Des lois rendues depuis la révolution sur la propriété, l'entretien et l'usage des cours d'eau. Des

CHAP. 17: Of the laws passed since the revolution on the property, maintenance, and use of watercourses. Of the dispositions of English and Anglo-American laws on the same subject.

THE Constituent Assembly, by its decree of the first days of the month of August 1790 [^124], had pronounced the abolition of feudal rights, and although it had made no particular mention of the right of fishing or of the other rights that the lords enjoyed exclusively on non-navigable rivers, these rights had been generally considered as suppressed.

By a law of the following 22 December, relative to the constitution of primary assemblies and administrative assemblies, it charged the administrators of the department with all parts of the departmental administration, notably those that were relative to the conservation of forests, rivers, roads, and other common things [^125].

It would not be easy to determine the differences that the Constituent Assembly placed between public properties and common properties, among which it placed forests, roads, and rivers. The Roman jurisconsults understood, by public things, those that belonged to the entire body of the nation, such as, for example, roads, rivers, and seaports. They understood, by common things, those that were, in a way, the property of the human race, and whose use could not be legitimately taken from anyone, such as the air, the light, the sea. The Constituent Assembly, by placing among common things those that the Roman laws classed among public things, did not determine the objects it meant to designate by this latter expression. Be that as it may, it is sufficient for us to observe that it placed rivers on the same line as roads and forests, and that it considered them as common, without establishing any difference between those that were navigable and those that were not [^126].

By its instruction of 12 August 1790, it charged the administrative assemblies with researching and indicating the means of procuring the free course of waters, of preventing meadows from being submerged by the excessive height of sluices, mills, and other works of art established on the rivers; in short, of directing, as much as would be possible, all the waters of their territory toward a goal of general utility according to the principles of irrigation; but, although the authority given to these assemblies might lead one to suppose that all rivers were dependencies of the public domain, the legislative power did not then explain itself on the question of whether they belonged, in effect, to the State.

On 22 November of the same year, the Constituent Assembly passed a decree by which it determined the goods of which the public domain was composed. By article 1, it declared (§ 1) that the national domain properly so-called was understood to be all landed properties and all real and mixed rights that belonged to the nation, whether it had current possession and enjoyment of them, or whether it had only the right to re-enter them by way of repurchase, right of reversion, or otherwise.

“Public roads,” added article 2, “the streets and squares of cities, navigable rivers and streams, the alluvion and dereliction of the sea, ports, harbors, roadsteads, and, in general, all portions of the national territory that are not susceptible of private property, are considered as dependencies of the public domain [^127].”

This law did not, therefore, include non-navigable rivers in the enumeration of goods forming part of the domain of the State; and one could conclude from this that these rivers did not enter into the composition of the public domain: but if, in its thinking, they did not belong to the State, to whom did they belong? Were they the property of the communes they traversed? Were the proprietors of the riparian holdings their masters, or did they belong to the populations that occupied their basins? The law of 22 November, on national domains, did not explain itself in this regard.

On 27 September 1791, the Constituent Assembly, in a decree relative to rural goods and usages, once again concerned itself with rivers and streams. It first declared that no one could claim to be the exclusive proprietor of the waters of a navigable or floatable river or stream. It then recognized that every riparian proprietor could, by virtue of the common right, make water intakes in these rivers, without nevertheless diverting or obstructing their course in a manner harmful to the general good and to navigation [^128].

It seemed to result from these two dispositions that rivers that were neither navigable nor floatable were or could become private or communal properties, and that riparian proprietors did not have, by virtue of the common right, the faculty of making water intakes in them, as when it was a matter of a navigable or floatable river. If, in effect, every riparian proprietor was recognized as having the right to make water intakes in any river that bordered his holding, why was this right mentioned only for navigable rivers? Why say that no one could claim to be the exclusive proprietor of these rivers? Was it admitted that the others could belong exclusively to persons who would not possess their banks, and that the riparian proprietors could not make use of them?

Having recognized, in principle, that no one could claim to be the exclusive proprietor of the waters of a navigable or floatable river or stream, and that every riparian proprietor could, in consequence, make water intakes in it, the same law declared that no one could flood his neighbor's holding, nor voluntarily transmit waters to him in a harmful manner, under penalty of paying the damage, and of a fine that could not exceed the sum of the compensation; it declared, moreover, that the proprietors or farmers of mills and factories built or to be built would be guarantors for all damages that the waters might cause to the roads or to neighboring properties, by the excessive height of the spillway or otherwise; that they would be forced to keep the waters at a height that would harm no one, and which would be fixed by the directory of the department, upon the advice of the directory of the district. The penalty, in case of contravention, was a fine that could not exceed the sum of the compensation [^129].

