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Restoration of the Former Front Estate by Alluvion Author(s): Henry H. Glassie Source: Virginia Law Review, Vol.

10, No. 2 (Dec., 1923), pp. 106-123 Published by: Virginia Law Review Stable URL: . Accessed: 10/06/2011 05:16
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OME rather recent Western decisions have revived an ancient problem concerning the legal consequences of alluvion when it results in rebuilding a former riparian estate.1 The matter may be shortly stated thus: A riparian tenement (let us call it Frontacre) is gradually washed away by stream action until the tenement immediately behind it (Backacre) comes to occupy the bank. Then, reversing the process, the stream by gradual deposition of soil held in solution builds up land until Backacre is not only filled out to its original limits as marked by the former division line between it and Frontacre, but the area previously occupied by Frontacre itself is restored. The question, of course, is whether the new land outside the original boundaries of Backacre is an accession to it, or, on the contrary, a restoration of Frontacre? I Few questions, still being mooted, can boast of a higher antiquity. Though they did not have to deal with monster farmdevourers such as the Missouri or the Mississippi, the friable soil of the Italian Campagna2 made the Roman jurists acquainted from the earliest times with problems concerning the conservation of soil and the effect of stream action on property in land. Thus, in a responsum preserved in the 41st Book of the Digest, the precise case so recently dealt with in Missouri and Nebraska is put and answered with the civilian's characteristicneatness.8
Yearsley v. Gipple, 104 Neb. 88, 175 N. W. 641, 8 A. L. R. 636; Allard v. Currant, 41 S. D. 73, 168 N. W. 761; Bush v. Alexander, 134 Ark. 307, 203 S. W. 1028. 2 See TENNEY FRANK, ECONOMIC HISTORY OF ROME (1920), 3, 5-8 DIGESTORUM A PAULO EPITOMATORUM. AtALVFNUS VARUS LIBRO IV. tius fundum habebat secundum viam publicam, ultra viam flumen erat, et ager Lucii Titii; fluit flumen paulatim, primum omnem agrum, qui inter viam et flumen esset, ambedit et viam sustulit, postea rursus minutatim recessit, et alluvione in antiquum locum rediit; respondit, quum flumen agrum 1




The case, somewhat expanded in paraphrase, runs about as follows: Attius possessed a farm fronting on a public road. On the other side of the road was a river.4 Across the river lay the land of Lucius Titius. The river gradually changed its course. First of all it ate away little by little a field which lay between the river and the public road. Next, still changing its course, it came to occupy the road, afterwards it receded by slow degrees and, building up the soil as it went, worked its way back into its former bed. The answer given is this: When the river had successively eaten up the field and the public road, the field became the property of him who owned the estate across the river, since it was land which had been occupied and afterwards abandoned by the river. Later, when the river, abandoning the bed it made for itself in the road, gradually returned to its original location, it took away the soil from him to whom it had been given (Lucius Titius) and added it to the man who owned the land fronting on the road (Attius) since his tenement was the nearest existing land to the river. That which was public, however, did not pass as an accretion to anybody. Nor did the road, said he, present any obstacle to the land deposited by alluvion on the further side of it becoming the property of Attius, for the road itself was part of his land.5
et viam publicam sustulisset, eum agrum eius factum esse, qui trans flumen fundum habuisset; postea quum paulatim retro redisset, ademisse ei, cuius factus esset, et addidisse ei, cuius trans viam esset, quoniam eius fundus proximus flumini esset; id autem, quod publicum fuisset, nemini accessisse; nec tamen impedimento viam esse ait, quominus ager, qui trans viam alluvione relictus est, Attii fieret; nam ipsa quoque via fundi esset. Dig. ' Between the road and the river was a field belonging to another person whose name is not given. 5 In the notes to this passage in his Pandectae Justinianeae in Novem Ordinem Digestae, the celebrated Pothier explains the matter more at length, illustrating it by a crude little diagram: Ager Attii Via publica........................................... Ager Anonymi

Ager Titii Pothier points out that, although not made quite clear at the outset, the



