On the rehearing:
“But there is no evidence whatever to show that any alluvial formation existed in front of lot 34 when Marie St. Jean ¡sought it, or when it was sold at public sale. If the batture were formed subsequently, it belonged to the person who owned the lot at that period.”
In Ferriere v. City of New Orleans, 35 La. Ann. 209, it was held that a batture, susceptible of private ownership, existed at the time that plaintiff’s author in title acquired the adjacent land, and, not being specially mentioned, did not pass with the land, but the opinion is silent as to those qualities which made it susceptible of private ownership and distinguished it from a batture of which no such ownership could be predicated.
In Succession of Delachaise v. Maginnis, 44 La. Ann. 1047, 11 South. 716, the court said:
“It is apparent that there are two pivotal questions, viz.:
“1. The question of fact, whether or not, at date of sale, in 1855, there did exist in front of Water street any alluvion then susceptible of private ownership. * * * ”
After some discussion of the burden of proof on the question stated, the opinion proceeds:
“The defendant here has introduced two witnesses, who prove that in 1855, and even as ¡ate as 1889, the levee was immediately in front of Water street, and even partially encroached on the street, and that, but for the protection of the levee, Water street itself would have been under water. It is further proved that when, in 1889, the present defendant undertook to advance the levee, the batture which had been forming was still below the surface of the water, and had to be artificially filled several feet before it became susceptible of private ownership." (Italics by the present writer.)
In Mathis v. Board of Assessors, 46 La. Ann. 1570, 16 South. 454, plaintiff sued to cancel an assessment against Mm for land lying in front of his property between the levee and the river. The court said:
“The character of such land is defined by the Code. The levee is deemed the bank of the river, and is that which contains the water at the ordinary high stage of the river. The ownership of the banks is in those who possess the adjacent land, but subject to public uses. O. O. 455, 457. * * *
“It is evidence * * * that the riparian proprietor, the plaintiff, placed a fence around the land. It is true the amount derived was inconsiderable, but still the fact is in the record that the riparian owner leased the property and received rent from tenants.
“Our courts have affirmed leases of batture *341by riparian proprietors. * * * The ownership of such land, in a certain sense, is recognized by the Code, and in this case the rights of private ownership have been asserted by plaintiff. Under such circumstances we think the land is subject to taxation.”
The ownership of the banks of a navigable river, as recognized by C. C. art. 455, and of the alluvion which is formed “to any soil situated on the shore of a river or stream,” as recognized by C. C. art. 509, is qualified by the conditions imposed by those articles, and hence the right of use, in both instances, is in the public; but that right is also qualified by the terms in which it is reserved. The use must not only be a public use, but it must be the particular public use specified in the reservation, being, in the one case, that which is incidental to the navigable character of the stream and its use as an avenue of commerce, and, in the other, that “which is required by law for the public use,” and which, where the stream is nonnavigable, is perhaps more restricted. And, save to the extent that it is so qualified, the ownership is as perfect as law can make it.
“The banks of the river,” this court has said, “are not sold, but rather pass as an accessory of the land sold. Ripee non venduntur, sed magis accedunt rei venditse. Goepola de sérv. rust. The property of the banks belongs to those to whose fields they are contiguous. Proprietas earum (riparum) est quorum prsediis hacrent. F.f. 1, 8, 5; Code Civil, 96, art. 8. They must be the property of the riparious owners, without being included or mentioned in their grants, for if they were only” theirs “when included there would be no use for the provision in the law; it would be idle. If, therefore, when the sovereign grants land, contiguous to the river, without mentioning the bank, this passes, it must do so as an accessory. If the bank pass as an accessory in the grant of the sovereign, it must also in the deeds of private persons. * * * If there be a public road between a field and the river, still that which is made by alluvion accrues to the field. Si meum inter agrum et fiuvium interjaceat publica via tamen meum fieri quod alluvio adjicit. Grot, de Jur. Bell, et Pa. 2, 8, 17. Gronovii nota, 68.” Morgan v. Livingston, supra, 6 Mart. (O. S.) 230.
