The question of ownership under the Spanish law of accessions to
the shore by accretion and alluvion has been a vexed one.
The Roman law is not like a deed or a modern code prepared
uno flatu, but history has played a large part in its
development.
Under the civil law, the seashore flowed by the tides, unlike
the bank of rivers, was public property, belonging, in Spain, to
the sovereign.
Under the Spanish Law of Water of 1866, which became effective
in the Philippine in 1871, lands added to the shore by accession
and accretions belong to the public domain unless and until the
government shall decide they are no longer needed for public
utilities and shall declare them to belong to the adjacent
estate.
This rule applies not only to accessions to the shore while it
is washed by the tide, but also to additions which actually become
dry land.
The doctrine that accessions to the shore of the sea by
accretion belong to the public domain, and not to the adjacent
estate, has been adopted by the leading civil law countries,
including France, Italy and Spain.
In determining what law is applicable to title in the
Philippines, this Court deals with Spanish law as prevailing in the
Philippines, and not with law which prevails in this country,
whether of mixed antecedents or the common law.
Where a case is brought up on an appeal on a single question, in
regard to which there is no error, judgment below will be
affirmed.
The facts, which involve the title to land in the Philippine
Islands formed by action of the sea, are stated in the opinion.
Page 223 U. S. 275
MR. JUSTICE HOLMES delivered the opinion of the Court.
This is an action brought by Ker & Company to recover
possession of land held by the defendant under a claim of title in
the United States. The land is the present extremity of Sangley
Point, in the Province of Cavite and Island of Luzon, projecting
into Manila Bay. It has been formed gradually by action of the sea,
all of it since 1811, about three-quarters since 1856, and a part
since 1871. For a long time, the property was used by the Spanish
Navy, and it now is occupied by the present government as a naval
station, works costing more than half a million dollars having been
erected upon it. The plaintiffs claim title under conveyances from
the owner of the upland. The Philippine courts held that, under the
Partidas, III, Tit. 28, laws 3, 4, 6, 24, and 26, and the Law of
Waters of 1866, the title to the accretions remained in the
government, and the vexed question has been brought to this
Court.
That the question is a vexed one is shown not only by the
different views of Spanish commentators, but by the contrary
provisions of modern codes and by the occasional intimations of the
doctors of the Roman law. Justinian's Institutes, 2, 1, 20 (Gaius,
II. 70), followed by the Partidas, 3, 28, 26, give the alluvial
increase of river banks to
Page 223 U. S. 276
the owner of the bank. If this is to be taken as an example
illustrating a general principle, there is an end of the matter.
But the Roman law is not like a deed or a modern code prepared
uno flatu. History plays too large a part to make it safe
to generalize from a single passage in so easy a fashion. Alongside
of the rule as to rivers we find that the right of alluvion is not
recognized for lakes and ponds, D. 41, 1, 12 -- a rule often
repeated in the civil law codes,
e.g., Philippine Civil
Code of 1889, Arts. 366, 367; Code Napoleon, Art. 550; Italy, Civil
Code 1865, Art. 454; Mexico, Art. 797. If we are to generalize, the
analogy of lakes to the sea is closer than that of rivers. We find
further that
In agris limitatis jus alluvionis locum non
habet. And the right of alluvion is denied for the
agrum
manu captum, which was
limitatum in order that it
might be known (exactly) what was granted. D. 41, 1, 16. The gloss
of Accursius treats this as the reason for denying the
jus
alluvionis. If this reason again were generalized, it might
lead to a contrary result from the passage in the Institutes.
Grotius treats the whole matter as arbitrary, to be governed by
local rules, and both the doctrine as to rivers and the distinction
as to accurately bounded lands as rational enough. De Jure B. &
P. Lib. 2, cap. 8, 11, 12. A respectable modern writer thinks that
it was a mistake to preserve the passage concerning definitely
bounded grants in the Digest, 1 Demangeat, Droit Romain, 2d ed. 441
("antiquirt," Puchta, Pandekten, ยง 165), but, so far as we have
observed, this is an exceptional view, and from the older
commentators that we have examined down to the late brilliant and
admirable work of Girard, Droit Romain, 4th ed. 324, this passage
seems to be accepted as a part of the law. At all events, it shows
that, as we have said, it is unsafe to go much beyond what we find
in the books. And to illustrate a little further the uncertainty as
to the Roman doctrine, we may add that Donellus mentions
Page 223 U. S. 277
the opinion that alluvion from the sea goes to the private
owner, only to remark that the texts cited do not support it, De
Jur.Civ. IV., c. 27, 1 Opera, 1828 ed. 839.n., and treats the rule
of the Institutes as peculiar to rivers, as also Vinnius, in his
comment on the passage stating the rule, seems to do, while
Huberus, on the other hand, thinks that rivers furnish the
principle that ought to prevail. Praelectiones, II., Tit. 1,
34.