The decree of 15 March 1790, which had suppressed the feudal rights of toll, passage, towage, and others of the same nature, nominally designated, collected by land or by water, had provisionally excepted, by article 15 of title II, 1° authorized octrois, which were not collected under any of the denominations included in this article; 2° the rights of ferry and water carriage. The decree of 25 August 1792 did away with this exception; article 7 pronounced the abolition, without indemnity, of these tolls; article 9 declared that the exclusive rights of ferries and water carriages, provisionally preserved, were likewise suppressed; it recognized for every citizen the right to operate, on the rivers and canals, ferries, coaches or water carriages, for the rents and fees that would be fixed and tariffed by the directors of the department, upon the advice of the municipalities and the directory of the district.

The numerous laws that had pronounced the abolition of feudal rights having made no special mention of the exclusive fishing rights that the clergy and nobles had attributed to themselves on all non-navigable rivers, the National Convention was invited to pass a decree that would dissipate the doubts that could arise in this regard; it always set aside the petitions addressed to it, by moving to the order of the day, on the grounds that the exclusive fishing rights enjoyed by the lords had been abolished by articles 2 and 5 of the decree of 25 August 1792; it thus recognized that every proprietor had the right to fish along his properties [^130].

The ordinance of 1669 had been modified in some of its dispositions by the laws that had been passed in the first three years of the revolution; but it had not been abrogated when the National Convention ceased to exist. The Code of Offenses and Penalties, of 3 brumaire an IV (25 October 1795), declared, by its article 609, that until the dispositions of this ordinance, the laws of 19 July and 28 September 1791, that of 20 messidor de l'an 3, and the others relative to municipal, correctional, rural, and forestry police, could be revised, the correctional tribunals would apply them to the offenses within their competence. The reform announced by this article has been made only in part.

According to the law of 27 September 1791, every riparian proprietor of a navigable or floatable river could therefore, by virtue of the common right, make water intakes in it, provided that he neither diverted nor obstructed its course in a manner harmful to the general good and to established navigation; it resulted from this that he who, by a water intake, caused some damage to the public, could be condemned to restore things to their original state.

It appears that, in effect, several private individuals degraded navigable or floatable rivers by the water intakes they made in them, since the directorial government judged it appropriate to re-establish the old prohibition. By a decree of 19 ventôse an VI (9 March 1798), the executive directory enjoined the central and municipal administrations to watch, with the most severe exactitude, that no bridge, no permanent or mobile causeway, no sluice or factory, no cofferdam, mill or dike, or any other obstacle whatsoever to the free course of the waters, be established, without having previously obtained permission. It enjoined them, moreover, to see that no one diverted the course of the waters of navigable or floatable rivers and canals, and made no water intakes or drainage channels there for the irrigation of lands, except after having been authorized by the central administration, and without being able to exceed the level that would have been determined. This last disposition was a manifest violation of article 4 of the first section of the first title of the law of 27 September 1791, and it would have been very difficult to enforce it if the citizens had not voluntarily submitted to it [^131].

The liberty, recognized for every citizen by art. 9 of the decree of 25 August 1792, to operate ferries, coaches, and boats on navigable rivers and canals, was not of long duration; it was destroyed by the law of 6 frimaire an VII (26 November 1798), which transferred this right to the State. The ferries, boats, tackle, lodgings, offices, warehouses, and other related objects that existed at the moment of the promulgation of the law, fell into the public domain. The State was charged with paying their value to the persons who would produce titles of property; those of these objects for which no title of property was produced were considered as usurped from the public domain. Finally, it was ordered, by the same law, that there would be proceeded, according to the forms prescribed for the leasing of national domains, to the public auction of the rights of passage, ferries, boats, and horse-ferries, established on the navigable rivers, streams, and canals, for three, six, or nine years [^132].The abolition of the feudal regime had led to the adoption of the principle consecrated by Roman law, concerning the freedom of fishing. The law of 14 floréal an x (4 May 1802), on indirect contributions, did away with this liberty relative to navigable or floatable rivers and streams. It declared that henceforth no one could fish in navigable rivers, unless he was furnished with a license, or was the lessee of the fishing lease. The government was authorized to determine the parts of the rivers and streams where it judged the fishing susceptible of being leased, and to regulate, for the others, the conditions to which citizens who wished to fish there by means of a license would be subject. It was established that any individual who, being neither a lessee of the fishing lease, nor provided with a license, fished in navigable rivers and streams otherwise than with a hand-held floating line, would be condemned to a fine that could not be less than fifty francs, nor exceed one hundred francs, to the confiscation of the nets and fishing gear, and to damages, toward the lessees of the fishing lease, of a like sum. Finally, it was ordered that weirs, dams, and other fixed fishing establishments, constructed or to be constructed, would likewise be leased, after it had been recognized that they did not harm navigation, that they could not produce any dangerous accretion, and that the riparian properties could not suffer damage from them.