“'The alluvion, when attached to riparian property, becomes part of the property.”
“The portion thus added is not considered as new land; it is a part of the old, which acquires the same qualities, and which belongs to the same owner, in the same manner as the increase by the growth of a tree makes part of the tree.” • Cambre v. Kohn, 8 Mart. (N. S.) 576-577.
The right of use of such property (i. e., the banks of a stream and the alluvion attached to the riparian land) being vested in the public, its administration, for the purposes of that use, devolves upon the state, and is, ordinarily, committed by the state to the governing bodies of its various subdivisions.
In Dennistoun v. Walton, 8 Rob. 211, the defendant refused to pay rent for a batture that he had leased,- upon the ground (among others) that it was part of the river’s bank, the use of which was public, and hence was not susceptible of lease by and to an individual. The court found that part of the leased property consisted of a space between the public road and the levee, of which plaintiff was entitled to the exclusive use, and as to the part between the levee and the water it was said:
“The owner may use it, provided he does not prevent the use of it by others, as regulated by the article of the code above referred to, and in conformity to the police regulations. Our learned brother of the district court assumes that the police regulations * * * are a part of the law of the land and that the court is bound to notice them without proof. * * * Be this as it may, the owner has clearly a right to enjoy his property in a modified form, provided he conforms to the regulations of the police jury, and he may confer upon a lessee the same right.”
In Carrollton R. Co. v. Winthrop, 5 La. Ann. 36, it appeared that plaintiff had leased the batture in front of its property to defendant, for a woodyard, and that defendant refused to pay the rent agreed on, upon the ground that the municipal authorities had subsequently designated the batture in question as a place for the keeping of woodyards, and had imposed and collected a tax upon the business there conducted by him. The court said:
“We have been referred * * * to the case of Municipality No. 2 v. New Orleans Cotton *343Press [18 La. 122, 36 Am. Dec. 624] as decisive of this controversy. It appears to us that that case does not touch the question at issue. It was there held that our laws secure to the public the use of the banks of navigable rivers, and that within the limits of incorporated towns the municipal government is authorized to regulate that use, and to cause to be removed * * * works and constructions which interfere with it. But the regulations they make must be in furtherance of the specific public use to which the banks of rivers are subjected. L. O. 446. The conversion of a portion of the batture in front of the town of Carrollton into a woodyard is not one of those uses. * * * If the corporation had the right to establish woodyards, they would have an equal right to establish brickyards and sawmills; and by refusing to advance the present line of the levee they could enjoy forever, as owners, the property of the plaintiffs. The rule laid down in Dennistoun v. Walton, 8 Rob. 211, completely covers tbis case.”
The doctrine thus enunciated was 'affirmed in Heirs of Duvergé v. Salter & Marcy, 6 La. Ann. 450.
In Lyons v. Hinckley, 12 La. Ann. 655, it appeared that defendant owned a tract of land in the town of Washington, on Bayou Courtableau, upon which (and immediately on the bayou) a tanyard had been established for many years, and that plaintiff sought to compel him to give a road across the same to a mill which he had erected further up the stream. It was held, with reservation of opinion as to the authority of the town in the premises, that plaintiff was not entitled to that which he sought. In the course of the opinion the court quoted C. C. art. 446 (now 455) and said:
“The character of the servitude which is due from the proprietors of the soil is here described, and, instead of being for the use of the public at large for all purposes, is only for that which is incident to the nature of the navigable character of the stream washing the land of such proprietor.”
