Morgan v. Livingston 6 Mart. (o.s.) 19

MORGAN vs. LIVINGSTON & AL.

«front Tothe xísex” primá facie, designate a riparious es-

vendee elutefacquires qualified property, m the bank of the ⅛ ver, and consequently the bat-Aereafcer'1 arise k®tf"re the es‘

. A,n. >nterven-ing highway, does not prevent this, when ⅛6 owner of the *20, estate is hound to repair it, and at his risk.

*19Appeal from the court of the first district.

-- . Moreau, for the plaintiff.

In the year 1789, Bertrand Gravier sold to J. B. Poeyfarré, under whom the plaintiff and appellant claims, a piece of land, then a part of a plantation, near the city ’ 1 _r New-Orleans, on which the faubourg St. Mary now stands.

The deed expresses that the piece of land has so many feet of front to the river, and so many in depth according to a plan which had been made 1 o a by a surveyor a few days before the sale.

. , , , , , • -rp , I he witnesses produced by the plaintiff depose *20that there did not exist anv batture, at the time _ - of the sale, in front of this piece of land : and it is likewise in proof that the plaintiff and those under whom he claims, did repair during a number of years, after the sale, the road and levee, in front. J

A few years ago, the defendants took possession and began to exercise acts of ownership on the portion of the batture, which has been successively formed in front of the premises, under what title does not appear, for when the plaintiff has brought his action against them, they rely solely on their possession of one year and one day, without producing any title. The plaintiff has shewn his own, and the defendants have contended, that the sale of Gravier to Poeyfarré did not include the batture in front of the land sold.

1. Because the sale was made, ad mensur-am and by certain dimensions and limits.

2. Because it was made according to a plan, which indicated a basis, or boundary of the land sold, on the road.

3. Because there existed a royal road between the land sold and the batture in front of it.

4. Because, if the batture was not included in the land sold to Poeyfarré, the owner of it is the riparious owner.

5. Because, supposing that the words face aujleuve, gave to Poeyfarré the property of the batture, this property was not transferred to his *21vendee, as his sale does not express that the land is face au fieuve

Before I enter on the discussion of these seve- • 11-ral points, it is proper to remind this court, that a cause was determined in the late supreme court of the territory of Orleans, depending on the questions now raised by the plaintiff, viz. John Gravier vs. the Mayor is’c. of New- Orleans.

In it, John Gravier found himself precisely in the situation, in which the present plaintiff is. The city pretended that he had no right to the batture in front of the faubourg St. Mary, because Trad'd, the vendor of Bertrand Gravier, the ancestor of John Gravier, had bought a measured and limited estate, bounded by the highway ; a circumstance which excluded the vendee from the batture, according to the laws of France. 2 Am. Ijow Journal, 300.

Indeed it is to be remarked that, when the king confiscated the estate of the Jesuits, the superior council of the province of Louisiana ordered that the property of the Jesuits, in it, should be sold, and accordingly, Mr. d’Abbadie, the commissary-ordonateur, caused their property to be ascertained and surveyed by Deve-zin, the surveyor general, who began his operations on the 14th of July, 1763, by which it appeared that the plantation of the Jesuits had *22three and one third arpens and six toises, in front, instead of thirty-two, as expressed in original deeds, drawing the front line at the distance of six toises and five feet from the middle of the levee, and consequently in the highway. In a second operation, of the 14th of November of the same year, Devezin rectified his front line, finding it to be thirty two arpens in length. He next divided the plantation in six lots for the convenience of the purchasers. The process verbal of adjudication shews that these lots were sold with the extent of front, given them by De-vezin, with a depth of fifty arpens. 2 Am. Law Journal, 343.

It seems then that it would be correct to say that Pradel, B. Gravier’s vendor, having purchased a lot of seven arpens in front, and fifty in depth, beginning at a post placed at the distance of six toises and five feet from the middle of the levee and inside of the highway, which existed then, according to the plan to which the survey- or refers, at the end of his process verbal of the 14th of July, 1763, had no right to the batture along the highway, since he had purchased a measured and limited estate, separated from the batture, by the highway, not included in his deed. It will be seen by and by, how successfully the counsel of B. Gravier, one of the present defendants, repelled this objection. We cannot use *23better arguments than his own, when he is pleased to support the opposite side of the question : and we do so with the greater confidence when ° ⅜ we consider that the principles which he there Contended for, received the sanction of the superior court.

The first objection seems to recognise the general principles on which we rely, viz :

1. That the alluvion is only an accessory of the soil to which it is united, ff. 6, 2, 11, $ 7, 1 Hulot, 473.

2. That, as an accessory, the alluvion ought to follow its principal, unless there be a convention directing the contrary. Ib. 34, 2, 19, § 13, 5 Hu-lot, 28.

3. That as an accessory, it belongs to the purchaser or donee of the principal estate, ff. 30, 1, 24 § 2, 4 Hulot, 310, id. 7, 1, 9 § 4, 1 Hulot, 479, Partida 5, 28,2 Febrero, Contratos, 7 § 1, n. 35.

These authorities being indisputable, the counsel for the defendants, in the district court, seemed to admit the consequences drawn from them in this cause, on general principles ; but he contended that a distinction ought to be made, in the present case, as Poeyfarré, under whom the plaintiff claims, purchased a measured and limited estate, bounded on all sides by limits, rvhich *24excluded him from the batture, in front of the premises, which cannot be considered as an accessory or a part thereof. It is to be admitted, that this doctrine of limited and measured estate, is the principal point in this case, and if we succeed in shewing that, according to our laws, it does not exclude the right of alluvion, the cause must be determined in our favor. We will attempt it.

It is first proper to remark, that in order that the defendants might have the full benefit of this doctrine, it should have been proven, that, at the time of the sale to Poeyfarré, there existed a bat-ture already formed, in front of the land which he purchased. Our witnesses have, however, proved the contrary, in the most positive manner, and as it is not easy to shew how the figure of this batture, traced by a surveyor, 5n a plan made at the will of a draftsman, who might have intended thereby to describe an incipient batture, a rise of the bottom of the river, which has since become a continuation of the batture, which, at the formation of the plan of the faubourg St. Mary, existed before the greatest part of it, but not before the land purchased by Poeyfarré, in the lowest extremity of the faubourg ; since this incipient batture, was even at the time of the lowest wyater covered by it, so as to allow vessels, at all seasons of the year, to moor close to the levee, and could not be considered as susceptible of ab*25solute and private ownership. If the soil of the river in this place has risen to the height, at which it ceased to be considered as a portion of the bed of the river, and began to be a high ground, susceptible e distinct and absolute ownership, since the sale to Poeyfarré, it is dear, that this increase ought to belong to him or his ven-dees, by virtue of the clause in his deed, in which Gravier sells to him all the rights, uses and ser-vitudes, appertaining to the premises ; which includes the vendor’s right to a batture, which might arise in front of the land sold.

No limit is given in Poeyfarré’s deed, to the land sold, on the side of the river ; it being simply said that it was sold face au jleuve, fronting the river, which implies that on that side the land was to have no other boundary than the river. Such was the reasoning of one of the present defendants, when, as counsel of J. Gravier, it was said in opposition to him, that Pradel had bought a measured and limited tract of seven arpens in front, joining the fortifications of the city, with fifty arpens in depth, without even its being said front to the river. 2 Am. Law Journ. 349, Exam, of the title of the United States to the batture. Id. 307 and 308, 6 Id. 10,12.

The court will be surprised to find that this gentleman, who then made such a powerful use of the words face au Jleuve, were not *26⅛0 be found in the deed of adjudication to PradeL , , . _ • , , , • ,. , but only in Uevezin s proces verbal, m which the lands of the Jesuits are mentioned) in order to assert the right of extending his lines to the river, altho’ the estate wa&^ounded by the highway, seeks to establish a different construction of a like clause in Poeyfarré’s deed, in which the words Jace au Jleuve are inserted

The counsel ought to have remembered that the superior court, yielding to his reasoning, the very same which we are now using, declared that it considered Pradel’s land as bounded by the river; altho’ it was sold by certain limits and bounded by the highway.

We know that whatever may have been the decision of the territorial superior court, its authority will not be conclusive, in the present case, should the court think that the doctrine of limited fields is applicable to the sale to Poey-farré, which is expressed in more favourable terms than the adjudication to Pradel. We will therefore endeavour to shew that this doctrine does not militate against his right, and that of his vendees, to a batture, which may have arisen before the land which he purchased.

Pradel’s adjudication took place, while this country was under the domination and laws of France, which then, and till the late revolution, recognised the Roman maxim in agris limitatis *27 jus alluvionis locum non habere constat : idque et Divus Pius constituit. 41, 1, 16, 6 Hulot, 269, 4 Brillon's diet. 281, 1 Guyot’s encyc. 288, verbo Alluvion.

But this doctrine was never admitted in Spain, where neither the king nor the lord ever disputed the right of alluvion to the riparious owner.

The wisest and most enlightened interpreters of the Roman law have always considered the law in agris limitatis as derogatory from the common right of the subject, and have restrained it to conquered lands, divided among the soldiers by artificial boundaries. 4 Brillon’s diet. 280.

It is not otherwise understood in Spain. IS Rodriguez’s Digest, 21.

The doctrine of limited fields cannot then avail the defendants : and the sale to Poeyfarré ought to be regulated by the principles of the common law : and the batture ought to be considered, since it was formed afterwards, as an. accessory of the land which he purchased.

The second objection, viz. that the sale was made according to a plan, which indicated the highway, as the boundary of the land sold, seems repelled by what I have just observed. For, if the boundaries given to a riparious estate, do not affect the right of the owner to the alluvion accruing before it, when there is no express con-*28venti°n on this point, it matters but little whether these boundaries be established by the deed or by a plan to which it refers.

We refer the court on this head, to the arguments of the counsel of John Gravier, in the case of the corporation : where it was agreed that the land sold to Pradel was limited on all sides, and particularly on that facing the river, where it had the highway for its boundary.

The highway which existed, between the land sold to Poeyfarré and the batture, if it then existed before it, is no obstacle to his right, nor to that of his vendees to the batture.

According to the Spanish law, the existence of a highway has never been considered as an obstacle to the right of the owner of the principal estate, to an accessory of such an estate, on the opposite side of the highway. 2 Febrero, Con-tratos, 7 § 1 n- 35. Why then should it be an obstacle to a right of alluvion, which is only an accessory of the riparious estate ? If this was the case, what would become of the battures formed before the vacant lands of the United States, af-terwards sold with a boundary on the highway, which lies along the river ? Would they be the property of the United States, or of the state of Louisiana, the owner of the highway ? This would be contrary to the principle of our laws, *29which gives the alluvion to the owner of the ripa-rious estate, as an indemnity for the risk and ex. pence which the vicinity of the river creates.

We see that in the Spanish law, the existence of a highway is not stated as an obstacle to the right of property which riparious owners have in the bank of the river before their estates. Part. 3, 28, 6 6? 7.

The rule must be the same, in regard to the alluvion: since the property which the law gives to the riparious owner is grounded on the same principle of equity.

It is to be added, that Poeyfarré, by his purchase, having incurred ail the expences and charges to which B. Gravier, his vendor, was liable (as the obligation of keeping up the levee, repairing the road and supplying the soil covered by them, in case of its being carried away by the stream) it cannot be reasonably supposed, that the intention of the parties was, that he should be without the only advantage, which balances these expences and charges—that he should take upon himself, all the burdens, and his vendor retain all the advantages, of a riparious owner.

There cannot be any reason to say, that Poey-farré did not acquire the batture, as no mention is made of it in his deed. We have shown that it passed as an accessory. At the time of the sale, *30⅛ did not exist as an object of absolute property, therefore B. Gravier did not retain it. Along every point, on each side of the river, the law re-cognises a riparious owner, who, as he is the individual who first suffers by the encroachment or inundation of the river, is the one who benefits by its recess or by any addition of soil made. In this country, particularly, this riparious owner is the person on whom the law imposes the burden of repairing both the road and the levee, and the obligation of supplying the ground which these objects cover, in case either or both be carried by the stream. Now, after the sale from B. Gravier to Poeyfarré, there was not a foot of ground retained by Gravier, between the land acquired by Poeyfarré and the river. Gravier then was no longer the riparious owner. He could by no possibility receive any injury from the river, nor any land of his between Poeyfarré and the river. His obligation to repair the road and the levee passed to Poeyfarré, and the record shews that the latter did actually repair the road and levee. Had these objects been carried away by the stream, Poeyfarré, not Gravier, would have been the loser. How can it be then contended that the latter continued to be the riparious owner?

If it be admittfetl, that Poeyfarré, having purchased face au fleiwe, front to the river. *31became entitled to the alluvion or batture, which might afterwards be formed before the land, it is clear, that he transmitted the same right to his vendee, although the words face aufieuve be not used in his deed. For he made no reservation ; he sold a certain quantity of ground of so many feet in width, part of what he had purchased from B. Gravier. His vendee became, as he himself was before the sale, the riparious owner ; because there was not of a single foot of ground, susceptible of private ownership between him and the river, from which he was separated by the road and levee only—both of which were burthen-some appendages of the land which he had purchased, accessories of it, and as such necessarily passing with the principal estate, without being mentioned expressly, or even by reference or implication, under the expression face au Jleuve, front to the river, or any other.

Livingston, for the defendants.

Prior to the 21st of April, 1788, Bertrand Gravier was the proprietor of a plantation bounded on the Mississippi, above and adjoining the city of New-Orleans. The public road from the city, then ran across the front of this plantation, as it now runs ; except, that, at that period, it was only 36 feet wide, from the banquette or footway to the levee. And at that period, a considerable increase *320f the ]an(j between the levee and the river. ’ . 5 had taken place by alluvion, which has been somewhat augmented by the same means since.

On the day last mentioned, the 21st of April, 1788, Bertrand Gravier caused a plan to be made by the surveyor general of the province, for the division of a part of his plantation into town lots of the usual size. On this map, a range of lots is laid out, the front lines of which coincide with the margin of the road, in its whole extent across the land of Gravier.

At the time of making this distribution into lots, there was a parcel of land inclosed by a fence, in the form of a trapezium; which, on the plan, is marked as lot no. 7, and by a note of refer, ence in the margin of the pian, is designated as to be sold in the manner in which it is inclosed.

The front line of this, as well as those of the other lots, coincides with the margin of the road; but none of them encroach upon or go beyond it, either by a prolongation of the side lines, or by the position of the front line.

Between these lots and the river, was first ini. mediately in their front, the public road; then the levee, and lastly, the ground which had been added by alluvion to that on which the levee stood.

This was the situation of the property when J. B. Poeyfarré entered into negociation for the *33purchase of this trapezium of land : And on the 9th of February, 1789, a survey of it is made at his (Poeyfarré’s) request, by the same surveyor general Trudeau, who made the first plan of distribution; (a plan and process verbal of which survey is made and signed by the surveyor general) on which plan, the front, side and rear lines are laid down and measured ; and the contents of the figure in square toises, feet and inches, are given. And by the process verbal the lot is described as bounded in front by the public roadt and that road, the levee and batture, or alluvial land are all designated and laid down, as lying between the trapezium and the river.

On the 27th of the same month of February, the act of sale is passed before a notary, by which Gravier sells to Poeyfarré, a piece of land forming a trapezium, situate without the Chapitoulas gate, composed of 415 feet of land, of front to the river—188 feet in depth on the side of the city—411 feet 4 inches on the side of the garden of the seller—and by the upper side, 229 feet 8 inches. The whole forms 2386 toises, 4 feet and 6 inches of superficies ; as appears f como lo manifesto) by the plan of Don Carlos Trudeau, public surveyor, dated the 9th instant, which the parties have signed and which remains in the power of the purchaser, together with all the in. *34 gresses, egresses, rights, usages and services thereunto belonging.

Poeyfarré, being by virtue of this conveyance, the proprietor of this trapezium, on the thirtieth day of October, in the same year, sells to Pierre Bailly, a part thereof, which in the act is thus described :

“A lot of mine, situated out of the city of New-Orleans, composed of 70 feet in front, and 180 in depth, the whole forms in conformity with the figurative plan of Don C. Trudeau, surveyor general of this city, bounded on one side by a lot of the vendor, and on the other by land of D. Bertrand Gravier.”

This last mentioned lot, Pierre Bailly sold in the year 1816, as he himself had purchased it, to the plaintiff; who, the following year, brought this action to recover the land lying between the levee and the river, in front of this lot; and he grounds his right on one of two positions.

1. That he is the owner of the soil to the water’s edge, by virtue of the conveyances above recited.

2. That although the principal lot conveyed to him, should not extend to the water’s edge, he is yet entitled to the land in front, as an accessory, or appurtenance to it.

To make out the first position, two things are necessary for the plaintiff. First, to shew that *35the conveyance to Poeyfarré, bounded him on the water.—Secondly, that he gave this boundary to P. Bailly ; for I admit, that P. Bailly, convey. ed all his right to the plaintiff, as far as he could convey it, being out of possession.

The principal question is on the construction of Gravier’s deed. Does this give the river or does it give any other object or line, as a boundary?

To prove that the trapezium extended to the river, from the words of this deed in their com. in on acceptation, or from the plan to which it refers, would have been a hopeless task. The expression 415 feet of front to the river, would, no more give a right to go to the river, than the expression front to the north, would extend the land to the pole; or (to come nearer the case) than the expression in the same deed 188 feet in depth on the side of the city, (del lado de la ciudad.) would extend that side to the bounds of the city. Indeed, this expression would be much more favorable for carrying it to the boundaries of the city, than the words frente al rio, would to the river. For let us suppose, that this trapezium had changed its front, that the garden or other land, lay between it and the road; and that the side next to the city bordered on a street, and became the front. The expression would still be the same, only substituting city for river. And instead of del *36 fa¿0 ¿e fa ciudad, we should have de frente a la ciudad. Will it be seriously contended, that this would carry the grantee 300 feet out of the trapezium, to the bounds of the city ? Yet, where is the distinction between the two cases ?

There is an essential difference, between the expressions front or fronting to, and fronting upon. The market house fronts the magazine, on the other side of the river ; but it fronts upon the levee, on this side. The Cathedral fronts the public square and the river; but it fronts upon Chartres street. The expression then front or front to, only means the exposure, the direction of that boundary of a lot or house, in which is the principal entrance. How many houses, lots and farms, on the heights around the harbour of New-York or Naples, front those delightful bays, which are yet miles distant from the water?

To exemplify this more strongly, let us take a diagram of the part of the plantation, that was divided in 1788 into streets, according to the plan of L. Trudeau.

Suppose the trapezium sold had been situate on the right hand side, (going up the river) of Camp street; and that no other street had been laid out between it and the river. Would the words frente al rio, have carried the proprietor to the river ? The plaintiff must answer yes *37orno; if he says yes! then he supposes that Gravier, when by the express words of his deed he conveys a piece of land, limited by certain precise lines, which contain and are said in the deed to contain 2386 toises, 4 feet and 6 inches square measure, shall be intended by implication to have given four times the length of lateral line that he has expressed, and consequently to have conveyed four times the number of square toises which the deed says he conveys. If this should be found, as I presume it would, rather too violent a construction even for the plaintiff, he must then answer, no ! The expression would not in that case, carry to the river’s edge; and then he must either give up this part of his argument, or discover some distinguishing feature, between the actual case, and the one I suppose—and this, I think, it will be difficult to find—if he says that he would not go to the river in the supposed case, because there was a quantity of land unconveyed, lying between him arfcl the river, I answer, and I think I answer conclusively, by saying that the same thing exists in the real case. That there is first, the road which, according to law finally settled by this court, belongs to the public.—Secondly, the levee of which the use is in the public, but the property in the original owner of the soil.—-Thirdly, the batture, which being formed prior to the sale, became an integral part of the *38^arm> an¿ was as much the property of the vendor, as the parcels of land which in the supposed case between the trapezium and the road. Should he reply to me, that this road, levee and batture, in the real case form no impediment, because they were conveyed by his deed, I have surely a right to declare, that so evident a petitio principii should not be received as argument. Indeed, how would it ever be possible to escape from the circle, “ it forms no impediment to my c< going to the river, because it is conveyed by “ my deed.—And it is conveyed because it forms “ no impediment.”

I think, I have heard another distinction ; but, though much relied on, I hesitate whether I should occupy the time of the court in answer, ing it.

The intervening objects, to wit: the road, the levee, and the batture then existing, it is said formed no impediment to the extension of the lines of Poeyfarré’s lot to tie river, because they were not possessed or improved, and were of trifling extent. And they had no assignable value, says the petition, with a perspicuity that defies elucidation. But I apprehend that none of these objections will, in point of fact, apply to the road, it is possessed and improved by the public, who have the right of way : it has the usual extent. Its value is certainly very great to those who travel *39on it and to the state. But whether that value be # assignable or not, I must leave to those who understand the term to decide.—The same observations will apply in part to the levee, of which the public have the use. And as to the soil of the levee which was retained by Gravier, (because he did not sell it) and the soil of the bat-ture, I apprehend, that the fact of their being possessed or improved, or the circumstances of their extent or value can have very little influence on the decision of this question. Did they exist ? is the only inquiry. If they existed they formed a bar to the grantee’s extension to the river : whether possessed or derelict they must have been owned. There is no derelict property of that description ; every inch of land in the state has its owner : and whoever was that owner, his property intervened between the lands conveyed and the river; and of course, no words designating the exposure of the front of those lands could deprive the owner of his property.

Thus, I think, I have proved that the words frente al rio, or front to the river, would not in their common acceptation carry the plaintiff ⅛ grant to the water’s edge.

Anticipating the force of these arguments, the plaintiff has, by parol proof, attempted to give a signification to the^e words, different from their general import.

*40To the introduction of this species of proof n . , we excepted on two grounds : jirst, because the words were clear and unequivocal, and that pa-rol proof shall not be admitted to explain them. Civ.-Code, 310, art. 242. Secondly, that the proof offered on their construction of it went to contradict the words of the deed, and the plan which we will shew to be a part of it; the deed and the plan giving the road, the parol proof (as they construe it) the river, as the boundary.—The court overruled these objections and heard the testimony.

Let us examine it.—-It consists of the testimony of three surveyors—in substance they agree in these points.

1. That when lands, situated on the river, were granted by the French or the Spanish government ; the words face cm fleuve, frente al rio, or face alone were used to designate the boundary on the river.

2. That the breadth on the river or the number of acres front, was generally measured by a line drawn at right angles to one of the sides, and at the nearest convenient distance from the river which sometimes happened to be within the levee and road.

3. That the surveys began from the edge of the water, and that the depth was measured from the water line.

*414. That m all cases where a piece of land, real-Iy bounded by the river was measured, the side Ihies were continued to the river on the plan.

5. That in the re-surveys of land, increased by alluvion since the original grant, the surveyor did not stop at the place where the original side lines terminated at, the place where the river then ran 5 but continued them down to the water’s edge where it now is, so as to include all the alluvial soil contained in the prolongation of the side lines to the river.

This is, as I believe, a full statement of the parol testimony of the customary or practical explanation of the words in question. In concessions for lands on the river and subsequent sales of these lands, these words are used; and they are construed to give a front on the river.—The reasons for this are plain—all the lands in this country were laid out, not as in most other countries, by describing the metes and bounds, and giving the contents of the ground in square acres, but by giving a certain extent on the river, measured by acres, and with an uniform depth of 40 acres. So that when the words “ so many acres front,” or even “ so many acres” alone, without the word “ front,” (as we find in many of the French grants,) by the ordinary depth, were mentioned, nothing more was necessary to designate a front on the river : and if nothing was said as *42 t0 the atiple of the lines, they ran parallel to each other and at right angles to the river. But as this description in words could not give the ex-aet situation of the lands, with respect to the surrounding objects, both the French and Spanish governments elucidated the general words of their grants, by a particular reference to a process verbal and plan ; though the two nations adopted different means of making this reference.

Under the French government, when new lands were applied for, the party petitioned the governor stating the number of acres he desired, and very loosely describing their situation, “ about so many acres from the city,” “so many acres in such a bend, anse, of the river,” or other words equally indefinite : to this sometimes, but not invariably, the magistrate of the place adds his certificate that the lands are vacant.

On this the governor issues his grant in which the lands are described still more indefinitely than in the petition, to which, however, the grant refers ; for it always begins vu la petition de—from the petition in the grant, however, it would not, in one instance out of ten, be possible to locate the land, or discover its boundaries : to remedy this, in all the French grants this clause is introduced.—Quant aux aires de vent qui doivent borner ladite terre, ils seront regles par les bornes qui seront plantées, dont il sera dressé un procos *43 verbal qui sera annexé a la présente, apres avoir été enrégistré sur le livre des concessions. “ As to the lines which are to bound the said land, they are to be regulated by the bornes (stakes,) which shall be planted—of which a proces verbal shall be made and annexed to these presents, after being registered in the book of concessions.” After these lines were run and the survey made and enregistered, a second grant or confirmation was made ; but this was not frequently done, and where it was, the survey was always referred to.

Under the Spanish government, there was rather more regularity. The governor, instead of issuing a grant on the petition, directs a survey to be made of the land, and on its being returned to him, he makes the grant, but always in the same general words “ so many acres front by so much depth,” referring, by the words vistas las antecedentes diligencias, for particulars to the survey. This survey, the witnesses tell us, always began at the edge of the water ; and on the plan the side lilies were extended to it, so as to leave nothing apparent on the plan between it and the river.

