|[37*]
[38*]| *I will now proceed further and say, that had the batture been an alluvion, and to be decided by the Roman, instead of the French law, the conversion of the plantation of Gravier into a *suburb, made it public property. And here I rejoin with pleasure the standard of M. Thierry, and avail myself of his luminous discussion of this point. |[39*]| Were I fully to go into it, I could *but repeat his matter. I shall therefore give but a summary view of it, and rest on his argument for its more detailed support.

| Rural and Urban.| The position laid down is that the Roman law gave alluvion only to the rural proprietor of the bank; urban possessions being considered as prædia limitata, limited possessions. The law which gives this right is expressed in the Institutes in these words, 'quod per alluvionem agro tuo flumen adjecit, jure gentium tibi adquiritur.' Inst. 2. 1. 20. 'What the river has added, agro tuo, becomes yours by the laws of nations.' And the Digest 41. 1. 7. 1. in almost the same words says, 'quod per alluvionem agro nostro flumen adjecit, jure gentium nobis adquiritur.' In both instances it is to the possessor agri only that it is given. It becomes material therefore to understand rigorously the import of the word ager, in the Roman laws; and it happens that its definition is given critically by the same authority which uses it. 'Locus sine |[40*]| ædificio, in urbe area, *rure autem ager appellatur idemque ager, cum ædificio, fundus dicitur.' Dig. 50. 16. 211. 'Quæstio est, fundus a possessione, vel agro, vel prædio quid distet?' Ib. 115 in notis, 'fundus est ipsum solum: eo si utimur, prædium dicitur. Ager esse potest sine villâ.' 'Ground, without a building, in a city is called area, but in the country ager.' Pliny 1. 6. affirms that ager is derived from the Greek ἀγρὸς of the same import. And in the Greek Pragmatics of Attaliata tit. 45. the law of alluvion uses 'ἀγρὸς' for ager. 'Τὸ ἀνεπαισθήτως διὰ τοῦ ποταμοῦ προστεθὲν τῷ ἀγρῷ μου πρόσχωσις ἐστὶν, ἤτοι πρόσκλυσις, καὶ ἐμοὶ ἁρμόζει.' 'Quod insensibiliter τῷ ἀγρῷ μου per flumen adjectum est, alluvionis est, et mihi competit. 'What is insensibly added by the river agro meo is alluvion [adundatio, adaggeratio] and belongs to me.' In the same title 'ὅπερ ἐν τῷ ἀγρῷ σοῦ σπείρω σόν ἐστιν.' 'What I sow ἀγρῷ σου agro tuo, in your field, is yours.' And Stephens, in his Thesaur. ling. Gr. voce 'Ἀγρὸς' translates it 'rus, ager,' 'ἐν ἀγρῷ' in agro, ruri. Ἐξ ἀγρου, ex agro, rure. 'Εἰς ἀγρον, in agrum, rus.' And he cites examples: 'Νηῦς δέ μοι ἥδ' ἕστηκεν ἐπ' ἀγροῦ, νόσφι πόληος'. Hom. Od. 1. 185. 'My vessel is stationed in the country, apart from the city.' 'Διὰ τὸ μὴ μεγάλας εἶναι τότε τὰς ΠΟΛΕΙΣ, ἀλλ' ἐπὶ τῶν ΑΓΡΩΝ οἰκεῖν τὸν δῆμον ἄσχολον ὄντα.' Aristo. Polit. 5. 'Because, the cities not being then large, the people were occupied in the country, where ἀγρὸς is proved to be pointedly the contradiction to πόλις, to wit, the country to the city. From these definitions it appears that the word ager, in the law, constantly means a field, or farm, in the country, and that a city lot is called area. In towns, the whole bank and beach being necessary for public use, the private right of alluvion would be inadmissible; and the adverse counsel have been challenged [Thierry, 33.] to produce a single instance, under the Roman law, of a claim of Alluvion allowed in a city. To this might be added a similar challenge as to the laws of England. These give alluvion on rivers, as the civil law does, to the riparian proprietor. Bracton L. 2. c. 2. § 1. Fleta. L. 3. c. 2. Can they from the volumes of English law, with which they are so much more familiar, produce one single instance of the private right of alluvion allowed in a city? In England, I mean, and not in America, where special circumstances have prevented attention to the law on this subject, or the breach of it. And this must be from the reason of the thing alone, because the common law never having been, like the civil law, reduced to a text, no verbal criticisms on a text can have co-operated |[41*]| against the claim.[96] Repeating, *therefore, my reference to the reasoning and authorities of M. Thierry on this point, and my own conviction of their soundness, I consider it as established that, were this question to be decided by the Roman law, the conversion of the farm into a fauxbourg of the city passed to the public all the riparian rights attached to it while a rural possession, and among these the right of alluvion.