In Pulley & Erwin v. Municipality No. 2, 18 La. 278, it appeared that plaintiffs, as riparian proprietors of the adjacent land, owned a batture in front of the city, upon which, for the purposes of their business, they had erected various structures, and about which they had built a levee (outside of the public levee), and that defendant had entered upon the property and made large excavations in order to obtain sand for public use, whereupon the suit was brought to stop the alleged trespass, and for damages. It was held by the court as follows (quoting the syllabus):
“The use of batture, outside of tbe levee, is vested in_ the public, but the ownership or title to the soil is vested in the front proprietors of lots, or the land to which the batture attaches or forms. The corporation * * * is the administrator of the use of the batture for the public, outside of the levee, and has the right of taking earth for the construction of embankments, levees, and wharves for the public use on the batture along its whole extent within the corporate limits, * * * and also for improving the port, and the streets and avenues leading to it.”
Prior to 1853, the power possessed, in that respect, by municipal corporations in Louisiana was without specific restraint, and owners of property and others, feeling themselves aggrieved, either by the enforcement or the disregard of the police regulations, sometimes appealed to the courts for redress.
In Remy v. Municipality No. 2, 11 La. Ann. 161 (the action being for the recovery of batture property), 'the court, referring to the relation of the defendant municipality to the property claimed, said:
“The possession of the city is purely administrative, destined in its nature to terminate upon the happening of a certain contingency (which, in the case at bar, has already happened). It cannot, therefore, be' pleaded against the riparian proprietor as the basis of an adverse title in the city. * * *
“The several ‘acts of the Legislature, giving to the city police powers over the batture, were intended to enable them the better to enforce their administrative authority on behalf of the public, who were entitled to the use of the batture for the purposes of commerce; they were never intended to change or disturb the rights of property, and, had such been the intent and object of these statutes, they would, to that effect, have been nullities.” (Italics by the writer.)
Being then the owner in sovereign right, and administrator of the public use, of lands, below the ordinary high-water mark, underlying the navigable waters within her borders, *345with full authority to dispose of, or administer, them as she deemed advisable, subject to the limitations imposed by, and under the authority of, the Oonstitution of the United States, the state of Louisiana re-enacted laws, which had always been in existence, in the province and the territory, have been read into the title of every riparian estate that has ever been sold and bought within her boundaries, and have been construed by this court and its predecessor, the territorial court, for more than a century, and in which she declared and now declares that:
“Art. 453. Public things are those, the property in which is vested in a whole nation, and the use of which is allowed to all the members of the nation: of this kind are * * * the beds of [navigable] rivers, as long as the same are covered with water. Hence it follows that every man has a right freely to fish in the rivers, ports, roadsteads, and harbors.”
“Art. 455. The use of the banks of navigable rivers or streams is public; accordingly every one has a right freely to bring his vessels to land there, to make fast the same to the trees which are there planted, to unload his vessels, to deposit his goods, to dry his nets, and the like. Nevertheless the ownership of the_ river banks belongs to those who possess the adjacent lands.”
“Art. 509. The accretions, which are formed successively and imperceptibly to any soil situated on the shore of a river or other stream, are called alluvion. The alluvion belongs to the owner of the soil situated on the edge of the water, * * * who is bound to leave public that portion of the bank which is required by law for the public use.”
“Art. 457. The banks of a river or stream are understood to be that which contains it in its qrdinary state of high water. * * * Nevertheless on the borders of the Mississippi and other navigable streams, where there are levees, established according to law, the levees shall form the banks.”
[2] It is to be remembered that this suit is brought by the state, in the capacity of owner, praying for judgment on the question of title, and incidentally for an accounting for the oil which defendants may have extracted from the land. There is no complaint that defendants, as owners of an alluvion, the formation of which is complete, but the use of which is still required by the public, are interfering with such use. The title set up is that the land claimed is part of the bed of a navigable river, the property of which is vested in the nation, and therefore inalienable, so long as the same is covered by the waters of the river in its ordinary state of high water.
