imperceptible even by known antecedent marks or limits at the end of four or five years, may become, by gradual increase, perceptible by such marks or limits at the end of a century, or even of forty or fifty years. For it is to be remembered, that if the limit on one side be land, or something growing or placed thereon, as a tree, a house, or a bank, the limit on the other side will be the sea, which rises to a height varying almost at every tide, and of which the variations do not depend merely upon the ordinary course of nature at fixed and ascertained periods, but in part also, upon the strength and direction of the wind, which are different almost from day to day. And therefore, these passages from the work of Sir Matthew Hale are not properly applicable to this question. And considering the word imperceptible’ in this issue, as
connected with the words slow and gradual,' we think it must be understood as expressive only of the manner of the accretion, as the other words undoubtedly are, and as meaning imperceptible in its progress, not imperceptible after a long lapse of time. And taking this to be the meaning of the word imperceptible,' the only remaining point is, whether the accretion of this land might properly upon the evidence be considered by the jury as imperceptible. No one witness has said that it could be perceived, either in its progress, or at the end of a week or a month. One witness, who appears twice to have measured the land, says, that within the last four years, he could see that the sea had receded,' but he could not say how much; the same witness said, that it certainly had receded since he measured it last year,' but he did not say how much; and, according to his evidence, the gain in a period of twenty-six or twenty-seven years, was on the average about five yards and a half in a year. Another witness speaks of a gain of 100 to 150 yards in fifteen years; a much greater increase than that mentioned by the first witness; and this second witness adds, that during the last five years there had been a visible increase in some parts of from thirty to fifty yards. Upon the evidence of this witness, it is to be observed, that he speaks very loosely, the difference between 100 and 150 in fifteen years, and between thirty and fifty in five years, being very great.