In the last posts in this series we looked at court decisions that discussed whether the ownership of rivers should follow the common law or change to reflect local environmental conditions. Another branch of water-related law dealt with the legal consequences of changes in the course of a river or a shoreline over time. The property-law questions thrown up by these changes, under the legal terms "alluvion" and "diluvion", were to whom newly formed dry land belonged – to the former owner of the dry land now submerged, or to the owner of the adjacent riverbed. The English rule, based on Roman law, was that gradual accumulations of land from water belonged to the to the owner of the land to which the new land was added, while gradual losses of land were lost to the landowner and became part of the river (Foster v Wright, 4 CPD 438 (1878)). Sudden changes in the course of a river, on the other hand, were held not to bring about changes in ownership of the bed.
One line of legal thought held that the English common law rules in this area of law applied everywhere. The English Court of Exchequer in 1839 (In re Hull and Selby Rwy, 151 English Reports 139 (Ex 1839)) opined that the common law of alluvion "is not peculiar to this country, but obtains also in others, and is founded on the necessity which exists for some such rule of law, for the permanent protection and adjustment of property." Similarly, seventy-five years later, the Privy Council rejected arguments that the English law did not apply to the Nigerian shoreline due to differences in the local conditions, Lord Shaw stating that the court did not doubt the "general applicability" of the English law of accretion. This, however, was the minority position.
The incubator for the opposing view, that the common law needed to be modified to take into account environmental conditions, was India, where the great deltas around the Bay of Bengal saw constantly shifting configurations of water and land. As we began to see in previous posts, it was often argued that the subcontinent's supposed environmental affinities with America made the United States a more relevant source of water law than English precedents.
This claim seems to have been first advanced by barrister Charles Pontifex, soon to be appointed to the bench in Bengal and later the legal adviser to the India Office, in arguments before the Privy Council in 1872. The case turned, among other things, upon the question of who owned land that had been lost to the Karnaphuli River in its lower reaches and then later reformed – the original landowner, or the government, as owner of the river. Pontifex, representing the government, contended that the land was permanently lost to the original owner, citing an American treatise on water law (L. Houck, A Treatise on the Law of Navigable Rivers, 1868), which he argued was "the more deserving of attention, by reason of the similarity which exists between the great rivers of America and those of India in their conditions and mode of action." The Privy Council was unconvinced that the American treatise really helped Pontifex's case, and made no decision about whether American water law was really a better source for Indian law that the English common law.
Similarly, in an 1899 appeal from Madras to the Privy Council the question arose as to whether land that had formed in the Godavari (Godaveri) River belonged to the government – the owner of the island to which the new land was attached – or rather to the owner of the banks of the river. The claim of the latter on appeal was based on the English common law rule according to which the owner of the banks of a river owned the riverbed in between. First noting that the differences between English rivers and the Godavari are "obvious", calling into question the attempt to rely on English law, the Privy Council asserted that "Their Lordships do not travel into that interesting discussion". Nonetheless, the court concluded by noting that it had "grave doubts whether the presumption applicable to little English rivers applies to great rivers such as the Godaveri", and that they would therefore "require to know much more about the river in question and the mode in which it has been dealt with before deciding as to the presumption or its rebuttal." Once again, the court declined to rule on the question of the applicability of English rules to the very different rivers of India – but the groundwork had been laid for granting Indian nature normative force in this area of the law.
The leading case on this topic was the 1914 Privy Council decision of Srinath Roy v Dinabandhu Sen. The case involved a jalkar, or right of fishery, in a section of the Padma River, in the Ganges Delta. The river had shifted course so that it no longer flowed over the appellants' land, but they claimed that their right of fishing moved with the river, even though the relevant section now flowed over the respondent's land. "The common law of England," argued counsel for the appellants, "has absolutely no application to Bengal, which is essentially different from England." Lord Sumner, delivering the opinion of the Privy Council, opened with a geography lesson:
The streams in the Gangetic delta are capricious and powerful. In the course of ages the land itself has been deposited by the river, which always carries a prodigious quantity of mud in suspension. The river comes down in flood with resistless force, and throughout its various branches is constantly eroding its banks and building them up again. It crawls or races through a shifting network of streams. Sometimes its course changes by imperceptible degrees ; sometimes a broad channel will shift or a new one open in a single night. Slowly or fast it raises islands of a substantial height standing above high water level and many square miles in extent.
Precedents that arose from disputes on the English rivers Eden and Lune were dismissed by Sumner, as these rivers were "not […] subject to frequent change. How the law might be if conditions similar to those of Bengal could occur in England is another matter. The above cases would have been more directly in point had the river in question been one which often and swiftly changes its course, as for instance the tidal Severn […]" After characterizing English doctrine as laid down by Hale as a departure from Roman law and "essentially insular", he stated the case for matching legal rules to geography, once again turning to American law:
In truth the rule which in the United Kingdom thus connects the subject's right to an exclusive fishery in tidal navigable waters with the limits of the Crown's ownership of the subjacent soil is itself the result of conditions partly historical and partly geographical which have no counterpart in Lower Bengal […]. The question how far a rule established in this country [Britain] can be usefully applied in another, whose circumstances, historical, geographical, and social, are widely different, is well illustrated by the case of navigability, as understood in the law of the different States of the United States of America […]. The Courts of the different States, minded alike to follow the common law where they could, found themselves in the latter part of the eighteenth and the early part of the nineteenth centuries constrained by physical and geographical conditions to treat it differently.