This particular passage does not seem (so far as the writer's observation goes) to have been cited in any of the dozen decisions on the question collected in an elaborate note to Yearsley v. Gipplein 8 A. L. R. 636. But it is there just the same. For the method of the "up to date" American decisions is nothing but
river did not adjoin the road, but that between them was a field belonging to a person whose name is not stated. His explanation of the successive legal consequences is as follows: (a) When the river abandonedits ancient bed and occupied the unnamed owner's field, the bed, being now dry, was added to the land of Titius as the adjacent owner. (b) Afterwards, when the river, abandoningthe bed which it had dug out for itself in the unnamed owner's field, came to occupy the public road, its late bed in the place occupied by the field, being now dried up, was not restored to the unnamed owner for the reason that, having changed its form, it had ceased to exist; on the contrary, as the dried-up bed of a river, it was added to the land of Titius who had already been augmented by the original bed for the reason that he was the nearest owner. (c) When the process was reversed, land was taken from the man who gained, namely Titius, and added to the man owning the land across the road. For when the river left the road and returned to the place previously occupied by the unnamed owner's field (which in the meantime had become the property of Titius) the place where the public road had been, becoming in turn a dried-up bed, constituted an accession to the farm of Attius, as the nearest or proximate owner. (d) Finally when the river deserted the place previously occupied by the unnamed owner's field and returned to its original location, this last abandoned bed also became an accession to the land of Attius, which had already been augmented by the former site of the public road. Special note is taken of the objection that the existence of the public road would prevent the abandonedbed previously occupied by the unnamed owner's field from accruing to Attius for the reason that the latter, being separated from it by the road, was not the nearest owner, and for the additional reason that what intervened was publici uris and thus could neither accrue to nor be acquired by anyone. Pothier makes this explanation: The interposition of the locus occupied by the road ought not to hinder the unnamed owner's field passing to Attius, for the road, having changed its form, had ceased to exist, and the road (i. e., the place where the road had previously been) became part of Attius' land when the river abandoned that location. Pothier, we observe, treats the whole matter rather as a question of abandoned bed (alveus exsiccatus) accruing to the adjacent owner ratione vicinitatis, than as a case of alluvion, although the text carefully states that the encroaching was done paulatim, the recession occurred minutatim, and the return to the
ancient bed was accomplished

Nov. ORD.DIGESTAE (Parisiis, 1919) tom. iii, ad lib. XLI Pandect. (de acq. rer. dom.) Prima pars, sectio II, ar. ii, par. 3.






the Roman method, and the concepts they work with are Roman concepts. In the opinions of our judges, as in the responsum of Alfenus,6 the solution is reached by the simple process of focussing the mental camera on alluvion as a formal concept, and the rest follows as a matter of course. The concept of alluvion is itself

taken ready-made from the Romans. It is even stated in their

identical words.

It would be churlish, indeed, to begrudge an acknowledgment The learned may dispute of our debt to the Roman jurists. whether or not the Common Law owes them much of its substance. They were, at any rate, its first teachers in the art of legal reasoning.7 And whenever English lawyers have felt the need of matter to fill a gap or ideas to construct a theory, they have not hesitated to turn to the civil law.8 They found there a vast storehouse of juridical concepts, developed and discriminated with surpassing technical skill, and co6rdinated into "a noble, rational and uniform system" that might fairly lay claim to govern all the jural relations of a complex civilization. How

difficult to resist that spell! Yet it involved more than one danger. The greater range of the civil law tended to induce a belief that solutions demanded by novel problems had been anticipated. The brilliance of the Roman dialectic helped to confirm the notion that, in the field of law, deductive methods are allsufficient. The very crystallization of the Roman concepts in the terms of a classical language, exempt from the vicissitudes of common usage, fostered an illusion that they satisfied the requirements of an exact and rigorous scientific terminology.9
o P. Alfenus Varus Cremonensis, consul suffectus a famous jurisconsult, in 39 B. C. CIARK, HIST. ROM. PRIVATEI., pt. I, SOURCES, p. 106. 2 CUQ,

with whom an intimatefriendof Catullusand, it wouldseem,the companion as the occasion of one of his he made an afternooncall still remembered
most graceful and amusing sketches (carm. x). CATULLI CARM.RECOGN. BERNtI. SCHMIDT, proleg. pp. ix, lii. ' 2 HOLDSWORTH, HIST. ENG.L. 108-109, 119, 1603, 227-232.

INST.JURIDIQUES DESROM.,39 n. In his youth Alfenus is said to have been

* Pound, Theory of JudicialDecision,36 Harv. L. Rev. 642. * To many a spirit weary of feudal tenuresthe civil law must have apof its becoming of Craspearedwhat Cicerodreamed when,in the character