Thus, I think, we may discover the reason why the general words under consideration were deemed sufficient in the French and Spanish concessions, without giving those words any signifi-*44cat*on different from their general import. It was, because the plan and process verbal were always referred to for the boundaries. And the words face au Jieuve, or even face alone were deemed (general as they are) sometimes unnecessary ; and in many instances they are omitted, and the land is described only as consisting of so many acres (meaning of course front acres,) leaving every thing else to be settled by the process verbal and plan—when these concessions came to be conveyed by the grantees, they described them as so many acres front, which had been granted him, referring always to the original concession—andas all grants on the river were bounded by it, there was no occasion for any other expression in the sale, than that which was used in the original grant. So that whenever the grantee from the crown sold the whole of his grant, or dividing it into any determinate number of acres front, conveyed it by the general term so many acres front to the river or so many acres front, or even so many acres without expressing front at all, if his deed gave no boundary, referred to no new plan and made no calculation of the superficial contents, the purchaser would take the number of front acres expressed on the margin of the river. And this on account of the reference (either expressed or implied) to the original concession which went there—-not by vir< *45tue of the term front to the river, but because of J 5 ⅜ the known situation of the land which the deed purports to convey.

But when the srantor first shews his intention ° of selling distinct and definite portions of his original grant, in the shape of town lots : and departing from the terms of that original grant refers to another plan, whereby he describes the portion he intends to sell, as contained within certain lines, and, calculates the proportion of the concession which he means to sell by a certain number of square toises ; and more especially when he negatives the implied boundary on the river, by expressing in the process verbal, that that boundary it1 the road ; in such a case, to say that the grant wasifbounded by the river, would be to say that a slight presumption should contradict positive proof—or rather it would be to shirt our ears against positive proof, in order to admit a presumption that could exist only in the absence of such proof. For instance, when the grantee sells his original grant without any reserve or any reference to a new boundary, he shall be presumed to have sold in its full extent to the water’s edge. But where he sells with a reference to such new boundary or to a plan operating as such, the presumptive proof does not exist, because it can only exist where the party has given no expression of his will on that point. See *46the distinction between a sale ad mensuram and one ad corpus. 2 Covarrubias, 3, n. 3, 4 passim.

With one other remark, I close my observations on this head.

It appears to me, that the terms front to the river are used in all the deeds, as well of concession as of sale, to designate the breadth of the land on the side nearest the river, not to shew that the river is the boundary.—In order to prove this, look not only at the sale now before the court, but all the grants and sales, without a single exception, contained in the books of records. And we shall find that the land is never described as being a piece of land lying face au'fleuve, containing so many acres ; but always a piece of land containing so many acres of front to the river or of front alone—preserving the same phrase, both in the French and Spanish grants. Tant d’ar-pents de face or de face au fleuve—tantos arpa-nes de frente or de frente al rio.

The whole phrase evidently intended to mark, not the extension of the lands towards the river, but that which they have in a rectangular direction to that extent, that is to say in breadth.

The words in question, therefore, neither in their original or common acceptation, nor in the sense given to them by witnesses, can be so construed as to designate a boundary, still less ⅜? *47to have the magic power of overleaping those which nature and the stipulation of the parties had fixed-

But it is said, that I ought not to draw this conclusion, because on a former occasion I admitted and argued for the construction put on these words now by the plaintiff.—If this were true, I do not well see how it would avail him; if the counsel suppose that the same argument which they use with so much ingenuity, would derive any additional weight from the mode in which I have formerly urged it, they have surely too much modesty ; and they have too little, if they think themselves capable of convincing the court, that I have used them.

In the publications which they quote, I was combating not only the claim of the United States, but also all the others made against my title, and among others the very one which they now prosecute. I should then ill deserve not only the compliments which they have been pleased to pay, but even a reputation for common understanding and a regard for truth, as I understand, it, if I had used that argument in the unqualified sense in which they now do—I have made it a principle in this controversy, from its commencement to assert no fact that I did not believe, and to use no argument that I supposed irrelevant or unsound; and to an undeviating adherence to *48ru^e I think-I owe the success,, that in spite of oppression, violence, persecution, slander and delay, has attended, and I hope, will attend my efforts to resist them. A reference to the pas- * sages quoted will shew the extent of my former argument, and that it is precisely that which I now use. Rep. of the batture case, 17 Sc 18 is. cited. And what is the position there, as laid down by the witnesses? Precisely that for which I now contend : that lands on the Mississippit would pass to the water’s edge, by the general words face or face au fleuae, provided the deed did not express some other line of boundary.

But never could I so far forget what is due to truth and sound argument, as to say, that although the deed gives or refers to another boundary, or its establishment appears to have been the intent of the parties, that these words would yet carry the grantee beyond such boundary to the river ; in other words, that because by grant, I may convey the whole or any part of my property extending to the river, that yet, if I use those general terms, I cannot by any precaution I may take, or the use of any other phrase so restrict them as to carry into effect my intent of giving a limit towards the river.

Is the intent to establish such boundary appa rent, in the case before the court ?

I think most clearly, from several concurrent. *49circumstances, either of which would be sufficient to establish it:

Because, at the time of making the deed, there was a parcel of land, already formed between the levee and the river, which the length of the side lines given by the deed will not include; and which, if included in the conveyance, would give more than treble the contents, calculated by the deed. It is not very easy to suppose then, that the vendor intended to convey, or the vendee to purchase, a different quantity, contained in totally different lines from those expressed in the contract.

This difficulty is got rid of, by denying the existence of the alluvial soil at the time of the sale ; and by saying that, if it existed, it was of no value.

Its existence, however, is proved by its being designated on maps made by a sworn officer, prior to the time of sale, and one of those maps signed by the grantee and made at his request.

These proofs, the defendant supposed, were so conclusive that he did not think proper to give any parol testimony on the subject. And, indeed, he took the opinion of the court below on the legality of the plaintiff’s being allowed to gainsay by parol evidence, the written proof contained in the plan, which was introduced by the plaintiff and was admitted by the defendant, as a copy of the *50one signed by Poeyfarré and referred to in the deed : the exception was not taken to the plain. tiif’s being allowed to prove the height of the bat-ture, but to his being allowed to disprove its ex* ¡sfence, as witnesses have attempted to do.

Its non-existence is sworn to, by two witnesses evidently biassed by their having been—one the proprietor of the lot now held by B. Morgan, the other, of a lot similarly situated ; both swearing to a fact, which could not have existed (if it were ever true) at the time to which they refer it, that’s to say, that there was fifteen feet of water, at the foot of the levee—a thing utterly impossible, if there were any batture at all, as is expressed in the maps, or even the commencement of one, according to their other witness, Mr. Cai-sergue.

I will not stop to compare the relative weight of the testimony, on this point. The reasons for preferring the written, and even concluding the plaintiff by the signature of the person under whom he claims, are too obvious for me to doubt of the decision of the court. But, the report of the case of Gravier against the corporation, having been repeatedly referred to by the plaintiff, perhaps I may be permitted to use it, so far as to shew three things :

1. That the title of the front proprietors was set up as a bar to the plaintiff, in that case.

*512. That the existence of the batture was then proved and admitted.

3. That its existence was recognized by the court, and made the ground work of their decision.

As to the objection that is drawn from the small value or extent of the batture, it appears to me, too loose to be admitted in a legal discussion. This argument has more than once been used and published : a word is sufficient to refute it—I grant to you a square of 100 feet of land, containing 10,000 superficial feet. I have as much more lying between this square and the river ; you tell me it is included in your grant, because I am mistaken as to the quantity, there being in truth only 5000 square feet, because it is of little or no value, and because I did not improve it.—To this I have a short reply, whether there is much or little, there is something. That something I did not convey to you, it is therefore mine. If it was not of sufficient value for me to keep, it was not of sufficient value for you to buy ; and my property is not the less my property, because I do not choose, or cannot afford to improve it.

The existence, therefore, of this property between the lot sold and the river, which could not be included in the length given to the side lines is fully proved, and so one reason, and in itself a *52sufficient one, to negative the construction of” its 1 & going to the river.

The second circumstance attending the sale, to shew that the establishment of a front boundary line was intended, is,

That the vendor had prior to the sale, caused a plan to be made for the division of a part of his land, into town lots; of which lots the trapezium in question formed one, and was designated as no. 7-That it is particularly referred to, as being to be sold as it stood under fence, avec ses entourages, and that the front line of this, as well as the other lots, coincides with the line of the public road which runs in front of it.

It is admitted, that if the conveyance to Poey-farré had been of a lot in an established town, the words used in it would not bound the grantee on the water. I wanted no admission to prove this, and if any other evidence was wanted to prove it, than the plain dictates of common sense, we should find it in the grant which is made to one Winter, in the register of the land office, where the same general word frente is used, which would carry him according to the plaintiff’s construction to the river: we should find it in the map of the lots on Royal street, which are designated as frente al riot and in all the title deeds of the lots on Levee street, some of which have *53been before this court in the case of Blanc— in all these cases, the property being town lots, and reference either express or implied to the plan of the city, caused them to be considered as limited lots.

Now, is there any difference in this respect, between a sale made by the proprietor of a lot situate on Levee street, between Blanc’s lot and the Custom-house, in a town laid out one hundred years ago, and a sale made by Gravier of a lot opposite his batture, in a town which he had just laid out ? In the first case, the seller may convey his lot front to the river, and yet the purchaser cannot get possession of the land between Levee street and the levee ; nor can he sue him for the loss of it—why ? Because the presumption that the words face or face au Jleuve intended to convey to the river, cannot arise in the conveyance of a town lot ; because that lot is given by precise admeasurement on all sides, and because the public street forms an impediment to the passage of the lines across it.

All the reasons apply in the case of Gravier’s sale.—His plan was made out previous to the sale, it was done by a public officer ; and we find it with his certificate of its accuracy in the public archives of this city. As to all questions between Gravier and the purchasers of his 10⅛, it has the same effect as the plan of the city had, *54between the Mississippi company who laid it out, and purchasers of lots in the city.

The same consequences must follow a pur» chaser in both cases, and the lot in Gravier’s town is as much a limited lot, and for the same reasons, as a lot in the city, established by the company and afterwards taken by the crown.

But, I am the greatest blunderer in the world ; I am eternally furnishing, in the same cause, arguments and authorities against myself. I must submit to this reflection, or I must shew that the plaintiff’s counsel have been drawn, by a cruel dearth of argument, and authority applicable to their cause, to make use of such as, like the jest that was spoiled in the repetition, were very good when they heard them, but are perfectly flat and stale in the mouth of my adversaries, because they are perfectly inapplicable to their cause.

In the controversy between Gravier and the city, the latter claimed the batture on this, among other grounds ; that it was appurtenant to a city and that, when Gravier erected his farm into a city, that very act, like the hocus pocus words frente al rio, vested the batture in the corporate power, wherever it resided of that city. To this I answered, that Gravier though he could divide his land into town lots and sell them as such, could not, without the consent of the king, make a city or create any such corporate power; which *55it was contended (and, I thought, some what absurdly) would deprive him, without his consent of his property, and I cited the law to this effect.

Now, I cannot well perceive, how this argument or this law can meet me, when I try to establish no privilege or corporate right; but only contend that the division, which a master makes of his property, shall bind the purchaser as well as himself; and that when he lays out his lots by his plan upon streets, those lots shall be forced to keep quiet there, and not, by the aid of a talis-manic word, fly over streets, ditches and dikes, to the river.

A third proof to shew the establishment of a front boundary is the calculation, made of the superficial contents. This operation must be utterly impossible, without giving the length oí the side lines, if they go to the river; and even then extremely difficult, if the sinuosities of the water line are to be the boundary.

This is so conclusive an argument, that there are authorities to shew that the single circumstance of a sale by superficial measure, turns a piece of land into an ager limitatux, which is actually bounded on the water; and which, but for this circumstance would have enjoyed the right of alluvion. I was not fortunate enough to discover how the authorities, cited below, could e *56applied to this part of the argument; and yet, the counsel seemed to think, and, I believe, asserted very positively, that they were unanswerable.

These authorities were, from Pothier and other authors, that there were two modes of describing the thing sold. One'by the acre, in which the vendor says, “ I sell so many acres, in such a field, at so much the acre.” The other, in which he says, “ I sell a field under such boundaries, containing so many acres, for a certain gross sum.” That, in the first case, if the field contain more acres than is calculated, the buyer must pay for the excess—but in the latter case, he will enjoy such excess, if there be any, with the rest without any augmentation of price. Now, all this is sound sense and good law : and if there had been more square toises contained in the trapezium, than is calculated by the deed, and Gravier had sued for the surplus, this doctrine and these authorities would apply.

But I seriously repeat, that I know nothow they can be brought to bear against the argument that a true calculation of the contents, shews the intent of the parties to limit the purchase to the land contained within the lines—if their authorities are applicable at all, they shew that in the second case put, of the sale of a field under certain limits, the intent of the parties was to sell what was contained in those limits, but no more ; if it *57exceeded the quantity calculated, so much the ^ J ... better for the purchaser. But nothing in either of the cases shews that the purchaser would have a right to go beyond the limits, to look for any deficiency in the calculation 5 he would have a right to a deduction, if he had not paid, or a restoration pro rata, if he had- Here Poeyfarré does not complain that the trapezium did not contain the quantity specified in the deed : therefore, having got all he stipulated to receive, he can look no further.

The existence of a public road is an untrover-tible proof, that the front line of this trapezium was intended as a line of boundary.

Not only the use, but the soil, of the public road is vested in the public ; this has been decided after a solemn argument, and confirmed after greater efforts to shake the decision, than were ever made in this court. Renthorp al. vs. Bourg £s? al. 4 Martin, 97.

The king then, at the time of the grant, owned the soil of a strip of land, of 40 feet wide, running between the river and the trapezium sold. Gravier then could not sell the road, but if he had designed to sell what lay between it and the river, the land sold would have consisted of two parcels: one, that which we acknowledge was sold, lying within the levee and road ; another, *58which the plaintiff claims, lying? without. But 1 J ° the deed speaks of but one, and the full contents 0f acres sold are found in this one : therefore but one was intended. In sales per mensuram, ff, 28,6, 7, § 1, what is sold ought to run into the measure of the land, unless the contrary be agreed, but, what cannot be measured, as public ways, lines of boundary and hedges, must be expressly mentioned by the seller, if the intention be to con. vey them—but, if nothing is said about them, they are not presumed to be sold—therefore, it is usual to provide expressly that the hedges and public ways, which are in the premises shall be measured. 2 Hulot, 596.

To remove this difficulty, recourse is again had to parol proof, and we are told that the testimony of the surveyors informs us that, in making the survey of lands bounded on the river, the extent of front is measured on a line, drawn at right angles to the sides, at some short distance from the river, and on this foundation they reason thus :—AH the lands surveyed on the river have their front extent, measured on a line, called a line of admeasurement, or ligne de conduite, drawn within the road. This line is never considered as a line of boundary. The lot in question has a line drawn across its front, within the road ; therefore, that line is a line of admeasurement, therefore it is not a line of boundary, *59and by virtue of the face an Jleuve, the lot must go to the river, which was to be demonstrated, This may be very good reasoning, but at the risque of being said to utter gross nonsense (which I take to be the translation of a phrase that was used, retracted, and then repeated) I must take the liberty to controvert and, which is worse perhaps, have the temerity to refute it.

All the lands, bounded on the river, have their fronts measured on a line drawn, at right angles, from one of the side lines to the other. Why ? Because the measurement, if made on the natural boundary (the river) would never, on account of its sinuosities, give the true extent. And indeed, such a line could never be accurately drawn ; for it varies almost every hour, as the water in the river rises or falls, or is agitated by the winds. There is, therefore, a physical necessity, as well as propriety, in measuring the extent on some other line than that of the natural boundary, where the lands border on the river.

But in a regular figure, bounded by four lines, the line of admeasurement and the line of boundary is the same; or, in other words, the measurement is made on the line of boundary.

To exemplify this, look at all the plans of land, copied in the register book in evidence. In all those that are bounded by the river, the line of measurement being, as I have shewn, necessarily *60different from tire line of boundary, that line is expressed by a succession of dots, while the side ^nes> a°d that the rear> which are really line8 of boundary, are designated by a strong black line, and those of the sides are continued to the river. On the contrary, in the same book in all plans which represent town lots (such as lots in New Orleans, in Galvestown and elsewhere, where lands are granted by superficial measure) the whole are enclosed by the same black lines on which also the distances are marked—a striking example of this, is in the concession to De-cuir, at Fausse Riviere, page — of the register, for a certain number of superficial acres. He is bounded by the bank and not by the river. Consequently he stops, when he arrives at the bank ; a black line is drawn as his front boundary, on which the distance is marked, and the calculation is made, on the plan, of the contents in square acres. But on every plan of a concession of land, really bounded on the river, there is besides the line of admeasurement (expressed as I have said, by dots) a real line of boundary, which is the marginal line of the river, which, by the extension of the side lines to it, shuts it in, and encloses the tract. But, in the case before the court, the front lines being certain and unvariable, not depending on the situation of the river, there was tio occasion for any other line of admeasurement ¡ *61and the extent of the front is accordingly measured on it.

The parol proof of the surveyor, therefore, will not avail the plaintiff, on this occasion, more than it has done on others. But I invite the attention of the court to it, as strongly supporting the arguments I have used.

My own arguments, on a former occasion, are again pressed into the service of the plaintiff here. But those arguments will be found to differ in no one point from those I now use. I then stated, and now state, that in lands bounded on the river, there was a line of admeasurement distinct from the natural line of boundary, which line of ad-measurement, my then adversaries wished to change into a line of boundary,—I should, indeed, have changed sides, had I now contended that on a plan, where these two lines are laid down, the inner one should be the boundary— but, the facts do not warrant either me or the plaintiff to say so. Here is but one line ; and of course that line is both the line of boundary and admeasurement.—I may be permitted to remark that this mode of quoting my arguments on former occasions, is not extremely forensic. Lawyers, from a sense of mutual liability to attack, seem to have entered into a tacit agreement, like the line of centinels in the land, or the top men in the pea, service, not to fire at each other.—>But I re*62peat, and I do it seriously, that here I am glad the course has been pursued, not because it gives me an opportunity which I scorn to use, to retaliate on their client, but because I feel myself invulnerable to the charge of inconsistency ; and that, the more the court will do me the honor to attend to the whole course of my reasoning, on the former occasion, the more they will be convinced that I have never varied my ground.

Legal authority is next resorted to, to shew that the intervention of a public road is no proof that the land is not arcifinius, and not entitled to alluvion. The examination of these authorities will prove that there is less contradiction in this division of jurisprudence, than in any other; that one simple principle governs the whole ; and that, with a single exception, which I shall note, in every case, and under all circumstances the land bounded by the river, but no other, enjoys the right of alluvion. And that from the definition of the word, alluvion is the land added to your land by the imperceptible action of the water.—• The water can add nothing to property which it does not touch. Therefore, the land which touches the water, is the only land, that can be increased by alluvion—with this preliminary observation, let us examine the authorities cited on the subject of the intervening road.

*63The first is the case of T. Attius. ff. 31, 1, 23. —Titius Attius had a field on the public road, opposite to him on the other side of the road, was the field of L. Titus and then the river. The river, by degrees, eat away the land Lucius Titus, and afterwards the road itself, and came up to the land of Titius Attius. Attius then became the proprietor of the water’s edge. The river after this began again to recede by means of alluvion, that is by a new deposit in the place of the land it had swept away, and gained nearly its former position—here the question arose : who shall have this new increase ? T. Attius or L. Titus ? and what is to become of the ground over which the road ran ?—All this is decided in perfect conformity with the principles for which I contend. The use of the road returns to the public, or, as it is somewhat loosely expressed in the text, was gained by no one; because (as we learn from the conclusion of the case) it was a service due from the lands of Attius, and the land between the river and the road, instead of being declared the property of Titus, whose lands lay within the road—and whyall this ? Because, when the river had destroyed the land outside the road and the road itself, then Attius became the riparious proprietor, and whatever was added, belonged to him. No matter who had originally owned the soil, that had been swept, away by the river in the *64space now occupied by the alluvion. The use of the road returned to the public, for the very reason that it belonged to Attius ; because it was a service which was due from his lands. And the road formed no impediment to his gaining the alluvion between it and the river ; because, says the authority, “ the way was a part of his land.”

No case could be imagined better calculated to shew that the principles I contend for do not give way even to the claims of strong equity— and if Titus was not restored to the land which had arisen, in the very space which his former field occupied, it must be because there is no case, in which the land added by alluvion is not decreed to the owner of the unlimited soil, to which it is attached. But it also shews that, in order to gain this accession, nothing must intervene ; for, in this case, the road itself was first detroyed before the river came to the land of Attius ; and when it began to add, the addition was made to his soil.

The only other authority on this point is taken from Brillon, 280—-I have not the book before me to quote the very words, but 1 recollect that the reason, given for saying that the intervention of a road formed not impediment to the acquisition of alluvion, was that the soil of the road was the property of the owner of the adjoining land, in which the public had only a right of way. This *65Case then forms no exception to, but confirms, the 1 7 general rule : that, unless the accession be upon the very land of the claimant, incorporated with it without the intervention of any line, so as not to be distinguished from it, it cannot be deemed his property. This is done, in the case supposed by Britlon of an alluvion formed upon a road, which is my property, but which owes a service of way to the public—it retains its service over the usual breadth, but I acquire what is added, unincumbered with the service, because it is added to my soil.

But these cases, cannot, I think, be applied to establish a claim like the plaintiff’s—because he never was the proprietor of the road.

Because the road is public property and, if the alluvion had been formed even upon the road, it must have belonged to the king.

And, because the case is stronger here by the intervention not only of the road, but of other objects, the levee and the batture.

1 add an authority of the greatest weight on subjects of this nature : “ There is no reasonable “ foundation for the opinion that a public road « forms no impediment for the acquisition of “ alluvion ; unless it be private property -which ie owes a right of way to the public.” If any respect be paid to this high authority, and indeed to those produced by the plaintiff himself, we *66must believe that the intervention of a public road 4 would form (as reason and the definition of the term teach us) an impediment to the acquisition of land by alluvion. 2 Grotius 2, § 17.

To the same effect is the authority of Heinne-cius. Quod agro publico, vicev®. publica adjicitur publico cedere debet. Heineccius 1, 9, n. 54.

The same thing may be said of the intervention of the levee : even if that had alone stood between the property sold and the river. It is precisely the case, put by the authors just above cited, erf a piece of private ground, over which the public have a right of way, and where the alluvion is to be gained by him, who owns the very soil.

The same argument, that was used with respect to the batture already formed, is on this head repeated. That altho’ the lines and true contents of the trapezium are given, yet something more must be included in the grant than is expressed ; because that something is of too little value to be retained by the seller; because it is no advantage, but a burthen to him to keep it ; because he could not improve or use it and because (I may possibly have mistaken the counsel and if it is not relied on, I shall willingly believe that I have) because it was not susceptible of being considered as property,—all this was applied to the batture in its then state, to the levee and *67foad. Let us consider their weisrht as applicable „ ⅛ 11 to all.

It is a principle of law, that whatever is not given in a grant is retained. We want no other authority than the dictates a plain understanding to be convinced of this. I have the whole and give 19 999 parts of that whole, without saying any thing of the remaining ten thousandth part ¡ that portion, be it ever so small or insignificant, is still my property, because it requires all the parts to make the whole. It is admitted that, when Bertrand Gravier owned the whole plantation, he owned the levee subject to the use of the public as a tow path; and the plaintiff contends that the road also was not public property, but was held by the same tenure (for the sake of argument be it so) but, he sold a part of this plantation. If therefore the levee was the thousandth part in extent of the plantation, and Gravier had sold the 999 parts, by such boundaries as to exclude the remaining thousandth parts, that part would continue to be his, without any express reservation—because the right of pro-; perty supposes the right of disposing of it, in any manner his fancy may direct, even if that inode should be contrary to his interest.

If this be true in the supposed case of a sale of all but the levee, it is certainly much stronger, where the only sale in evidence is that of a very *68inconsiderable portion, compared to that of the whole farm. Out of 520 acres (13 by 40) the contents of the whole farm, the owner sells about 2 acres and a half, the residue, including road, levee and batture, not being conveyed, remains his. Now, of this residue why select the levee and the road, rather than the cypress sivamp, the prairies or any other part of the plantation, as included in the sale of the two and a half acres ? Because these objects are more convenient to him, than the others ? But their use is the only convenience they can afford him, and this use, we acknowledge, he in common with others had a right to. The soil itself, subject to this public use, is not of sufficient value to make it the subject of reservation—ffif so, I ask them seriously is it of sufficient value to make it the subject of sale—r if there rvas no motive in Gravier to reserve, was there any in Poeyfarré to buy ? I speak of the soil, not the use of the road and levee. If it was a burthen to Gravier to repair the road and make the levee, was it not equally so for the pur, chaser ? And if this burthen was so heavy as to make us presume that Gravier intended to sell these objects, aítho’ he has said nothing about them, was it not heavy enough to induce us to believe that Poeyfarré, who is equally silent on the subject, did not intend to take it upon him. self No, it is said: Poeyfarré had an interest *69in leaving the front of the lot open, and therefore he had a motive for intending to be the proprietor of the road a levee in front.

