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port wardens established a water-line called the “Port Warden's Line,” beyond which no permission could be granted. Where permission was obtained to improve out to such line, by persons claiming under an elder patent, the intervening fast land made by natural or artificial causes, in front of their lots, vest in them, although in fact, in front of the land of a junior patentee. The ordinance of the city of Baltimore of 1823, ch. 19, which authorized the corporate authorities to contract with the owners of lots, for filling up the same into the water, and, in case of neglect or refusal to contract on the part of the owners, the improvement was to be made at their expense, which was to be a lien on the property, must inure to the benefit of the senior patent, where the city has made the improvement, upon the refusal of the proprietor; and the payment of the cost thereof, by another proprietor claiming under a junior patent, does not divest that right; nor would it be competent to the corporation of Baltimore to vary rights established in such cases, by the general law.
The act of Maryland of 1784, ch. 39, s. 6, which was intended to make such improvements as had been made in the harbor of Baltimore, a part of Baltimore town, saves to all persons the rights acquired under the above mentioned act of 1745, ch.
9, s. 10.2
I Wilson v. Inloes, sup.
Marine increases, or lands gained from the sea, are of three kinds :
1st. Per alluvionem, alluvion, or land, or what aids in the formation of land, washed up by the sea.
2d. Per relictionem, derelict land, or land left dry by the retirement of the sea.
3d. Per insula productionem, that is, islands and islets gradually or suddenly formed out of the sea, or at the mouths of rivers, &c.
1st. Of alluvion and sea-weed. Alluvion is called an increase per projectionem, which is slow and secret, and is so gradually and insensibly occasioned as to render impossible to perceive how much is added in each moment of time, it then belongs to the riparian proprietor to whose land the accession is made ; and none but riparian proprietors have a claim to it. Its gradual and imperceptible formation renders it no more a part and parcel of the bottom of the sea or river (fundus maris), which was before the property of the sovereign. Such is the doctrine of the Roman, French, Spanish and Louisiana jurisprudence. In 1765, the Marquis of Langeron owned a fief, to which was attached the right of haute justice upon the river Loire, by virtue of which he attempted to establish a claim to all the alluvions on that river, as being attached to his domain. His pretensions were however rejected, and the land formed by the alluvions on the river was adjudged to belong to the nuns of Marcigny, who claimed by virtue of riparian ownership.
Such is also the doctrine of the common law. Indeed Bracton quotes the very words of the institutes: Quod per alluvionem agro tuo flumen adjecit jure gentium tibi adquiritur. Est autem alluvio incrementum latens. Per alluvionem autem id videtur adjici quo ita paulatim adjicitur, ut intelligi non possit quantum quoque temporis momento adjiciatur.3 The common law is thus laid down by Blackstone: “As to lands gained from the sea either by alluvion, i. e. by the washing up of sand or earth, so as in time to make terra firma ; the law is held to be, that if this gain be by little and little, by small and imperceptible degrees, - it shall go to the owner of the land adjoining, for de minimis non curat lex; but if the alluvion be sudden and considerable, the land shall go to the king as lord of the sea.” 1
* Inst. L. 2, T. 1, s. 20; and see the authorities cited by Edward Livingston, Esq. in his examination of the title of the United States to the Batture in New Orleans. 2 Hall's Am. Law Journ. 308. And see Civil Code of Louisiana. Gugot's Repertoire Universelle, 113.
? 5 Hall's Am. Law Journ. 167.
3 Bracton, L 2, ch. 2. Both Bracton and Fleta copied copiously from the Imperial law, the Pandects of Justinian having been found at Amalphi about the year 1137, and having been, about the time of Bracton, a century alterwards, established in most of the forensic schools. Fleta is in general but a copyist from Bracion, and the latter has collected the first two chapters of his second book from the furty-first book of the Digest or Pandects, and the second book of the Institutes. Schultes (see ante, Preface) has thought it not improper to show a very striking resemblance between the doctrine of alluvion by the civil law and the common law, and by the law of a very remote nation. By the Gentoo laws, in a place where there is a river, the two banks of which are boundaries to the estates of two persons, if that river should break off some part of the bank on one side, and carry it over to the other, then the owner of that boundary upon which the other broken bank has fallen, shall become proprietor of that bank so broken ; and the person whose bank is so divided shall no longer have any property therein ; but if the river breaks off the whole of a person's land and carries it over to the boundaries of another person, in that case, the person whose ground is thus torn away shall still be owner thereof, and the person upon whose boundary such land has fallen, shall not be entitled to the possession thereof.
And such is recognized as the common law in this country." In the case of Adams v. Frothingham, in Massachusetts, it was adjudged that whatever addition is made to shores of rivers, bays, coves, &c. by alluvion from natural causes, or from a union of natural and artificial causes, belongs to the owners of the shores. This decision was made in reference to the old colony law, which has been mentioned, which annexed the flats to the adjacent upland, to the distance of one hundred rods from the high-water mark. And whatever increase happens within these limits, and from whatever cause, is very properly assigned to him who owns the soil, to which the increase is attached.
12 Bl. Com. 61. His authorities are Bracton, and Callis on Sewers; 2 Roll. Abr. 170, Dyer, 326. See also Hale, De Jure Maris, 27, 28; Hall's Rights to the Sea, &c. 122 ; Stratton v. Brown, 4 B. & Cress. R. 485; 8. C. 10 Eng. Com. Law R. 384.
2 Dunlap v. Stetson, 4 Mason (Cir. Co.) R. 349 ; Ball v. Slack, 2 Whart. (Penn.) R. 508; Stratton o. Brown, 4 B. & Cress. R. 485 ; S. C. 10 Eng. Com. Law R. 384; Browne v. Kennedy, 5 H. & Johns. (Md.) R. 200 ; Giraud's Lessee v. Hughes, 1 G. & Johns. (Md.) R. 249 ; Lamb v. Rickets, 11 Ohio R. 311.
* Adams v. Frothingham, 3 Mass. R. 352.
In the delta of the river Mississippi, and in the country around the Gulf of Mexico, the most valuable lands have been made and are now forming by alluvial deposits of the floating soils brought down by the great rivers. The case of the Batture in the city of New Orleans was an important controversy, as relates to the value of land in question, and to the able and learned discussions it elicited.
Battures are certain portions of the bed of the river Mississippi, which are left dry when the water is low, and are covered again, either wholly, or in part, by the annual swells. The batture, which was in this case the subject of controversy, was very considerable in extent, and had existed from time immemorial in front of the suburb of St. Mary. But for the aid of the natural depositum of the materials
I See Pollard's Lessee v. Hagan, App.p.cxl; ante, note to p. 55, 56.