On the 30th of the same month (20 May 1802), a new law prescribed the collection, throughout the entire extent of the republic, on navigable rivers and streams, of an internal navigation duty, whose products would be specially and exclusively affected to the marking of channels, to the maintenance of towpaths and towpath bridges, to that of sluices, locks, dams, and other works of art, established for the advantage of navigation. The same duty was to be collected on navigable canals that had not yet been subjected to it, and on those where the collection of the old taxes was then suspended. The products of the duties were to form distinct masses, and their use was to be made exclusively on each canal, river, and stream on which the collection had been made. The government was charged with establishing, in the form of public administration regulations, a tariff of navigation duties on each river, stream, or canal, after having consulted the principal negotiants, merchants, and boatmen who frequented them. The negotiants, merchants, and boatmen were to be called, for this purpose, to the number of twelve for each river, stream, or canal; they were to meet in council, with the prefect designated by the government, and give their opinion on the reformation or maintenance of the existing tariffs, for the rivers, streams, or canals where there were none.

The tax established by this law was to be exclusively destined for the execution of the works that the interest of navigation required; it was even necessary that the product of each river or stream be employed in the interest of that same river or stream. It seems that this principle would not have been derogated from, if the products of a navigable river had been consecrated to keeping in good condition, not only the part dedicated to navigation, but the principal tributaries that contributed to making it navigable. It was judged otherwise: the navigable part of each river continued to be considered as if it had an existence independent of the non-navigable parts, as if the riparian proprietors could run the latter dry, without sensibly weakening the power of the former. It was therefore necessary to provide for the maintenance of the non-navigable parts otherwise than with the resources that the navigable parts presented.

The law of 14 floréal an XI ordered that provision would be made for the dredging of non-navigable rivers and for the maintenance of the dikes and works of art corresponding to them, in the manner prescribed by the old regulations or according to local customs. In cases where the application of the regulations or the execution of the mode consecrated by usage would require new dispositions, the government was to provide for them by regulations of public administration, issued upon the proposal of the prefect, in such a way that the contribution of each taxpayer would always be relative to the degree of interest he had in the works that were to be executed. The apportionment rolls for the sums necessary for the payment of the works of maintenance, repair, or reconstruction, were to be drawn up under the supervision of the prefect, and rendered executory by him. The collection thereof was to be carried out in the same manner as that of public contributions.

Thus, navigable rivers, streams, and canals were to be maintained by means of the products of navigation, and, in case of insufficiency, by public contributions, like all other properties of the State. Non-navigable rivers, on the contrary, were to be maintained only at the expense of the riparian proprietors. It is true that this maintenance was reduced to ensuring the free flow of the waters, that is to say, to simple dredging.

The law of 30 floréal an X (20 May 1802) having ordered that the sums collected for navigation duty on all navigable rivers, streams, and canals, would be employed for the benefit of the river, stream, or canal on which the collection had been made, and the government having been authorized to establish a navigation tariff, it became necessary to divide the territory of France into navigation arrondissements. On 8 prairial an XI, a decree was issued in this regard, whose principal dispositions deserve particular attention, for they are in harmony with the natural division of the territory.

Article 1 declares that the internal navigation of France will be divided into basins whose limits will be determined by the mountains or hills that shed the waters into the principal river, and that each basin will be divided into navigation arrondissements.

Article 2 states that the portions of rivers and streams forming part of departments other than that in which the chief town of the internal navigation arrondissement will be placed, will be put under the administrative responsibilities of the prefect of that chief town; and this, only with regard to the works to be executed in the bed and on the bank of the stream or river, the remainder of the administration to continue to be exercised by the prefect of the territory.

The engineer of the department in which the chief town of the arrondissement is fixed must, according to article 3, exercise his functions relative to the works to be done on the entire extent of the rivers and streams included in the responsibilities of the prefect of the department. He is required, according to art. 18, to draw up each year the project of the expenses to be executed in the year, and to remit them to the prefect, who, for his part, must consult a council composed of three members of the chamber of commerce, if one exists, joined with two citizens taken from among the principal master boatmen frequenting the river, or if no chamber of commerce exists, of five citizens taken at his choice from among the principal merchants and boatmen.

After having provided for the manner in which the tariffs of navigation duties will be formed, for the accounting of the agents assigned to the collection of these duties, and for some other administrative details, the same decree provides, by art. 29, that no private individual may collect any duty at the sluices, gates, and locks, in the navigable rivers of the various basins, all in conformity with articles 13 and 14 of title II of the law of 15 and 28 March 1790, and with articles 7 and 8 of the law of 25 August 1792 [^133].

Non-navigable rivers not having been formally included, by the law of 22 November 1790, among the things that belonged to the public domain, and the law of 14 floréal an X (4 May 1802) having conferred upon the State exclusively the right of fishing in navigable and floatable rivers and streams, some communes claimed the right to lease, for their profit, the fishing of the non-navigable rivers that traversed or bordered their territory. For their part, some riparian proprietors claimed that the right to fish in the rivers that bordered or traversed their holdings belonged only to them, according to the two decrees of the National Convention of 6 and 30 July 1793.