But then, the plaintiff must concede to me, that which no body but himself disputes, that the alluvion, formed on the levee and road, would belong to the owner of the soil of that levee and road ; no matter who owned the lot adjoining the road. Because unless he concedes this, his reason will not apply ; for no body could build on the levee and road, whether he himself owned the soil, or it was left in Gravier—but they could build on the batture ; therefore, if he had any motive for intending to become the owner of the levee and road, it must have been in the anticipation that a batture would be formed there, of sufficient height to build upon, which he wished to secure to himself, by becoming the owner of the soil of the levee and road,—if then Poeyfarré could anticipate that a batture would be formed jn the 15 feet of water, their witnesses speak of, or that the incipient one then shewing itself, as they alledge, would increase to be reclaimed and to be improved by buildings, that would shut out his view from the river : if Poeyfarré could foresee this, and the probability of the event was so great as to make us suppose that he did foresee jt, and did intend to buy the road and levee, where is the absurdity in supposing that Gravier *70C0U^ i°°k and did look as far into futurity as Poeyfarré, and had as strong an interest to retain, as Poeyfarré had to buy these objects—Yet the gentlemen who made a solemn abjuration of all false reasoning and declamation, these very gentlemen consider it as a sound argument to say that, their cause could rest on the absurdity of supposing that Gravier could, and that Poeyfarré could not, intend to be the proprietor of the levee, with a view to the formation of the batture ; these very gentlemen, in the district court, exhausted themselves in sounding the bathos of oratory to find opprobrious epithets and contemptuous terms, as applied to the levee and the batture. The one was a miserable strip of worthless land ; the other a heap of filthy mud, too worthless to be improved, too insignificant to become the object of property, too vile in short to be named.—* Therefore, Gravier never intended to reserve this insignificant non entity (for they absolutely tell us it is nothing, unconnected with the rest of his farm)—to this I answer : first that he does not appear to have retained it, unconnected and distinct from the rest of his farm. When this sale was made he held all the rest of the plantation (except the trapezium) of which plantation the levee and the batture formed a part, he was interested to keep up the levee and obliged to do it for the preservation of the unsold land on the road and *71all that lay back ; some of it in the rear of this J _ narrow lot which he had sold.—And even though he had the intention of selling all the lots on the road, as appears from the map, yet he continued to be interested in keeping up the levee to preserve that part of the plantation, which being the lowest would most suffer from a crevasse ; and of which his heir is still the owner.—It is objected (and this appeared to me a favourite argument with the plaintiff’s counsel) that the proprietor of a plantation might by selling it in distinct portions, and bounding it on the road, render it doubtful who was under the obligation of making the levee, while he received the advantage of any alluvion that might be formed; this is an inconvenience ; and the legislature by applying a remedy have shewn that the inconvenience might legally exist. By a law passed 23d March 1810, 2 Martin's Digest, 592, it is enacted that where a plantation, not within an incorporated town, shall be laid out into lots, then each lot shall pay pro rato vatoris for the making of the levee and road. This court need not therefore legislate, as the gentlemen seem to think they ought, in order to remedy this evil.

I think, however, that this intent, even if we could plainly discover it, would be of but little avail unless it were expressed in the deed ; and all Í have said, on this subject, must be set down *72⅜0 a determination, in this cause so important to . r my fortune, that nothing should be left unanswered. Unless example be an excuse, then I shall have none : because if it is irregular to look for intent, when none is expressed, in the act, how much more so, to seek intent contrary to what is plainly and manifestly expressed ? For independent of the five reasons 1 have given to shew that the parties intended to establish a line between the trapezium and the river, the last I shall use, is, I think, conclusive—-it is no less than,

The clear and unequivocal declaration of the parties that the trapezium, even altho’ it should be ''front to the river f should be bounded on that side by the public road.

The expressions in the deed to describe the land granted are in the original, s-un pedazo de “ tierra, formando un trapezia, situado fuera de “ la puerta de Capitulas, compuesto de 415 pies “ de tierra de frente al rio ; de 188 pies de pro- “ fundidad por el lado de la ciudad; de 411 ®e pies y quatro pulgadas del lado del jardin de “ los vendedores ; y por el lado de arriba, de <( 229 pies y ocho pulgadas. El todo forma “ dos mil tres cientos ochenta y deis toises, “ quatro pies y dies y seis pulgadas de tierra “ de superficie, como lo manifiesta el plan de *73“ Don Carlos Trudeau, agrimensor publico, “ de fecha nueve del corriente, que firmaron las “ partes, y quedo en poder del comprador.” Which I translate thus : “ a piece of land, forming a trapezium, situate without the Chapitou- “ las gate, composed of 415 feet of land, of front “ to the river ; 188 feet in depth, on the side of “ the city—411 feet 4 inches on the side of the garden of the sellers ; and on the upper side “ 229 feet 8 inches. The whole forms 2386 toi- “ ses 4 feet and 6 inches of superficies, as is “ shewn by the plan of Don Carlos Trudeau, “ public surveyor, dated the 9th instant, which “ the parties have signed, and which remains in u the power of the purchaser.”

The plaintiff has produced, in default of the original, a copy of the plan mentioned in the act of sale. This plan gives the lines of the trapezium, with the same distances and calculations of contents, as are mentioned in the deed : it lays down also the position of the trapezium, with respect to the road, batture and river in front; the bounds of the city on the side, and the garden of the sellers in the rear. Annexed to the survey is the process verbal made by the surveyor and admitted, as the court will see by the endorsement, to be a copy of the one signed by the parties, at the time of making the sale. This process verbal states first ; that the survey was made, at the *74fe<luest °f Poeyfarré. It then gives in writ. ing what is expressed by lines in the plan, “a piece of land, &c.”

The plaintiff feels that this decides the cause, and a struggle is made to shew that there is no reference to this plan, except for the purpose of shewing that the calculation of square contents was really made by Mr. Trudeau—that the words como lo manifesto, el plan, as is shewn by the plan, relate to nothing more than the words immediately preceding them, to wit: the calculation of contents.

If so, it must strike every one as somewhat surprising that a copy of the plan and process verbal should be made ; that it should be referred to in the deed, that the solemnity of signing it, by the parties, should be gone through for a purpose that was utterly useless. The land, in the deed, is said to be a trapezium and the exact length of each of the four lines is given.—Now we want no plan to demonstrate whether the calculation of the contents be true or false—the plan cannot aid us in the least in that calculation. The geometrical part, to wit: the nature of the figure, whether square, triangle, &c. and the length of the lines being given, as they are in the deed, the rest is mere arithmetic ; and the error or accuracy of the calculation of the superficial contents may be better tested by a few figures, in the margin of *75the deed, than by all the plans that could be drawn. Besides, on this construction, the deed would assert what is not true. The deed says “ as is shewn by the plan.” But the plan does not shew that the trapezium contains so many square toi-ses ; it shews the length of the lines and the nature of the figure. The deed itself shewed the same thing. The plan has the sum of the contents written upon it, but does not shew the contents, it shews the surveyor’s calculation of them; so does the deed. In other words, it is impossible for any geometrical plan to shew the contents, merely by giving the outlines, and it can never be said to be shewn or manifested by the plan, unless on that plan the surveyor had traced out, on the interior, the number of square toises or feet commensurate with the actual contents ; which it is not pretended has been done in this case.—Therefore, the reference to the plan for the purpose of shewing the square contents would be useless, because already shewn by the deed ; ineffectual, because not done geometrically by the plan—besides, if the intent was to refer to the authority of the surveyor general, for the precise contents, the reference would not have been to the plan, but to the calculation (if any reference at all was necessary) and they would simply have said, as is ascertained . by the surveyor general who has calculated the same, But a rule of con*76struct*on *s given us, taken from Pothier on Obligations, no. 102, which, if it had occurred to me, I should have used in my favour, without the slightest suspicion that it could be turned against me.

“ What is at the end of a phrase,” says Po-thier, generally refers to the whole phrase and “ not to that only which immediately precedes “ it; provided, nevertheless, that this end of the “ phrase agree, in gender and number, with the “ whole phrase.”

The end of the phrase is here, as appears by the plan, is'c. now in English, there could be, no doubt, that, according to Pothier’s rule, this would apply to the whole phrase, which begins with a description of the figure and extent of the thing sold, and continues immediately before the words of reference, with the calculation of contents; because, in English, the same expression as appears, or more literally, as it is made manifest by the plan, &V. would have been used, had there been one or many previous numbers to the phrase. Does the Spanish language require a different construction ? I think it can proved, as well by example as reason, that it does not—como lo manifesto—“ /o,” here is the pronoun relative of the neuter gender which is used, as is also lo quef when there are various antecedents; as in the following examples : habiendo sido antes blasfemo v *77 perseguidor y injuriador; mas fue recibido a mise-ricordia, por que lo hice con ignorancia—lo, here refers plainly to all the antecedents blasfemo, perseguidor, &⅛. Epistol Pablo a Timotheo. 1, 13* And clearly not to the last injuriador only ; and. is used in the same sense as lo quel, which, as is also in the following example, “ pues dixo el “ cura, tomad, señora ama, abrid esa ventana 5£ echadle al curral, y de principio al monton de “la hoguera que se hade hacer; hiso/o asi el '* ama, 8? ” “ lo'’ here again, without dispute, agrees with and refers to all the different things, directed to be done in the preceding phrase, and not to the last of them only ; so again in the very act of sale, under consideration. En precio de quatro mil pesos fuertes del cuno mexicano, que nos ha pagado de contado ; de cuya cantidad nos damos por entregada a nuestra voluntad, y por no ser de presente la entrega, renunciamos, &fc. y otorgamos formal recito, mediante lo quel nos apartamos.

In means whereof (mediante loquel) of what ? Of the renunciation, the receipt of the payment the parties transfer their property : lo quel here agreeing with and referring to all these antecedents and not to the last of them only—lo or lo quel then, as far as 1 have been able to discover, from my own research, or from the information of per*78sons better acquainted with the language, answers precisely to our English relative, which.

Suppose, in a history of the late war, the author in giving an account of the battle of New-Orleans, in describing the position of the American army, should say : “ general Jackson’s line on “ the left bank, extended from the river to the “ wood, with a redoubt on the right next the ri- “ ver. The line was nearly at right angles with {i the river, and straight, until it came to the “ wood, where it receded by a very obtuse angle. ⅛< There were four batteries advantageously pla- “ ced, at unequal distances from each other. The ic first at six toises from the river ; the second at il twenty, the third towards the middle of the line: s‘ the whole being 816 toises in length, as ap~ ⅛< pears or (to come nearer the Spanish phrase) as is made manifest by an accurate plan made by Si major Latour, to which I refer.” Would one reader, in ten thousand, imagine that the reference was made merely to shew the length of the line, which the author could better do in words ; and not to shew the angles and position of the redoubts and batteries, of which no words would give an accurate idea. Now, translate this passage into Spanish; and though, perhaps, different phrases might be used by different people, to render the sense of the words of reference, yet I am greatly mistaken if those, used in the deed, *79 u como lo manifesto el plan,” would not be deem-J 1 ed the most natural.

I have been forced into this verbal discussion, by the manner in which my construction of this part of the deed was treated. It was pronounced to be gross nonsense ; and this epithet, or an equivalent one, in the language in which the counsel addressed the court, was supposed to be a sufficient refutation. His good sense and urbanity, however, rather than the notice I took of it, induced him to acknowledge its impropriety, and he attempted a refutation by argument, rather than invective. Whether he succeeded so much to his own satisfaction, in this attempt, as to be convinced that the opprobrious terms, he had pa* plied to my unfortunate arguments, were the only ones they deserved ; or whether, sensible of his own failure, he found it easier to stigmatize than confute, I cannnot tell: but certain it is, that he ended where he began, by repeating the phrase. Independent, however, of grammatical construction, and supposing that even to be against me, the intent of the parties is apparent, not only from the consideration that the reference for the contents only would have been useless and ineffectual, as I think I have shewn, but also because a general reference was useful, and even necessary to the understanding of the deed.

I have already shewn, by the form of conces*80sions, both French and Spanish, that the precise . . „ , \ , ’ , ,. ^ situation of the land could only be discerned from the plan, never, or very rarely, from the grant itself —The same practice seems to have prevailed in private deeds, but whether generally or not, it is clear, that it has been adopted in this. —Forall the expressions, relative to the boundary lines, are evidently intended to describe their extent and situation, with respect to each other only ; leaving the position of the whole lot, in relation to other objects, or its situation and boundaries, to be settled by a reference to the plan. Thus we find, in the deed, no other description, than that the land lies outside the Chapitoulas gate ; its front towards the river ; one side towards town ; the rear on the side towards the garden; and the other side has no other description than that of the upper line. But at what distance is the lower line from the town ? How far is the rear from the garden ? Where is the upper line ? And what is the distance between the front line and the river ? None of these questions are answered by the deed, and all of them are necessary to give it validity. For, no one could locate the land, but for the reference to the plan, where all is satisfactorily explained. The garden is given as the rear, the road as the front boundary, and the interval between the lower line is distinctly marked.

Thus, I think, I have shewn (as well from *81grammatical construction, as from the evident ? . intent of the parties extracted from what they have said in the deed) that the reference to the plan is in order to render that certain, which the deed had left doubtful.

But it is said (for I will leave nothing unanswered) that, if the reference to the plan be admitted, it will contradict the deed ; and that this shall not be permitted, even admitting the premises. If it be acknowledged that the deed refers to the plan, for what purpose is such reference made ? Clearly for “ greater certainty which phrase is sometimes expressed but is always understood. If the plan then contain greater certainty, it must and ought to control the deed which has less. And, when the object is boundaries, position of lines, and the relative situation of land to surrounding objects, no one can doubt that a plan, from its nature, is more certain than a deed can be. Therefore, if there were a contradiction between the boundaries, as expressed in the deed and the plan, the deed must yield, as being the less certain of the two.—But here, there is no contradiction ; there can be none. —For this plain reason : the deed gives no precise boundaries, and all, of the general terms, it contains, are consistent with the more precise description contained in the plan—it is in the plan situate outside of the Chapitoulas gate, although *82tiie interval between it and the city is laid down» . . " The lower line on the side of the city, although its position, with respect to the city, is described. The rear is still on the side towards the garden ; though the plan tells us that the garden is the boundary, and the front is still to the river, altho* the plan tells us it is bounded by the road.

There is then no contradiction between the act and the plan—if then the plan be generally referred to by the deed, I must consider all controversy, as to the boundary of the lot, at one end; for, in as express terms as language can afford, that boundary is declared affirmatively to be the road ; and the river is as expressly declared not to be the boundary, by the interposition of the several objects of the road and the levee, between it and the lot, not only by the surveyor, who laid out the lot, and made the plan, but by both the contracting parties, who signed it.

But the survey, it is said, was made some days before the sale. It was: and I think it would have been extraordinary, if that operation had not been performed some time before, because in order to determine the price it seems reasonable, that the extent should be known—and what in. ference is drawn from this ? Why, that though Poeyfarré caused the lot to be surveyed, as being bounded by the road, with a view to the purchase, on the 9th of February; he might before the 27th *83Save changed his mind, and determined to purchase with the river as his boundary—he might so : but would he, when he passed the act, have referred to the plan, bounding him on the road ? Would he have signed that plan ? Would he not have made some more precise expression of his change of intent, than the insertion of the loose expressions frente al rio ?

Having discussed the plaintiff’s first positions “ that the sale to Poeyfarré, was bounded by the river,” and urged the reasons which induce me to believe, that he has totally failed to establish it; let us examine another question, no less essential to his success, even if the first should be decided in his favour. “ Did Poeyfarré when s‘he conveyed to Bailly, under whom the plaintiff claims, give him the river as a boundary ?”

He claims under two deeds, the first from Po-eyfarré of which the description words are “ a lot “ (a terreno) belonging to me, situate out of the “ city, consisting of (compuesto) sixty feet of “ front, and one hundred and eighty in depth st conformably to the figurative plan of Don Car-st los Trudeau, public surveyor of this city, bounded on one side by land of the seller, and “ on the other by those of Bertrand Gravier” and then recites that it was part of the land he bought from B. Gravier and his wife, by the deed *84we have examined ; but does not, as is untruly stated in the petition, convey in all respects as the same had been by him acquired.

The second deed to Bailly is not produced, but is recited in his deed to Morgan. It is no otherwise material than to shew why the deed from Gravier to Poeyfarré, and that from Poeyfarré to Bailiy, bei g now a corner lot, are stated to be bounded on both sides by land of the grantor, B. Gravier, There was, until Bailly purchased it from Gravier, a triangular strip of land, running to a point in the high road, and having a base on the rear of 14 feet, which at the time of Poeyfarré and Bailly’s purchase, separated the lot of the former, from Gravier street —The sale fr m Poeyfarré, there» fore, is the only material one in this enquiry—as we have seen, it is described by a lot (terreno) not a word is said of the river, it consists of 60 feet front, without telling us where that front is ; and it has a reference to the plan which takes away the quibble that was raised on the other: it is, con. forme al plan. The reference here, then is not for the calculation of the contents, because— there is none. It is then to render the loose ex. pressions of the deed more certain—What plan ? Clearly the one signed by Poeyfarré and Gravier, at the time of the former purchase. That plan, gives the road as the boundary. Poeyfarré then *85bounds Bailly on the road by this reference. And he does more : he shews most unequivocally that this plan was intended to shew that the road was his own boundary ; for, he could not refer Bailly to this plan for a boundary, if it had been intended, merely to shew the square contents of his land. Poeyfarré then, by this practical construction, not only shews his intent to bind Bailly by the road, but also, that it was his own boundary, and that the fine spun idea of the reference to elucidate the calculation, never entered into the minds of the contracting parties.—It is worthy of remark here, that Poeyfarré, who best knew the intent with which he purchased, does not appear to have claimed any part of the batture, opposite to the residue of his trapezium ; but, that this suit should be first instituted, after a lapse of near thirty years, by one who became the proprietor of a smad part only, three years ago.

Here ends the discussion of the material fact in this case ; “ the boundary of the land.” If they have proved that boundary to be the river, they are entitled to the increase by an alluvion, unless the sale by the square toise should make it a limited field : a question that will be presently considered—if, on the contrary, the result should be, that their boundary is not the river, it would seem, necessarily to follow, from the nature of the claim, that they are not entitled to *86increase. But, on the trial of this cause, I ’ have first heard it asserted, “that land not bound-e,ed foy tjje water) [jut having other boundaries (( which separate it from the edge of the water, “ may yet be entitled to the alluvion.”

“ That .the lot in question, bounded by a road “which is public property, separated from the 5! water, not only by the road, but by a levee, and “ another parcel of land, which was already form- “ ed by alluvion—when that lot was sold, should “ carry with it, as an appurtenance, the land then “ formed and all which has accrued since.”

The act of sale gives the land with its entra-das, y salidas, derechos, usos y costumbres The English terms we should use, in common parlance, to translate these words, will each of them give a correspondent legal meaning : ingresses, egresses, rights, uses and customs—Can any of these give a right to a detached part of the grantor’s property, never used with this particular part, which is conveyed, not necessary to the enjoyment of it, and not mentioned or alluded to in the act of sale ? The ingresses and egresses, are given by the front boundary7 on the road. Rights feo nomineJ will convey nothing but such as shall be proved to be attached to the soil ; such as a. right of way, &c. but to give effect to this the right of servitude must be proved, and then it will pass under the general word rights—it is not *87sufficient to say : a servitude is a right; rights are given me, therefore, I am entitled to the servitude. This species of logic will surely not carry conviction ; and yet this rather worse is attempted in the present case. It is first assumed, contrary to the fact, and even inserted in the petition, that the lot was conveyed with its appurtenances, (meaning, 1 suppose, that it was so expressed in the act) whereas no such word appears in the deed. The reasoning is such as might be expected from such a foundation.— This is the abstract: “we are entitled to the ap- “ purtenances, alluvion is an appurtenance; there- “ fore we are entitled to the alluvion.” But, gentlemen, admitting the land is conveyed with its appurtenances, and that alluvion is an accessary, which I deny ; you do nothing unless you shew it to be an appurtenance of this particular lot. How do you prove this ? Why, they prove it by again repeating that they go to the river ; but that account we have already settled. If you go there, I acknowledge that without your doctrine of appurtenances or accessories, you are entitled to it. If you do not go there, prove that it is an accessory in some other way.—But to this we can get no other answer than the old one ; “ that allu- “ vion is an accessory ; that they are entitled to “ the accessory, therefore, they are entitled to t( alluvion.”

*88But, the truth is that alluvion, in the sense they use the word, land gained by alluvion, is not an ap. purtenance—the right of profiting by alluvion is appurtenant to lands bordered by the water which causes the increase. But, when the increase has taken place, that increase is no appurtenance to, it is incorporated with, the original field, and becomes a part of, not a right appurte. nant to it.

Incrementum latens alluvionis nobis acquiritur eojure quo ager augmentatus primum ad nos pcr-tinebat, nec istud incrementum censitur novus ager sed pars primi. Dumoul. Com. art. 1. (5) no. 115. Febrero. (Contratos l. 10 § 2 n. 81 J The authority cited by the plaintiff, tells us the same thing, in the same sentence with that quoted, to shew that it is an accessory : sigue la naturaleza del fundo, aque se agregua y sc tiene por uno mismo.

Denisart, tit. alluvion, no. 5 & 5 is to the same point. U augmentation qui nous arrive dans un héritage par alluvion, est une seule et mime chose avec ^heritage accru—fundus fundo, accresscit sicut portio portioni.

Encyclopédie. Alluvion is an increase, &c. “ which becomes so consolidated with the conti-4< guous land, that it forms a whole with it an 5t identity.

If, “ the portion of land thus added, is not con- *89“ sidered as new land; it is a part of the old, “ which becomes possessed of the same quali- “ ties, and it belongs to the same master, in the “ same manner, as the growth of a tree forms part “ of the tree, and is the property of the master of “ the tree.”

I might multiply these quotations without end, but enough have been made, to shew that there is no question as to the nature of this property, when once formed. That it is an integral part of the original field, and therefore, no accessory, appendage or appurtenance to it.—The very au* thor, relied on to shew it to be an accessory, clearly uses the word as applied to the right; because I have shewn he, in the same sentence, expresses the incorporation in very strong terms : se tiene, he says, por una mismo.

To prove that an integral part cannot be an accessory, or appurtenance, would seem an useless task.—But from the beginning of the controversy, relative to this property, through all its stages, during a period of thirteen years, and with all my adversaries, from Thomas Jefferson down to Benjamin Morgan, I have found first principles denied, and have been forced to undertake the demonstration of axioms. Therefore, (not be. cause I think it necessary to the conviction of the judges who are to decide, but to give myself the satisfaction of the nature of the ar*90guments that are used to deprive me of my property; I proceed to support by authority this almost self evident proposition.

Let us see what an accessory is. This word is not used, I think, as a substantive in English jurisprudence, except in the criminal law—-at our bar and particularly in this cause, it has been taken from the French accessoire, and used as synonimous with appurtenance. What is its definition ? Denisart, tit. accessoire. “ When one “ thing is united with another, upon which it de- “ pends, either by its origin, its nature or its use, “ the first is called the principal, the second the “ accessory, without any regard to their relative “ value. A thing is said to depend upon another “by its origin, when that thing has produced it “ by its nature, when it cannot exist when sepa- “ rated from it—and by its use, when it is desti- “ ned to ornament or be of service to it.”—Now, see whether land made by alluvion will square with either branch of this definition—it is, clearly, not produced by the original land (as are the examples he gives of trees, grass, &fc.) it is from its definition, produced by the water; and would be created if a stone wall, instead of the edge of the field, were the point at which the increase began.

It is not by nature so united, as not to exist if divided from the principal, as the rents are, which is the second example. The alluvial soil *91forms as perfect a lot, when divided from the prin-1 1 pal, as the principal itself does.

Nor lastly, is it destined for the use of the principal soil. Therefore, it comes within no branch of the definition, and is not an accessory—an acre of land in the east end of a field is no more an accessory or appurtenance, although it may have been formed by alluvion, than another acre in the west end, which was original soil: and it depends absolutely on the owner, in the one or the other case, to include it or not in the sale If the field contain 21 acres, including that formed by alluvion, and he sells by metes and bounds 20 acres, beginning at the west end, the alluvial land cannot be included, under the general description of appurtenances ; nor, if he sells in the same manner, beginning at the east end, will the acre at the west end pass.

See the examples of appurtenances, that are put by Denisart and by the 28, 29, 30 and 31 laws of the 5th partida, tit. 5. which have been quoted by the plaintiff, and we shall not find land gained by alluvion among any of them—land, thus gained, then cannot, with propriety be called an accessory or an appurtenance ; even when attached to the soil, the owner of which claims it. -—What shall we say to its being claimed as such, to a lot which is divided from it, by land belonging to the public, occupied as a road, and by a *92levee, belonging to the seller ? Really, the pretention is so extraordinary, that it seems to put a re-guiar refutation at defiance, and to deserve the short mode of reasoning, which was applied to my construction of the reference in the deed. If the plaintiff establishes his doctrine, that the al. luvial soil is an inseparable appurtenance to the owner of that on which it was formed, let him take care of his title, to that which he calls the principal : for that principal is itself alluvial, and the owners of the lots on St. Charles street, would have a right to claim ail between them and the river. On this head, however, I think I heard something like this reasoning.' “ The alluvion “ belongs to the riparious proprietor, who is op- “ posite to it. Poeyfarré is the riparious pro- “ prietor, because there is no proprietor between “ him and the river; therefore, he is entitled to “ the alluvion as an appurtenance. ” But the first position here is unfounded, the alluvion does not belong to the proprietor of the land which is opposite to it; but to the proprietor of the land on -which it is formed, to which it is added. The second position has been over and over refuted. There is no property without a proprietor ; the road is property : the levee is property : they both have owners. That owner is not Poeyfarré ; it is not pretended that he owns the road. And though they talk of the levee being an appurte» *93nance to their lot, yet they have failed to shew that it had a single feature of one. The batture, whether high or low, whether incipient (as they call it) or finished, was property, and had an owner and that owner was Gravier-—for it is surely idkMp say that it was not, then capable of being owml; it must either have existed or not. If it did not exist, it of course had no owner ; if it did, its height or extent is of no consequence. Is it not speaking in paradoxes to say that there is a thing, wffiich is so inconsiderable as to have no being ? When the river has formed a deposit annexed to my land, sufficient to raise its bed above the surface of the river “ in its natural “ state, when it is not swelled by rain or other “ causes,” then an alluvial soil is formed; and as soon as it is formed, it belongs to me, as the proprietor of the soil to which it is attached. No matter what its height or its extent; there is no other scale, nor has the plaintiff given us any to determine at what degree of altitude it shall become the subject of property.