The state of the water at which the land covered by it continues to be the bed of the river is, however, added in the argument. The law, as may be seen from the foregoing quotations, contains nothing to that effect. To the contrary, it declares that the property of the river beds is in the public only so long as the beds are covered by %oater; that the banks are understood to contain the waters of the river in its ordinary state of high water; that the ownership of the banks belongs to those who possess the adjacent lands; and, further, that the accretions to any soil situated on the shore of the rimer.are called alluvion, and belong to the owner of the soil situated on the edge of the water — which would seem to indicate an abundance of caution on the part of the lawmakers in a most earnest effort to distinguish the land upon which the alluvion may be formed from that constituting the bed of the river, since they describe it not only as the “shore,” but as “situated on the edge of the water,” whereas the bed lies beneath the water. Those terms have been defined and are understood to bear the following meanings, respectively, to wit:
“Shore. * * * 1. The land bordering a body of water, esp. a large body. * * * 2. * * * Syn. Shore, coast, beach, strand, bank. Shore is the general word for the land immediately bordering on the sea, a lake, or a large stream.” Web. Int. Die.
“Shore. That ground which is between the ordinary high and low water mark. It does not include (when the king’s title is the matter in question) land which the sea overflows at high spring tides or leaves bare only at extraordinary low tides. Hale, De'Juris Maris, c. 4.
“When the seashore is the boundary, the meaning must be understood to be the margin of the sea in its usual and ordinary state; the ground between the ordinary high-water mark and low-water mark is the shore. Hence a deed of land, bounded at or by the ‘shore’ will convey the flats *347as appurtenant. Stover v. Freeman, 6 Mass. 435. * * * In common parlance, the word ‘shore’ is understood to mean the line that separates the tide water from the land about it, wherever that line may be, and whatever the stage of the tide. The word ‘shore,’ in its legal and technical sense, indicates the lands adjacent to navigable water, which at high water are submerged, and at low tides are laid bare. Bell v. Gough, 23 N. j. Law, 624, 683. (All included in definition given in Abb. Law Die.)
“Seashore is that space of land, over which the waters of the sea spread in the highest water, during the winter season. Civil Code, art. 452.
“Bed. * * * The bottom of a water course, or of any body of water, as the Tied of a river. Web. Int. Die.
“Bed. * * * 2. In reference to streams the bed is the channel in which the water runs; the soil which is so often covered by water as to acquire distinct character and feature from submersion.”
Quoting:
“The banks of a river are those elevations of land which confine the waters when they rise out of the bed; and the bed is that soil so usually covered by water as to be distinguishable from the banks by the character of the soil or vegetation or both, produced by the common presence and action of flowing water. * * * ” Howard v. Ingersoll, 13 How. 381, 14 L. Ed. 189. (Included in definition in Abb. Law Die.)
The argument of the learned counsel for the state confuses the banks of a river with its bed, assigns no place to the “shore,” and reduces to an empty sound, not only the title to the alluvion, which the law, in explicit terms, vests in the owner of the soil on the shore to which it is formed, but the title to the soil itself, which the law, in terms equally explicit, recognizes; for, if all the land between the banks, when the river is in its ordinary state of high water, constitutes the bed, then the shore and the bed are one and the same, the soil situated on the shore is situated in the bed, and the accretions formed on the soil and called alluvion are formed on, and become part of, the bed. The property of the bed is, however, in the public, and inalienable, only so long as the bed remains covered by water; and, when the water leaves the bed, as such uncovered, its’bwnership is regulated by provisions of the state law to the effect that, if the river finds another bed, the owners of the soil thus occupied take the old bed; if the bed be only partially uncovered, and an island be formed in a navigable stream, it belongs to the state, or, in a stream not navigable, to the owners of the lands upon either side.
Under article 453 and articles' 455 and 509 of the Civil Code, it is clear, as to accretions formed upon the soil of the shore, that, if they be regarded as part of the bed, and not of the bank while below the surface of the water, and hence, as land, the property of which L in the public, a new condition arises when they emerge from beneath, and become part of the shore above, the surface of the water; that the title thereto of the riparian owner then becomes vested, and the title of the state devested ; in other words, the one title, at that moment, comes into, and the other goes out of, existence.
