as it was given in the year 1791, fifteen years after the Declaration of our Independence, it is no more binding upon us than the law of France or Turkey. But let us take it as the evidence of a fact, and admit that, before the Revolution, an exclusive fishery might be prescribed in England in an arm of the sea. Was it ever the case in this country? This again is returning to the principal question. It is a settled principle of the English Common Law, and, as I take it, of the law of Pennsylvania, that no title can be gained by custom or prescription, in England, against the king's prerogative, or, in other words, the rights of the sovereign people.1 This maxim is said to be founded on the old rule, nullum tempus occurrit regi,2 though we might here take a higher ground, and say, that the rights of a whole nation are imprescriptible; a position which has often been maintained with truth and force by political writers, against the usurpations of kings and despots, and may, a fortiori, be applied to the usurpations of individuals. *** There cannot be a clearer case of laws not suited to our colonial situation than those exceptions are, unless it should be said, that we were here to go over the same course which in barbarous times they had pursued in England, and voluntarily permit customs to be established, to which they had only submitted from necessity. I think, therefore, I can lay it down as a principle of our Pennsylvania Common Law, that no custom or claim of prescription can be valid, which militates against the common rights, or, if you please, prerogatives, of the people, our sovereign, because they can only be founded on usurpations of those rights which, I maintain, are imprescriptible. Among those prerogatives is the right of using highways in common, and, among others, navigable rivers, which have been declared highways by the Legislature. The consent of the people to such usurpation can and ought never to be presumed; and if, unfortunately,

1 Co. Lit. 114; Ro. Abr. 566.

2 2 Bac. Abr. 233; 4 Com. Dig. 469.

a different doctrine should obtain, the consequences would be, that such usurpations would multiply and increase in process of time, in consequence of this toleration, until at last the evil of Europe would become so grievous, that a revolution would be necessary to rid the country of it." 1

§ 225. But, from a consideration of the cases in Connecticut and Pennsylvania, we come now to consider the law in the Western States, carved out of the territories of the United States. We have already seen, that the fishery in navigable rivers, at Common Law is prima facie common. We are inclined to the opinion, that this rule applies to the Mississippi River and its great tributaries, and the great rivers farther West, although the tide does not flow and reflow in them. We have shown, in another part of this work, that these great rivers never have been sold to private individuals, and, consequently, that the title to the soil is in the States, for the benefit of the whole people; 2 that a river includes every thing below the top of the bank;3 that the commonly received Common Law test of navigability is a misapprehension; and that De Jure Maris and Bracton, properly understood, are in harmony; that, properly speaking, the proprietor of the verge of the banks, on the great navigable rivers of this country, has no more rights in and to the land between high and low water mark than the owner of land on the verge of the ocean; that purchasers of land from the United States buy by metes and bounds, and that grants from the Government are most strongly construed against the grantee.5 The conclusion, then, is irresistible, that the fisheries in these great rivers are common or public, and that every citizen has the right to fish in them and use their shores, subject, however, to such reg

1 16 American Jurist, p. 286.
3 See ante, § 9.

See ante, chap. vi.

2 See ante, § 122 et seq.
4 See chap. ii.

19

ulations as the State may prescribe; and, in nearly every State, these fisheries have been regulated in some manner.2

§ 226. But the right of fishery is subordinate to the right of navigation. This has been expressly decided in North Carolina. The question arose in the Chowan River, above the ebb and flow of the tide. Pearson, J., delivering the opinion of the court, says, " But it is contended that the defendant had no right to come to the bank at the time and place he did, and is therefore bound to pay all the damages, that resulted from the fact of his doing so. Thus the ques

tion is, had the defendant a right to come to the bank at the time and place he did? He says, that, by reason of the paramount right of navigation, he had a right to come to the bank at any time and at any place when and where there was a bona fide necessity for him so to do in the pursuit of his vocation; and that in this particular instance, without any wantonness or malice, he did only so much as his business required him to do, and took pains to avoid doing any unnecessary damage to the plaintiff. *** A boat on a navigable stream has a right to take her course,' and to go to the bank when and where it is necessary to do so, doing no unnecessary damage, and acting without wantonness or malice; and is not obliged to stop or go out of her way, or wait upon the movements of those who are managing a seine or net, which they are permitted to use by the sufferance of the sovereign, and not as a right conferred by grant.'