| Principal and accessory
[42*]| And, if the right of alluvion is not given to urban proprietors, much less would it to a mere holder of the bed of a road. But did any one ever hear of a *man's holding the bed of a road, and nothing else? Is it possible to believe that Bertrand Gravier, in selling his lots face au fleuve, really meant to retain the bed of the road and levee? That a man, having a road on the margin of his land, which is its boundary, should mean to sell his land to the road, and to retain that by itself? a thing of no possible use to him, because the use being in the public, he could never employ it in agriculture or otherwise. Were all this possible, yet this bed of a road, this "labrum amnis" would be no ager, no field to which the right of alluvion could attach. That right is but an accessory, or, in the language of our law, an appendage or appurtenance, and an accessory, not to a mere line, but to something of which it can become a part. Had the law, therefore, ever given alluvion to any but the holder of an ager, of a field, yet the general doctrines of principal and accessory, would not have carried the benefit to Bertrand Gravier in this case. 'Accessorium sequitur naturam sui principalis. Et in accessoriis, præstanda sunt quæ in principali. Accessorium non tenet sine principali. Sublato principali, tollitur et accessorium.' These are maxims of the civil law. Calvini lexicon jurid. 'An accessory follows the nature of its principal.' If the accession then be to a field, it becomes part of the field; if to a town, it would become part of the town; if to a road, the use of which belongs to the public, it would be to the road, and to the public. It must follow the nature of its principal, and become a part of that, subject to the same rights, uses and servitudes with that: and Bertrand Gravier had no right of use in the principal, that is, of the road and levee.

The equity on which the right of alluvion is founded is, that as the owner of the field is exposed to the danger of loss, he ought, as an equivalent, to have the chance of gain. But what equitable reason could there be, in the present case, for giving to Gravier the benefit of alluvion, when he could lose nothing by alluvion? If the levee and bank were washed away, they would not go to his plantation, back of the suburb, for a new one. The public would have to purchase a new bed for a road from the adjacent lot holders. Then 'qui sentit onus, sentire debet et commodum.'

But I do deny to the Batture every characteristic of Alluvion.

The French and Roman law constituting that of the place, let us seek from them the definition of Alluvion. The Institute 2. 1. 20. gives it in these words, and the Digest. 41. 1. 7. §. 1. in almost verbatim the same.

'Quod per alluvionem agro tuo flumen adjecit, jure gentium tibi adquiritur. Est autem alluvio incrementum latens. Per alluvionem autem id videtur adjici, quod ita paulatim adjicitur, ut intelligi non possit quantum quoquo temporis momento adjiciatur.' 'What the river adds by alluvion to your field becomes yours by the law of nature. Alluvion is a latent increase. That seems to be added by alluvion, which is so added by degrees, that you cannot conceive how much in each moment of time is added.'

And in the Greek version of Theophilus, the words, 'Alluvio est incrementum latens' are rendered 'ἀλουβιων ἐστιν ἠ πρόσκλυσις ἢ πρόσχωσις,' translated by Curtius 'Alluvio est adundatio vel adaggeratio.' Retaining only the words of this paragraph which are definition it will stand thus.