But there is conclusive evidence, as I think I have shewn, that it was at least in this state, at the time of the sale. The surveyor general has certified it; Poeyfarre has attested it by his signature ; the late superior court have confirmed it in the reasons given for their judgment, in a case introduced and read by the plaintiff Grc-*94 vier VSt ffe Corporation. I care not, therefore, whether it was only sixty feet broad, as the coun-sej say wa§^ or whet;fier it was only six —The surveyor general, I say, has certified it. He has declared that it was covered at the time of high water, and it is so yet—but this, it scwus, is written only on one end ; and therefore^We did not intend that it should apply to the other. This is just as reasonable as it would be to say, that because he has written road on one end of the map, it does not extend to the other, although the lines designating it are continued—here the lines designating the extent and shape of the batture, are marked on the plan distinctly ; they are continued fronting the premises, and the words, to designate what those lines meant, are written in the part most convenient for receiving the inscription. The late superior court, I say, have confirmed it by their decision, and have also pronounced against the plaintiff’s claim, because it appears by the same report, introduced by the plaintiff, that this title was relied on as a bar to Gravier’s recovery ; which as he was plaintiff, it would have been, had the claim been good.

As I have not shewn the present plaintiff, or those under whom he claims to have been parties to that suit, the judgment is no bar ; but as a precedent, it has weight, even in point of facte This court in the case of St. Maxent's syndics *95 vs. Puche, 4 Martin, 201, say, “ certainly the “ proceedings, under the Spanish and territorial “ governments, evidence that the tribunals who “ passed on Segur’s claim for indemnification, “ considered this point [the establishment of “ Gayoso’s line by Dubreuil’s declaration] in the “ same light that we do ; and the fact is corro- “ borated by a number of witnesses.” Here the decision of the territorial court, on a point of fact between other parties, is properly considered as persuasive, though not conclusive evidence. —Vide also, 2 Covarrubias, 549 (4) where we have precisely the same doctrine : “ that a sen. “ tence in favour of one shall be cited by ano- “ ther as a presumption, in his favor.”

home alluvial land then existed at the time of sale—is it pretended that this was an appurtenance ? Not that I have heard; among all the extraordinary positions which have been taken, this < believe is not numbered. Then, even if the no less extraordinary claim be allowed, that the levee was granted as an appurtenance, it would not avail, for the land then formed, outside the levee, being Gravier’s, all the alluvion attached to it afterwards must be his.

Under this head also, let it be remarked that the small lot, then first erected into a separate property, could have no such appurtenance, as arise from the circumstance of their haying been *96use(j or appropriated to the service of a lot that has acquired certain rights by the continued enjoyment of them, connected with that lot. To explain by an example: if the proprietors of Gravier’s farm had always occupied with it a certain right of common or servitude of pasturage in the lands of another ; this would be an appurtenance to the whole farm. But the sale of two acres out of 520, certainly would not give the purchaser the same rights, because it was neither a use, custom or right, attached to that lot prior to the sale.

And when the right, whatever it be, is to be taken out of, or claimed as due from, the other lands of the grantor ; that right or service must be plainly expressed in the deed, that first erects the land into separate property—how else can it exist ? While in the hands of the original owner, one acre can owe no servitude nor be an appendage to another-—and this like a servitude must be created either by grant or long usage— now there can be no long usage, because the lot was first erected, as a separate property by this sale, and, there is nothing in the deed, declaring that the alluvial soil, between the levee and the river, should be an appurtenance to the thing sold—it is sold with all its rights, &⅜. and we will suppose accessories, which mean the same thing, to have been also implied. But as no new *97rights or accessories are granted, the particular portion, carved out of the farm, could have no separate rights—-it shall carry with it none but such as all lots of land would have, to wit: a right of ingress and egress, over the land of the grantor, if none other were provided—the natural right, which the position gives, of receiving or turning off water, the fruits of the earth growing on it, its enclosure, if any, &c. There is then, as little foundation for the claim as an appurtenance, as there is for the river as a boundary.

A feeble attempt was made, to shew that the plaintiff was entitled by prescription ; without pleading it, without shewing it, and contrary to the allegations in his non-descript petition, which alledges no other act of possession, on the part of Bailly & Poeyfarré, than that the care and expense of repairing the levee were, for a time, supported by them ; which, in no part, states Morgan to have been in possession for a moment; and on the contrary, alledges, in two places, that the defendant pretends to be the owner, has offered to sell, and has exercised various acts of ownership, on the premises, to the great disturbance, and injury, not of the plaintiff’s possession; but of his right and title ; which acts (it is afterwards stated) are continued, to the great, continued disturbance of the plaintiff’s title,

*98jf j^y acts 0f ownership have injured and dis. turbed his title, they must amount to a prescrip* turn; because though temporary, or occasional acts of ownership might injure a possession, or injure the property, or injure the owner-, yet, to injure the title of the one claimant, they must give a title to the other —Thus the plaintiff, instead of proving his own title by prescription, has' acknowledged and established mine.

I have been diffuse, in answering the plaintiff’s allegations and arguments—I shall be concise in establishing the principles, on which I rely, be. cause truth is single, error is infinite ; the first requires little elucidation; but, to pursue the latter, through all its ramifications, necessarily leads to prolixity.

Being defendant in this cause, and knowing the weakness of the plaintiff’s title, I did not think it necessary to exhibit my own. If I shew, that the land claimed was not conveyed by Gravier to Poeyfarré, the plaintiff cannot prevail. The principles, on which I expect to demonstrate this, are simple.

It cannot be denied, that the land sold to Po-eyfarré, with or without reference to the plan, is described as contained within four lines, of which the respective lengths are given, as well as the square contents. If these four lines had been *99found to contain more than the calculation expresses, the excess woukl have belonged to the grantee ; because the whole trapezium is sold. But there is no difference ; the calculation is just, therefore, no question can arise on this subject. This is the ager limitatus of the Roman law, in both senses of the word : first, as contained within certain artificial lines.

Second, as having the contents calculated.

The first of these would certainly, the second most probably, according to the weight of authority, constitute an ager limitatus, or field bounded by another boundary in front, than the river ; and of course, be a property not entitled to the right of alluvion.

Th? first, I say, certainly ; because it depends not only on the opinions of lawyers, or the decisions of courts, but on the immutable principles of reason—the law of alluvion is expressly referred to this source. Inst. 2, 1, § 20. Preeterea quod per alluvionem agro tuo fiumen adjecit, jure gentium tibí adquiritur. The jus gentium above referred to, is not what we call the law of nations, but natural law—quod verb naturalis ratio inter omnes homines constituit, bPc- id vocatur jus gen-tium. Inst. 1. 2. § 1.—Ait imperator jus gentium esse quod naturalis ratio inter omnes homines con-Stituit, unde sequitur jus hoc, quam ob causam *100 & ipsum <lu0(lue jus naturae passim appellatur et cequum fc? bonurn, ⅛1 naturalis equitas &? natura.

This natural law dictates the definition of ah luvion to be : “ an addition to the soil impercep- “ tibly made by the deposition or retiring of the tl water.” Now, if there be any limit between the water and a given portion of land, that land can never be augmented by alluvion, in either way; The water cannot augment land, that it does not reach; it can deposit nothing, where it never comes; it cannot be said to retire from a line which it never reached.

We want no positive law then, to enforce the doctrine that there can be no increase by alluvion toa limited field.—The civil law, however, leaving very few cases to be decided by induction, has given us this rule.

“ It is clear (constat J that the right of allu- “ vion, does not take place in limited lands.” ff. 41. 16. This was ordained by the emperor Antoninus Pius.

What is this limited field, Pager limitatusJ that has no right to alluvion ? —-The conquered lands, which were divided among the Roman soldiers, says one of the plaintiff’s coun, sel—and this he infers from the latter part of the authority I have j ust quoted, agrum manucaptum limitatum fuisse, &c. This, to be sure, tells us *101that conquered lands were limited; but it surelv does not teach us that no others were.

1. All lands which are conveyed by artificial lines of mensuration, or by fixed boundaries, are, as the term imports, agri limitati ; whether the contents in superficies be set forth or not.

2. All lands which are conveyed by measure, ment or quantity fad mensurara) come under the same denomination, and for the same reason ; because lines of measurement must be drawn, to ascertain those square contents.

These definitions exclude the idea of the river touching the land : the distance that separates it is of no consequence ; an inch is as effectual as a mile. To constitute alluvion it must be added to, it must be incorporated with, it must make a whole with, the land that claims it—-and the addition must be deposited by the water, or must be made by its retiring from the land. But, as I have before observed, the water can deposit nothing in, nor can it retire from, a place where it has never been—-and I repeat here the observation, which we should never lose sight of in this cause, that the law of the ager limitatus, being inseparably connected with the general law of alluvion, an inherent part of it, is derived as that is, from natural, confirmed by positive, law.

Let us see, whether my definition of the ager limitatus be just.

*102<C Qure presumptio (that of a grant of the right of alluvion) cessat in agris limitatis certo des-criptis, vel mensura expressá comprehensis, qui-bus ultra eorum limites nihil incremento concession videtur.” 1 Huberus, 123 33.

Finnius, in his notes to the Institutes, 2 1. ⅞ 20. note (I) commenting on the definition, contained in the text, says: “ arcifinio scilicet qui non alium finem habet quam naturalem, id est ipsum Sumen : nam agros limitatos alluvi-onem non habere ” He then refers to the text, from the digest and says ; “we may collect from it, that lands conquered from the enemy and given by the prince, or the people to individuals, were possessed in such a manner, that the right of the possessor should be circumscribed by certain bounds or limits—were called limited lands, in order that it might be known, that whatever remained beyond those bounds was public, and that the subsequent increase belonged to the people. Of the same nature are lands comprehended by a certain measure, which in this respect are governed by the same law ; not having the right of alluvion, because their possessors cag hold nothing beyond the quantity assigned.”

X. Hejneccius, page 110, 111, Jus Nat. Sc Gent. lib. 1. cap. 9. sec, 25 4.“ Ita nullum est dubium quin id quod agris nostris hoc modo (by alluvion) accedit nobis, quod agro publico, *103 v’usve publicce adjicitur publico cedere debeat.” Where, he remarks in a note on this passage, “and on this foundation, rests the distinction made by lawyers and surveyors, between lands called arcifinios, which are bounded by no other than natural boundaries, and limited lands, which are confined to a certain number of perches or feet.” He then cites the digest, and several commentators ; and closes with a sentence that must, unless refuted, decide this cause. “ But whatever lies between limited fields and the river, there is no one who does not understand that this belongs either to the public, or some individual; and in neither case, can any thing be added to the limited field ”

The same doctrine is repeated in a stóng language by the same author. Elementa Juris, lib-2 tit. I. ⅝ 358, innotis.—See also Grotius de jure bell pac. lib. 2. cap. 3. sec-. 16 ; where the definitions I have given will be found, and the same, chap. 8, sec. 12, where the same is applied to the lands of individuals; with the difference; that, in cases of doubt, the lands of individuals shall be deemed to be limited. Voet also is to the same purpose. 2d. vol. 728. lib. 41. tit. 1. no. 15.

It was felt that these authorities decided the cause, and a very ingenious and bold attempt was made to get rid of them, by denying that the *104*aW di§est> uPon which it was asserted that they were founded, was law in this country.

“ The recopilación of Castilla, says the plaintiff, interdicts the use of the Roman code, as , , . authority ; it only permits, it so far as it may be considered the opinion of wise men illustrative of points, which have not been decided by the laws of Spain. The law in question is not the opinion of a Roman jurisconsult, but a positive edict of a Roman emperor ; and the case is already provided for by a positive statute of Spain. Therefore, this law comes within the interdicted part of the law of the recopilación, and is not included in the exception.”

This is, I think, a fair statement of the argument-let us examine the truth of the different positions which compose it—First, as to the assertion, that the law of alluvion applied to limited lands is created by positive statute. The passage of the digest, if closely attended to, will not countenance this opinion.

“In agris limitatis jus alluvionis locum non habere constat.” The last word here means it is apparent, it is certain. There is no doubt, that such is the law ? Now, why ? If the text had said, “ because that the emperor Antoninus Pius enacted it;” it might then have rested on that foundation—but no such language is used—after declaring that it was apparent that limited *105fields had not this right, we have the corrobora- . . ⅝ ° tive observation, in another branch of the sentence : “ idque et Divus Pius constituit.” And † the same thing was established by the emperor Pius: or, as I think, the construction demands that the sentence should not finish here, as it is printed ; but that, instead of a period, we should only have a comma, after constituit; and that what follows, “ et Trebatius ait,” should be connected in the same sentence. I think so, because I do not grammatically know otherwise, what to do with the two conjunctions “^weandei.” If the sentence ends where it now does, one of them is certainly superfluous. If we connect them, they both find their place ; and they would read : “ id qué et Divus Pius constituit et Trebatius ait &c.” which would be rendered into English thus; “ and this was not only established by Pius, but Trebatius says, ke.”—Be this, however, as it may, the first sentence, whether single or connected, shews that the law was certain : not because it had been enacted by the emperor Pius ; but that it was apparent, clear law, and as such had been confirmed by him. The subsequent part of the section, however, clearly shews that it was at least as old as Julius Caesar, and therefore, not first enacted by Antoninus: for Tre-batius is referred to, as asserting the same prin-the distinction we draw in *106Cause* between lands granted in gross, which have the right of alluvion, and lands parcelled out metes and bounds, which have it not. w Now Trebatius, we learn from Godefroy, was the preceptor of Labeo (the founder of one the sects, that divided the Roman advocates) and Labeo, as Tacitus tells us, in his annals, died in the reign of Augustus. The first part of the argument then, which supposes the law to depend on a positive edict, and not on principle, is ill founded.

The next member of the argument may, as conclusively, be shewn to be specious only: Spain, it is true, has legislated on the subject, but not in such a manner as to exclude the exception of the ager timitatus, declared by the Roman law, but to confirm it. The third partida, tit 28. law 26, is the statute alluded to : it gives the same definition of alluvion, that is contained in the Roman law. The operation must be imperceptible ; it must be carried on by the water and it must be added to the field that claims it.

The 30th law of the same book, enacts that, where the alluvion is formed by the retiring of the water, it shall belong to the owner of the adjoining land.

Now can it, with any shew of propriety, be said that the Roman law of the ager limitatus is contrary, either to the spirit or the letter of either *107of these laws ? Does it not on the contrary, come within both ? These laws declare that land added to a man’s field, imperceptibly by the water, shall be his ; the law of the “ limited field” is a corollary from it: “ that if it be added to something, without the land, it shall not belong to the owner of the field.”

But, it is said, that the silence of the Spanish law on this point is conclusive, that the Spanish legislator, when adopting the Roman code, reenacted so much, in the partidas and other codes, as he thought proper, and that having this passage in the digest under his eye, his not re-enacting it proves that he determined it should not be law in Spain. But, if I have shewn that it is a natural consequence of the law he did adopt, I shew enough ; and surely the plaintiff would shew too much, if he could establish this argument: for it would exclude from our courts all reference whatever to the Roman code—for to establish such parts as are re-enacted we need no references; and, if they are not re-enacted, they stand in the same predicament, in which the plaintiff’s argument puts the law of limited lands, and cannot be referred to all. But by the authority he relies on, the Roman law may be quoted in certain cases, (and I will assert without fear of contradiction) is, in point of fact, as frequently quoted, by every writer on Spanish *108jur*sPru^ence> as the partidas themselves.—» Therefore, the silence of the Spanish lawgiver on P°*nt (as we^ as *n many thousands of others which are not transcribed from the Roman code) is no proof that he intended to exclude its provisions.

If I have succeeded in shewing that the laws which govern this subject are derived from the laws of nature and reason, and are not the creation of positive statute; then the authority of eminent writers on that subject to illustrate the case has been referred to with propriety, and this authority is decisive.

I might rely on this course of argument, | think, with safety, but I have something more decisive. If I shew by writers of acknowledged authority, that the law of the ager limitatus is the rule in Spain, surely something more than the general reasoning, which has been employed, will be required to shew that it is not: I mean some direct authority, the opinion of some juri-dicial writer, on the Spanish law, declaring that this part of the Roman law did not apply in Spain.

The digest of Rodriguez purports, in a short commentary on every law, and an introduction to every title in his translation of the digest, to give information of the agreement or discordance of the two codes. On the law in question *109he merely repeats its substance, from which we should infer that it is law in Spain.

The laws of Fuero Real have in like manner, and with the same view, as we learn from the tille page, been commented upon, by Alonzo Deas Montalvo and a learned doctor of Sala-manca.

These authors, in a note on the lib. 3. tit. 4. law 14. page 48, note (d) expressly declare it to be law, that the ager limitatus should not be entitled to the increase by the rising of an island opposite to it, which the “ ager non limitatus” would have been entitled to ; not merely, as was asserted at the bar, referring to the digest to shew that such was the Roman law, but quoting the text of the digest, to shew it to be in accordance with the laws of Spain (which, as we have seen, was one of the objects of the work) for they say : ut in if de flum- lib. 1.

We have not many of the Spanish commentators on this title of the digest. But I have been fortunate enough, to discover the opinion of the most celebrated among them in a work of great authority; which, after consulting Cyria-cus, Bartolus, Mascaredo, Garcia, Hermosello, expressly decides the question, that by the laws of Spain the bounds of “ agri limitati” are not changed by alluvion. Curia Phillipica iIlus-trada, 45. n. 95. 3. 45. See also 2 Covarrubias. *11050O. at the end of the first column. He is en-quiring whether if a grant be made of, or a privilege or exemption granted to, a town, by certain metes and bounds, and that town afterwards becomes enlarged, whether the increase shall belong to the grantee, or the exemption or privilege be extended to the part added. And he determines that it shall not, referring expressly to this law in agris, which is the d. 41. § 1 16. the law under consideration secuti deducitur (he says) ex. lege in agris. Now if the law in agris could not be referred to in a Spanish court, to shew the very case for which it provides, could it be (as it here is) referred to, to illustrate a similar case.

Not desiring therefore, to understand the laws of Spain better than the authors, I have quoted, and willing with them to incur the heavy penalties of citing the Roman law, in a court of justice governed by the Spanish code, I might rest my case on the branch of the argument alone. This is a limited lot and limited lands are not entitled to alluvion.

This was the ground on which the late superior court overruled the objection which was made to CJravier’s recover}', as appears by the report; which let it not be forgotten, was introduced as authority by the plaintiff, in the argument in this court. And I really have heard no reason why *111it should not have as much effect now as it had

I may flatter myself then with having shewn :

1. That the land, sold by Gravier to Poeyfarré, did not extend to the river. Because of the intervention of three objects, either of which would have been sufficient to prevent that effect: the road, the levee and the alluvion already formed, •*—Because it is called a trapezium and, if it extended to the river, it would cease to have that figure, as the side next the river would be divided into a number of curve lines.

2. That the said lot is a limited field—because it was laid out as a town lot, prior to the sale.

Because the contents are calculated and the intent of the parties to give and receive no more is clearly expressed.

Because the reference to the plan clears up all doubt, (if any could have existed from the deed alone) by giving the road as the front-boundary.

3. That as well from the nature of this species of increase, as from the authority of express law, limited fields can not be encreased by alluvion.

4. That neither the road, levee nor alluvion then existing, passed as an accessory or appurte*112nance to the lot—because it has no one characteristic of an appurtenance or accessory.

Because, being first created into a separate property by this act of sale, the trapezium could have no rights or appurtenances, but such as are incident to all lots of land—-and because the law, I have quoted from the digest, shews that these objects must have been specially inserted in the deed, in order that they might be considered as accessories.

5. That the claim of prescription is unsupported by any evidence, is contradicted by the statements in the petition, and has never been pleaded by the plaintiff. But that the admissions, in the petition, rather tend to establish such title in the defendant who has pleaded it.

6. That, even if the batture were conveyed to Poeyfarré, he never conveyed it to Bailiy.

Because the objections, that are made to the reference in Gravier’s deed, do not apply to Po* eyfarré, who refers to the plan, without any of the words that give rise to the plaintiff’s objection.

7. That nothing passed by Bailiy’s deed to Morgan as, by his own shewing, he was out of possession and the sale was of a litigious right.

Before I conclude, I will notice one error which seems generally to have prevailed, and *113%vhich would seem to give the plaintiff an equi- ° 4 1 ty, to which he cannot pretend.

The law of alluvion is said to be founded on principles of consideration, and to be supported by the maxim : “ qui sentit onus, comraodum debet sentire.”—This, however, is not the fact. If we look to the Roman code, where we first find the principle, we shall find also the reason. It is not on account of the risque, which the ri-parious proprietor runs of loss, that he is entitled to the benefit; but because, from the nature of the increase, it is impossible for any one else to claim it. It is imperceptibly added ; it is incorporated with the other field, forms a -whole with it—it results from this: that where there is no other boundary but the river, no other but the proprietor of the old field can claim it, because the precise line before occupied by the river can never be accurately ascertained.—This is further confirmed by the doctrine of avulsions, which the old proprietor may claim, because the line distinguishing the old field from the accession, may then, (in the very rare cases where such things have happened) be easily marked ; in al-luvion, however, it is different; where the original line, eternally varying its sinuosities, can never be accurately marked by the hand of art.—The proprietor, therefore, gets the increase, for two reasons:

*114First, because it is impossible to distinguish # A the new soil from the old.

Second, the river being his boundary, he must aiWavs sro to it, even if its course varies.

It is true, that compensation sometimes takes place in this species of accession and loss ; that persons, who have suffered by the encroachment of the river, are afterwards indemnified by the accession it brings —But this is an effect of the law of alluvion, not the cause of establishing it. If it were the cause, it must have gone further than it goes, and proportioned the gain to the risk, which it does not. The man, whose lands lie in the bend, runs all the risk of loss by encroachment, while his opposite neighbour on the point, who is at little or no expense in raising his levee, has all the gain by alluvion. Again the proprietor of a riparious lot, which perhaps may be only 50 feet deep, is entitled to the al-luvion, he then has all the gain ; but sure he does not run all the risk ; his lot may, by an en croachment of the river (not unfrequent here) be lost, and that of the proprietor immediately behind him, may follow or go with it, as whole acres sometimes disappear at once. The proprietor of the back lot, then (if the principle was compensation of risk, by the chance of gain) ought to have a part of the alluvion, in proportion to the risk he runs -y but there is nothing *115like this established by law, and the equity, aris ing from this assumed ground, disappears with the refutation of the argument, by which alone it was supported.

Ellery, in reply.

In one point, I agree with the defendant in this cause, that its merits lie within a very narrow compass.—The facts, though important, are happily not obscure ; and the law arising from them, ⅛ believed to be admitted or settled. The wide range of objections, however, taken by the defendant, and the numerous codes and commentaries that he has put in requisition, have given to the argument an unexpected, perhaps, an unnecessary expansion.

In following the defendant, 1 shall endeavor to come at the merits of the cause ; noticing by the way, such objections as may seem to be material, with as much brevity, as will be consistent with the importance of the pending decision ; important, not so much on account of the large amount of property at stake ;—but on account of the extensive, and very serious consequences, that, in our humble opinion, must result to proprietors of riparious lands, throughout the state.

The plaintiff and appellant claims to be the proprietor of a lot of land, situate in the suburb St. Mary, and bounded in front by the river *116Mississippi, by purchase, 3d January, 1816, from Pierre Baiily, who purchased, 30th October, 17g9j from j B poeyfarré. who purchased, 27th February, 1789, from Bertrand Gravier . „ and wife :—and he annexes to the petition the respective instruments of sale. He avers, that at the period of sale from Bertrand Gravier and wife to Poeyfarré, and from the latter to Baiily, no batture or alluvion existed, in front of this land ; and, even if any so existed., no act had been done by said Bertrand and wife, reclaiming or converting it to their use and benefit ; nor was it then of sufficient magnitude, in breadth or elevation, nor of sufficient worth or importance, to be so reclaimed or converted ; that whether there were, or were not, an incipient batture then existing, it was the intention of the parties, the one to convey, and the other to acquire it, as well as the right of alluvion ; which by law belonged to, the owners of land, bounded by navigable rivers ; —that subsequently to this period, a bat-ture or alluvion, to a very considerable extent, has there been formed ; which he claims as a legal accessory to his land:—that this land so situated was sold by Bertrand Gravier and wife to Poeyfarré and by the latter to Baiily, for a full price as such;—that thenceforward, the care and expenses of maintaining the levee in front of this property, devolved upon the vendees, and *117the vendors were wholly released therefrom ;— that thenceforward the vendees also incurred the risk of the diminution of their land, by the washing: and encroachment of the river; that notwithstanding his right and tide to the batture, thus formed in front of his land, the defendant and others, claiming title from John Gravier, or otherwise, have given out and pretended, that they were owners and possessors of this batture ; and have offered it for sale, wherefore he prays to be adjudged and decreed the lawful proprietor of the said batture or alluvion, and that the defendants be perpetually enjoined not to disturb the right and title of the petitioner ; and that he may have every other and further relief, &c.