That these constitute pitfalls for us is no reflection upon the ancients. Practical as the Roman lawyers were, and skilled in seizing the essential factors in the common transactions of daily life, it was hardly possible that men whose early training was so largely grounded in rhetoric and dialectic could have conceived their work otherwise than as demanding an application of the same methods of analytical and analogical reasoning.10 Genus, pars, definitio. How simple that all sounds now! But here, as in all other fields, Division and Classification is the first great stage in the organization of human experience.1l Time has demonstratedhow well this necessary work was done. Centuries later, when men were seeking to rationalize and liberalize the customary law of Western Europe Roman law came to be regarded, to borrow the phrase of a brilliant modern writer,12 as "nature methodized," or, as the enthused civilians were accustomed to say, "quasi ratio imperans quae generalem exhibeat totius humani juris veluti formam ac complectum exemplar."18 Yet it seems strange that in no branch of the law, perhaps, has Roman influence proved more pervading than in the law relating to waters. Instead of finding that matter-of-fact subject governed by home-grown rules, we find, on the contrary, that it is
sus, he gave expression to his own longing for a systematic restatement of the material accumulated by the earlier jurists. "If it were allotted me to undertake, or-since I am likely to be distracted by other cares to the end of my days-if someone else would come forward to accomplish a task I've long had in mind, that is, to resolve the whole mass of the civil law into its primary logical genera, which after all are not so many; to subdivide these again into the several subordinate concepts constituting, so to speak, the species of which the genus is composed; and finally to fix the scope and meaning of each of these by a clear and precise definition-then indeed would you have a true system of law, as notable for its extent and fertility as it is now for the difficulty of traversing it and the impossibility of encompassing it in a general view." Cic. DZ OR. I. 42, 190. Just before this he had made Crassus lament the fact that, at the divulgation of the pontifical law, there had been none "qui illa artificiose digesta generatim componerent;"and had then proceeded to explain, as preliminary to a restatement of the law, the philosophicalnotions of genus, partes, or membra,and definitio. Id. I. 42, 189.

LAW (Hastings Ed.), 495-6, 501. Nathan Isaacs. The Schools of Jurisprudence,31 Harv. L. Rev. 373, 392. U
POTHIER,op. cit., tom. 1, Ixiii.

1 Cf. CUQ, INST. JURIDIQUES DES ROM., t. ii, 37, 39, 42-43, 44n.1. QUINT. INST. iii, 1, 19; v. 14, 34. " Cp. MILL, LOGIC bk. iv, ch. 7, ? 1; ch. 8, ? 5, with KORKUNOV, THEORY OF




governed almost completely by notions transplanted from the countries about the Mediterranean. Mr. Wiel, in his articles in the Harvard Law Review and elsewhere 14 has shown to what extent the existing law of waters is derived through Kent from French rather than from English sources, and how in this roundabout way the principles of Continental law came to be accepted in England through late decisions relying largely on Kent. Thus some of the most important doctrines of the existing law of waters are but a belated "reception" of Roman Law. As everybody knows, the acceptanceof the notions of alluvion and avulsion dates further back. The pedigree is plainly made out.15

And in this instance English law has always been conscious of

its descent.'6 The locus classicus, of course, is the familiar pas-

sage in the treatise written by Sir Matthew Hale, whom later judges have been content to accept as "the great authority in the law of England on this subject." 17 "For the jus alluvionis which is in an increase of the land adjoining by the projection of the sea, casting up and adding sand and slubb to the adjoining land whereby it is increased and for the most part by insensible degrees, Bracton, lib. 2, cap. 2, writes thus: Item quod per alluvionem agro tuo flumen adjecit, jure gentium tibi acquiritur. Est autem alluvio latens incrementum, et per alluvionem adjici dicitur, quod ita paulatim adjicitur, quod intelligere non possis quo momento temporis adjiciatur, etc. Si autem non sit latens incrementum, contrarium erit ut vis Ufluminispartem aliquam ex tuo praedio detraxit, ei vicini praedio appulit, certum est eamrtuam permanere, etc. But Bracton follows the civil law in this and some other places; and yet, even according to this, the common law doth regularly hold at this day between party and party. But it is doubted in the case of an arm of the Sea." 18 What, indeed, is the opinion of the eleven judges, delivered by
14 Wiel, Waters: American Law and French Authority, 33 Harv. L. Rev. 133, 137, 147.



104, 105. 16 Foster v. Wright, 4 C. P. D. 447. 17 Shively v. Bowlby, 152 U. S. 1, 11; Ex parte Jennings, 6 Cowen, 578, 536 n.
18 HALE, DE JURE MARIS, pt. i, c. VI. II. (1).