The Conseil-d'État, having been consulted by the government on this question, decided, by its opinion of 30 pluviôse an XIII (19 February 1805), that the fishing of non-navigable rivers could, in no case, belong to the communes; that the riparian proprietors were to enjoy it, without however being able to exercise this right, except by conforming to the general laws or local regulations concerning fishing, nor to retain it, when, in the future, a currently non-navigable river should become navigable, and that consequently all acts of the administrative authority that had put communes in possession of this right, were to be declared null.

The Conseil-d'État considered that the fishing of non-navigable rivers was part of the feudal rights, since it was reserved, in France, either to the lord high-justiciar, or to the lord of the fief; that the abolition of feudalism had been made, not for the profit of the communes, but indeed for the profit of the vassals who had become free in their persons and in their properties; that the riparian proprietors were exposed to all the inconveniences attached to the vicinity of non-navigable rivers (for which the laws had not reserved public access to the banks); that the laws and decrees of the government subjected them to the expenses of dredging and the maintenance of these rivers, and that, in the principles of equity, he who bears the burdens must also enjoy the benefits; finally, that the right of fishing in non-navigable rivers, granted to the communes, would be a servitude on the properties of private individuals, and that this servitude did not exist, under the terms of the Civil Code.

The ordinance of 1669, out of consideration for feudal usurpations, had considered as forming part of the domains of the crown only those rivers and streams bearing boats from their own depth, without artifice and work of hands. The towpath established by article 7 of title 28 of this ordinance was therefore not owed by the riparian proprietors on the rivers and streams that the hand of man had made navigable. The law of 22 November 1790 had, it is true, considered as dependencies of the public domain all navigable rivers and streams, without admitting or establishing any distinction between those that were naturally so, and those that had become so by the works that had been done on them; but it had not spoken of towpaths.

The decree of 22 January 1808 removed the difficulties that could arise from this silence. It declared, article 1, that the dispositions of article 7 of title 28 of the ordinance of 1669 were applicable to all navigable rivers of France, whether navigation was established there at that epoch, or whether the government had since determined, or would determine in the future to make them navigable: it therefore obliged the riparian proprietors, at whatever time navigation had been established, to leave passage for the towpath. At the same time, it was ordered that an indemnity, proportional to the damage they would suffer, would be paid to the riparian owners of the rivers and streams where navigation did not exist and where it would be established. Finally, the administration was authorized by the same decree to restrict, when the service would not suffer from it, the width of the towpaths, notably when there were previously enclosures or living hedges, walls or works of art, or houses to be destroyed [^134].

One must remark that if these numerous laws class among the things whose ensemble forms the public domain only navigable rivers and streams, they do not, however, recognize that non-navigable rivers belong either to the private individuals whose properties they border or traverse, or to the communes whose territory they limit or traverse; they grant to the former the right to fish along their properties, and impose on them the burden of dredging: but there is a great distance from this faculty to the rights that are recognized for true proprietors.

The Civil Code has reproduced some of the dispositions of the prior laws; but it has added almost nothing to them. Article 538 considers as dependencies of the public domain the roads, routes, and streets at the charge of the State, navigable or floatable rivers and streams, the shores, alluvion and dereliction of the sea, the ports, the harbors, the roadsteads, and generally all portions of the French territory that are not susceptible of a private property. There exists, between this article and article 2 of the law of 22 November 1790, which had defined the public domain, a difference that deserves to be remarked. The latter placed among the dependencies of the public domain "public roads, the streets and squares of cities"; the former places there only "the roads, routes and streets at the charge of the State." Neither one nor the other speaks of non-navigable rivers; but both place in the rank of things that compose the public domain "generally all portions of the French territory that are not susceptible of a private property." If, therefore, it were demonstrated that a river, even a non-navigable one, is not susceptible of becoming a private property, it would follow that it is essentially part of the public domain. Now, this demonstration which, it seems to me, already results from the preceding chapters, will not, if I am not mistaken, be very difficult to give.