In his answer, the defendant and appellee, after a variety of demurrers and exceptions to the form and substance of the petition, process of the clerk—jurisdiction of the court, and competence of the judge, proceeds to plead the general issue, and puts the plaintiff upon the proof of the allegations, contained in his petition. He pleads also the prescription of 10, 20, and 30 years ; he states, that John Gravier, being disturbed in the possession of the batture, of which the premises form part, instituted a suit at law, against the mayor, aldermen, and inhabitants of the city of Hew-Orleans, the judgment in which, he pleads *118*n bar> as res judicata ;—he states, that John Gravier owned and possessed the premises, under a legal title from Bertrand Gravier; under whom the plaintiff also claims ; and that he trans- . . mitted his title and possession to Peter De La Bigarre, whose executors, by deed of partition and sale, conveyed and released their title to defendant; he also notices the inconsistency of plaintiff, in entertaining and expressing, at different times, different opinions in relation to the title of the batture ; calls upon him to answer certain interrogatories, and to admit certain documents f he also calls upon him to produce the several plans referred to in the conveyances, annexed to the petition, from Gravier to Poeyfarré, and from Poeyfarré to Bailly.

As these different demurrers and exceptions were not argued in the court below, nor relied upon here, they may be considered as abandoned, and the cause as depending upon the general issue.

With regard to the inconsistency, sought to be fixed upon the plaintiff, for having entertained and expressed, at different periods, different opinions in relation to the title of the batture, and which is made to occupy a conspicuous station, both in the answer and argument, as it is not a point at issue in this cause, we are not here to discuss it. Were it necessary or regular *119it would be most easy to vindicate him from the charge ;—to shew, that he has been actuated but by one motive, in relation to this subject, that of keeping open the batture ; and that he has of course favored all legal efforts, whether on the part of the city, or United States, directed to this end ;—and that his present suit, standing on no mercenary grounds, is singly directed to the same object. Nor shall we examine how far the charge of inconsistency may be made to recoil upon the defendants ; we wish to argue the cause abstracted from the parties, and wholly to confine ourselves to the question of our title. I say emphatically our title ; since the defendant in the court below did not think proper to produce any. No proof whatever was offered, in support of the numerous allegations, contained in his answer ; neither did he produce the judgment, which he had pleaded in bar ; nor the title, upon which he relied. He, therefore, in this cause, stands without title, claim, or pretension.

The principal questions arising in the cause are:

1. Did Poeyfarré, by virtue of the conveyance from Bertrand Gravier and wife, become the riparious proprietor of this land ?

2. Has his title as such been by him conveyed to Bailly, and by the latter to the plaintiff ?

*120^ answer to first question depends upon the intentions of the parties, as expressed in the instrument of sale. What are these expressions ? U By referring to the deed, we find, that B. Gra-vier and wife sell Poeyfarré, “ un pedazo de tierra formando un trapezio, situado fuero de la puerta de Chapitoulas, compuesto de 415 pies de tierra de frente al rio,” &c. A piece of land, forming a trapezium, situate without the Chapi-toulas gate, composed of 415 feet% front upon the river. And lower down, we find this land sold, “ con todas sus entradas y salidas, uses, costum-bres, derechos y servidumbres,” with all its ingresses, egresses, uses, customs, rights, and ser-vitudes.

These are then the two clauses of the deed, to which the attention of the court is invited, in order to ascertain the intentions of the parties.

The first expressions give the river as the front boundary ; and the second convey all and every singular accessory, whether in law or fact.

De frente ai no. It seems hardly possible to question the meaning of words, so unequivocal; or to attribute to them a signification, other than that giving the river as a front boundary ? By what logic or criticism, are they made to signify a limit short of the river ?

A distinction is sought to be taken by the defendant, between face au fleuve, (translation of *121 f rente al rio) and face sur le Jleuve ; and it is contended that the latter phrase alone carries us to the river, while the former is represented as altogether loose and indefinite ;—indicating rather the aspect or exposure of the land, than its actual boundaries. And to Support this distinction a variety of cases are put by the defendantpro-perty is made to front the cardinal points.—• Suppose your deed makes you front north, where then, it is asked, is your northern boundary ? And the defendant is drawn by the magnetism of his fancy to the north pole, where we are invited to follow him, in pursuit of our boundary.

But are gentlemen serious in attempting to sustain so hopeless a distinction between the prepositions to and upon, when used in this connection ? A distinction too, only attempted to be supported, through the medium of a literal translation of a phrase, both idiomatical and technical.

In the Spanish language, the phrase, frente al rio, has always in this country, in conveyances of land upon the river, been considered equivalent to, and translated indifferently by, face au Jleuve, or face sur le Jleuve. The idiom of the Spanish language does not admit of the discrimination attempted by the defendant between the French phrases. Frente sobre el rio, the literal translation of face sur le Jleuve, would be a barbarism, *122 Frente al rio, therefore, is truly translated into . / French, face sur le fltmve or face au Jieuve ; into English, front upon the river

Neither, in describing river boundaries, we venture to say, does the least shade of difference obtain between these two French phrases; and translated into English, they are both rendered by the expression front on the river Thus, in the defendant’s report of the cause of Gravier vS. the corporation, we find face au Jieuve translated by him (doctas utriusve Ungues) front on the river.

The preposition de, in the phrase de frente ai rio, has also been made the subject of criticism ; and has been supposed, by one of the counsel, to be of singular force in restraining our front boundary.

Our deed has in truth been treated, rather as a bill of indictment, upon a motion in arrest of judgment, tha t an instrument of sale. Fortunately, however, this philological assault has been confined to the two prepositions in the phrase ; while the two substantives have had the luck to escape unhurt. Horne Tooke himself could not have better conducted a preposition war.—One gentleman takes in hand the preposition of; while the other encounters the preposition to ; of which they give as good an account, as he did of the two obnoxious prepositions, *123which were objects of his hostility, and had the 1 _ J immortal honor of giving birth to the Diversions of Purtey.

But, how are words of conveyance to be taken, unless in their most known and usual significa,tion, regarding less the niceties of grammatical rules, than their general and popular use Civ. Code 4, art. 14 15. And accordingly we examined witnesses, in the court below, touching the known and usual signification of this phrase and the sense in which it had been invariably employed in grants and deeds of land upon the Mississippi To this end, we also exhibited the record oí French concessions and register of land claims : all concurring to establish this fact.

In the court below, the defendant took an exception to the introduction of this species of proof, as inadmissible, upon two grounds ; 1. Because this phrase, frente al rio, was clear and unequivocal.

2. Because it was said to be inconsistent with the plan of survey, referred to in our deed.

Here we cannot but invite the attention of the court, to the variety of the degrees of force and clearness, that has been attributed to this phrase by the defendant, in the course of one short argument. First, for the purpose of excluding important testimony, these words are termed clear and unequivocal; afterwards, when he wish*124es to restrain our boundary, they are diluted into general and loose, and at length stigmatised as magical and talismanic.

But our parol proof was not introduced in com travention of the principle cited from the digest; but to shew,

1. That there was a popular and appropriated signification, affixed to this phrase.

2. The practice of surveyors and general usage of the country, in relation to surveys and plans of land upon the river.

To such ends, has not parol proof always beeq admitted? In 8 Term. Rep. 379, it was admits ted to explain the words serve and learn in an indenture. See also to these points, the following authorities, Vaughan 79—J Hen & Mum, 177,_6 Mass. Rep 440.

In the late territorial court, we find, on the trial of Gravier against the corporation, these very points established by parol testimony. “To the first point of defence, says the report, the plaintiff replied, that the expressions, face au jleuve or face alone, were, in the general under* standing of the country, testified not only ⅛ common parlance, but universally in acts of sale, equivalent to the most explicit terms of boundary on the river. To establish this, they cross examined Laveau Trudeau, the recorder of the city, one of the defendants in this cause, who *125had been introduced, by them as a witness, J pursuance to the law of the territory for that purpose.

He -had performed the functions of surveyor general twenty-eight years ; and produced Mr* Lafon, the deputy surveyor general of the United States, who had performed the duties of surveyor, and resided in the territory long before the transfer. Both these gentlemen declared, that the words face au fleuve, ox face alone, in a deed or grant of land on the Mississippi, universally were understood to give the river as a boundary ; unless the deed expressed some other fixed limit or line of boundary ;—a great number of the defendants’ witnesses, were also interrogated to this point, who all concurred in declaring, that to be the expression, universally used to convey an idea of boundary upon the river, as well in conversation as in sales. P. Pedes-claux, who kept the records of deeds and mortgages for 30 years, testified, that this was the expression invariably used. Indeed, this point was not attempted to be disproved by the defendants.—As to the stake fixed within the levee, as the place of beginning the survey of the Jesuits’ plantation, and the line drawn thence in front of their land, the same witnesses, Mr. Laveau and Mr. Lafon, being examined on this point, also declared, that in surveying lands on the river. *126** was ^ie universal practice, and had been from the first settlement of the country, to place two or more stakes, at an arbitrary distance from the «ver, in the side lines, to mark the direction into the country; but that these stakes, called in French bornes or boundaries, were never intended to mark the extent or termination of the lat-teral lines towards the river —That all the said concessions or sales express their breadth on the river, by so many arpents front, (180 French feet) and that to ascertain this front a right line is drawn, either parallel to the course of the river, when it can be done, otherwise by a perpendicular to one of the side lines, on which the number of acres, which the farm is to have in front, is always measured—that this line is called in French, ligne de conduite, or base for the ad measurement of the number of acres in front that every plantation, without a single exception on the river, has its front measured upon such a line ; but that in no instance does it serve as a boundary between the farm and river. That were a grant is made of a farm or land on the river, the line of admeasurement (ligne de con-duite ) is drawn correctly across the front, from one bay to the other ; and, of course, leaves a considerable part of the land between the river and this line, but that such parcel so excluded, is *127always considered as part of the farm,”—Rep. 16, 17, 18.

We therefore, hold our front boundary upon the river, by virtue of the same expressions . .... . which have given it to all the nparious proprietors in the state of Louisiana ; which gave it to the purchasers of the confiscated property of the Jesuits ;—which gave it to Bertrand Gravier, under whom both plaintiff' and defendant derive title And, if in the conveyance to him, the words carried him to the river ; will not the same words in his deed to us, carry us also to the river? Will they convey to him that which they do not convey from him ?

What could have induced the parties to this instrument to adopt the technical phrase, frente al rio, front upon the river, if it were not intended to have its known and usual signification of a river boundary ? And why not, if such were the case, give it at once the nearer and more con venient limit, the road or levee—if these, as the defendant contends, be obstacles not to be over-leaped, since they would unequivocally have expressed the intentions of the parties. Here, the utmost that could be contended for against the plaintiff is, that the intention of the parties, as to the front limit, is equivocally and obscurely ex, pressed ; in which case, nothing would be gained by the defendant; for it is settled law, that ob~ *128scure> ambiguous, and even repugnant clauses in a deed, are always to be construed against the vendor. Civ. Code, 340 art. 23, 9 East, Rep. 15, 3 Johns. Rep. 387. 8 Johns Rep. 406.

But a variety of circumstances are resorted to by the defendant, to shew, that notwithstanding the use of this known and settled phrase in the deed, the parties intended to establish another boundary than the river.

In the first place, it is objected, that at the time of making the deed, there existed a batture already formed in front of the land ; that its existence is proved by its being designated on maps made by a sworn officer, prior to the time of sale, and one of them signed by the grantee, and made at his request.

Reference is here made by the defendant, to the plans of the plantation by B. Gravier, both dated the 1st April, 1788 ; and also to one purporting to be a copy of the plan of the plaintiff’s land, dated 4th February 1789.

To know the weight, which ought to be attached to these plans, it will be necessary to examine their character, and the nature of the proof they afford.

From witnesses (themselves surveyors) we find, that it is usual with surveyors, in order to *129relieve the nakedness of their operations, to add 1 # to their plans, a perspective view of the neigh-bouring objects, introduced and coloured according to their fancy. In this respect has a batture been exhibited on these plans. It did indeed then exist, to a considerable extent, in the upper part of the faubourg St. Mary and had been, for several years, gradually extending toward the city. It might, therefore, be readily enough imagined to be, where, according to the common course of its increase, it was approaching, and would probably in reality soon be. But never before was it attempted to convert the exhibition of neighboring objects, real or imaginary, into authentic evidence of their indisputable existence, sufficient to overthrow the positive testimony of three old, respectable, and uncontradicted witnesses. It certainly made no part of the operations of the surveyor, nor was it in any degree the object of his official certificate. As well might they attempt to realize and locate the various groves, canals, and tivolis, by which the plans of the different faubourgs in the neighborhood of the city are environed and ornamented:

We need hardly remind the court, that on the 4th of February, and 1st of April, the respective dates of these plans, a batture, had it even then existed in fronti of our land, could not have then been a very visible object.

*130Much stress seems indeed, laid upon the cir¿ • ’ 1 cumstance of these plans being made by a sworn °fficer-> as is repeatedly termed by the defend» ailt; and we are almost led to believe, they were J # actually made under oath. But what duties, if it be worth while to inquire, was the surveyor general sworn faithfully to perform ? Those only Which he owed to the government, whose officer he was, and not to individuals. But had the question here been even in relation to a concession or grant from the king, his master, of what importance would his oath of office be, in regard to the fact of existence of a thing, not the subject of his operations, nor the object of his certificate ? In relation to a plot or survey, made for Gra~ vier or Poeyfairé, he certainly stands upon the same footing with any other surveyor, or any other individual, selected for that purpose.

The defendant aware of the slight presumption raised, by this species of proof, of this fact, wholly contradicted by positive testimony, en-deavours to help it out, by calling to his aid, his own report of the cause of Gravier vs. the corpo. ration ; contending, that the existence of the bat-ture was, in that case, “ proved and admitted,” as well as recognised by the court.

To this we answer :

1. That this is the first time, the defendant has seemed to feel safe in referring for evidence or *131law to the proceedings in that case. In the court below the plaintiff's counsel were constantly restrained from making further use of it, than they were entitled to make of any report.

2. That the existence of a batture, in front of our land, was in that case, neither proved nor admitted, nor recognised by the court.

By referring to the testimony of the surveyor general in that cause, we find, that on the plan of Gravier’s plantation, which he himself terms, a first sketch or draft, he only measure^ the bat-ture in the upper part of faubourg; but that to-ivards the city, he laid it down, according to his judgment. Exam. tit. of U. S 58, 59, note Ef

Now it will be recollected, that the question then before the territorial court was not the existence of the batture in front of our land, but its existence in front of the faubourg, in general ¿ an extent of thirteen acres ; in the upper part of which only was it measured, according to the testimony of this sworn officer. Hence we may safely infer, that lower down, it was not susceptible of measurement; neither is it made by him to extend to, but only towards, the town.— How then can it be asserted, that either his sketches, or his testimony, are in contradiction to that of our witnesses in this cause ? Or, that in the face of positive testimony, it proves the existence of abatture in front of our land,and in the *132 lower part of the faubourg, and near the upper gate of the city ?

From the testimony of the same witness, if we must be referred to his testimony, does it not equally appear, that B. Gravier invariably acknowledged his abandonment of it to the proprietors of the lots fronting the river : and, in 1796, after its formation in front of our land, that he equally acknowledged its abandonment in out-favor ?

But evan admitting, that the defendant has by these plans raised a presumption of the existence of a batture in front of our land, ought this presumption to outweigh the concurrent and un-contradicted testimony of three unimpeached witnesses ? None of them biassed by an}- interest or influence ; two of them, from their living, one upon, and the other near the spot, necessarily having a full knowledge of the fact; and one of them, having been the owner of this land, necessarily also having an accurate knowledge of dates,

Caisergues, who was alcade and procureur general, under the Spanish government, says, that the batture, in front of the plaintiff’s land, began to form, somewhere about thirty years ogoi

Brumo says, “ when Bailly first went to this lot, there was no batture at all, but there were 15 feet of water:” and recollects to have seen one of the largest ships in port in front of Poy, *133dras’ and his own lot, in the place where the 1 _ batture is now situated ; and when interrogated to this point, says his own lot was about 400 feet above Baillif s lot;—and in support of his recollection of the depth of water, states the circumstance of his having there a raft of wood, drawing ten feet of water !

Bailly, whose release ivas tendered in the lower court, and whose competency was admitted, says, at the period of his purchase from Poey-farré, 30th October, 1789, “ there existed no batture in front,” that he has been fifty-five years concerned in the wood trade upon the river, and lived on this land from the time of his purchase, from Poeyfarré, 30th October, 1789, until he sold it to plaintiff, 3d January, 1816 :—that at the time of his purchase from Poeyfarré, a bat-ture began to form higher up in the faubourg, “ shortly after he made this purchase, he made an avancé; other owners did the same ; from which time the batture began to form in that part.”

If this fact, established by the concurrent testimony of these witnesses, admitted of doubt, why were they not contradicted or impeached by the defendant in the lower court ? Why was not counter-testimony exhibited ? And if it could, would it not have been eagerly procured ?

Jnstead then of the defendants shewing that a *134batture had alreadv been formed in front of our _ land, we have incontrovertibly disproved its ex-jstence.—And if no batture then existed, it could hot have been withheld nor reserved ; and the cause must be decided in favor of the plaintiff.

In the next place, it is objected, that the ven-, dor had, prior to the sale, caused a plan to be made for the division of a part of his farm into town lots, in which the trapezium in question, was designated, as included in lot no. 7;—that it is particularly referred to in the said plan, as being to be sold, as it stood in fence, avec ses entourages, and that the front line of this, as well as the other lots coincides with the line of the public road, which runs in front of it.

It is said by the defendant, that it was admitted, that if this conveyance had been of a town lot, it would have excluded the right of alluvion. We are not disposed to retract this admission, nor dispute the difference legally existing, in this respect, between the urban and rural proprietor. To the city belong, as necessary appendages, its commons and shores ;—its lots are all bounded by streets ; and are sold, whether so expressed or not, according to its plan. Winter’s lot, adduced by the defendant as an instance, lying within these limits, must necessarily be subject to the same rule. When we find, however, that *135the river is not even mentioned in the procés verbal, and that the plan itself of that lot shews a street, with a range of tobacco stores, intervening between it and the river, we cannot think the instance happily chosen.

But all this does not turn Gravier’s plantation into a city, nor anticipate the date of its incorporation—nor even the execution of his speculative plan ; neither would the actual execution of that plan, make the subdivisions of his farm town lots. But still less can it be relied upon, where the deed gives a different boundary, and when, as we shall conclusively shew* there is no evidence whatever arising out of the plan, or otherwise, that it had been carried into execution by any actual survey and subdivision of his plantation in conformity to his plan. This plan was introduced by the defendant, as proof that B. Gravier had laid out his plantation into a fau-bourg, and that our land was sold in conformity to the plan of that faubourg.

Let us notice, by the way, that this is contradicted by the title of the plan itself, to wit, “ a plan of the plantation of Bertrand Gravier,” from which it is clear, that, at least at its date, it was still a plantation and not yet a faubourg ! Where is the evidence of any ulterior step in the conversion of this plan into a faubourg ? Is it to be discovered in the plan itself? If so, let it be *136pointed out. That evidence, it would be to be imagined, would naturally be the certificate of the surveyor of his operations of survey. If it can be supposed to consist of any other indication on the face of the plan, or by any supplemental proof in this cause, testimonial or otherwise, there was not wanting ingenuity or research on the part of the defendant, to bring it to light. Its incorporation with the city has not been shewn to have been, and probably was not, prior to the cession. 1805, c. 12, Under the bpanish government, it could not be so laid out and incorporated, without the express permission of the council of the indies. Recop Ind. 4, 8, 88. No such permission has been shewn or ailed-ged.

In default of evidence on this subject, the de-iendant has resorted to the more convenient resource of giving it himself a name ; and accordingly has been pleased to denominate it Gravier's town. But, notwithstanding the magic of a name, we beg leave to assert, without fear of contradiction, that, at the period of our purchase, neither was the plantation of Gravier a suburb of the city, nor had it then set up as a town by itself.

1. Because this trapezium of land, designated as part of lot no. 7, on. this speculative plan, in its side and rear lines, is cut off from three *137Streets by narrow strips of land, of unequal breadths, shewing clearly, by the relative direction of the respective lines, that it was sold according to a plan, very different from the projected one of the then uncreated faubourg of the city : and it would seem, it could only be by á miracle, that it could have existed in its true shape in this projected plan, without having been previously surveyed and sold by Bertrand Gra-vier.—No proprietor, not subject to a most perverse and unprofitable fancy, would so have disfigured and mutilated his lot; and no purchaser, in his sound senses, would have thought he was making a speculation, by purchasing a square in a city, with the exception of only just so much land, as would serve to shut him out of three streets in four.

2. Because, in our deed it is not said, that the breadth of the front extends 415 feet from the street (since called Gravier street) on its lower side, to the street, (since called Poydras’ street) on its upper side, as would naturally have been the case, if the projected plan had then been executed ; and further, because most obviously it would also have been described as part of lot no. 7 of this projected plan; whereas, in our 1 deed, it is merely described, as situate outside of the Chapitoulas gate, consisting of 415 feet front upon the river—-so many feet deep upon the *138lower side—so many feet on the side of the srar-J ° cien of die vendor, and so many feet on the upper side :—it is not even called un terreno, a lot, but 77 un pedazo de tierra, a piece of land.

But after all, what is the character of this projected plan ? a slight inspection shews it to be what it is justly termed by its maker, the survey- or general, a mere sketch or first drait— a projet, rather than a plan ;—dealing altogether in prospective. All its applications (which by the way, are the work of B. Gravier, and not of the surveyor) refer, not to what has been, but to what is to be done —Thus lots no. 13, 14, See. are described, as devant etre vendas, aprés la mesure faite; a further proof, if necessary, from the face of the plan itself, that the thing had not then been executed.

Again, this plan exhibits neither the survey, proces verbal, nor operations, of the surveyor, was made at the request, in the house, and principally in the hand writing, of B. Gravier;—-delivered to him subject to his control, and altered by his directions; shewing, in one part alone, according to the sketch, above thirty lots expunged.

All plans of the different faubourgs, laid out in the neighbourhood of the city, amounting to nearly a dozen, are, without exception, deposited in the offices of the different notaries, be*139fore whom the sale of lots are executed, and to .... which these sales all refer ;—but this plan was of a more domestic turn, and appears never to have left the house of its owner, not even to visit the office of Pedesclanx, his own notary, until long after the purchase of our land.—As to what time it found its way to the archives of the city council, we are equally in the dark ; but certainly not before the year 1796.

On the reduced, or second plan, bearing still the same date of 1st April, 1788, we find a marginal note, with the signature of the surveyor general, under date of 1796, certifying the addition to tlv plan of three ranges of streets in the rear, and the conversion of a square of intended lots in the centre of the projected faubourg, into a public square. We have then, on the face »f the plan itself incomestible proof, that the plan of these three ranges of streets and this public square, (in extent one half of the faubourg,) were not formed prior to the year 1796 —Now it is most manifest, from the slightest inspection of the whole plan, that the several parts of it were finished in one operation ; it is manifest from the color of the ink—the course, shape, and perfect unity of the lines ; there not being the slightest appearance of junction of lines, made at one time, to lines made at another ; or any novelty or alteration whatsoever on its face as would be una-*140v0*dable in a plan or a picture, one half of the surface of which was executed eight years after ^ first-—However perfect might be the skill of the artist; the strokes of the finest or the boldest pencil could not crush out the corroding traces of times.

Finally, these plans are only the separate and, at least then, the unpublished acts of B. Gra-vier, the original vendor or of Trudeau, his agent for that purpose, by which, we, having neither knowledge of, nor participation in then}, are not to be affected.

Another proof urged by the defendant, to destroy our front boundary upon the river, is what he terms, the clear and unequivocal declarations of the parties, that this land, even although in the deed it should front upon the river, should yet be bounded on that side by the public road •, inasmuch as it was spld according to a plan, by which it was so bounded ; which plan was signed by the parties, and made part of the deed; and of which a copy was produced in testimony.

As great stress is laid by the defendant upon this argument, and as it is repeatedly urged by him, with some air of triumph, let us examine it attentively ; and as the plan is referred to by the parties, see what is the just connection, in which it is to be taken with our deed of conveyance.

*141We have already considered it, so far as the depicting of a batture, on the water edge, could with any shew of reason, be insisted upon, as authentic, incontestable proof of the fact of its existence there, when not a subject of the operations or certificate of the surveyor ; and shewn that, under these circumstances, if it do not fully amount to authentic, indisputable proof of such fact, then that it is wholly insufficient to overthrow the mass of testimonial proof in the cause-of that testimony, we have already noticed its positive and circumstantial nature ;—the concurrence of the witnesses ; their age, their disinterestedness, the impossibility of their being in an undesigned error ; their unimpeached veraci. ty. And yet, in our view of it, in so far as it has been considered, it is not necessary to disbelieve the witnesses, in order to establish the authenticity of the plan, for the true purpose for which it is referred to in the deed.-—Now in what connection, and how far is it, by fair reasoning, to be taken with reference to the words of conveyance, in our deed ? Why, so far as it can conduce to its greater certainty, and no further.

It is expressly referred to in the deed only for greater certainty ; not to control or alter without necessity, what has been already certainly and absolutely expressed, but to make clear, what *142from its generality, may be in need of ascertainment.

We lay it down as a general position not to be denied, that when in a deed, there are words of conveyance and description, which are positive and unequivocal, (and more, especially, if they be also technical and idiomatical) they are to be taken according to their known and usual, and proper import; unless the subsequent introduction of other phrases render it indisputable., that they were intended to have a different signification.