Best, C. J. in Gifford v. Yarborough19but a commentary on this passage? True it is that the learned Chief Justice supports its reasonableness with some observations of his own to the effect that lands thus formed, though only a yard wide, while of no use to the king, will be useful to the owner of the adjacent land, whose cattle by treading on them and manuring them may prepare them for grass or agriculture and so enable the owner to acquire a title on Locke's principleof Occupationand Improvement. But this is for the purpose of satisfying himself of the reasonableness of what he is pleased to call the "custom that assigns land granted by alluvion to the owner of the lands adjoining." When it comes to "legal evidence" to establish the custom, and indeed to the very form and content of the concept of alluvion, the Chief Justice has to go to the passage from Bracton, and Hale's comment upon it. The two ancient cases mentioned by Hale 20 are used only to show that it was not a local but a general custom; in other words a rule of law. But this customary or common right of the subject remains what it was before, namely, a rule or principle devised by civilians.21 And in the end the definition of the Roman jurist triumphs over the gloss of the English Justice. In the course of two hundred years it has succeeded in overcoming that leaning of Lord Hale's in favor of the Crown which induced him to assume that the rule applied strictly only as between party and party. Hale's predispositionwas to treat all maritime increments, including the jus alluvionis, as belonging de jure commune to the Crown as original owner of the fundus maris, and therefore to doubt whether it could belong to the owner of land adjacent to an arm of the sea, and in any event to allow him the benefit of the increase only as "a kind of perquisite"in the exceptional case when "such alluvion be so insensible that it cannot be by any means found that the sea was there." 22 But Rex v. Yarborough held it applicable as between Crown and Subject and distinctly
" 5 Bing. 163. 20 Abbot of Peterborough's case, and the Abbot of Ramsay's case. 21 See language of Attorney General Cushing, 8 Op. A. G. 177, quoted by Mr. Justice Brewer in Nebraska v. Iowa, 143 U. S. 359, 364, and the opinion of Mr. Justice Swayne in Co. of St. Clair v. Lovingston, 23 Wall. 46, 47. ' D4 JURz MARIS, pt. I, c. 4, p. 14.




rejected the view that nothing accrues to the adjacent owner if the area can be shown by "any means" whatever to have once formed part of the bed. In the last analysis our law applies only the Roman doctrinal test and determines the question of title by the nature of the process, rejecting what can or cannot be shown with respect to the location of the area after the process is completed. Grant that the change is accomplishedby alluvion, and "the accretions belong to the man who owns the land against which the deposits were made." 23 III The time would seem to have arrived when we may question whether the simple concept of alluvion, with its contrasted concept of avulsion, can really serve as a touch-stone for the immense variety of phenomena caused by the inconstant action of inland streams, as well as by the action of the sea. These two ideas have constituted, so to speak, our sole stock in trade.24 And no inconsiderablebusiness has been done on the slender capital. Are these concepts adequate for the purpose? Are there not many physiographic phenomena with varying economic repercussions which cannot properly be placed in either category? If such be the case, why must we continue to force them all into the one or the other? Yet, up to the present time, our law has apparently found it impossible to do anything else. For example, when the sudden and violent changes produced by stream-erosionin our Western country came to be dealt with, the concept of alluvion was applied to them, although the physical action itself lacked some of the characteristic features of alluvion as it had been hitherto understood.25 Whether gradual or not, the process was surely not slow.26 In such cases, the
3 Widdecombev. Chiles, 173 Mo. 195, 73 S. W. 444, 61 L. R. A. 309, 311; Naylor v. Cox, 114 Mo. 232, 21 S. W. 589; Welles v. Bailey, 55 Conn. 292, 10 Atl. 565. ' Cf. Nebraska v. Iowa, 143 U. S. 359. 25 Benson v. Morrow, 61 Mo. 352; Co. of St. Clair v. Lovingston, 23 Wall. 68. 26 "It is contended by the defendant that this well-settled rule is not applicable to land which borders on the Missouri River, because of the peculiar character of that stream and of the soil through which it flows, the course of the river being tortuous, the current rapid, and the soil a soft, sandy loam, not protected from the action of water either by rocks or the roots of trees;



gain could hardly be said to be "by small and imperceptibledegrees." 26a As understood in this country, as well as in England, the notion of alluvion had unquestionably connoted action imperceptible in its progress and perceptible only after a long lapse of

It is not our purpose to find fault with this application, or if one prefers, extension of the original notion. The facts to which it was applied undoubtedly fell within the broad conception by which alluvion was distinguished from avulsion. It was consistent with the notion that a complete change of form is necessarily a destruction of the thing. In these cases, however rapid or obvious the process, the result was clearly due to the deposit of material held in solution.28 This water-borne material was not land; it was merely particles of soil, and so the juristic mind saw in it a case of Accession. In the classification of that topic which the civilians had made familiar, it found its appropriate place as an instance of accessio of the second species; that is to say, where something is united to our property by the operations of nature in such manner as to become an accessorial part of it. To be even more meticulous, it was a recognizable specimen of that sub-specieswherein that which is added to the principal thing so loses its own substance and identity as to be transmuted into that other. Thus the instinct for logical classification was duly gratified. For no one could dispute that the thing, so previously owned, had perished; hence the disintegrated material of which it had been composed could be said, without much violence, to have become a part of that other thing upon which or against which or in front of which (to what extent soever) it had been deposited.29 The conclusion, moreover, seemed to satthe effect being that the river cuts away its banks, sometimes in a large body, and makes for itself a new course, while the earth thus removed is almost simultaneously deposited elsewhere, and new land is formed almost as rapidly as the former bank was carried away." Jefferis v. East Omaha Land Co., 134 U. S. 178, 189; Nebraska v. Iowa, 143 U. S. 359, 368. 2a Hale, op cit. " Rex v. Yarborough,3 B. & C. 91, 107; Hagan v. Campbell,8 Port (Ala.) 9; Camdenv. Lippincott,45 N. J. L. 405. 8 Nebraska v. Iowa, 143 U. S. 359, 369. w Nebraska v. Iowa, 143 U. S. 359, 369.