The authors of the Civil Code, having placed in the rank of things that are part of the public domain navigable or floatable rivers and streams, occupied themselves, in the title Of Servitudes, with the other watercourses. By article 640, they declared that lower lands are subject to upper lands, to receive the waters that flow naturally from them, without the hand of man having contributed thereto. They forbade the lower proprietor from erecting any dike to prevent this flow, and the upper proprietor from doing anything that aggravates the servitude of the lower land. They recognized by article 641 that he who has a spring on his land may use it at his will, save for the right that the proprietor of the lower land might have acquired by title or by prescription; but they added, by article 643, that the proprietor of the spring could not change its course, when it furnishes the inhabitants of a commune, village, or hamlet with the water that is necessary for them: only the inhabitants, if they have not acquired the use of it by prescription, are held to pay, by appraisal of experts, an indemnity to the proprietor, if he claims it. Finally, by article 644, they recognized for him whose property borders a running water, other than that which is declared a dependency of the public domain by article 538, the right to use it at its passage for the irrigation of his properties, and for him whose holding is traversed by a running water, the right to use it, in the interval that it traverses there, on the condition of returning it, at the exit of his lands, to its ordinary course. If disputes arise between the proprietors to whom these waters may be useful, the tribunals, in ruling, must reconcile the interest of agriculture with the respect due to property; but, in all cases, they must have the particular and local regulations on the course of the waters observed.

The accretions and increases that form successively and imperceptibly on the riparian lands of a river or a navigable or non-navigable stream, and which are called alluvion, profit the riparian proprietors, on the condition for them, if their properties border a navigable river, of leaving the towpath. It is the same with the dereliction of any river or stream that withdraws insensibly from one of its banks by moving to the other; the proprietor whose holding touches the uncovered land profits from it, without the riparian owner of the opposite side being able to come and claim the land he has lost [^135].

The islands, islets, and accretions that form in the bed of navigable or floatable rivers or streams belong to the State, if there is no title or possession to the contrary. The islands and accretions that form in the other rivers belong either to the riparian proprietors of the side where the island has formed, or, if the island is not formed on one side only, to the riparian proprietors of both sides, starting from the line that is supposed to be traced in the middle of the river. If a river or a stream, navigable or not, in forming a new arm, cuts and embraces the field of a riparian proprietor, and makes an island of it, this proprietor retains the property of his field. If a river or a stream, navigable or not, forms a new course for itself, by abandoning its old bed, the proprietors of the newly occupied lands take, by way of indemnity, the old abandoned bed, each in proportion to the land that has been taken from him. Finally, if a river or a stream, navigable or not, carries away, by a sudden force, a considerable and recognizable part of a riparian field, and carries it toward a lower field, or onto the opposite bank, the proprietor of the part carried away may, within the year, reclaim his property; but, after this period, he may no longer do so, unless the proprietor of the field to which the part carried away has been joined, has not yet taken possession of it [^136].

The Civil Code, which determines the use that a proprietor may make of a non-navigable river that borders or traverses his property, and which attributes the alluvial lands to the riparian proprietors, contains no disposition on fishing; it limits itself to declaring that the faculty of hunting and fishing is regulated by particular laws [^137].The law of 15 April 1829 lays out the rules to which the Civil Code refers. Article 1 declares that the right of fishing shall be exercised for the profit of the State: 1° in all navigable or floatable rivers, streams, canals, and counter-ditches, with boats, trains or rafts, and whose maintenance is at the charge of the State or its successors-in-interest; 2° in the arms, backwaters, and oxbows that draw their waters from navigable and floatable rivers and streams, into which one can at all times pass or freely penetrate in a fisherman's boat, and whose maintenance is likewise at the charge of the State. Excepted, however, are the canals and ditches existing or which might be dug in private properties.

In all rivers and canals other than those designated in the preceding dispositions, the riparian proprietors have, each on his own side, the right of fishing up to the middle of the watercourse, without prejudice to contrary rights established by possession or by titles. If a non-navigable river were rendered or declared navigable, the right of fishing granted to the riparian proprietors would be by full right transferred to the State, which would be held to indemnify them for it, after compensation for the advantages they might derive from the new destination given to the river (art. 2 and 3).

The right of fishing being devolved to the State for navigable rivers and streams, and to the riparian proprietors for non-navigable rivers, any individual who engages in fishing without the permission of him to whom the right to fish belongs, commits an offense punishable by a fine of twenty francs at least and one hundred francs at most, and by the confiscation of the nets and fishing gear, independently of the restitution of the price of the fish and the payment of damages caused.

It is nevertheless permitted for any person to fish with a hand-held floating line, in navigable or floatable rivers and streams, and in the canals, oxbows, and ditches belonging to the State.

The right of fishing may not, however, be exercised by those to whom the law attributes it, whether in navigable or floatable rivers and streams, or in non-navigable rivers, except under the conditions determined by the laws, or by the regulations made by virtue of their dispositions [^138].

Thus, according to the numerous preceding dispositions, and in the current state of our legislation, the proprietor who has a spring on his land may dispose of it as a thing that belongs to him, if he has not alienated it; but he may neither divert its natural course, if it furnishes the inhabitants of a commune, village, or hamlet with the water necessary for their use, nor transmit its waters to his neighbors in a harmful manner [^139].