The seashore flowed by the tides, unlike the banks of rivers,
was public property, in Spain, belonging to the sovereign power.
Inst. II. Tit. 1, 3, 4, 5. D. 43, 8, 3 Partidas, III, Tit. 28, 3,
4. And it is a somewhat different proposition from that laid down
as to rivers, if it should be held that a vested title is withdrawn
by accessions to what was owned before. Perhaps a stronger argument
could be based on the rule that the title to the river bed changes
as the river changes its place. Part. III. Tit. 28. Law 31. Inst.
2. 2, 23. D. 41. 1. 7, 5. But we are less concerned with theory
than with precedent in a matter like this, whether we agree with
Grotius or not in his general view. The Spanish commentators do not
help us, as they go little beyond a naked statement one way or the
other. It seems to us that the best evidence of the view prevailing
in Spain is to be found in the codification which presumably
embodies it. The Law of Waters of 1866, which became effective in
the Philippines in September, 1871, and the validity of which we
see no reason to doubt, after declaring, like the Partidas, that
the shores (
playas), or spaces alternately covered and
uncovered by the sea, are part of the national domain and for
public use, Arts. 1, 3, goes on thus:
"Art. 4. The lands added to the shores by the accessions and
accretions caused by the sea belong to the public domain. When they
are not [longer] washed by the waters of the sea, and are not
necessary for objects of public utility, nor for the establishment
of special industries, nor for the
Page 223 U. S. 278
coast guard service, the government shall [will?] declare them
property of the adjacent estates, in increase of the same."
Notwithstanding the argument that this article is only a futile
declaration concerning accessions to the shore while it remains
such in a literal sense -- that is, washed by the tide -- we think
it plain that it includes and principally means additions that turn
the shore to dry land. These all remain subject to public ownership
unless and until the government shall decide that they are not
needed for the purposes mentioned, and shall declare them to belong
to the adjacent estates. The later provision in Article 9, that the
public easement for salvage, etc., shall advance and recede as the
sea recedes or advances, simply determines that neither public nor
private ownership shall exclude the customary public use from the
new place. The Spanish Law of Ports of 1880, like the Law of
Waters, asserts the title of the state, although it confers private
rights when there is no public need.
The presumption that the foregoing provisions of the Law of
Waters express the understanding of the codifiers as to what the
earlier law had been becomes almost inexpungable when we find that
the other leading civil law countries have adopted the same
doctrine. The Code Napoleon, after laying down the Roman rule for
alluvion in rivers, Arts. 556, 557, adds at the end of the latter
article: "
Ce droit n'a pas lieu a l'egard des relais des la
mer," which seems to have been adopted without controversy at
the conference.
See further Marcade, Explication, 5th ed.
vol. 2, p. 439.
And compare 2 Hall's Am.Law Journal, 307,
324, 329, 333. The Civil Code of Italy, 1865, Art. 454, is to
similar effect.
See also Chile, Civil Code, Art. 650. The
Supreme Court of Louisiana in like manner confines the private
acquisition of alluvion to rivers and running streams, and
denies
Page 223 U. S. 279
the private right in the case of lakes and the sea.
Zeller
v. Southern Yacht Club, 34 La.Ann. 837. And the provision of
the Louisiana Code, Art. 510, is like those of France, Italy, and
Spain. The court of first instance below refers to judgments of the
Supreme Court of Spain that seems to look in the same direction. We
have neither heard nor found anything on the other side that seems
to us to approach the foregoing considerations in weight, not to
speak of the respect that we must feel for the concurrent opinion
of both the courts below upon a matter of local law with which they
are accustomed to deal. Of course, we are dealing with the law of
the Philippines, not with that which prevails in this country,
whether of mixed antecedents or the common law.
As the case was brought up on the single question that we have
discussed, the judgment of the court below must be affirmed.
Judgment affirmed.
MR. JUSTICE McKENNA, dissenting:
I cannot agree with the conclusion of the Court. It seems to be
conceded that it is not necessarily determined by the authorities
which are cited. I think the better deduction from them is that
they only declare the constant integrity of the shore and the
dominion of the government over it, whether it recede or advance.
When it ceases to be washed by the tides or the seas, is becomes
part of the upland, and belongs to the owner of the upland. And
this is but the application of the principle, said to be of natural
justice, that he who loses by the encroachments of the sea should
gain by its recession.
Banks v. Ogden,
2 Wall. 57,
69 U. S. 67.