isfy certain ethical notions which judges of a rationalizing turn had discovered to underlie the legal concept. One of these was the consoling thought that it was impossible to identify the man at whose expense in soil particles the increment had taken place, and that consequentlyno one was in a position to prove a claim to the accumulated soil as matter abstracted by the water from his own property.30The other ethical support was found in the philosophical reflection that as "every proprietor whose land is thus bounded is subject to loss by the same means which may add to his territory," he should enjoy the actual gain as a kind of equitable offset against the possible loss.31 Manifestly this ethical reinforcement added nothing to the concept as it came ready-made from the civilians. This was all well enough, perhaps, though in individual cases it led in practiceto some surprising consequences,and will doubtless continue to do so. In like manner, the necessity of classifying the action of an inland stream as avulsion whenever it cannot strictly be called alluvion will doubtless produce similar effects on the other side. Whenever the separate stages of the process cannot be classified as alluvion, transformations secular in their operation will, perhaps, be treated as avulsions notwithstanding the time required for the total effect. In Oklahoma v. Texas,30ait was contended that the Red River which now runs around the northerly side of the area known as the Big Bend, ran south of that area in 1821, the change having been produced by what was tantamount to a series of avulsions. The Red River was said to be a "braided"stream following a serpentine course through a valley bordered by bluffs or hills and flowing over a bed of loose sand which is being continually remodeled in times of flood. Sand-bars left by a subsiding flood tend to assume an island-like appearance and, if they happen to persist, rapidly become carpeted with silt and vegetation. The channels between the series of sand-bar islands thus formed, become choked and filled by wind-blown sand and also by silt deposited in subsequent floods.
80 Cf. remarks in Allard v. Curran,41 S. D. 73, 168 N. W. 761. s' New Orleans v. U. S., 10 Pet. 662, 717; Banks v. Ogden, 2 Wall. 57;

Gipple, 104 Neb. 88, 8 A. L. R. 636, 638; 2 BLACK., COMM., 262. la 260 U. S. 606, 261 U. S. 340.

Ocean City Assoc. v. Shriver, 64 N. J. L. 550, 51 L. R. A. 425; Yearsley v.



Thus larger islands are gradually built up "composedof a mosaic of smaller islands knit together," the final result being that the islands are consolidated among themselves and with the land on the south side. In this manner, it was said, the main channel of the Red River was deflected from time to time until, in the course of a century, it had moved from a position occupied by it in 1821 along the bluffs on the Texas side to its present location north of the Big Bend. It was suggested that the process described, notwithstanding the length of time, was a case not of erosion and accretion but of avulsion, and that the Texas-Oklahoma boundary remained on the bank of what appearedto be the 1821 channel, in accordance with the rule applicable where a river suddenly leaves its bed and forms a new one. The Court considered the evidence, which was physiographic and ecologic merely, to be speculative and far from convincing,-especially in the face of the fact that Texas had been exercising jurisdiction and proprietorship for half a century.30b But what if the evidence had been convincing and the river actually shown to have changed its location by this process of gradual island building and channel abandonment? Is such a state of facts fairly governed by the rule devised for cases of true avulsion where, by cut-off through a neck of land or other sudden action, a stream leaves its former channel for a new one, causing an identifiablebody of adjacent upland previously on one side of the stream to lie on the other? 30c But is it any more a case of accretion by alluvion? Such are the consequencesof the necessity of putting cases into one or the other of two tight pigeon-holes. Thus does the acceptanceof the Roman ideas as our sole stock in trade threaten to bring us to juridical bankruptcy.

And so, coming back to Frontacre and Backacre, we must ask ourselves whether we can be satisfied with a solution which rests solely upon a formal logical deduction from a preconceived definition. Can we leave a controversy between farmers on the Missouri river to turn upon a scholastic conception of alluvion


Oklahoma v. Texas, 260 U. S. 639. Arkansas v. Tennessee, 246 U. S. 158, 173.