He whose properties are traversed by a non-navigable river has the exclusive right to fish there, from the point where it begins to pass through his holding, to the point where it exits. He has the right to form water intakes there, for the irrigation of his goods; but, at the exit of his property, the water must be returned to its natural course. He may establish factories there, such as mills or manufactories, provided that, in making use of the force of the current, he causes no damage either to the lower proprietors or to the upper proprietors. He profits from the alluvion that forms on the banks, and from the islands placed between the two shores.

He whose holding only borders a non-navigable river may exercise, on the half that is situated on his side, the rights he could exercise on the whole, if he were proprietor of both banks, under the same condition of causing no damage to others.

The conditions under which these advantages are granted to the riparian proprietors are to contribute to the dredging of the riverbed, in proportion to their interest; not to transmit the waters to the lower proprietors in a damaging manner, and especially not to flood the neighboring holdings; to conform to the laws established for the police of fishing; finally, to observe the local regulations.

From the fact that the riparian proprietors may not transmit in a harmful manner the waters that border or traverse their properties, and that they are held to contribute to the dredging, it follows that they are forbidden to place or deposit in the riverbed anything that could obstruct or hinder its course, or to foul its waters, in a manner as to render them unwholesome or inconvenient.

The law of 27 September 1791, concerning rural goods and usages, having declared that the proprietors of mills and factories built or to be built would be obliged to keep the waters at a height that would harm no one, and which would be fixed by the directory of the department, upon the advice of the directory of the district, the consequence has been drawn from this disposition that no one could establish, even on a non-navigable river, a mill or any other factory, before the administrative authority had fixed the height at which the waters should be kept; the administration has, by that very fact, received the power to oppose the establishment of any new factory.

The particular rights granted on navigable or floatable rivers and streams to riparian proprietors consist solely in the faculty of profiting from the alluvial lands, and from the dereliction formed by the running water that withdraws insensibly from one of its banks by moving to the other. The government can doubtless authorize private individuals or communes to establish on a river or on a navigable or floatable stream, mills or other factories; but the riparian proprietors have no more rights in this regard than other citizens. All their advantages are reduced to those that result for them from the proximity of their properties to the river on which factories can be built [^140].

It may happen that the establishment of a new factory renders the waters of a river or stream damaging to the riparian properties or to navigation. In this case, the injured persons have the incontestable right to demand that the cause of the damage be removed; but their demand must not always be brought before the same judges. It is within the jurisdiction of the ordinary courts, if the author of the damage has acted without authorization, or if he has violated the conditions that the administration had imposed on him. It is within the jurisdiction of the administrative authority, if he has not gone beyond the limits traced by the act of authorization.

The riparian proprietors not having, on navigable or floatable rivers and streams, rights more extensive than those that belong to other citizens, it follows that they are forbidden to fish there, to practice water intakes there, to form any establishment there, to remove sands, stones, or other materials from them, to throw refuse or filth there, or to pile it on the quays or on the shore; finally, to take earth, sands, and other materials, at six toises (eleven meters and seven decimeters) distance from the river or stream.

The laws on navigable or non-navigable rivers and streams have given rise to a multitude of questions, and among these questions, the one that has most frequently presented itself has been to know who would be the judges of the debate. By the law of 22 December 1790, the administration is charged with watching over the conservation of rivers; it is charged, by the law of 27 September 1791, with fixing the height of the waters of the rivers on which factories are established, and with making regulations for the maintenance and dredging of the rivers. According to the law of 30 floréal an X (20 May 1802), the prefectural councils are charged with ruling on the disputes that arise concerning the collection of navigation duties; they must, according to the law of 14 floréal an XI (4 May 1803), rule on all disputes relative to the recovery of the contributions established for the dredging of non-navigable rivers, to the claims of the individuals taxed, and finally to the execution of the works. On the other hand, the courts, which are forbidden to meddle in any way with the acts of the administration, whether to stop their execution or to interpret them, are the natural guarantors of private properties; they must therefore rule on the disputes that arise between the proprietors to whom a non-navigable river is useful; and the law formally charges them with reconciling the interest of agriculture with the respect due to property. From these various dispositions have been born a host of difficulties over jurisdiction, which have embarrassed and which will still embarrass the administration and the courts every day; but, as they relate less to the nature of property than to the distribution of public powers, this is not the place to occupy ourselves with them [^141].

The Roman laws, never having been received in England as laws of the country, could not exercise, on the social state of the English, the influence they have exercised on our own. On the other hand, the feudal system having cast deeper roots among that people than it has among us, and not having been attacked with the same perseverance or with the same success by the kings, nor abolished, as among us, by a popular revolution, the possessors of lands, in whose hands power has always resided since the Norman conquest, enjoy there, relative to rivers and streams, prerogatives unknown in Roman law and in our own laws.