Now in our deed, there are words of conveys anee, that are also words of description and location, in themselves clear and certain, beyond dispute; we mean the words expressive of our boundary in front, to wit, 415 pies de frente al rio. There are in it other words of conveyance which, as words of description and location, are loose and obscure from their generality;—we mean the words relative to our boundary on the right and left and rear ; and there is afterwards a general reference to the plan of survey, exhibiting the line of breadth of our front, running (as is usual) within the road;—and the other lines of survey, as they separate our land on the right and left hand, from lands of the vendor, and from his garden in the rear; and subjoined to the plan, a process verbal of the surveyor, stating in *143substance, that he had run the lines exhibited in the plot, (describing his operations) saying, of the land in general terms, bounded on all sides, (that is except the front) by land of the vendor, and in front by the main road.

Now in what manner is such a plan so referred to, to be construed in relation to such a deed ?

It is to be taken, in so far as it conduces to its greater certainty, which is in the deed itself, the express and sole reason of the reference. Or it is to do more. Is it to bring into doubt words of conveyance in the deed, subsequently execut ed, in themselves certain, and used in an absolute sense; or rather, is it to work the greater effect in making the deed utterly silent, where it has most distinctly spoken for itself?

Viewing the words of the proces verbal, as words of convenient description of the-operations of survey, and not as precise words oj conveyance in the deed, all difficulty is at once removed. In this view of it, it coincides with, and renders clear, those clauses in the deed, which vaguely and obscurely indicate the boundaries of the right and front and rear, where lines were perhaps necessary for clearness, in default of any expressed natural and well known boundaries on those sides. On the other hand, they are not in reality in conflict with the words of conveyance *144jn our {}ee(j that in clear and absolute terms ’ conveys a boundary on the river in front.

As the question of our boundary in front, the clauses respectively in the deed and the pro-ces verbal of the survey being applicable to different objects, it cannot notwithstanding their literal variance of expression, be justly contended, that they are even in conflict with each other. As well may it be said of two vessels, on the same ocean, the one going east must of necessity run foul of the other going west; though thev may be sailing on different parallels of latitude.

The one clause is used in the deed of conveyance, and intended by the party to convey to us our boundary on the river, the other had been used in the proces verbal, and intended by the surveyor only to describe the running of the lines of his plot. Possibly too the words of the surveyor may have been loosely employed, with reference to the place, then actually used and enjoyed, instead of to the extent of rights to be conveyed, with which he had nothing to do ; or may have derived their colour from the known opinion of the surveyor, since testified by him in the cause of Gravier vs. the corporation, that the road, and all outside of it, belonged to the public. But, at all events, not having been words of conveyance, and therefore not being material, as to the rights to be conveyed, the *145parties may be presumed, not to have scrupulously examined and weighed them, as the words of a deed ; and especially, \then a deed was yet to be executed between them, by a very different hand.—-This idea may more readily be adopted, since the parties were mentioned, in the proces verbal of the survey, as present at, and consenting to, the operation of survey ; but it does not at all purport, as in a deed, that they were present at, and attending to the particular couching of the proces verbal itself. His proces verbal is his own account of his operations of survey, as exhibited on the plot or plan ; which plot or plan, was doubtlessly the predominant or sole object of the attention of the parties ; and it is all that a purchaser so situated would be solicitous to attend to, in order to avoid being brought into collision with his rear and right and left hand neighbours.—-The surveyor general might have been an excellent surveyor, without being any thing of a notary. Conveyancing not being his vocation in general, nor his employment in this instance in particular, one would hardly look to his proces verbal of survey, for the nature and effect of the conveyance of the land to be purchased, where that was yet to be drawn by the skilful and clear head of a notary public ; through whom accordingly were afterwards conveyed to the in clear and absolute 415 *146 pies de frente al rio—four hundred and fifteen ‘r r J . ieet front on the river.

But we are turned round by the defendant, and required boldly to adopt the surveyor’s proces verbal, not as intended by him to be merely descriptive of, and have reference to, his operation of survey, but as words of conveyance, and as of greater force as such, than the precise, considered, and technical expressions of the notary, in a deed, subsequently made ; and thus, by a forced interpretation of the reference to the plan, to render it, through the medium of the surveyor’s proces verbal, instead of an elucidation of the deed, a source of impenetrable obscurity; an obscurity, for which we must be indebted, on the defendant’s scheme of reasoning, to the unaccountable stupidity or wicked obstinacy of the notary public, in thus foisting into his deed so vigorous a phrase as 415 pies de frente al rio ; and which the defendant, in the different stages of his argument, has honored with so harmonious and suitable a variety of epithets.

After all, what is the true question for the consideration of the court ? To keep this clearly and steadily in view, it will be acknowledged, must greatly conduce to a sound decision of the cause. We will endeavor to present it to the court naked and apart from all extrinsic circumstances, and in order to this, first, it may help us *147to determine what it is to ascertain, what it is not. It is in the first place then evidently not a question, properly and abstractedly speaking, of mere location of our front boundary ; considering the nature and effect of the words of conveyance in the deed are admitted and settled.

For, if the nature and effect of the words of conveyance of our front boundary were admitted and settled, there would then be no longer any question about the location of our front. If it were, indeed a question of mere location, there might be more color of reason in resorting to the plan, so far as the deed is silent or obscure. But can it be pretended, that a plot or plan, a proper enough resource on a question of doubt Jill location, can be reasonably appealed to, on ' a question merely of the effect of words of convey-anee ? Or rather could it be perverted from its real use, to destroy the effect of words of conveyance in a deed, of the meaning and effect of which, without such inadmissible appeal, there could be no question? Yet it is, when the deed itself is under consideration, and the inquiry is, what is the meaning and effect of words of conveyance in it of our front boundary—words clear in themselves, and used plainly in so absolute a sense, that the defendant, sensible of their force, and which in a former occasion, and with a different interest himself had triumphantly shewn, *148invokes the plan, not to fix an uncertain location* but to derogate from the deed.

^ IS not even pretended by the defendant, among the variety of resources, to which he has resorted for aid, that the mere circumstance of the front line of the plan being drawn within the road, constitutes the road a front boundary—our witnesses all concur in testifying, that in all plans of land, sold Jr ente al rio or face aujieuve, the front line is never drawn to indicate the boundary of the land, but solely to ascertain the breadth of the front; and that it is never termed a line of boundary but solely of admeasurement. Neither is the parcel of land so lying without the plan, on the side of the water, considered as excluded from the grant, but as making part of the granted premises. Why then should our land, lying at that time outside of the city, and making part of the plantation of B. Gravier, and fronting the river, be made an exception to the general rule ?

It is indeed said by the defendant, that in the book of land claims, lateral lines of plans of land, lying upon the Mississippi, generally extend to the river, and therefore indicate the river as the front boundary, and that such is now the practice of surveyors, and that those of our land are not thus produced. Admitting this, will the mere extention of the lateral lines vary at all the *149character of the front line, drawn, as it invariably is, within the levee and road, which, as well as the jbatture, are necessarily excluded from the plan? How is it, in this respect, with the Jesuits’ plantation, from which both plaintiff and defendant claim title ? From the procésdesJesuites, (149) we find, that their front line begins at the distance of “ 6 toises 5 feet from the middle of the levee at the point A.” A proof, not only that the front line was drawn within the road and levee, but that the lateral line was not prolonged to the river—and in the sale of their confiscated property, no new boundary was fixed between the front of their plantation and river; and all the subdivisions of the property were sold in con» formity to this admeasurement.

It is also objected by the defendant, that the line of admeasurement of the breadth of our front is a strong black line, and that therefore it must be a boundary ; since, as he contends, as a line of admeasurement, it ought only to have been dotted. Certainly, upon the idea of fencing and inclosure, the dots might afford to a restless grantee a greater facility of advancing upon the river; but perhaps the coarse and unskilful hands, of which, as is evident from inspection, the copy of our plan is a production, may in some measure account for the heavy pressure of the pen ; gnd may raise a considerable presumption, that *150they were not versed in the scientific difference between strokes and dots.

But, upon what foundation of fact does the defendant erect so mighty a distinction? No proof was introduced of any usual practice of surveyors, to indicate the nature of their lines by the particulars of their form, color, and strength —And even if well founded in this fact, yet, upon what principle of law could this fact be made, to bear upon our title to a river boundary founded upon our deed.

It is next said, that in a regular figure, bounded by four lines—a trapezium for instance, the line of admeasurement and boundary is the same, and the right of alluvion is made much to depend upon the geometrical properties of the figure. But are there not numerous plantations on the river, having these quadrilateral proportions, where this unhappy consequence has not resulted? The Jesuits’ plantation, for instance, of 32 acres front upon 40 deep, formed, without any injury to its front boutidary, a perfect para-Iellogram ; and yet the right of alluvion seems to have survived the regularity of its figure.

But it is further objected, that we have purchased a trapezium of land, as throughout the whole argument it is geometrically termed by the defendant, and that by extending its front line *151on the river, and breaking it into carves, its . 0 shape will be utterly spoiled. But will not this objection equally apply to all lands lying upon the Mississippi, of so many acres front by so many deep ? Yet notwithstanding the regular and rectilineal nature of their plans, how many riparious proprietors fearlessly go to the water edge ; and come into actual contact with the river.

Another proof of the intent to establish another boundary in front than the river, is said by the defendant to be found in the calculation made by the surveyor of the superficial contents of our land ; and that the single circumstance of sale by superficial measure, turns a lot into ager limitatus, though bounded by a river ; and which, but for this circumstance, would have enjoyed the right of alluvion. Had our land been actually sold by superficial measure, though, as we shall presently shew, that circumstance alone would not have divested the right of alluvion, yet it would have rendered the objection more plausible. But it was not sold at the rate of so much the measure ;—so much, for instance, the square toise or foot; but for one entire sum or price; it was not sold ad mensuram, but per aver-sionem; and should it exceed the caluclated amount, we are not held to refund the excess. Pothier, contrat de vente, c, 3. art, 1. no. 255.

*152But it is replied, that this principle is not ap- . 1 . r i 1 plicable, as no dispute exists in relation to what js contained within the lines of this trapezium } and even were there a deficiency, we should not be permitted to look for it out of these limits. True, if the front lines of the plan were actually a limit; but the contrary has abundantly beet» shewn, and here lies the fallacy of the defendant’s whole scheme of argument; whether in re* lation to the construction of phrases—-the location of lines—the calculation of contents—or the intervention of road and levee ; his whole system of reasoning is grounded on this false assumption of our front line being one of limit and not of admeasurement. Our land is called ager limit at us ; because it is inclosed within artificial limits ; again, it is made ager limitatus. although bounded on the river, a natural boundary ; because the superficial contents of those limits hive been calculated ; the right of alluvion is denied, because we cannot exceed these limits } the interposition of the road and levee obstruct the acquisition of this right ; because they run outside of these limits. Having thus gratuitously provided us with these limits, he endeavours with his magic wand to keep us forever within this charmed circle ; but the front line of our plan being sh'ewn, (as it most conclusively has been) not to be a limit, this powerful spell is at *153once dissolved, and we are released from this ’ enchanted spot.

The calculation of the surveyor gives the su‘perficial contents of the plan, and not of the land; and the front line of the plan being one of admeasurement and not of boundary, we are not concluded by this calculation, or curtailed by the limits of the plan. The surveyor was not called upon by the parties, nor permitted by law, to include in his plan the road and levee. Pothier, cont. de vente, c. 3, art. 1,15, § 9,n, 251. And no batture then existed to be the subject of measurement; making therefore no part of the measurement, it necessarily makes no part of the calculation. The surveyor calculated only the superficial con-tehts of the plan, of what he had actually measured ; he made no provi^on for a future batture, and had it even then actually existed in front, it would not have been included either in the plan or calculation. In none of the plans of plantations, lying upon the river, (the front lines of which are invariably drawn within the levee and road) does the surveyor think of calculating the excluded portion, whether road, levee, or batture. If he did, how would he begin? Would he begin wdth the end of the short leg or of the long leg, to calculate the depth ? A full concession of 4O acres front upon 40 acres deep, makes always a perfect square, or at least a parallelogram; *154but was it ever heard, amone the infinity of plans. of grants of land on the Mississippi, of a serpentine i;ne boundary, the depth of a grant, as represented by the plan. But does this circumstance deprive the grantee of his rights, as a riparious proprietor, or render the quantity sold more ascertained and limited, than when the length and breadth of the lines are given ? Can it be supposed, (where property is not expressly sold at the rate of so much the measure) that the mere act of calculation, the simple reduction into figures of the superficial contents of the plan, can, in any degree, alter its boundaries ? In giving the length and direction of the lines, the surveyor gives the certain means of calculating the contents ; and does it require much skill in arithmetic to make out tlmarea inclosed ?

The Jesuits’ plantation, for instance, contained 32 acres front, upon 40 deep, and surely the most simple of all processes would give us the square acres, and according to this principle, necessarily exclude the right of alluvion. Un-calculated, however, by the surveyor, they go unobstructed to the river ; but let him multiply but the one number by the other, and they are stopped by the quotient—so long as these magic numbers exist in an unmultiplied state, they are perfectly harmless; it is only working the sum, that charms us out of the alluvion.

*155It is next objected, that the intervention of the public road, of which not only the use but the soil is in the public, divests us of the right of al-luvion.

But with whom, upon this point, lies the weight of authority ? Certainly with the plaintiff; shewing clearly, that the interposition of the public road forms no impediment to the enjoyment of this right. Not relying merely upon the case of Attius, mentioned in the Digest, 23, 1, 4, where this principle is fully established, we find it generally supported by all writers on the subject. Gronovius, an authority highly respected by defendant, says, si meum inter agrum et fiu-rium interjaceat via publica, tamen meum fieri quod alluvio adjecit; if a public road lie between my land and the river, what is added by alluvion shall belong to me. Grot. 2, 8, § 17, in notis Gronovii : and even Grotius, in the very passage cited by the defendant, from the same section, acknowledges the fact of the decision of Roman Jurisconsults, “ that the public road does not take away the right of alluvion though he complains, that it is not founded on natural reason, unless, he adds, (i the owner of the land is bound to furnish the road.” But here as our land, like all others in the country, was held upon this condition, even the cause of Grotius’ complaint is removed.

*156®ut admitting, for a moment, this objection as put by the defendant, is he aware of its extent; and that it will be as fatal to his pretensions as to the title of plaintiff? The soil of the public road is in the public; but alluvion belongs only to proprietors of the soil, upon which it is formed ; and therefore, if .formed upon the public road, it goes, not to the defendant, but to the public. Will the interposition of the levee relieve him ? Hardly can it be contended that this was reserved by B. Gravier, for the sake of the prospective alluvion ; or for the com* fortable service of keeping it in repair. Will he call the batture in front to his aid ? This, by positive testimony, has been proved not then tq have existed. If the intervention, therefore, of the public road form this insuperable bar to the acquisition of the right of alluvion, the title to it is then exclusively vested in the public.

The whole question, however, as to the loss of alluvion by the interposition of the public road, 1 turns upon the mere fact of boundary, and is in, I deed put as such, in the very passage quoted by the defendant, from Heineccius t who there says, that the alluvion formed upon our land belongs to us, and that formed upon the public land or road, to the public. “ Quod agro nostro hoc modo accedit, nobis: quod agro publico viaeve publics adjicitur, publico cedere debeat.” *157 Heinn. jus nat. et gent. 1. I, c. 9 § 254—val. 1, p. 110, 111 This passage, with the note, unless refuted, says the d fendant, ‘'will decide the cause.” But far from wishing to refute it, we are anxious for its confirmation ; it proves conclusively the reverse of the preposition it was ci>ed to support, by shewing, that land which goes to the river, or, as Heinneccius elsewhere* as well as Huberus, expresses it, usque ad Jlumen or (frente al rio) acquire the alluvion formed upon it, whether public or private property— whether road or farm.—-Vid. 2 Voet, in pand. 41, 1, § 15 Hub. 2, 1, § 39.

In our case the alluvion was qdded not to the road, belonging to the public : but to the banks of the river belonging unquestionably to the adjacent proprietor. Institutes 2, I, § ⅛. ff- 4, 1, & 1 and 18. Partida, 2, 28, 6. Civil Code. 106, art. 13 Rent hr op fc? al. vs. Bourg fc? al. 4 Martin, 138.

The interposition of the levee is also made a distinct head of objection to our claiming the right of alluvion ; but it has already been sufficiently answered. The truth is, that at the time of sale, neither party probably dreamed of the future formation, extent, and value of the batture jn front. Our land was sold frente al rio, with all its chances o.f loss and gain i and from its price *158a^one> considering the utmost nominal valué of real estate in the place, at that period, under the anti-commercial and despotic government of Spain, we might strongly infer, if indeed the express words of conveyance in the deed, did not render inference and construction useless, that the purchaser intended to buy front upon the river, and that the advantages of air, prospect, and other benefits of that situation entered fully into the consideration.

As a further proof of the views and intentions of the parties, in this respect, we may adduce the conclusive fact, that after the sale, the vendor and his heirs were delivered of the burden of maintaining the levee, which thenceforward was exclusively supported by the vendees.

This fact is established by positive and un-contradicted testimony. Bruno, one of our wit» nesses, when questioned as to those who kept up the repairs of the levee, answers, the front purchasers ; and Bailly, interrogated to the same point, says, that after he purchased from Poey-farré, in 1789, he kept the levee in repair himself in front of his lot; and afterwards, when further questioned, as to his obligation to repair the road and levee opposite to his lot, at the time he was in possession, answers, “ by order of the governor, through his adjutant, Mr. Metzin-

*159Upon what principle is the right of alluvion vested in the front proprietor ? Because he alone is exposed to loss by the encroachments of the river, and to expense in guarding against them ; not surely, as the defendant labours to shew, on account of the nature of the increase, which, prevents the new soil from being distinguished from the old, and renders it impossible therefore for any one else to claim it.

If the alluvion be imperceptibly added to the original soil, the addition, though not discoverable at every successive moment, may surely be distinguished in a short series of months, or years. The ancient boundaries of the original grant being fixed and certain, the subsequent addition of foot, toise, or acre, is certainly as the original soil; as well might it be urged, that in the floods of the river, its increased height could not be distinguished on account of its gradual rise.

The fact then of the degree of increase being certainly eventually discoverable ; next as to the supposed impossibility of finding any other person who might have the right to claim it; and here we will accompany a moment the defendant back to “ first principles,” to observe, that all private rights of land, having originally emanated from the state or nation, there could be no difficulty in finding who would have a right to *160claim the alluvion, if the hands of government _ ° were not tied by a very different principle from that of the impossibility of finding out the degree of increase, or a party who could have a right to claim it.

Neither does the second reason adduced by the defendant, seem to carry with it more weight, viz : that the river, being a boundary, the ripa-rious proprietors must always go to it, even if its course vary.

This appears to be rather an assertion than an argument; the question is not, as to the existence, but the reason of the principie, which thus authorises him to follow the river. This will be found to rest exclusively upon the fair and settled ground of compensation. Qui sentit onus, sentiré debet et commodum.—He who is exposed to the chance of loss or expense, ought reciprocally to be entitled to the chance of profit or gain ; in the language of Blackstone, “ this possible gain being the reciprocal consideration for such possible loss or charge.” 2 Bik. comm> 262.

The right of increase by alluvion is grounded upon the maxim of law, which bestows the profit and advantage of a thing upon him, who is exposed to suffer its damages and loses. Ency-clop. verbo Aíluvon. “ becundum naturam est, ut cujusque rei eura sequantur commoda, quern *161sequuntur incommoda; quare cum amnis de 1 1 agro meo stepe partem deterat, oequnm esse ut ejus beneficio utar. Dig, 1, 17, ⅜ 10. Grotius de jur bel. et pac. 2, 8, § 16 Puffend. 4, 7, § 12.

The defendant must, therefore, consent, notwithstanding his evident reluctance, to leave us with all the equity, which he confesses is supposed to recommend our legal demand.

It would be strange, that the Spanish government should depart, in this instance, from a principle recognised by its own laws; gpd would impose a duty without bestowing the correspondent right; and still more incredible, that B. Gravier alone should be the favored object of so remarkable an exception.

Suppose the river, instead of augmenting our . land by alluvion, had been gradually washing it away ; would B. Gravier, or his heirs, make good this deficiency ? Could we compel them to do so yet ? If they are to reap the profit, ought they not also be exposed to the loss ?

This obligation alone then of maintaining the levee, after the sale, seems conclusive as to the right of alluvion ; and from the performance of this obligation, imposed exclusively upon the front proprietors, was B. Gravier only delivered by this sale; the vendee, the one under the charge of making the levee, must have been a riparious pro. prietor. Case of Gravier vs the corporation, 20,

*162The silence and absence of all pretentions, for . 1 ’ so long a period after the sale, on the part of B. Gravier, who best knew his own intentions, and , . 7 who lived and died here, is a circumstance somewhat remarkable, if, after the sale, he had not dismissed all thoughts of remaining a riparious proprietor in our front; a silence not a little prolonged by J. Gravier the heir and purchaser of his estate ; a silence profound and unbroken, until the change of government awakened him to a knowledge of the extent of his rights.

It is next said, that ive have no right to claim the alluvion in front of our land, because it is not expressly conveyed in our deed, and that whatever is not granted, is reserved.

True it is, that the alluvion itself is neither conveyed nor reserved in express terms, in the deed ; but if it were even necessary to our argument, is not this silence sufficiently accounted for, by having shewn, in the first place, by conclusive evidence, that in ,point of pact, it did not then exist ? But if it had then actually existed, was it necessary, in point of law, to have been expressed, in order to be conveyed ? In a deed of land upon a navigable river, does not, (not merely the right of alluvion) but the alluvion itseif pass, as an accessory to the principal estate, by the general words of conveyance ? The prin*163ciple of law cited by the defendant applies to land itself and not accessories, and is accompanied by this other principle; that the accessory, if not specially reserved, follows its principal; “ ac-cessorium sequitur naturam sui principalis— sublato principale, tollitur et accessorium,” ac-cessoria sequuntur jus ac dominium rei princi-palis. Whatever, says Domat, makes part of the thing sold, or is an accessory to it, is included in the sale, unless it be reserved. 1 Domat, 1, 2, § 4, art. 9.—And by our digest, the right of ownership. Civ. Code. 102, art. 3—2 Febre-ro de escrit, 7, § 1. art. 35. Pothier; Oblig. c. 1, art. 3. § 6, Part. 5, 23.

A passage from Huberus is next referred to by defendant as proof that in private lands, comprehended in a certain expressed measure, the right of alluvion is not to be presumed. But the contents shews that Huberus had in his eye Grotius’ triple classification of land, and was there speaking of military or public lands assigned by the Roman government to individuals; where he says, this presumption, as against the government, was not admitted ; but in the very next sentence, he adds, if the lands go to the sea or river, (usque ad mare vel Jlumen) the right of alluvion shall obtain. Huberus 2, § 33. (a.) And Puffendorf, upon the same subject, says, if in designating the boundaries of land assigned *164t0 individuals, the river is simply named, the % r J 5-right of alluvion shall be presumed. Puff 4, 7, 12.

In our conveyance, the river being not only named, but the land described as fronting upon it, frente al rio, or going as Grotius expresses it, usque ad fumen, the right of alluvion, even supposing it a public grant or military assignment, would be necessarily presumed. At the same time, we are by no means satisfied, (supposing it still a public grant) that without such descrip» tion, the same presumption would not obtain : such grants or assignments being, according to the principles of construction of the Roman law, most largely to be interpreted in favor of the grantees, on account of the supposed liberality of the prince. “ Beneficium imperatoris, quod a divina scilicet ejus indulgentia proficitur, quam plenissime interpretar! debemus.” ff. 1, 4, § 3.

In our deed, however, it is not left to mere presumption or legal construction ; but is provi» ded for by an express clause, conveying every accessory, whether in fact or law. Our land is sold con todas sus entradas, salidas, usos, cos-tumbres, derechos, y servidumbres, with all its ingresses, egresses, uses, customs, rights and servitudes. Is not this clause sufficiently com*165prehensive? If it convey every right, that of aí-luvion is of necessity included.

But alluvion is denied to be an accessory, and by one of the counsel it is made land; and Viner . is quoted to shew that land cannot be appurtenant to land. 2 Viner's abndgtn. 536. If al-luvion itself be denied this character, the right of alluvion unquestionably will not.

We claim the alluvion however, not as having an existence independent of the soil, upon which it is formed, but by virtue of the right of allu-vion, incident to all lands bounded by the river. We claim our land as increased by alluvion.

This objection, or at least, the latter branch of it, seems grounded on the difference between the popular and technical meaning of the word.

In common parlance, alluvion is generally spoken of, as land; but in a technical sense, it cannot be so described—from its slow and imperceptible increase it cannot be known in what portion or periods it has been incorporated with the original soil; .and when so incorporated, it is not considered as new land, added to the old ; but, from the date of its incorporation, makes part of the old land; in the same manner, says the Encyclopaedia, as the growth of a tree forms part of the tree, and is the property of the proprietor of the tree. If then ,we have purchased 'he old land, we have purchased its alluvion, *166as i'c incorporates itself, became a part of it;—if we have purchased the tree, we have purchased the growth of the tree, and as well might the defendant contest, in the one case, our right to the additional circumference of the tree, as in the other, our right to the alluvial increase of the land. But, why is not alluvion itself an accessory to the soil, upon which it is formed ? Because, says the defendant, according to the definition of Denisart, an accessory must be connected with the principal, upon which it depends, by its origin, when it has produced it; by its nature, when it can exist separately from it ; or by its use, when it is destined to ornament and be of use to it ; and alluvion, (not to change the figure of the defendant) is said, squares w ith neither branch of the definition.