as a species of accession in which, substance having disappeared with form, there results a case of accretion to a mass from which the increment cannot, theoretically, be separated? Must we persist in doing this, even though the effect is to shock our sense of fair play and economic utility? 31a Perhaps one might even question whether formal logic would require us to do so. Having so far extended the notion of alluvion as to cover changes which are in fact neither slow nor imperceptible, are we compelled to continue to draw all the logical consequences supposed to be inherent in the original definition, although the definition itself has been given an altered content? But apart from that, it is submitted that this method of dealing with the matter can no longer be justified. The primary significance of "land" lies in denoting an assigned or assignable portion of the earth's surface. Each area has its own topographical characteristics. But location is the principal element. Land cannot be reasoned about in the same The question manner as other "things;" it is sui generis. whether Backacre may expand so as to include the area that was once Frontacre ought to be determined, in some measure at least,
ala Compare the language of the Supreme Court of Mississippi. "It is manifest that to apply the strict rules of law controlling in cases of streams and the obstructions thereof to such a river and to such conditions is, in the very nature of things, impracticable and impossible. Calling these overwhelming floods surface or channel water, for the purpose of dealing with them under rules applicable to entirely different conditions, advances us no step in the solution of the questions involved. We must deal with things, and not names, and conditions inherently and radically different cannot be assimilated by mere terminology. "* * * To say that flood waters are surface waters, and may always be dealt with as such, or that they may be fenced against as may the waters of the sea, regardless of consequences,would be to give to one riparian owner the power and right of benefiting and preserving his own property at the direct expense of another. But, on the other hand, if it be the rule that alluvial lands subject to occasional floodings are to be dealt with as comprising the bed of a stream, the beneficial ownership therein is practically destroyed in the interest and for the benefit of other riparian owners. "* * * The difficulty or impossibility of formulating an exact rule by which the rights of parties under varying circumstances may be adjusted is of but little importance,in view of the fact that it is not the least difficult to determine such rights by the application of those already existing, and which were formulated for the control of somewhat analogous, but not similar, conditions." Kansas City, etc., R. Co. v. Smith, 72 Miss. 677, 17 So. 78, 27 L. R. A. 762.



upon other considerations than the doctrinal nature of the process by which the extension is accomplished. One consideration, for example, might be the actual time taken to effect the restoration. While it may be legitimate, notwithstanding "the landbuilding propensity" of our Western rivers, to say that soil added in a state of solution, however rapidly, is in principle an accession, it is quite obvious that, in some cases, the deposition may take place within so short a space of time and over so large an area that it is mere pedantry to refuse to recognize it as a restoration of the estate previously washed away. Time, of course, is an element in the accepted notion of alluvion. But in a different sense. There it is used to characterize the course or stages of the process. Here it should be taken into account as something characterizing the total effect. In applying the notion of alluvion, we have so speeded up the time of the process that land which in theory only is made gradually and imperceptibly is treated as an accession to land in front of which it merely happens to lie. No doubt it was a recognition of the unreasonableness of this that has influenced the small minority of courts departing from the accustomed rule.32 The principle on which they have apparently proceeded, however, is that the back estate, being originally bounded by artificial and not natural limits, cannot extend in any event beyond those limits. This is a recurrence to the notion of agri limitati which Lord Hale, with some apparent dubiety, threw in as a possible limitation upon the "perquisite" of alluvion.32a His hesitation was not unnatural for, like many other less learned persons, the great chief justice may not have felt quite sure what agri limitati really were. Perhaps he took the notion out of Bracton, just as Bracton had copied it, with variations, out of Azo.83
32 Allard v. Curran, 41 S. D. 73, 168 N. W. 761; Ocean City Assoc. v. Shriver,64 N. J. L. 550,51 L. R. A. 425.

when captured territorywas assignedor a new colony was founded. Their boundaries were fixed by rigid lines and were not to be alteredby alluvion. An islandwhicharisesin a riverthat dividessuchagri does not accedeto the banksbut, says Azo, concedituroccupanti. Bractonmodifies this by once more assertingthat what belongsto no one else belongsto the King. It is of improbable, however,that he couldhave foundin Englandany foundation

32aSee the first draft of Hale's Treatise in, MOORB, FORESHORE, 368. 88 "The agri limitati were, we are told, land laid out by the agri mensores




