As I mentioned in a post last week, the first topic covered in my article "Nature Versus the Common Law: Nature as a Norm in the Water Law of the British World" is the question of whether the water, bed, or other resources of a non-tidal river belonged to the riparian landowners or to the state or public.
While the civil law (for example Article 538 of the Code Napoleon) distinguished between private and public rivers based on tests of navigability and floatability, the English common law adopted a slightly different distinction : Tidal rivers were held to be the property of the Crown, while rivers and lakes above the reach of the tide were the property of the adjoining landowners, with each riparian owner owning the river from the edge of his dry land up to the median of the water body ("usque filum aquæ" or "ad medium filum"). Non-tidal but navigable bodies of water typically were subject to a public right or servitude of navigation, while the water, the submerged land, and other resources (such as fish) belonged to the riparian owners.
These rules were relatively uncontroversial in England, but in British colonies and the new United States they were often felt to be inappropriate to the environmental reality of other continents, in which rivers might be kilometers wide in some portions and navigable for thousands of kilometers above the reach of the tides, while freshwater lakes might bear a closer resemblance to seas than to the small lakes of England. In this context, a rule under which all non-tidal waters were private seemed problematic to many.
The first reported case in which the tension between the received law of England and the local environment arose was the 1807 Pennsylvania case of Carson v Blazer, in which a landowner along the Susquehanna River, near Harrisburg, demanded compensation from some fishermen who had fished shad from the river alongside his land4. As the Susquehanna at this point was navigable but not a tidal river, the common law rule seemed to be clear – the river, and the right to fish, belonged to the riparian owners. But Chief Justice William Tilghman, presiding over the trial, thought otherwise, distinguishing between the geographies of England and Pennsylvania :
The common law principle concerning rivers, even if extended to America, would not apply to such a river as the Susquehanna, which is a mile wide, and runs several hundred miles through a rich country, and which is navigable and is actually navigated by large boats. If such a river had existed in England, no such law would ever have been applied to it. Their streams, in which the tide does not ebb and flow, are small.
The English rule equating navigability with tidal waters, Tilghman continued, "would be highly unreasonable when applied to our large rivers, such as the Ohio, Allegheny, Delaware, Schuylkill, or Susquehanna and its branches."
On appeal, Justice Jasper Yeates upheld Tilghman's position, arguing that while a Pennsylvania law from the Revolutionary period provided that the common law of England would be in force in the state,
the uniform idea has ever been, that only such parts of the common law as were applicable to our local situation have been received in this government. The principle is self-evident. The adoption of a different rule would […] resemble the unskilful [sic] physician, who prescribes the same remedy to every species of disease.
In a later decision Chief Justice Tilghman expanded this logic to the great Mississippi River, and a Pennsylvania trial court similarly ruled that the local environment, with its long and wide rivers (the proud listing of which was becoming a set feature of this judicial discourse), changed the English law that would have otherwise applied :
The rules of the common law of England in regard to the rivers and the rights of riparian owners, do not extend to this commonwealth, for this plain reason, that rules applicable to such streams as they have in England, above the flow of the tide, scarcely one of which approximates to the size of Swatara, would be inapplicable to such streams as the Susquehanna, the Alleghany, the Monongahela, the Ohio, the Delaware, and many of their tributaries.
The highest courts of North and South Carolina soon took a similar approach to the rivers in those states.
This environmental approach was by no means accepted by all courts. In another case involving shad fishing, this time on the Connecticut River, Chief Justice Zephaniah Swift of Connecticut rejected efforts to rely on Carson v Blazer, writing of the common law rules that "a more perfect system of regulations on this subject could not be devised. It secures common rights, as far as the public interest requires ; and furnishes a proper line of demarcation between them and private rights." His fellow Justice, Stephen Hosmer, wrote that the relevant principles of the common law were "incontrovertible", and that
the argument, from inconvenience, must be very powerful, to cast a shade on a long established principle. On the other hand, the doctrine of the common law […] promotes the grand ends of civil society, by pursuing that wise and orderly maxim of assigning to every thing capable of ownership, a legal and determinate owner.
Similarly, in a New York case in which the defendant was accused of trespass for taking salmon from a section of the (appropriately named) Salmon River that the plaintiff claimed belong to him, Chief Justice Ambrose Spencer criticized the decisions in Carson v Blazer, writing, "I do not feel myself authorized to reject the principles of the English common law, by saying they are not suited to our condition," and ruled for the plaintiff. For these judges, the natural differences between English and American rivers were not enough to overturn settled legal rules.
But now the tides in New York began to turn, whether as a reflection of American exceptionalism writ large or the more specific Romantic celebration of American nature that Daniel Hulsebosch has noted. Yet the rhetoric in the state Court of Errors, in which state senators sat alongside judges, sometimes went beyond local patriotism to outright denigration of England and its rivers. Lawyers in a case involving the Mohawk River (Canal Com'rs v People ex rel. Tibbits, 5 Wend. 423 (NY 1830)) argued :
Can the English law extend to our large rivers, lakes, inland seas ? Their waters gathered, would form a mighty ocean into which were the whole land of the common law [i.e. England] cast, a ripple on its surface would be scarce produced ; so all the waters and streams of Great Britain diverted into the Niagara would cause no perceptible accession.
Senator Levi Beardsley picked up this argument in his opinion in the case :
It is matter of just exultation, as well as benefit to the country, that in the United States we have rivers which above tide are navigable to a greater extent than would be the circumnavigation of the United Kingdoms of Great Britain and Ireland. It is therefore preposterous to contend that the limited doctrines of the common law are applicable to the Mississippi, Ohio, Susquehannah, Niagara and St. Lawrence.