After quoting from the Pennsylvania decisions discussed in a previous post, Sumner went on:
A similar deviation, equally grounded in good sense, from the strict pattern of the English law of waters lies at the bottom of the current of Indian cases [that deviated from English law on grants of fishery], and forms its justification.
In proposing to apply the juristic rules of a distant time or country to the conditions of a particular place at the present day regard must be had to the physical, social, and historical conditions to which that rule is to be adapted […]. Above all the difference, indeed the contrast, of physical conditions is capital. In England the bed of a stream is for the most part unchanging during generations, and alters, if it alters at all, gradually and by slow processes. In the deltaic area of Lower Bengal change is almost normal in the river systems, and changes occur rarely by slow degrees, and often with an almost cataclysmal suddenness […]. Any given section of the river system is in all probability a shifting and irregular patchwork of water flowing over soil which belonged to the Sovereign at the selected date and of water flowing over soil then belonging to other owners and since encroached upon, with the background of a probability that before the date in question, and yet within historic times, no water may have run there at all. By what analogy can rules applicable to the Eden and the Lune be profitably applied to such physical conditions?
Finally, in a remarkable theoretical and rhetorical turn, Sumner invested the river with agency not only as to environmental change, but as a partner in sovereignty with the state:
Lastly, it is said to be unjust that a landowner should not only lose the use of his land when the river overflows it, but also the right to fish over his own acres and in his own waters, in order that another may unmeritoriously fish in his place. There is some begging of the question here ; the waters are not his waters, nor is the change confined to the flooding of his fields. It is the river that has made his land its own ; the waters are the tidal navigable waters of the great stream. In physical fact the landowner enjoys his land by the precarious grace of the river, whose identity is so persistent, and whose character is so predominating, as almost to amount to personality ; and is it fundamentally unjust that in law too he should lose what he has lost in fact, and be precluded from taking in substitution for his lost land an uncorporeal right which has been granted not to him but to another?
Here was the argument for the normative force of nature stated most clearly : Not only did the law need to change with differing natural conditions, but nature, or the very river itself, was imbued with lawmaking force. In the face of this natural legislation the common law had to give way, and the Privy Council accordingly ruled that the appellants kept their right of fishery even when the river had radically shifted course.
A few years later the question of the applicability of English law to Indian Rivers again reached the Privy Council, in another appeal involving the Godavari River. At issue was whether the English rule, according to which title to land could be acquired by accretion only if the accretion was "gradual, slow, and imperceptible", was in force in Madras. In a learned opinion, Justice Sriniyasa Aiyangar of the Madras High Court rejected the English rule, noting that "in England, they have not such large rivers as we have here in India […]. If we apply […] the test which is applied in England, there can scarcely be any doubt that lankas [islands] formed in the Godaveri are not accretions at all, but I doubt whether that is the principle which is applicable in India." He then went on to consider several U.S. Supreme Court decisions, as well as one from New York.
On appeal to the Privy Council, counsel for the appellants impugned the reliance on American authority, arguing, "There is no distinction between the principles applicable in England and in India". The judges were skeptical:
Lord Buckmaster.– Can you apply English rules and law to something England never contemplated ?
Sir John Edge.– You have no rivers in England comparable to the Godavari or the Ganges.
[…].
Lord Buckmaster.– The law of accretion is the common law but that common law has been brought in India into conditions very different to those operating in England. The same and very similar conditions have been found in America and I presume reference is made to American decisions in order to see how the common law has been interpreted in those altered conditions.
Unsurprisingly, the court rejected the appeal, ruling that application of the English rule would be inapplicable to the very different Indian rivers.
The issue of the applicability of English riparian law in countries with different environments arose again soon after, in a decision by the Canadian Supreme Court regarding the ownership of accretions to riparian land along the North Saskatchewan River in Alberta. The statute importing the laws of England to the area had included the proviso "in so far as the same are applicable" to the territory, and the court, citing the Indian cases of Raja of Vizianagaram and Srinath Roy (discussed above), noted the necessity of adapting foreign rules to local physical conditions. The court held that English rule that accretions belonged to the adjacent landowner was indeed applicable to the province, adding that "it is interesting to note that in India, where a number of the rivers more nearly approximate in size and character to the North Saskatchewan than do those of England, the law applicable to accretions was laid down by the Privy Council in Sri Balsu Ramalaksmamma v Collector of Godaveri District" to be the same as the English law on the point at issue. The law had thus come full circle, from North American to India and back again – and so had the idea that environmental factors could be more important than legal heritage or precedent for determining the law of shifting watercourses.
No comments:
Post a Comment