Wednesday, July 26, 2017

Inter-imperial riparian law III: American sources of French-Canadian water law

Continuing where yesterday's post left off:

Canada’s broad St. Lawrence River and its tributaries were the sites of intensive water use in the mid-nineteenth century. They served as fishing grounds, highways for water craft, conduits for floating logs and sources of power for both traditional grist mills and new industrial facilities. Uses and users often came into conflict, and these conflicts often landed up in court.

Jonathan Sewell
(Appleton's Cyclopaedia of American Biography, 1900)
The earliest fully reported case of this type was the 1832 case of Oliva v. Boissonnault. James Oliva sued Nicolas Boissonnault in the court of King’s Bench, District of Quebec, for placing obstructions in the Rivière du Sud, blocking the floating of logs downstream to the St. Lawrence. Chief Justice Jonathan Sewell ruled for Oliva, explaining that under French law the public had a right of passage on every stream capable of floating logs or rafts. Alongside his discussion of French law, he noted that the public’s right was the same in England and America, citing Kent’s Commentaries with regard to the latter. Two years later St. Louis v. St. Louis, another water law dispute, reached the courts. This time the case involved a riparian landholder diverting water through a canal to his sawmill so that it bypassed the gristmill and carding and fulling mill of his downstream neighbours. Sewell, sitting this time in the Provincial Court of Appeals, again cited Kent, here in support of the proposition that a riparian landowner might ‘conduct such portion of the stream as he requires for the amelioration of his - property by canals or otherwise through the extent of the land which he occupies, but he must return it to the stream before it reaches the confines of his neighbour’s estate’.

Sewell was not alone in his affection for Kent and other American authority. Probably the most salient example was the dissenting opinion filed by Judge Thomas Aylwin in the appeal of Brown v. Gugy to the Queen’s Bench of Lower Canada. This judicial opinion was really a brief intended to set before the Privy Council Aylwin’s view of the law, as it was written especially to include with the appeal to the London court, well after judgment had been delivered by the Queen’s Bench and leave granted for further appeal to the Privy Council.  Aylwin’s 1861 opinion included a verbatim quote of ten pages from Kent’s discussion of riparian rights, footnotes and all, and went on to say that the reasons given by the lower court ‘are in my opinion bad & I prefer the ruling of the Supreme Court of Louisiana in the case of Allard & al vs Lebau [sic, should read Allard v. Lobau (Martin’s Reports (n.s.) 2, p. 317 (1824))] cited at the bar.’

One might conclude that this familiarity with and reliance on American law was a result of American connections. Aylwin had studied briefly at Harvard, where he must have been exposed to some American law (though not to Kent’s Commentaries, which had yet to be published). Sewell was born in Massachusetts (to a Loyalist family) and spent his childhood there, and he had been elected to the American Philosophical Society in 1830 and received an honorary doctorate from Harvard in 1832, the year of his Oliva decision.

Yet reliance on American sources was not a simple matter even for Anglophone judges with American connections. It was Aylwin, formerly a Patriote politician, who had written, in a criminal case, a year before this opinion in Brown v. Gugy:
I will shew the danger of referring to American authorities in criminal cases […]. I hope we will hear […] no more of them. The practice of late has been to create great confusion, by the habit has prevailed to too great an extent of citing American, English and French authorities in all cases indiscriminately, and it is time to put an end to such confusion. 
Moreover, Francophone lawyers, too, relied on American water law sources. Advocates Simon Lelièvre and François-Réal Angers cited the American Joseph Angell’s Treatise on the Law of Watercourses in support of their position on property in water in a case before the Superior Court of Quebec City.  This source, as well as Louis Houck’s Treatise on the Law of Navigable Rivers, was cited by C.B. Langlois in an appeal before the Queen’s Bench decided in 1877. B.C.A. Gugy, a lawyer who had campaigned against annexation of Canada to the United States, cited the American Angell’s treatise on the law of tidewaters in arguing his own case in a dispute with a landowner on the opposite bank of the Beauport River. Charles-Chamilly de Lorimier, a clerical-nationalist conservative and stalwart proponent of the civil law as a ‘bulwark of French Canadian and Catholic values’, nonetheless cited in a judicial decision a Wisconsin case among a string of Quebec cases on the question of whether a seasonally navigable stream was public or not. Most extreme was Lorimier’s Montreal law office partner Désiré Girouard, whose long and learned brief in a case in which he was a party cited and quoted (in French translation) a host of American sources on riparian law, from Thomas Jefferson to Angell to the latest American case law.

Why Canadian judges were drawn to American water law will be explored in the next post.

For the full series of posts, see here. For the article, see here.

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