In England, territorial property is founded on the principle of conquest, pushed to its ultimate consequences. It is admitted, in principle, that the invasion of the country by the Normans, and the confiscations that were its sequel, rendered the conquering general absolute master, not only of the goods that composed the public domain, but of all the lands of the country, without exception. It is admitted that all the lands were given by the chief of the conquest to his lieutenants, who shared them among the officers and soldiers of the army, and that there is, even today, no legitimate possession but that which goes back to the invasion, and to the partition that was its sequel. Every proprietor of lands therefore has for his title of property a royal concession proven by acts, or supposed; for prescription is considered only as a tacit concession [^142].

The English admit, as we do, a distinction between navigable rivers and non-navigable rivers; but, among them, a river is considered navigable only up to the point reached by the ebb and flow of the tide. Thus, whatever the width and depth of a river, whatever the activity of the navigation for which it is employed, it is not legally navigable beyond the last point that the tide can cover. The part called navigable, that is to say, that over which the tide extends, belongs to the public domain, and every Englishman has the right to fish there, unless the privilege has been conceded by the crown to a private individual. All the other parts are devolved to the riparian proprietors; they belong to them by virtue of the concession that the king is reputed to have made of them, in conceding the riparian lands, either to themselves, or to those who have transmitted their rights to them. The proprietor of both banks is master of the entire part of the river that traverses his land; and he alone has the right to fish there, or to use it for other purposes, save for the exception of which I will speak presently. The proprietor of one of the two banks is master of half; the other half belongs to the proprietor of the opposite bank, ad filum medium aquæ. The bed of the river, and the islands that form in it, likewise belong to the riparian proprietors.

The rivers navigable in the sense of the law, belonging to the public, everyone has the right to fish and to navigate there; but the proprietors do not owe to navigation, as among us, a towpath. If this path is owed in some parts of England, it is only by virtue of local customs or statutes. Ancient authors had claimed that the towpath was owed by all properties that border navigable rivers, in the legal sense of the word. In 1789, the question was engaged, concerning the river Ouse, in the county of Norfolk, for the parts of this river in which the tide rises; but, after a thorough discussion, it was judged that, according to the common law, the riparian properties owe no towpath. It was recognized that, in practice, this path is not granted, since the navigators of the Thames are often obliged, in certain places, to pass from one bank to the other. The statutes that have established the right of towage on some parts of the banks of the Severn, the Trent, and the Thames, have themselves proven that no general right exists [^143].

The rivers that are navigable in fact, but which are not so in the sense of the law, because the tide does not rise in them, belong, as has just been seen, to the proprietors of the riparian lands; they are considered as a part of these lands. But the public has, on these rivers, a right of passage for navigation; everyone can therefore navigate there as on the public rivers. This servitude cannot be aggravated by those who make use of it; that is to say, they can do nothing that diminishes, for the riparian proprietors, the utility of the river, or that degrades their holdings. For their part, the riparian proprietors can do nothing there that renders navigation more dangerous or more difficult, or that hinders the use of the servitude to the prejudice of the public. They are obliged to keep them in good condition, and consequently, to dredge them when they need it; the parishes must compel them to fulfill this duty, when they neglect it [^144].

The English who abandoned their country to go and settle in America left in England neither their ideas, nor their prejudices, nor their habits. They carried them with them, and although time and different institutions have considerably weakened their empire, one still finds profound traces of them in the mores and laws of their descendants. The law on real property, says a jurist of the United States, forms a very artificial technical system; and although it has experienced the influence of the free and commercial spirit of our age, it is still under the authority of the principles derived from the feudal regime. We have never introduced, into the jurisprudence of this country, all the essential characters of the law of fiefs, or, in perfecting our particular laws, we have abolished them; but the profound traces of feudalism are always visible in the doctrine of real property, and the fictions, the technical terms, and even several rules of this system are still in force [^145].

The English having admitted as a fundamental principle of feudal law, that the king is the original proprietor of all the lands of the kingdom, and the true and unique source of the right of property, the Anglo-Americans have adopted the same principle relative to their republican governments. They admit, as a fundamental doctrine, that every title or every individual right to a land situated within the extent of their territory, derives from a concession made either by the royal government before the declaration of independence, or by a particular State, or by the federal government since their revolution. They would not recognize the validity of a concession made by the natives to private individuals, their government having reserved for itself the privilege of obtaining concessions of this nature, with a view, either to preventing foreign powers from forming establishments in the center of their territory, or to sheltering the Indians from the frauds that private individuals might practice against them.

The principle admitted relative to real property has caused the same principle to be admitted relative to rivers and streams. According to the common law of the United States, the navigable rivers are therefore the only ones that form part of the public domain, and in which all citizens have the right to fish; but one considers as navigable, in the sense of the law, only the parts on which the ebb and flow of the sea are felt. As for the others, they are considered as belonging to the riparian proprietors, under the conditions admitted in England. If the right to navigate there exists in favor of the public, it is only by title of servitude; it is a simple right of passage, which the riparian proprietors cannot infringe upon.