Here again not Roman ideas, but Roman words were ruling from their parchments. But whatever agri limitati meant to the Roman administrators and jurists, Hale took them to be any lands bounded "by other limits than the river or sea." Wishing, in the interest of the prerogative, to limit as far as possible the "perquisite" of alluvion, he intimated that it should be denied to lands bounded in that manner.34 For the matter in hand, recourse to this notion seems inadvisable for several reasons. In the first place, it assigns a wrong basis for the common doctrine. The general rule, it is argued, springs"from the fact that, when a riparian estate is destroyed and carried away, the boundary line between that and the adjacent estates is obliterated and lost, and that in case of restoration by accretion of reliction, there is no way of identifying the original estate and therefore it is deemed to have been entirely destroyed and lost." 35 Having put the prevailing view on this basis, it is easy to say that, when the boundary between the front and back estate is an artificial line, for example, a government section line which "can be reestablishedwithout difficulty,"there is no justification for the rule, its reason having failed.35" After a tract thus limited has been fully restored, the owner, it is added, "has all she was entitled to or in good conscience could demand."36 The same
fact for the distinction between agri limitati and other lands." MAITLAND, op cit., 111. Cuq, op cit. t. ii, 226 n. 1. 4 In the leading case of Co. of St. Clair v. Lovingston, 23 Wall. 46, the Roman doctrine of agri limitati was sought to be applied to a public land grant of a parallelogram of 100 acres. The point of beginning, however, was "on the bank of the Mississippi River" and the call thence, though by single course and given distance, was to a point in the river. Applying the rule that course and distance yield to natural objects the Court, despite the parallelogram, construed this as intended to make the river the boundary line. The matter being disposed of on that ground, the limitati argument was dismissed in these words: "The surveys here in question were not within the category of the agri limitati of the civil law. The latter were lands belonging to the state by right of conquest and granted or sold in plats. The increase by alluvion in such cases did not belong to the owner of the adjoining plat. D. XLI, 1, 16: Sander's Institutes, 177; see, also, Morgan v. Livingston, 6 Martin's Louisiana, 251." 8 Allard v. Curran,41 S. D. 73, 168 N. W. 761.
"'a Ibid. " Ibid.



moral restraint, it seems, would not lie upon her had her boundary not been artificial. A second reason for not recurring to the agri limitati theory is that, if valid, it applies to front estates as well as to back estates.37 Apart from our question of restoration, its enforcement is likely to result in severing ordinary alluvial accretions from many lands in actual contact with the stream but held under conveyances by course and distance, upon the ground that such courses were not intended as descriptive of the meanders, but as traverse lines specifically limiting the grant. Such a result would be regrettable. Land actually separated from the stream by other fast land should not, indeed, be treated as riparian because its boundaries apparently follow the same direction as the meanders of a neighboring stream.38 But to introduce the conveyancing distinction between artificial and natural courses into the question of alluvion is to run the risk of discriminating needlessly between properties in the same physical situation. Many public land grant cases, it is true, have turned upon the distinction between courses intended to denote the meanders of the stream and courses intended as traverse lines marking the
7 This was apparently the true Roman notion. Alluvion "did not apply if the land concerned was ager limitatus, i. e., defined by straight lines by auROMAN thority, having no necessary relation to natural features." BUCKLAND,

Prof. Buckland treats this fact as strengthening the view "that the rules of alluvio, etc., harmonize with the doctrine that the owners of land on the banks owned the soil to the middle line." Ibid, 213. The implication is that alluvion was regarded as dependentupon ownership of the soil on which the deposit was made. Owners of ager limitatus did not own to the middle line: hence the deposit was not an accession to their land. He adds that the same is true of the rule as to insula nata. An island formed in a river "was on the same level as alluvio, while an island of the sea, the bottom of which certainly belonged to no one, was res nullius." In this view, neither alluvio nor insula nata "can be thought of as accessory to the land or ceding to it, unless the right extended to the middle line." Ibid, 213. But the accepted modern notion is that alluvion is dependent upon ownership not of the soil under the water but of the soil in contact with the water. Shively v. Bowlby, 152 U. S. 1, 14. This in itself seems sufficient against applying the ager limitatus notion. Whatever reason the Romans may have had for denying alluvio to ager limitatus, the distinction no longer holds good. 3 Producer's Oil Co. v. Hanzen, 238 U. S. 325, 339.




boundary of the tract.39 Usually the matter in issue has been the title to land formerly constituting the bed of an inland lake or river, the contest being between grantees of fractional sections or lots bordering the surveyed meanders and patentees of the bed within the meanders. If the water is navigable, Federal law leaves title under its grant to follow the law of the State to which dominion of the soil underlying navigable waters within its territory has passed as an incident of sovereignty.40 The adjacent bed will pass or not with the grant of the shore accordingly as the local law does or does not attach submerged soil to the abutting upland. The conveyancing distinction constitutes only one of the relevant circumstances showing whether there was "any vacant land left be41 In other tween the river and the river boundary of the tract."' whether the took to the water line or was sepawords, grantee rated from it by other land.42 If the water is non-navigable, and its bed for that reason parcel of the public domain, the State law, somewhat illogically, is also adopted as a convenient method of determining the effect of the government grant.43 Whether or not the bed passes by grant of the bordering lot is determined upon the principles of conveyancing recognized by the local law. On this question the manner in which its boundary is described is by no means conclusive. In some States grants of upland, however bounded, do not carry any land below the water line.44 Others follow the common-law rule that the grantee takes the submerged soil to the thread of the stream if the grantor owned it.45 Here, as in the case of Navigable Waters, the conveyancing distinction comes into play. For the parties may have dealt with the tract as one that ran to the water or, on the other hand, as one that stopped short of it. And it is also conceivable that they may have
Hardin v. Jordan, 140 U. S. 371, 400. 40 Shively v. Bowlby, 152 U. S. 1, 14; Scott v. Lattig, 227 U. S. 229, 242; Oklahoma v. Texas, 260 U. S. 606. 41 Co. of St. Clair v. Lovingston, 23 Wall. 43. 42 Producer's Oil Co. v. Hanzen, 238 U. S. 325. 43 Hardin v. Shedd, 190 U. S. 508, 519. Fuller v. Shedd, 161 Ill. 462, 44 N. E. 286. 44 4B Hardin v. Jordan, 140 U. S. 371; Stoner v. Rice, 121 Ind. 51, 22 N. E. 968.