[…]
Rules of law should be adapted not only to the moral but to the physical condition of the country. Had the common law originated on this continent we should never have heard of the doctrine that fresh water rivers are not navigable above the flow of the tide […]
In a later iteration of this case (Canal Appraisers of State of New York v People ex rel. Tibbits, 17 Wend. 571 (NY 1836)), Senator Albert Tracy opined that the reasons of the traditional common law rule, "when weighed against the considerations which it seems to me should determine a rule for this country, are as dissimilar and disproportionate as the rills of an island when contrasted with the expanded lakes and magnificent rivers of a continent". Similar rhetoric was used by the Iowa Supreme Court in an 1856 case :
It is impossible to bring the mind to an approval, when we attempt to apply to the rivers of this country, stretching up to three thousand miles of extent – flowing through or between numerous independent states – and bearing a commerce which competes with that of the oceans – of a test which might be applicable to an island not so large as some two of our states ; and to streams whose utmost length was less than three hundred miles, and whose outlet and fountain, at the same time, could be within the same state jurisdiction. In England, or in Great Britain, the chief rivers are the Severn, Thames, Kent, Humber, and Mersey ; the latter of which is about fifty, and the first about three hundred miles in length, and of this (the Severn) about one hundred miles consists of the Bristol channel. The world renowned Thames, has the diminutive proportions of two hundred miles. And of even these lengths, not the whole is navigable. Thus, it will be seen, that these chief rivers of good old England, range in extent with our Connecticut, Merrimac, Hudson, Allegany, Monongahela, Cedar, Iowa, and Des-Moines, and bear a proportion of one to twenty, when compared with the greater rivers of this continent17.
How, then, were Americans to know which rivers were public and which were private, if the common law tests were rejected ? Tracy suggested that nature itself, mediated through the indigenous inhabitants of the area, could indicate the applicable legal rule for New York's Mohawk River :
Plainly this rule is to be sought in circumstances arising out of the nature and history of each river, for it is only by knowledge of the public use to which a particular water course has been or can be put, that it is possible in the absence of positive legislative declaration to determine, that it is or is not subject to the local law of this country […].
[W]e must bear in mind that […] the whole river, except at some points where navigation is interrupted by falls, has been always dedicated to public use as a water highway ; that this was a dedication anterior to any European claim to the country, and when individual and exclusive proprietorship even to the banks or shores of the stream was unthought of and unknown--when the dark forests which overshadowed the river, equally with the river itself, were possessed and enjoyed in strict accordance with the great dictate of natural law, that nothing should be made exclusive property which can be conveniently enjoyed in common.
[…]
[F]rom the nature of the element, individual property in the water flowing in such rivers must be regarded as transcient, usufructuary and subordinate […]. We should seek to avoid and not to incur the reproach, quod natura remittit, invida jura negant.
Another form of judicial argument in favor of granting natural conditions legal force was based on the differences between the common law and civil law rules on private property in rivers. American courts had argued that the differing legal regimes apparently reflected the fact that Continental Europe had larger rivers than Britain; Justice William Turley of the Tennessee Supreme Court turned this explanatory theory into a normative a fortiori argument :
Now, these principles of the common [and] civil law are not in conflict with one another ; they are both right and proper for the countries to which they are made to apply. In England there are no streams navigable above tide-water ; but the reverse is true of the continent, and the end designed to be effected, both by the common and civil law upon this subject, is identical, viz.: that navigable rivers shall not become private property, but shall belong to the community at large. If the local situation of the continent of Europe required an extension of the construction of what was necessary to constitute a navigable river, and prevented its restriction to tide-water, much more so does that of our own country, and particularly the valley of the Mississippi. Our rivers are of immense extent and size, and navigable for thousands of miles above their mouths.
A related argument, made by the Pennsylvania Supreme Court (Monongahela Bridge Co. v Kirk, 46 Pa 112 (1863), p. 121; see also People ex rel. Loomis v Canal Appraisers, 6 Tiffany 461 (NY 1865)), was that the civil law had actually been adopted in colonial Pennsylvania, due to the supposed similarities of its rivers to those of the Roman Empire :
The Roman law, which has pervaded Continental Europe, and which took its rise in a country where there was a tideless sea, recognised all rivers as navigable which were really so, and this common-sense view was adopted by the early founders of Pennsylvania, whose province was intersected by large and valuable streams, some of which are a mile in breadth.
The debate over whether the common law of England was applicable to American rivers reached the United States Supreme Court in the 1851 case, The Genesee Chief. At issue was whether the federal government's admiralty jurisdiction extended to navigable rivers above the influence of the tides. Justice Peter Daniel opposed giving environmental factors any normative force :
I cannot construe the Constitution either by mere geographical considerations ; cannot stretch nor contract it in order to adapt it to such limits, but must interpret it by my solemn convictions of the meaning of its terms, and by what is believed to have been the understanding of those by whom it has been formed.
But Chief Justice Roger Taney, writing for the majority, argued that while the English common law test for navigability was reasonable for English rivers and the original American states of the Eastern seaboard, in which only tidal waters were navigable, such a test became "inadmissible" when applied to the "thousands of miles of public navigable water" of the interior of the American continent. The normative force of natural factors thus received the backing of the highest court of the United States.
In the next post in this series we'll look at how some courts from around the British Empire dealt with this issue.
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