This classification of accessories appears hardly so logical, as that adopted by Heinnecciuss into natural, artificial, and mixed ; but taking the defendant’s own division, is not alluvion still marked with all the features ofian accessory ? It Is not connected with the ancient soil, by its origin, nature, and use? Can it be produced or exist Separately from it ? Does it not naturally originate* or take its rise, from that part of the shore, that by its configuration, is fitted to collect, form and retain the numberless particles of soil, tha imperceptibly settle upon it ? Will it be said, the *167they pre-existed separately, floating in the before they adhered to the shore ? If so, was their pre-existence, in the form of alluvion ? Or did they become so, until the shore had collected and incorporated them with itself? Will it be replied, that though alluvion grow upon* the shore; yet, as it is through the means of augmentation afforded by the water, it does not owe its origin to the shore, exclusively of all other causes, and therefore is not connecter^ with it by origin, or nature ? What would then become all the other examples, put by the authorities cited on this subject, to illustrate their definition of an accessory ? Might not the defendant, on some other occasion, when his argument might require it, assert, with equal accuracy, that a tree, or a blade of grass, is not connected, with the soil by origin or nature, because they are dependent for their growth, not on the soil alone, but also on the light and heat of the sun, and the chemical properties of the atmosphere ? And, what is more, deprived of which, they must perish ; which cannot be said of alluvion, in reference to auxiliary cause of its existence.

But no one link of connection is enough for us, in order to establish the character of alluvion asan accessory, let us ask,-if its connection with the 01 igmal soil, be not a connection by nature What is the meaning of a connection of one thin 2 O’ *168witli another by nature, unless it signify a connection, not formed by the art or industry of man ? Are not the ancient soil, the water, and the gradual and imperceptible subsiding of the particles upon it, all of them the work of nature ? And if two things, both of them the offspring of nature, be brought together and made one by the process of nature, does it not require some fortitude to assert, and gravely adhere to the assertion, th||j| they are not connected by nature? But, as the defendant has been pleased to denominate our claim to the alluvion, upon the footing of its being an accessory to our principal estate, “ an extraordinary pretension, putting all regular confutation at defiance,” and has condescended to attempt an irregular, as it certainly is an insufficient confutation, and attempted, we presume, because he has said, ‘-he would leave nothing unansweredlet us turn, as we cannot agree, to the authority of civilians upon this subject.

Wolff, after classing accessories into natural, artificial, and mixed, expressly enumerates al-luvion, as an accessory connected with the original soil by nature. “ Dicitur autem accessio naturalis, quam natura facit; artificial™, quam faciunt homines; mixta, adquam natura et in-dustria humana concurrunt.” Ins. jur. nat, et gent, p. 2. c. 2, § 242. “ Alluvio dicitur ac- *169 cessto naturalis, qua vi fluminis fundo adjacent! x # J insensibiliter adjiciuntur particulee quasdam ter- . ras, ut is successive, sensibile capiat incremen-x turn,” Id. § 251.

Heinneccius, adopting a similar classification, adduces alluvion, as an accessory by nature. Accessio a jurisconsultis accuratioribus in na-turalem, industrialem, et mixtam dispecitur. Sic naturas solius beneficio debemus fas tu ram ani-malium, alluvionem, novam insulana, alveum de- • relictum.” 1 Hein. 109.

Voet follows also the same division of accessories into naturalis, vel industrialis, vel mixta, and cites alluvion, as an instance of the first class. 2 Foet, in pand. 1. 41, t. 1, § 15. Hu-berus also makes it an accessory by nature. Huberi Prcelect. vot. 1. /. 2, t. 1, § 32, To this effect, see also Vinnius ad Inst. L 2, t. 1, .§ 20. Comm.

Renusson, speaking also of what is added to an estate, as an accessory by nature, instances the insensible increase of alluvion. And Po-thier, treating of the natural union of one thing with another, gives, as his first example, allu-vion. Selon les principes du droit naturel et du droit Romain, ces terres, á mesure que la ri-viere les apporte et les unit á mon champ, de-venant des parties de mon champ, avec lequel elles ne font seul et meme tout, ac-*170qU|ers le domaine par droit d’accession. Po-thier, traite de prop. 1, 2, § 3, art. 15, «.157. And afterwards he adds, “les alluvions que la # ... A rner ajoute aux héritages voisins de la mer, ap- . . , partiennent aussi par droit a accession aux pro-priétaires, qui peuvent faire des digues pour se les conserver.” Id. 159, see also 1 Domat, l. 3, tit. 7, § 2, et 12. Febrero, in like manner, considers alluvion as an accessory to the principal estate. 2 Febrero de escrit. c. 7, § 2, art. 8.

Our own digest recognizes also this principle, and defines the right of accession to be the right, which the owners of a thing have to what such thing produces, and to what unites itself to the same, by a kind of accessory incorporation, whether naturally or artificially, Civ. Code, 102, art. 3, and in a following article, adds, that “ the right of ownership gives in general to the owner, by right of accession, all that unites itself with hi-> property. Civ. Code 104, art 8.

If we may be permitted the observation, it seems, indeed, to us, that in the present suit, we stand in every respect, upon the same ground, formerly occupied by the defendant, with this triffling exception, that the defendant then claimed the accessory, without owning the principal estate,* whereas we, owning the principal estate. only claim the accessory.

*171In this connection, it may be well, briefly to notice the defendant’s claim of prescription i 1 his answer, of ten, twenty and thirty years ; but in support of this plea, no proof was offered, un. less it could be found in the pleadings of Gra-vier vs. the corporation ; which, although interdicted to us, are freely used by the defendant, as a source of convenient reference. But how-stands the question of prescription between us ? Instead of a shadow of proof in support of the defendant’s prescription, though pleaded in form, we have shewn, by positive and uncontradicted testimony, a quiet and continued possession of nearly thirty years.

Baillv, who lived upon our land from 1789, up to his sale to us, in 1816, was almost the whole of that period, viz : from the commence, ment of its formation, in possession of his bat-ture ; nor was his possession merely constructive, but an actual possession and enjoyment. Witness his avance, or little wharf, projected into the river, after which as he expressly testifies, he first began to observe the formation of the batture. Witness his fifty five years’ pursuit of his wood trade upon the river, continued throughout his residence upon our land, by which the batture was used from the moment it rose above the surface of the water and was of sufficient consistence for unloading, piling, and *172vending his wood. When questioned as to the ailedged fact of the defendant’s possession, he answers, “ no,” (though) he has seen him carrying on works on other parts of the batture, opposite to Girod street. Bruno and Caisergues, interrogated to a similar point, also testify, that no act of ownership, to their knowledge, was ever exercised there, by Bertrand or John Gra-vier.—Cai§ergues, an Alcade of that period, as well as procureur general, and Bruno, residing throughout that period, on the water edge, at the distance of four hundred feet, from the premises in question.—

But, says the defendant, you have not pleaded prescription.—True, not in terms ; but prescription, by our law, is not a plea stricti juris, and may be brought forward on the appeal, and in any stage of the cause, Civ. Code, 488, art. 67. Bv pleading and shewing therefore a title (itself alone importing a delivery of possession of the principal estate) and an uninterrupted actual possession of it and its alluvion, for nearly thirty years, prescription follows as a conclusion of law.

Will the defendant seek for proof of an adverse possession in his report of the proceedings of the cause of Gravier vs. the corporation ?—- If, under the decision of that cause, or otherwise, he did get a possession of any part of the *173extensive batture in front of the whole suburb St. Mary (any thing, concerning which, is not in evidence in this cause) would it not be in-cure bent on him also to shexv, that he had taken possession of that which is in front of our land ? And besides, as the general batture is claimed and owned by different proprietors, a possession, pars pro toto, can hardly be pretended ; or that possession, in such a case, against the proprietor of one part, could be available against the proprietor of another.

With his own report of these proceedings in the same cause of Gravier vs. the corporation in his hand, the record of which, if thought useful to him might easily have been produced in a complete state, the defendant has made a feint of shewing, that the front proprietors generally, as intervening parties, were barred by the judgment in favor of Gravier vs. the city. If the defendant had hazarded the production of the record itself in that cause, among other things, that would have amounted to evidence, not very-serviceable to his interest, it would have appeared, that the intervening parties (in a petition of intervention, by the way, perhaps in itself essentially a nullity) did, with the formal leave of the court, and before the trial of the cause, discontinue their suit of intervention, and that discontinuance was accordingly recorded,

*174Finally, the defendant has endeavored to de. . J prive us of the alluvion in front of our land by a kind of syllogism, to wit : by endeavoring to shew by a profuse exhibition of learning, that an ager limitatus, or limited estate, does not enjoy the accessorial right of alluvion ; then by asserting the fact, that our land is ager limitatus, ergo, that we cannot, by virtue of our asserted title, from the very nature of it, lay claim to the right of alluvion.

While at the very threshold, let us ask one short question, where is the defendant’s foundation of facts, upon which so vast a superstructure of learning is erected ? Has he shewn, in point of fact, that we do not go to the water’s edge ?

But to begin, the defendant, in reasoning on this head, relies upon the following text in the digest; and endeavors to support his construction of it by the opinions of sundry commentators.

“In agris limitatis jus alluvionis non habere constat. Idque et Divus Pius constituit. Et Trebatius ait, agrum qui hostibus devictis ea conditione concessus sit, ut in civitatem veniret, habere alluvionem, ñeque esse limitatum; agrum autem manucaptum, limitatum fuisse, ut scire-tur, quid cuique datus esset, quid venisset, quid in. publico relictum esset,”

*175This text, which on a former occasion, the defendant considers, as having put to night a score of adversaries (Gravier vs. the corporation, 50, note,) leads to the following inquiries.

1. What is ager limitatus, or a limited estate ? And whether, upon the principles of any of the commentators upon this text, our land can be brought within this description ?

2. Whether the text does not rest exclusively upon the authority of the constitution of the emperor Antoninus Pius—or have any other application than to the distribution by the Roman government of military lands—and be not in derogation of the general or common law of Rome ?

3. Whether it have ever been incorporated into the Spanish code ?

What is ager limitatus or a limited estate ? and whether, upon the principles of any of the commentators, our land can be brought within this description ?

It is contended by the defendant;-

1. That all lands which are conveyed by artificial lines of mensuration, or by fixed boundaries, are, as the term imports, agri limitati, whether the contents in superficies be set forth or not,

2. That all lands, which are conveyed by *176measurernent or quantity, come under the same denomination, and for the same reason ; because their lines of measurement must be drawn to ascertain their square contents.

The defendant is here going over his former ground ; but we trust, we have abundantly shewn, that our deed, in positive and express terms, gives us the river as a boundary. Has any authority been produced to shew, that there can be ager limitatus, a limited estate, when in point of fact, the water, and not something else that is short of the river, is on that side, the boundary of the estate ? For has it not been over and over again admitted, as settled law, by the defendant himself, in the course of his argument, —-admitted as the law of Rome, and Spain, and France, and England, that the alluvion formed upon the shores of navigable rivers, belongs to the proprietor of the adjacent land ? And h is not the defendant endeavored to shew that this pervading principle lies deep in the foundation of the law of nature ;—in the reason and nature of things; and has he not endeavored to trace this very last root of the principle to this; that, as the alluvion is increased by imperceptible degrees, it is impossible to tell what as added at one time, and what at another ;—and that, therefore, it would be impossible to find any other person than him, upon whose land it was form*177ed, who would have a right to claim it ? Though we think, we have succeeded in tracing the prin-eiple to a better root; in shtwing, both by argument and authority, that it is because of the obvious equity, that he, who is exposed to the loss and the charge of the encroachments of the river, shall enjoy the gradual imperceptible accessions it may bring.

How then can it be contended by the defendant, that this law of limited estates can be applied to trench upon our accessorial rights, if we be bounded in front by the river ? If, in point of fact, we be not bounded in front of the river, we make no pretensions to the alluvion : for it is, by its nature, an accessory.

Here we cannot but notice the ingenious composition and confusion of terms by the defendant in the outset of his reasoning. The respective phrases, “artificial lines of mensuration and fixed boundaries,” are evidently put as equivalent to each other. By fixed boundaries are, we presumed, meant, though not expressed, artificial boundaries ; for, taken as intended to signify all certain natural boundaries, the two phrases are not equivalent to each other. Nowt, if the defendant would exclude from the right of allu-vion, all lands sold merely by artificial lint s of mensuration, he would at one sweep deprive of this right all lands granted on the Mississippi, *178jror we venture to assert, tliat they are all erant-ed with reference to lines of mensuration. They are granted so many acres front, upon so many deep, as appears by the plan, &c. of survey ; making in all cases, of necessity, by the very terms of the grant, a regular mathematical figure. Now, the lines, to enable the grantee to run from one course (now by the defendant called boundarv) to another, to ascertain the breadth of front, and the length in rear, are artificial lines. Was, ever any line run by a surveyor, in the exercise of his art, other than an artificial one ? .Now, if land granted or sold, according to the plan of a surveyor, have never, until now, been denied the right of alluvion, (if the grant itself gave in clear terms a boundary on the river) on what new principle can it be contended, that ours be made an exception to the general rule ? We must flatter ourselves, therefore, that the grant or sale of land by, or with reference to, artificial lines of mensuration, does not, by the mere import of the term (as the defendant assumes for the basis of his argument) in any case where the grant or sale itself expressly gives a boundary on the river, constitute the land ager limitatus; and if not, the defendant’s whole argument, on this head, is but a castle in the air, the baseless fabric of a vision ; for it wants the essential foundation of fact, of fixed boundaries *179-—or artificial lines of mensuration—or a certain something, be it what it may, else than the land, interposing between it and the river—so that this certain something else, beyond these fixed boundaries, or artificial lines of mensuration, instead of our land, will touch the water, and be the parent of alluvial increase.

Even, if the authorities relied on by the defendant, would support his doctrine of ager limir tatus, (and we will undertake to shew that they do not) still the immemorial usage of the country, in this respect, in relation to lands lying on the Mississippi, would make the case of our land an exception;

Let us now proceed to examine some of the defendant’s authorities to this point.

To begin with Grotius, the authority upon which the defendant seems chiefly to rely. This author, on the subject of alluvion, considers three classes of land, as known to the ancients : the first two of which, he thinks, have not this accessorial right. Our land has the luck of be- ' ing ranked by the defendant, in both of these classes, who has thus endeavored, by a kind of double disability, to deprive us of this right.

This triple classification of Grotius is as follows. 1 Agrum divisum et assignatum ; including agros limitatos (limited estates) so cal-*180]e(j from having artificial limits. 2 Agrum _ ° f> assignatum per universalitatem ; lands assigned jn maS3 and contained within a certain measure. 7 3 Jgrum arcfinium : lands having natural boundaries ; as rivers, &c. To the last of vvhich only he allows the right of alluvion. Grótius 2, 3, 16.

Grotius, by the way, is here speaking of public and military lands, distributed by the Roman government, as is evident both from the context, and very terms of the classification, as well as from the following authorities 1 Gronovii not. Puffendorff 4,7, 11, Barbeyrac's note, Fronti-nas de re ag 217 -—The correcteness of his classification has also been impeached ; and he has fallen, in this respect, under the lash of his own commentators, Gronovius and Barbeyrac.

Admitting however the correctness of it, un. der what head ought our land to be placed ? Having in front the river, a natural boundary, can it fall under the first division, which is confined to lands, having artificial limits ? Will it be bet. ter received into the second, of land assigned by the government in mass ? Must it not then, of necessity, take its rank in the third divistion, as ager arcfinius ; entitled by fact, and also by this classification, to the right of alluvion ?

Voet, another authority adduced by defendant, in the very next sentence, succeeding that *181quoted by him, for the purpose of shewing, that limited lands do not enjoy the right of alluvion, expressly states, that this exception does not extend to land bound bv a river. 2 Voet, in ' . pand. I 41, t 1, § 15, atque hiñe illi quibus agn concessi usque ad Jlumen jure alluvionis gaudent, tamquam possidentes agros non Jimitatos, ut in agris ad Vlosam et Isaram si;is, olim in Hollandia judicatum fuisse commemorat Hugo Grotius : /. 2, c. 8, §12

A word or two upon this authority. Voet is here commenting upon the very text in the digest, upon which the whole doctrine of limited estates depends ; and the above comment shews pretty clearly his apprehension of it; that it does not apply to lands, bounded on the river, the proprietors of which are left to enjoy the right of alluvion—jure alluvionis gaudent; and, as he afterwards adds, “ tanquam possidentes agros non limitatos ”—In other words, notwithstanding the artijicial lines of mensuration, or the calculation of their superficial contents, if the estate touch the river, if it be frente al rio — or go, as Voet says, usque ad Jlumen, the artificial measurement yields to the natural boundary—the estate becomes an unlimited one, invested with all its alluvial rights —The instance also adduced by him of the decision to this effect in relation to lands in Holland, formerly si*182tuated on the Meuse and Isere, loses none of its 7 force, when applied to those lying upon the Mississippi.

To this effect, and even the stronger, is the authority of Hubertis, contained in the succeeding part of the sentence quoted by defendant, where he adds, “ nam si possideantur agri simpliciter usque ad mare vel lumen, turn al-luvio obtinebit, etsj venditores numerum ali-quem jugerum profiteantur ” Huberus 1, 2, 33.

But to leave commentators and come to this formidable test ; let us next inquire ; 2, whether it do not exclusively rest, as we think we have successfully urged, upon the constitution of the emperor Antonius Pius ;—and have any other application, than to the distribution by the Roman government of military lands, and b® not in derogation of the general or common law of Rome.

The defendant contends, that it was previously known to the Roman law, at least as far back at the time of Julius Causar, and this he infers, from the phrase, et Trebatius ait—Trebatius having been the contemporary of that emperor. And to give greater weight to the dictum of Trebatius, thus called in aid of the imperial constitution, we are reminded, that he was the preceptor of Labeo, the founder of one of the sects of Roman advocates.

*183But we learn from the digest, that notwith- .. , . . ⅜ • ,. , . standing his reputation and connections oí his works compared with those of other juriscon-suits, minus frequentuntur, were less consulted ; and also that many of his laws were rejected, ff 1, 2 § 45.

The authority of Trebatius, however, whatever may be its weight, does not by these means second the defendant in his interpretation of the text, nor support this reference of its antiquity; on the contrary, Trebatius is here speaking (as is evident on a mere inspection of the text) not in general of the question, whether limited estates be, or be not, entitled by their nature, to the enjoyment of alluvial accessions ; but exclusively of military lands, granted by a conquered enemy for the purpose of forming a Roman city, and which, he says, enjoyed the right of allu-vion, and are not limited. His dictum, so far then from coinciding with the constitution of Antonius Pius, is put rather as a kind of exception to it.

This difficulty the defendant ingeniously attempts to get over, by proposing to reform the punctuation of the text, in the following manner, viz ; by striking out the period, after the word consti'uit, and inserting in its place, a comma ; and putting a period in the room of the comma, after et Trebatius ait; and then, by employing *184 et conjunctively, to convert, in this manner, into one sentence, the first and beginning1'of the second sentence. Thus, he supposes, will be also grammatically located one of the conjunctions, which, according to the present reading, the defendant deems superfluous. The Latin conjunctions seem to lie as much in the defendant’s way, as the Spanish prepositions ; and he has an equally happy felicity in getting rid of them. But may we not leave the punctuation as it stands; having at least a presumption in its favor, and consider et employed not conjunctively to make one sentence oí two, by the addition of one idea to another, of the same kind; or one authority in support of another, to the same point; but as an adversative conjunction, to introduce a new sentence, and to mark some opposition between it and the preceding one ; and properly translated into English by the conjunction yet. And does not the sense obviously require this construction ? “ In agris limitatis jus alluvionis non habere constat. Idque et Divus Pius constituit. Et Trebatius ait, agrum qui hostibus devictis ea conditione concessus sit, ut in civitatem veniret, habere alluvionem ñeque esse limitatum,” &c. ‘‘ It is certain that in limited estates, the right of alluvion does not take place. And this has also been decided by a constitution of Antonius Pius. And Trebatius says,” *185«—What?—The same or a different r m b 1 hat lands, granted by a subdued enemy upon the condition of becoming city, have the right of alluvion, and ought not to be considered as limited, &c. It is manifest, that this sentence, beginning et Trebatius ait, should be translated, “ yet or though Trebatius says.”

But go the length of adopting the reformed punctuation, proposed by the defendant, by taking away the period after Divus Pius constituit, and replacing it with a comma ; and inserting a period after et Trebatius ait, and deposing the comma—and what then becomes of the remainder of the sentence ? It is set loose from the rules of syntax, and the substantive agrum is found in the accusative case, without any verb to govern it.

For our translation of the conjunction et, we need but refer to Fntick’s or Ainsworth’s dictionary.

This text must, therefore, notwithstanding the emendatory criticism of the defendant, be left, so far as it is to be viewed as a general law, to rest singly upon the constitution of the emperor Antonins Pius.

But has this text in truth any other application, than to the distribution by the Roman government of military lands ?

It is not to be denied, that by the general or *186common law of Rome, founded on the broad and # equitable principles of natural law, the right of alluvion on rivers belongs to the private riparious proprietor. “ Preterea, quod per alluvionem agro tuo flutnen adjecit, jure gentium vobis ac-quiritur. Inst. 2, 1, § 20 ff. 41, 7. § 31.

The text in question evidently does not amount to a repeal of the general or common law of Rome, on the subject of alluvion ; for besides, that it is too compendious and solitary to be supposed to operate so great an effect, its terms, though general, still are expressly applied only to limited estates. But the text itself does not give a definition of limited estates ; nor contain within itself any general principles, or particular rules, by which they are to be distinguished from other lands. All lands that are granted or sold by the state to individuals, or transferred from one .individual to another, are, in one sense, limited; that is to say, the grant or conveyance shews them to be confined or limited within certain boundaries, either natural or artificial, which separate and distinguish them from lands of other individuals, or of the state. The text cannot be said to have application to lands, in this sense limited ; else its application would be universal; and it would amount to what it is not, nor is pretended to be, an absolute total repeal of the whole general or common *187law of alluvion. The phrase limited lands having then a technical signification, to what class of lands was its application confined ? Though the first sentence of this section of the digest be expressed in general terms, and, if standing alone, might be taken in an independent sense, yet the context requires, that the first sentence (in agris limitatis jus alluvionis non habere con-stat) should be read with reference to the ensuing ones. The second sentence, connected with the first by a copulative conjunction, assigns the authority for the text it contains; id-que et constituit Divus Pius. The third (connected in sense with the two preceding ones, by a conjunction used adversatively) in stating, on the authority of Trebatius, an exception to the rule in favor of cities to be founded, speaks clearly of the kind of lands in question ; to wit, “taken from the conquered enemy;” and in giving the reason why individuals among whom they were divided, do not obtain with their shares a right of alluvion, by an allusion to the mode of distribution, plainly shews them to be public and military lands.

If, therefore, we were called upon to judge from the naked text, unassisted by the lights of commentators, should we not reasonably infer, that lands of this description were deprived of the right of alluvion, not in virtue of their being *188confined by artificial, instead of natural limits r but from the peculiar mode of assignment on the one hand, and reservation on the other.

With the Romans, it was an usual practice to partition out among their veterans, conquered Or confiscated lands ; and to this, it is believed is confined the law of ager limitatus.

This is apparent, not merely from the classic authors of ancient Rome, but from a succession of commentators.

To begin with the gloss, a work comprising up to its date, every valuable note and scholium upon the Roman law—the appearance of which superseded all former glosses—and which still remains an unshaken authority—and a monument of the industry and learning of its authors.

After giving the text (in agris limitatis, &c.) the case put by the gloss in exposition of it, is, as follows. “ ¶ Casus. Jus alluvionis non habet locum in agris militibus assignatys. ¶ Secundo dicit; hostes, devicti a Romanis, agrum ut esset civitatis Roman» dederint. Dicitur quod in isto agro habet locum alluvionis, ¶ At si ager hostium sit captus á militibus, et is militibus sit assignatus, iste ager dicitur limitatus ; et ideo in eo non habet locum jus alluvionis.^'. 41, 1, 5 16. Gloss, 1741.

But the text is here divided, as marked, into three parts or paragraphs. The constitution of *189the emperor Antonius Pius, contained in the first, is explained as follows. Case. The right of alluvion does not take place in military lands. The second, comprising the dictum of Trebatius, speaks of enemies conquered by the Homans (and who) gave land for the purpose of its becoming a Roman city. It is said, that in this land the right of alluvion takes place. The third, taking in the remainder of the sentence, is thus explained: but land of the enemy, taken by soldiers, and assigned to them, is called limited, and therefore does not enjoy this right.

This general exposition of the gloss seems sufficiently conclusive upon this point ; but its subsequent annotations upon the different phrases in the text, leave no room for doubt. In these is given a definition of ager limitatus and ager non limitatus, of limited and unlimited estates.

Text. In agris limitatis. Gloss ;—id est xnilitis assignatis; vel, id est, inter veteranos divisis; secundum R. “Limited lands, that is— lands assigned to the soldiers ; or, according to R. (probably meaning the commentator Roge-nius) divided among the veterans. ”

Ager non limitatus, under the words of the text, ñeque esse limitatum, is afterwards explained, viz : “ land not assigned to the soldiers ; id est, non militibus assignation. And *190P^rase *n ^ text, agrum manucaptum, is defined in the gloss, to be land taken by the soldiers and assigned to them; and therefore not enjoying the right of alluvion.

The fullness and particularity of the gloss, opon this text, leaves therefore no doubt of its exclusive application to military lands. Have the Spanish commentators adopted a different construction ?