There are, however, several particular States that have not admitted this principle, and which consider some of their rivers as navigable and public, although the ebb and flow of the sea are not felt there. In Pennsylvania and South Carolina, for example, the English doctrine has been considered inadmissible at least with regard to the rivers in which navigation is really practicable. In other states, the English principle has been modified by particular laws [^146].

One is not astonished that a nation such as England, in which the feudal system has cast the deepest roots, and where the great possessors of lands have always been masters of power, considers rivers and streams as private properties. One has more trouble understanding that peoples as advanced in civilization as those of the United States have adopted the same principles. However, when one knows the origin of these peoples, and the influence that inveterate habits and the language by means of which he is obliged to represent his ideas exercise on man; when one sees above all how far the territorial division of the various states of which the American federation is formed is from the natural division, one is no longer surprised to find beyond the Atlantic the doctrines that still govern Great Britain.The doctrines admitted in England and the United States of America, relative to rivers and streams, are diametrically opposed to the principles I have established in Chapter XII; but, however powerful the influence of the feudal system may have been in France, in England, in the other states of Europe, and even in the United States of America, the nature of things has been stronger, in all countries, as will be seen in the following chapter, than the usurpations and the doctrines born of them.

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Notes

[^124]: Law of August 4, 6, 7, 8, and 11, 1789. [^125]: Sect. III, art. 2, §§ 5 and 6. [^126]: Some jurists distinguish the public domain from the properties that belong to the state; they place in the first class objects that are consecrated to a public use: such as roads, bridges, seaports, fortifications; they place in the second things that could equally belong to private individuals, such as houses, furniture, and other objects of the same kind. This classification has nothing in common with that made by the law of December 22, 1790. [^127]: This law places, moreover, among the things that belong to the nation, all properties and effects, movable or immovable, left vacant and without masters, and those of persons who die without legitimate heirs, or whose successions are abandoned; the walls and fortifications of towns, maintained by the state and useful for its defense, and finally the old walls, ditches, and ramparts of those that are not fortified places. (Art. 3 and 5.) [^128]: Art. 4. tit. I, sect. I. [^129]: Decree of September 27 and October 6, 1791, tit. II, art. 15 and 16. [^130]: Decree of July 6, 1793.—The order of the day of the decree of the 30th of the same month is worded in these terms: "The National Convention, after having heard the reading of a deliberation taken by the administration of the department of Charente, on the 20th of this month, which refers to the National Convention the question of knowing whether the right of fishing is included in the general abolition of feudal rights, and on the proposal of a member, passes to the order of the day, on the grounds that the exclusive rights of fishing and hunting were feudal rights, abolished by the preceding decrees, like all the others." [^131]: The same order ordained the destruction of all works illegally made on navigable or floatable rivers and streams. [^132]: Article 8 (§ 1) of this law excepts from the prohibition the ferries and boats not employed for common passage, but established for the sole use of a private individual, or for the exploitation of a property circumscribed by waters, if it is ascertained that they cannot harm navigation. [^133]: The schedule of duties to be collected on ferries, horse-ferries, and passage boats, established within the extent of the department of the Seine, was fixed by the order of 11 Fructidor, an XI. [^134]: Art. 3 of the order of 13 Vendémiaire, an V, had imposed on the proprietors of heritages bordering rivers and streams that are floatable only for loose logs, the obligation to leave along the banks four feet for the passage of employees engaged in conducting the floats. [^135]: This right does not apply with regard to land left by the receding sea. Nor can it apply with regard to lakes and ponds. (Civil Code, art. 557 and 558.) [^136]: Civil Code, art. 556-563. [^137]: Art. 715. [^138]: See the law of April 15, 1829. [^139]: Law of September 27, 1731, art. 4, tit. I, sect. I. [^140]: The towpath being, in general, only a servitude established on riparian properties, for the service of navigation, and consequently not being able to be consecrated to another use without the consent of those who owe the servitude, it follows that riparian proprietors always have an advantage over other citizens for establishing mills on navigable or floatable watercourses. [^141]: See, on these questions, the work of M. A. Daviel, titled: Pratique des cours d'eau, pages 99 et seq. — F. X. P. Garnier, Régime ou Traité des rivières, 2nd part, p. 257 et seq. [^142]: It became, says Blackstone, a fundamental maxim and necessary principle of our English tenures, "That the king is the universal lord and original proprietor of all the lands in his Kingdom; and that no man doth or can possess any part of it, but what has mediately or immediately been derived as a gift from him, to be held upon feodal services." vol. 1, bk. II, ch. IV, p. 51-53, 86 and 105. [^143]: 3 Term. Rep. 253. [^144]: Blackstone, Comment., bk. 4, ch. 13, vol. IV, p. 167. [^145]: James Kent, Commentaries on american law, part. VI, lect. LI; vol. III, p. 330-350. [^146]: James Kent, Comment. on american law, vol. III, lect. 50 and 51.