We have examined the French authorities, and find them much divided, though the majority, perhaps, sustain the view of plaintiffs counsel; but, conceding that to be true, the French law, upon the question here at issue, differs in so many respects from our own that commentaries thereon find little or no application in this case. Article 556 of the Code Napoléon differs from article 509 of our Code, and, on a close construction, we are inclined to think, materially. The Code Napoléon contains no article defining the banks of a stream, and none declaring the ownership of the banks to be in the adjacent proprietors. To the contrary, its article 538 declares (among other things) that “rivers and navigable streams * * * and, generally, all parts of French territory which cannot become private property are considered as forming part of the public domain,” which language we take to include the banks of rivers. Beyond that, the rivers of France have a stability which ours have not, and natural banks, which, for the most part, so *349far as we are informed, require no levees, and hence, in France, they have no laws constituting the levees the hanks of the rivers, and providing that they shall be laid off and constructed when and where the state may think proper, and may include between them, if found necessary, the whole of a plantation or estate.
The American decisions, to which we have been referred, determine, for the purposes of the cases decided, what constitutes the ordinary level of high water in different rivers, a matter which, as we have endeavored to show, has no immediate bearing upon the issues here involved. Our conclusions may then be stated as follows.
The state of Louisiana, in virtue of her sovereignty, became the owner of all lands underlying the navigable waters' within her territory, below mean high-water mark, with power to determine the rights of riparian proprietors with respect thereto, subject only to the limitations imposed by, and under, the Constitution of the United States; and, in the exercise of that power, she has enacted laws which have been read into the titles of all lands bordering upon such waters and- which declare, in effect, that the property of the beds of navigable streams is in the public, so long as they are covered with water; that the banks are “that which contains” the river, in its ordinary state of high water, and belong to the adjacent proprietor, subject to a servitude of use in favor of the public; that the accretions which are formed, successively and imperceptibly, to any soil constituting the shore of any river or stream, are called alluvion, and belong to the owner, of such soil, who is bound to leave public that portion of the bank required by law.
Construing those various provisions of the law together, and with reference to the doctrine, here propounded on behalf of the state, that all lands between the banks of a river, below mean high-water mark, constitute its bed, it is evident that the law and the doctrine cannot stand together, and equally evident that, in the enactment of the law, the state has not intended that they should stand together, but has established an exception to the doctrine, and such is the well founded and settled jurisprudence of this court, from which it appears that batture and alluvion, lying between the banks of navigable rivers, below the ordinary stages of high water, have been, for a century and more, occupied, leased, mortgaged, sold, and litigated over, as property the title to which was vested in individuals and private corporations; that, in no case, has this court ever held, or intimated, that an alluvion which was shown to appear above the surface of the water, at its ordinary stage, with a reasonable appearance of permanence and identification with the soil of the shore, was part of the bed of the river, or for that, or any, reason was not susceptible of private ownership; or that the question of the existence of such alluvion was controlled by its relation to the ordinary stage of high water; nor has the court ever failed to hold that such existence and the susceptibility of the alluvion to private ownership were sufficiently established when it was shown that it appeared above the surface of the water, at its ordinary stage, and had assumed a permanent character as part of the shore.
We further conclude that the land here claimed constitutes alluvion which has so appeared above the surface of the water at its ordinary stage; that it is susceptible of private ownership and belongs to the defendant as the owner of the soil of the shore to which it is attached, subject only to the right of use established by law in favor of the public; and hence that the question of the exact location of the high-water mark, to which the counsel and the learned judge a quo have devoted much attention, is immaterial to this inquiry. We also conclude *351and find that no question of interference by defendant with the use of the land in controversy which the law reserves to the public is involved in this litigation. And we find no error in the judgment appealed from, whereby the demands of the state are rejected and the defendant is recognized as the owner of said land, lawfully in the possession and enjoyment thereof, which judgment is accordingly
Affirmed.