More particularly full and explicit as to the inhibitions of the law against obstructing the bed, beach or bank of a sea or river, is Noodt, Probabil. Juris civilis. 4. 1. 1. After declaring that as to a house, or other such thing, built in a public river, the law is the same as obtains as to the sea and sea shore, he proposes to state, 1. The law respecting the sea and its shore, and 2. As it respects a river and its bank; and says, Ait Celsus maris communem usum esse, ut aeris; jactasque in id pilas fieri ejus qui jecit: sed id concedendum non esse, si deterior litoris marisve usus eo modo futurus sit. Adeo hoc quod in mari exstructum est, facientis est. Ut tamen exstruere liceat, et decreto opus est, et ut innoxia ædificatio sit. Porrò ut usus maris, ita usus litoris, sive communis, sive publicus est jure gentium; et ideò licet unicuique in litore ædificare, litusque ædificatione suum facere. Si tamen, ut in mari, ita in litore, impetravit: præterea si non eo modo deterior futurus sit usus litoris; vel nisi usus publicus impedietur. Hoc in mari litoribus jus est. Idem in fluminibus publicis, Ulpiano teste, Dig. 39. 2. 24. cum sic ait, 'fluminium publicorum communis est usus, sicut viarum publicarum et litorum. In his igitur publicè licet cuilibet ædificare, et distruere, dum tamen hoc sine incommodo cujusquam fiat.' Vult tamen Ulpianus, ut ædificari possit, ædificari publicè et sine cujusquam incommodo; pariter ut in mari et litore definitum: publicè inquam, seu publicâ auctori 'Celsus says that the use of the 57* sea is common, as is that of the air: and that stones laid in it were his who laid them, but that it was not to be admitted if the use of the shore or sea would be *the worse. So what is constructed in the sea is his who constructs it. But to make it lawful to construct, a decree is necessary, and that the construction be innocent. Moreover, as the use of the sea, so that of the shore, is either common or public, by the law of nations. And therefore it is lawful for any one to build on the shore, and to make the shore his by the building; if however, as in the sea, so on the shore, he has obtained permission: and provided besides, the use of the shore will not thereby be rendered worse, nor the public use be impeded. This is the law as to the sea and its shores. It is the same as to public rivers, according to Ulpian, Dig. 39. 2. 24. where he says, 'the use of public rivers is common, as of highways and shores. In these, therefore, any one may build up, or pull down, publicly, provided it be done tate; id enim hoc verbum, publicè indigitat.' And (§. 2.) citing Dig. 43. 12. 4. he says, 'quæsitum est, an is, qui in utrâque ripâ fluminis publici domus habeat, pontem privati juris [vel privato jure] facere potest; respondit non posse. Et si facit, interdicto teneri. Causa responsi est quod, cum pontem facit, usum fluminis publici facit deteriorem.' So far Noodt. without inconvenience to any one.' *The same is the law as to highways and public places. Dig. 43. 8. 2. 16. 'Si quis à principe simpliciter impetraverit ut in publico loco ædificet, non est credendus sic ædificare ut cum incommodo alicujus id fiat.' So far 58* 'If any one obtains leave, simply, from the prince, to build in a public place, it is not to be understood he is so to build as to incommode another. We see then that the Roman law not only forbade every species of construction or work on the bed, beach or bank of a sea or river, without regular permission from the proper officer, but even annuls the permission after it is given, if, in event, the work proves injurious; not abandoning the lives and properties of its citizens to the ignorance, the facility, or the corruption, of any officer. Indeed, without all this appeal to such learned authorities, does not common sense, the foundation of all authorities, of the laws themselves, and of their construction, declare it impossible that Mr. Livingston, a single individual, should have a lawful right to drown the city of New-Orleans, or to injue, or change, of his own authority, the course or current of a river which is to give outlet to the productions of two-thirds of the whole area of the United States? Such, then, are the laws of Louisiana, declaratory of the public rights in navigable rivers, their beds and banks. For we must ever bear in mind that the Roman law, from which these extracts are made, so far as it is not controlled by the Customs of Paris, the Ordinances of France, or the Spanish regulations, is the law of Louisiana. Nor does this law deal in precept only, or trust the public rights to the dead letter of law merely it provides also for enforcement. The Digest. L. 43. tit. 15. de ripâ muniendâ, provides 6 §. 1. To repair and strengthen the banks of public rivers, is most useful: provided the navigation be not by that deteriorated; for those repairs alone are to be permitted which do not impede the navigation.' §. 