6

1 See Acts of Ill. of 1867, pp. 117, 118; Statutes of Conn. of 1838, p. 269; 6 Shepley, 106; 7 Shepley, 353.

2 Walker, in his work on " American Law," says: "In practice, it has been treated as a public and common right." p. 292. See also Collins v. Benbury, 3 Iredell's (N.C.) R. 277. In this case, it was declared, that no general or exclusive right of fishery existed in the navigable waters of that State, and a navigable stream existed when the waters were sufficient in fact to afford a common passage for people in sea-vessels.

3 Lewis et al. v. Kelling, 1 Jones Law (N.C.) R. 299.

CHAPTER IX.

OF ALLUVION, THE SHORE, ISLANDS, &c.

§ 227. I. ALLUVION is defined to be the insensible increase of the earth, made to land by the force of the waters of the sea, or a river by a current or by waves. The characteristic of Alluvion is, that it is imperceptible, so that no one can judge how much is added at each moment of time.1 In the Code Napoleon, the word is defined thus: "The accumulations and increments which form themselves successively and imperceptibly against the riparian lands of a river or stream, are called Alluvion." 2 In the Encyclopedie Method, voce Alluvion by Le Rasle, the definition is: "Alluvion, an increment of ground, which is made by little and little, on the borders of the sea, rivers, or streams, by earth which the water brings, and which is consolidated so as to make but one whole with the neighboring ground." The word Alluvion is derived from the Latin word alluvio,to wash against. It appears, that the rule of the Common Law is the same as that of the Civil Law. The latter is thus translated: "That ground which a riyer has added to your estate by Alluvion becomes your own by the Law of Nations; and that is said to be Alluvion, which is added so gradually, that no one can judge how much is added in each moment."3 Bracton, concerning Alluvion, remarks:

1 Bouvier's Law Dict. tit. Alluvion; Just. Inst. lib. 2, tit. 1, § 20; 3 Barn. & Cres. 91; Angell on Watercourses, § 56; Vattel, Law of Nations, 121.

2 Code Napoleon, § 556.

3 Coop. Just. lib. 2, tit. 1, § 20. "Præterea, quod per alluvionem agro tuo flumen adjecit jure gentium tibi aquiritur. Est autem alluvio incrementum latens. Per alluvionem autem id videtur adjici, quod ita paula

"Item quod per alluvionem agro tuo flumen adjecit, jure gentium tibi adquiritur. Est autem alluvio latens incrementum, et per alluvionem adjici dicitur, quod intelligere non possis, quo momento temporis id adjiciatur."1 Fleta writes thus: "We acquire a right to things according to the law of nations by accession. That which a stream has added to our land by Alluvion, for instance, belongs to us by virtue of the same law." 2 Thus we see, that the meaning of Alluvion is the imperceptible accession of soil to other soil, and that this newly acquired land belongs to the owner of the ground to which it attaches itself, and the reason of the indifference on the part of the crown of England to alluvial soil is said by Blackstone to be, either because de minimis non curat lex, or because owners of land, being often losers by the breaking in of the sea, or being at charges to keep it out, have thus a possible gain as a reciprocal consideration for their charge or loss; but, if the new land be formed suddenly and perceptibly, of course the old line continues to be the boundary between the territory of the crown or State and that of the adjoining proprietors.5

§ 228. In the case of King v. Lord Yarborough," the interpretation of the legal meaning of the word "imperceptible" was given by Abbott, Ch. J., as follows, "In these passages, Sir Matthew Hale is speaking of the legal consequences of such an accretion, and does not explain what ought to be considered as accretion insensible or imperceptible in itself, but considers that as being insensible, of

tim adjicetur, ut intelligi non possit, quantum quovue temporis momento adjiciatur."

1 Bract. lib. 2, c. 2, § 1. See Azo's Com. 1. c. f, 244 b, No. 10. Güterbock's Bracton and his Relation to the Roman Law, p. 104.

2 Fleta, lib. 3, c. 2, § 61.

3 Woolrych on Waters, p. 34; 2 Black. Com. 262.

4 2 Black. Com. 262; Callis, p. 51; Phear on Rights of Water, p. 43; Chapman v. Hoskins, 2 Md. Ch. Decis. 485.

Phear on Rights of Water, p. 43.

6 B. & C. R. 91. Affirmed in the House of Lords, 5 Bligh (N.S.) 163.