contemplateda reservation of everything,-even marsh or river bed-lying beyond the boundaries called for, although this is not often the case when the granted land borders the water. Thus the distinction in the form of conveyance is simply one of many elements going to the question whether there was an intent to reserve for future disposition other land lying between the granted tract and the watercourse. If such is the effect of the whole evidence, then the traverse lines will be taken as definite boundaries, although the survey shows the lot as bounded by the meanderline of the water.46 If such is not the effect, then the water course constitutes the boundary, and any fringe existing between it and the platted lines falls within the grant, although the description is strictly by course and distance.47 In approachingthe question, there is a certain presumption in favor of the latter view, commonly expressed by the phrase "that in general meanders are not to be treated as boundaries."48 In fine, "the making of a meander has no certain significance."49 And one may doubt whether its importance is not often exaggerated. Plainly this conveyancing distinction has nothing to do with the question whether riparian rights are annexed to some kinds of front estates and not to others. It is but a means of ascertaining whether the tract in question is in truth the front estate, and if so, whether submerged soil which local law might otherwise annex to upland has been excluded from the grant. Hence it cannot be of any consequenceon the question of alluvion. For riparian rights neither imply nor depend upon title to the soil under the water.50 It cannot properly serve as a criterion to determine when the jus alluvionis' belongs to a front estate and when not: Any true accretion must in the nature of things accede to the land which borders on the water. This distinction, therefore, cannot be decisive of the question of the restoration of Frontacre because, when the water has eaten its way to Backacre, the latter is plainly the land bordering on the stream. All
'4 Live Stock Co. v. Springer, 185 U. S. 47; Jeems Bayou Club v. U. S., 260 U. S. 561. 7 U. S. v. Lane, 260 U. S. 662; Railroad v. Schurmeir, 7 Wall. 272, 286; Home v. Smith, 159 U. S. 40. " Producers Oil Co. v. Hanzen, 238 U. S. 325, 339. Kean v. Calumet Canal Co., 190 U. S. 452, 459. 50 Shively v. Bowlby, 152 U.S. 1, 14; Mobile Docks Co. v. Mobile, 146 Ala. 198, 40 So. 205, 3 L. R. A. (N. S.) 822, 825.




land riparian in fact should enjoy "riparian rights,"-provided the right claimed is reasonable under the given circumstances.51 Finally, as appliedto Backacre,this treatment makes the whole matter turn upon a rather arbitrary technicality. What, for this purpose, is an artificial and what a natural boundary? Either no Backacrecan under any circumstancesbe enlarged by alluvion so as to take in any part whatever of the area covered formerly by Frontacre, since every interior tract must originally have had "limits other than the river or sea," or the whole of Frontacre may or may not be absorbed by Backacre according to the accidents of land surveying. What shall we do, for instance, when the outer boundary of Backacre is described as running with the line of Frontacre? And what, again, when Backacre'sboundary is natural, although not marked by a watercourse? But the worst feature of this treatment is that it wholly ignores the time element which, in a practical view, seems the weightiest single factor. Instead of leaving judges and lawyers, then, to speculate as to how much may be added to the concept of alluvion without altering it into its logical opposite, why should not the legislature plainly say that if the whole or any usable portion of the front estate is restored within a period which may be called reasonable; say, for instance, the period prescribed by the local statute of limitations for recovery of land by a possessory action, it shall be deemed to remain the property of its former owner.52 In short, that in the case suggested, Backacre shall be confined to its ascertainablelimits, regardless of the manner in which they may have been originally defined. Henry H. Glassie.
WASHINGTON, D. C. 61 Welles v. Bailey, 55 Conn. 252, 10 Atl. 565. 52 By statute in Arkansas any land formed in navigable

waters within the original boundariesof a tract is declared to remain the property of the owner. Act of April 26, 1901, session laws 1901, No. 127; KIRBY'S ? 4918. DIGEST., The preamble of the original Act, not carried into the digest, reads: "Whereas owners have suffered by having their lands washed away; and whereas, under existing laws, if such land reforms as an island in a navigable stream though within the original boundary, it belongs to the State," etc. The legislature was apparently striking, not at the extension by alluvion of back estates to include former front estates, but at the insula nata principle. The operative words of the statute, however, are general.