Rodriguez referred to by the defendant, is perhaps one of the most respectable and distinguished. But his encomium will come better from the mouth of the defendant. “ His digest,” says the defendant, “ purports in a short commentary upon every law, and introduction to every title in his translation of the digest— to give information of the agreement and discordance of the two codes. On the law in question, he merely reports its substance: from which we should infer, that it is law in Spain.”

What is the substance of this law as reported by this valuable commentor ? Let him speak for himself.

In his commentary upon this text, he says, “ el derecho de alluvion que dice el parafo de la instituía y la ley de partida no tiene lugar, en los predios que se senaralon a los soldados, como expresa esta ley. 15 Rodríguez digest, 41, 1, § 16. Part. 3, 28, 7. The right of alluvion mention*191ed in the institutes and the law of the partidas does not take place in lands assigned to soldiers, as this law expresses.”

The commentary of Rodriguez is then in com-píete unison with that of the1 gloss; both concur in confining this principle exclusively to military lands. Vinnius is also boldly appealed to by-defendant ; but to us he speaks a very different language : in the very passage referred to, he tells us, that, in allusion to this very text, ager limitatus is land taken from the enemy ; ager limitatus dictus fuit, ager ex hostibus cap-tus ; and distributed by the Roman government* Finn, ad Inst. 2, 1, text 20, comm. Jo. 176.

After this it will be thought almost a supererogatory task, to produce or examine additional authorities in support of this construction. We will therefore briefly refer to that section of Grotius, already noticed containing his threefold classification of lands ; in the first of which, he places agros limítalos. This section, taken in connection with the notes of hxs two commentators, Gronovius and Rarbeyrac equally shews that agros limitatos were military lands.

Gronovius (note 57J describes this class of land to be that assigned to veterans and colonists. Divisum et assignatum. Qui veteranis et colo-nis per centurias et jugera modo certo adscripti datus est. Frontinus, cited by Grotius in the *192margin, says nearly the same thing. Ager divi-sus et assignatus est coloniarum. Front, de re agrar, 277. For the use of the expression ager limitatus, Grotius refers to the jurisconsult Florentinus, meaning probably Franciscus Accur-fius, author of the gloss, a native of Florence, and from that circumstance, called Florentinus ; and whose definition of ager limitatus, as well of ager non limitatus, in the gloss we have just exhibited-— Vid. 5, Heinneccius, EL jur. 2, 1, § 358. Puffend, 4, 7, ¾ 11, § 12. not. Bar-heyrac.

But lastly, if the first sentence of the text, in agris limitatis be detached from the other parts, and suffered to be taken in an insulated and independent sense ;—and even if (contrary both to reason and authority) under the term agros limitatos other than merely ancient Roman military lands be intended, still it cannot be urged by the defendant as authority, until shewn to be recognised, by the Spanish code.

The Roman law has no intrinsic authority in Spain ; on the contrary, forensic use of it rvas formerly interdicted under heavy penalties. Fue-ro jus. 2, 1, 8. 1 part. 45, Part. 1, 1, 15, Part. 3, 4, 8, Aut. accord. 2, 1, 1. JVuev. Recop. 2, 1, 3. Now indeed it is permitted, in certain cases, to be cited, viz -where the Spanish law *193is silent, or where the Roman law coincides with, or is explanatory of it ; or where it is founded on natural law or reason ; and in these permitted cases, it is not cited as law, but as contain- • i • • - . jng the opinions oi wise men.

“ Las civiles no son en España leyes ni deven Marinarse sino sentencias de sabios, que solo pueden sequirse en defecto de lei, i enquanto se ayunden al derecho común, i no al de los Roma-nos, cuyas leyes ni las demas estranas ni deven ser usadas ne guardadas.”—Aut. accord. 2, 13 JYuev. Recop. 2, 1, 3. Berni, last. 8.

The prohibition of the Roman law in Spain remains therefore still unrepealed ; though it is not denied, that the Spanish legislators have enacted at different times, into its various codes, such of its principles as were found analogous, to the situation of Spain, deriving their authority solely from such enactment. Thus, upon the subject of alluvion, Spain has transplanted from the Roman code into her own, the general principle, as one founded in nature and reason, and has by positive statutes given to the adjacent proprietors the right of alluvion. Bart. 3, 28, 7.— Thus far then, and no farther, has Spain legislated upon this subject; and it is now incumbent upon the defendant, if he wish to avail himself of the as to shew *194fwhich is not pretended) that it has been speci-1 1 fically enacted.

How is this difficulty attempted by the de« fendant to be surmounted ?

He first wishes to infer the adoption of the exception of ager limitatus, into the Spanish code, by citing some authorities, which we shall presently notice.

But when it is manifest, that the principles of the Roman civil law, so far as they have been introduced into Spain, have not been introduced by any sweeping clause, adopting generally, and by way of reference, the body of the Roman code—subject only to exceptions in favor of such subsequent laws of Spain, as might be found to conflict with it—but so far as they have been made a rule of action in Spain, they have been introduced under the form and authority of Spanish ordinances.—We are not permitted to infer, from the adoption of one part of the Ro. man code, the adoption of another, but the contrary.

If, in the face of Spanish law, we were permitted to resort to inference, in order to determine what has been adopted and what omitted, we think it can be shewn, that the inference of the defendant is forced and unnatural.

This inference the defendant attempts to draw first, from the commentary of Rodriguez *195upon this text, already noticed. Of him, the de. fendant says, he merely reports its substance, from which we should infer that it is law in Spain, inasmuch as it fell within his plan, to point out the agreement or discordance of the Roman and Spanish codes.

But the very commentary itself destroys the inference, attempted to be drawn from the supposed silence of the commentator. Though already quoted, we beg leave, in this connection, once more to invite to it the attention of the court. Translated, it reads as follows : “ the right of alluvion, mentioned in the institutes, and a law of the Partidas does not take place in lands assigned to soldiers, as this law expresses.” 15 Jiodrig. 41, 1, 16.

We freely yield to the defendant, all the advantage he derives from the 'authority. Whatever interpretation be put upon it, his exception evidently applies exclusively to military lands, in which class the plaintiff’s land, though the subject of much legal warfare, has not yet been ranked.

The laws of the Fuero Real are next introduced, for the purpose of referring to a note, the joint production of Alonzo Dias Montalvo, and a learned doctor of Salamanca, said by the defendant, expressly to declare, that the ager limitatus should not be entitled to the increase *196rising of an island opposite to it. Fuero Beal, 3, 4, 14.

The jaw tjje jruero Reai referred to treats of the partition of a newly formed island, in the middle of a river, separating different riparious proprietors, and adjusts their claims to this new acquisition in proportion to the extent of their respective fronts. It is not pretended, that any thing is here said in relation to limited or unlimited estates ;—it is not the text itself, but the opinion of these learned commentators, as contained in note (d) by which the law in agris is to be introduced into Spain. But upon examining this wonder-working note, we do not find any such opinion expressed by them ; in the conclusion in it, they indeed inform us, that Azo (an Italian jurist of the thirteenth century) held such an opinion ; but without any marks on their side of approbation or adoption : and the reference to the pandects subjoined> in which much virtue is supposed to reside, to us appears the work of Azo ; but whether they or Azo have the credit of this reference, one thing is certain, that the section in the paudects referred to, is as silent, as the Fuero Real itself, upon the subject of limited lands. Loe. cit. ff. de Jiumin. L 1, 1 ⅝ insul.

The ponderous work of Covarruvias is next put in requisition (2 vol. p. 500, no. 1.) But *197the learned bishop is not there speaking upon the subject of alluvion, but considering the question, in case a town, granted to an individual, should subsequently be increased by new buildings ancl inhabitants ; when, and how far the jurisdiction of the government shall be exercised over such subsequent increase. And we confess ourselves unfortunate in missing both in the text and notes, any passage in support of the purpose for which it was adduced.

The mere fact of the law in agris being referred to by way of argument or illustration, by Spanish writers, either lay or ecclesiastic, seems to us to afford but slender proof of its incorporation into the Spanish code. By the same process the Mahomedan law, noticed by sir William Jones, might be converted into English law, and the Gulistan of Sadi, favorably cited by Puffendorf, become authority in this cause. Puff, dejur. nat. & gent. 5, 2, 1.

The opinion also of Covarruvias, as it respects jurisdiction over the subsequent increase of a town, granted to an individual, seems little analogous (so far as the two things can be compared) to the principles of the Spanish law, in respect of the subsequent alluvial increase of lands ; which expressly declare, that the amelioration of the thing bought, will be for the benefit of the buyer, even though it had not yet pas*198sed under his power; and in the partidas, the very case is put of a field, thus increased by al-luvion. Part. 5, 5, 23,

Not having the good fortune to possess or procure the Curia Felipica Iilustrada, and the passage referred to by the defendant, not being extracted, I am unable to conjecture its degree of pertinence or force. In the Curia Fe-lipica itself, I am not aware, that the subject of alluvion is introduced. But, giving the defendant credit for the full weight of this authority —would it not be going a little too far—.when the law in agris has been refused admission into the various Spanish codes;—when we look in, vain for it in the nueva recopilación, autos ac-cordados, siete partidas, ordenamiento real, fuero real, and leyes de estilo, that it should be received as such upon the faith of a single and unsupported note of a posthumous publication.

From this brief view of the defendant’s authorities we feel safe in asserting, that if the existence of the principle of ager limitatus be permitted to be inferred into the Spanish law, nothing has yet been shewn to warrant such inference.

Is the defendant better founded, when he attempts to infer it as a natural consequenae of the general principle ?

*199In what sense is it to be so inferred ? The general principle is, that owners of all lands bounded by navigable rivers, have, as an accessory, the right of alluvion ; now, if by limited lands, the defendant mean broadly the mere converse of the proposition, viz : that lands not bounded by the rivers do not enjoy the right of alluvion, what does the inference amount to but the mere begging the question of fact ? And is it not reasoning in a circle to say, that our deed does not notwithstanding express words to that effect, convey to us a boundary upon the river, because our land is ager limitatus ;—and it is ager limitatus, because it is land not bounded by the river ?

II. Has his (Poeyfarré) title, as riparious proprietor, been by him conveyed to Bailly, and by the latter to plaintiff.

Upon this question I shall not long detain the attention of the court. From the inspection of the respective conveyances, it is obvious, that the land was successively transmitted, with all its original rights ; and if Poeyfarré by virtue of his title, became a riparious proprietor, in like manner did Bailly, and afterwards the plaintiff, become riparious proprietors ;—nothing was excepted or reserved in either of the instruments of sale.

*200The defendant lays hold of the expression frente, employed in the two latter deeds, instead of frente al rio, used in the first, as restrictive of our front boundary. But the testimony puts this objection to rest; face, the French translation of frente, our witnesses, as well the record of French concessions and of land claims, shew, was indiscriminately employed, with face au fleuve, in designating a front boundary upon the Mississippi.—If the parties intended to establish not a boundary on the river—but on the road, for instance, as the defendant contends, why did they insert in their deeds of sale, drawn off by an experienced and skilful notary—expressions invariably and immemorially used to give a river boundary ?—Why not at once name the road, frente al camino, or face au chemin ?

It is objected also by the defendant, that we are not in possession, and have not so declared by our petition. But the petition is grounded on the very fact of possession and ownership ; and we complain, that the defendant and others have given out and pretended to be the owner, and possessors. It will not be contended, that any ceremonies, like livery of seizin, or investiture by twig and turf, need be superadded to the delivery of a title, in order to a legal possession, Civ, Code 380, art. 29. Nor will it be con-teitded, that an actual or continued residence *201upon the spot is necessary for this purpose ; , , , J r l nor that the plaintm cannot possess by his tenants —nor that the possession of the principal estate does not imply, that of its accessories.

In respect to the right of the riparious proprietor to the alluvial increase of his land, the law is both settled and admitted, and a reference to the following authorities perhaps unnecessary. Febrero de escrituras, 7, § 11, n. 81. 3 Part. 28, 6—I) § 1- Inst. 2, 1, § 2. Rodriguez in ff. 41, 1, § 1 16, 5 Hein. El. jur. 2, 1, $ 358,2 Voet. in pond. 41, 1, § 15 Front, de re agr. 217, Woljps Inst. jur. nat. & gent. 2, 2, § 245—251, 1 Domat, 3, 7, ⅜ 12, 1, 2 Denisart, 74, verbo alluvion, Puffend. 4, 7, § 12, Civ. Code, 102, art. 3, 106, art. 13, Blacks. Comm. 261, 3, Mass. T. R. 352.

Thus have I gone through the two principal questions arising in this cause ;

1. Did Poeyfarré, by virtue of the conveyance, from B. Gravier and wife, become the ri-parious proprietor of this land ?

2. Has his title, as such, been by him conveyed to Bailly, and by the latter to the plaintiff?

In discussing the first question, I invited the attention of the court to the two clauses of the deed, upon which rested the title of the plaintiff *202as riparious proprietor ; shewing; that his land was . . . purchased frente al no, and con todas sus entradas &C. and the first expressions, being used absolutely, gave the river as a front boundary ; and that the second conveyed all and singular its accessories, whether in law or fact.

Under this head, we have also shewn, that the distinction attempted by the defendant between the two phrases face au Jieuve (translation in French of frente al rio) and face sur le feuve, was unsupported either by grammar or use;— and that they were indiscriminately employed in grants and deeds of land upon the Mississippi, to give the river as a boundary.

That words of conveyance were to be taken in their usual and known signification ; and pa-rol proof was admissible to shew what is their usual and known signification.

That the defendant’s first objection, viz : the existence, at the period of sale, of a batture already formed in front of the plaintiff’s land was not founded in fact, and that the contrary was proved ;—that the evidence, urged by the defendant of its previous existence, from its being found figured on the plan of survey and the other plans, instead of authentic proof of such a fact, amounted to- but presumption—weak in itself, and still further enfeebled by the character of those plans—and wholly overthrown by the *203positive, concurrent, and uncontradicted testimony of three old and respectable witnesses;

In answer to the defendant’s second objection, that B. Gravier, prior to his sale to Poeyfarré, had made a plan of his plantation, as laid off into a faubourg or town lots, in which plaintiff’s land was designated as included in lot no. 7—and the whole bounded by streets, we have shewn, that it was not only not published at the period of sale, but that there was no proof whatever, arising from the plan or otherwise, of its being ever carried into actual execution, by survey, or subdivision of his plantation, according to a projected plan ;—much less of its being incorporated as a suburb of the city. That it could not have been executed at the period of sale, appeared conclusively from the following reasons. 1. Because plaintiff’s land, said to be included in lot no. 7, was cut off from the three streets by narrow strips of land, of unequal breadths ; shewing, by the relative directions of the lines, that it was sold according to.a plan, very different from the projected one of the then uncreated faubourg ; and that no purchaser, in his sound senses, would have purchased a square in a city, with the exception of only just so much land, as would shut him out of three streets in four.

*204Because, in describing the breadth of the front, no streets are mentioned in the deed, plan, or proces verbal (as would have been the case, had they then existed) as marking the beginning, and end of the front line; and because, most obviously, this land would have been designated as part of lot no. 7, and been called a lot, and not merely, as in the deed, a piece of land.

That the plan also of this faubourg appeared from inspection, a mere projet ; or, as termed by its maker, a first sketch or draft, exhibiting neither the proces verbal nor operations of the sur. veyor ; was made at the request, in the house— and principally in the hand writing of B. Gra-vier; not deposited, as is usual, in the office of a notary, but kept in his own possession, and afterwards altered at his pleasure. That this, as well as the reduced or second plan (the latter from a marginal note made on it by the survey- or, of the date of 1796, shewing even at that latter period, it had not yet been executed) being the separate and then unpublished acts of B. Gravier, the original vendor, or of the surveyor general, his agent, could not affect our title.

Under the defendant's third objection, that the land was sold according to a plan, bounding it *205by the public road ; we considered, in what con-r nection, and how far, this plan was to be taken with the deed—that the words frente al rio eiv- ° ing, as we contended, a boundary upon the river, were words at once of conveyance and of description and of location—that they were technical, clear, and used in an absolute sense ;— that being already certain, they did not need elucidation, and could not be made more certain by reference to the plan; which was referred to only for greater certainty ; much less could their signification be altered by the surveyor’s pro-ces verbal of his operations—a reference properly enough made in a question of doubtful location, but wholly inadmissible to destroy the effect of words of conveyance of known and settled signification. We also shewed by testimony, that by the practice of surveyors and usages of the country, the front lines of all plans of land upon the Mississippi, were drawn, as in our plan, inside of the road and levee, not to indicate the boundary of the land, but to ascertain the breadth of its front; and are not called lines of boundary but solely of admeasurement.

The fourth objection of defendant, that the plaintiff’s land makes by the plan a regular figure, the regularity of which by extending its front to the river, would be spoiled, we have *206s}iewn ⅜0 be founded upon the gratuitous as» ' . . . sumption of the fact of the identity of the lines Gf acjmeasurement and boundary ; and that all lands upon the Mississippi by their plans, and if their plans were lost, by the very terms of concession, make regular mathematical figures without restraining their right of alluvion.

The fifth objection of the defendant, vis : that the calculation of the superficial contents of the plaintiff’s land, turned it into a limited estate, and destroyed the right of alluvion ;—-we have answered by shewing,

1. That the land was sold per aversionem, and not ad mensuram.

2. That the calculation of the surveyor gave only the superficial contents of what he actually measured ;—that the surveyor is never called upon to measure the road and levee ; and that no batture then existed to be the subject of measurement ; and even had it then actually existed, would not, according to the usages of the country and practice of surveyors, been measured ; that the mere act of calculation was immaterial; that wherever the length and directions of the lines of a figure were given, they afford the sum of their contents, with all the cei tainty of a mathematical theorem ;—that the principle of the defendant, even if shewn to exist, was not ap? *207plicable to lands in this country, where the front lines of the plans were not boundary lines.

In answer to the sixth objection of the defendant, viz : that the interposition of the public road, divested the plaintiff of his right of allu-vion ;—we endeavored to shew, that the whole question on this point turned upon the mere fact of boundary, already discussed ; inasmuch as the alluvion belonged to the owner of the soil, upon which it was formed.—if, therefore, we purchased to the river, frente al rio, we were entitled to the alluvial increase of our land ; and that the public road running through it did not divest us of that right ; and, in no event, could we be so divested of the alluvion, unless the road went (which was not pretended) to the water edge ; in which case, the alluvion would then belong neither to the plaintiff nor defendant, but to the public, in whom was vested the right of soil.—That in our case, the 'alluvion was not added to the public road, but to the banks of the river, belonging the plaintiff, as holding frente al rio, front upon the river. That the fact of a front boundary upon the river also answered the defendant’s 7th objection ; viz : as to the supposed intervention of the levee. By conveying to us a front on the river, the levee was necessarily included in the conveyance.— *208That ⅛⅛ land was unrestrictedly sold with all its chances of loss and of gain;—and that on P°^nt> was in evidence, and conclusive, that after the sale the vendor and his heirs were wholly delivered from the burden of maintaining the levee, which thenceforward was supported exclusively by the vendees ; that this charge, of itself, constituted a riparious proprietor. That the principle, upon which the right of alluvion was founded, was not, as the defendant contended, on the manner or degree of increase making it impossible to find another owner than the adjacent proprietor, or the mere right to have always the river as a boundary, but clearly on the better ground of equitable compensation; to wit: that he, who is exposed to the charges, and chance of loss from the encroachments of the river, ought reciprocally to have the benefit of the change of increase. That if the river, instead of augmenting our land, had washed it away, we could not call upon the vendor or his heirs to make good the deficiency ; neither ought we to be held good to refund the increase ;—to the objection we had no right to claim the allu-vion, because not expressly conveyed in our deed ;—we have shewn in point of fact, it did not then exist; and even if it had actually existed, in point of law, that it was not necessary to be expressed, in order to be conveyed ; that, as an *209accessory to the principal estate, it would pass by the general words of conveyance ; that it was not, however, in our deed, left to mere legal construction, but provided for by an express clause, conveying every accessory in law or fact; todas sus entradas, See.

To the objection that alluvion was not an accessory ; the contrary was shewn both by reasoning and authority.

In discussing the defendant’s eighth objection, viz: that the plaintiff’s land was oger li-mitatus or a limited estate, and therefore debarred from the right of alluvion ; on an examination of the section of the digest adduced by the defendant, in agris limitatis, &c. we have shewn, both from its context and a variety of Commentators and civilians,

1. That the technical signification of the phrase ager limitatus was simply and exclusively that of military lands.

2. That if used in a more extended sense, or considered as a general law, it must be taken to rest exclusively upon the constitution of the emperor A-t minus Pius, and was in derogation of the general or common law of Rome : that the support claimed by the defendant of the authority of Trebatius, to his broad and general inter. *210Pre*-ati°n °f this text, by shewing the equal antiquity of Trebatius with Julius Caesar, wholly failed him ; inasmuch as the dictum of Treba-tius, alluded to in the sequel of the section, is confined expressly to military lands, and speaks merely of the exception, as to them, of the law of alluvion ; and that the defendant’s proposed reform of the punctuation, however required by his argument, was unnecessary in itself, and involved in it a violation of syntax, and the dismemberment of the text. That the term ager limit at us, taken merely in a literal sense, as land bounded or limited, from its universality, would comprehend all lands, with -whatever boundaries, whether natural or artificial ; that so construed, the text would be made to operate a total repeal of the general or common law of Rome on the subject of alluvion, though resting on the broad principle of the law of nature ;—a text, rather too compendious and solitary, to operate so vast an effect.

Lastly, we have shewn, giving the defendant his own interpretation of the text, that he could not avail himself of it as authority, without also shewing it had been adopted into the Spanish code.

Under this head, we have shewn, that the Roman law had no intrinsic authority in Spain ; that *211even its forensic use had been interdicted ; and was now only permitted to be cited in cases, where it coincided with the Spanish law, where the Spanish law was merely silent, and where the Roman law was grounded on reason and nature ; and then only as containing the opinions of wise men. That notwithstanding this unre-pealed prohibition of the Roman law, many of its principles had been ordained as law by sue-cessive Spanish legislators ; but they derived their authority, not from any general adoption of them as Roman law, but solely from their being embodied in the form of specific Spanish ordinances. That Spain, adopting into her code, as founded in nature and reason, the general principle of the Roman law, had enacted by positive statute, that the adjacent proprietors should enjoy the right of alluvion —That if therefore the defendant could derive any advantage from this peculiar exception in the Roman law, (which was not perceived) he was clearly bound to put his finger on the royal ordinance, by which it had been made a rule of action in Spain.

That it could not therefore be impliedly adopted ; and that no Spanish authority had been adduced to give color to such implication. That the inference of its adoption, merely as a natural consequence of the general law of alluvion, seem-*212e(j to btf equally unsupported by reason, and in- . 1 J 11 J 1 applicable to the case before the court. That by the general law of Spain—founded on the law of nature, the right of alluvion belongs to lands bounded on the river; and if by limited lands, the defendant meant merely the converse of this description, viz : lands not bounded on the river, his denomination of the law of ager limitatus, a natural consequence of the general law, was illogical, and an abuse of terms; and the application of this natural consequence to the case of our land amounted to begging the question of fact. On the other hand, if he spoke of ager limitatus., in its proper and technical sense, as military lands—lands of a conquered country, divided and assigned by the Roman government among the soldiery ; then, instead of a natural consequence, it was a peculiar exception to the law of alluvion ; and whether introduced or not into Spain, it was wholly inapplicable to the case of our land.

After all, the whole controversy between us is obviously reducible to the single point of boundary. We are, or we are not, bounded on the river—if we in fact be not so bounded we make no pretentions to the batture. But if in fact we we be so bounded, the doctrine of limited estates, either in their literal or technical sense, the calculation of the superficial contents, the *213artificial lines of mensuration, run either by a sworn or unsworn officer,, the mathematical denomination or regularity of the figure—the al-ledged interposition of roads and levees—all yield to this natural boundary ; and alluvion, by nature, by reason, by the code of every nation, is the accessorial and inseparable right of our land.

In discussing the second question—whether Poeyfarré’s title, as riparious proprietor, had been by him conveyed to Bailly, and by the latter to the plaintiff—we have shewn, by an exhibition of the several conveyances, that the land had been successively transmitted with all its original rights ;—that frente, the word employed in the two latter deeds, was, according to all the testimony in the cause, indifferently as well as immemorially used with frente al rio, to express a front boundary on the river Mississippi. To the objection of our not having declared our selves to be in possession, we referred to our nondescript petition; to the fact of possession to our witnesses : and to the mode of acquiring and continuing it to our digest. In this connection, we noticed the claim of prescription set up by the defendant in his answer, often, twenty and thirty years, and have shewn, so far from its being founded in fact, that, on the contrary, *214^ie P^nt^’ an<^ those under whom he claims., had been in actual, quiet,\and continued possess’on °f ^ Premises, for nearly thirty years :— that even before the batture rose above the surface of the water, it was employed by our vendor for the purpose of supporting a little wharf (or avancé) run out into the river ; and when of sufficient height and consistence, was probably used by him for unloading, piling, and vending his Wood ;—and that from that period up to the present, such possession had not been interrupted by any act, either by John Gravier or the defendant ; that the batture in front of the suburb St. Mary, being claimed and owned by different proprietors, no possession, on the part of the defendant of pars pro toto could be al-ledged ; or that possession obtained against the proprietor of one part was available against the proprietor of another.*

The counT, when they were prepared to deliver their opinion, observed that, as a considerable time had elapsed since the conclusion of the oral argument, if any of the counsel had any thing to add to what had been said, or to the *215written argument, with which the judges had been furnished, he would be listened to.

Duncan, for the defendants,

declared his clients had nothing more at heart, than to hear the judgment of the court.

The counsel of the plaintiff said they had nothing to add.