3. But he who would strength. en his bank, should give either an engagement, or security against future injury, according to the quality of the person. And this *interdict establishes that the engagement, or security, against future injury, shall be for ten years, by the opinion of a good man.' §. 4. Security shall be given to the neighbors, and also to possessors on the other side of the river.' 'You are to do nothing in any public place, nor to cast any thing into that place, from which any damage may follow. This inter pertinet, quæ publico usui destinata dict respects those places, which are sunt: ut si quid illic fiat, quod pri- destined for public use: and that vato noceret, Prætor intercederet if anything be there done, which interdicto suo. §. 5. Adversus eum may injure an individual, the Præqui molem in mare projecit, inter- tor may interpose by his interdict.— dictum utile competit ei, cui forte Against him who projects a mole hæc res nocitura sit: si autem nemo into the sea, the interdictum utile damnum sentit, tuendus est is, qui lies for him to whom this may pos in litore ædificat vel molem in mare sibly do injury, but if nobody susjacit. §. 8.-Damnum autem pati tains damage, he is to be protected videtur, qui commodum amittit, who builds on the sea shore, or quod ex publico consequebatur, projects a mole into the sea.—And qualequale sit. §. 11.-Si tamen he seems to suffer injury who loses nullum opus factum fuerit, officio any convenience, which he derived judicis continetur, ut caveatur non from the public, whatsoever it may fieri.' §. 18. be. But if no work is done, he should be constrained by the authority of the judge to engage that none shall be done.' Seeing the use of rivers belongs to the public, nobody can make any change in them that may be of prejudice to the said use. Thus one cannot do any thing to make the current of the water slower, or more rapid, should this change be any way prejudicial to the public, or to particular persons. Thus although one may divert the water of a brook, or a river, to water his meadows or other grounds, or for mills and other uses; yet, every one ought to use this liberty so as not to do any prejudice either to the navigation of the river, whose waters he should turn aside, or the navigation of another river which the said water should render navigable by discharging itself into it, or to any other public use, or to neighbors who should have a like want, and an equal right.' Dem. Pub. law. 1. 8. 2. 11. 60* *The same laws make it peculiarly incumbent on the government and its officers to watch over the public property and rights, and to see that they are not injured or intruded on by private individuals. In order to preserve the navigation of rivers, it is proper for the government to prohibit and punish all attempts which might hinder it, or render it inconvenient, whether it be any buildings, fisheries, stakes, floodgates and other hindrances, or by diverting the water from the course of the rivers, or otherwise. And it is likewise forbidden to throw into the rivers any filth, dirt or other things, which might be of prejudice to the navigation, or cause other inconveniences.' Dom. Pub. L. 1. 8. 2. 8. 6 Quoique la mer et ses bords soient, suivant les principes du droit naturel, des choses publiques et communes à tous, avec faculté à chacun d'en user selon sa destination, neanmoins il ne doit pas étre permis aux uns d'en jouir au préjudice des autres. Ainsi pour prévenir les inconveniens qui seroient résultés de la liberté d'user de la chose commune, il a fallu que cette liberté fut limitée par la puissance publique, ainsi que s'en explique Domat, &c. Nouv. Comment. sur l'orden. de 1681. tit. 7. art. 2. Note. 'Although the sea and its shores, according to the principles of natural law, are things public and common to all, with liberty to every one to use them according to their destination, nevertheless it ought not to be permitted to some to enjoy them to the prejudice of others. Therefore to prevent the inconveniences which would result from the liberty of using the public property, it is necessary that that liberty be limited by the public authority, as explained by Domat,' &c. 'It is likewise agreeable to the law of nature, that this liberty, which is common to all, being a continual occasion of quarrels, and of many bad consequences, should be regulated in some manner or other; and there could be no regulation more equitable, nor more natural, than leaving it to the sovereign to provide against the said inconveniences. For as he is charged with the care of the public peace and tranquillity, as it is to him the care of the order and government of the society belongs, and it is only in his person that the right to the things which may belong in common to the public, of which he is the head, can reside; he therefore as head of the commonwealth, ought to have the dispensation and exercise of this right, that he may render it useful to the public. And it is on this foundation that |