OVERTON, J.
This is an action to try title, brought by the state of Louisiana and the Louisiana Land
& Exploration Company, the assignee of the state’s lessee. The land involved is located at Hackberry, in the parish of Cameron, and, though once above water, is now under the waters of Calcasieu Lake. This condition of the land is due almost entirely, if not entirely, to the washing away of the surface of the land by the waves on the lake. The land, which abuts the present waters of the lake at the point in contest, is owned by some of the defendants, who contend that their property lines extend to a meander line, run in 1833, by the United States government, through H. T. Williams, surveyor, which they adopt as the shore line of the lake in 1812, when Louisiana was admitted into the Union as a state. Their contention is that the patents, under which they hold, convey title to this line, and that the only part of the bed of Calcasieu Lake, which the state owns is that part which was its bed in 1S12, when Louisiana was granted statehood. Others of the defendants who own mineral leases or other mineral rights emanating from their codefendants, who assert ownership in the lands, adopt the same position that their codefendants do. On the other hand, it is the contention of plaintiffs that, as the lands are washed away by the waves, or as they are worn away by other natural process, and become, by the extension of the waters of the lake over them, a part of the bed of the lake, to that extent title to them vests immediately in the state by virtue of its sovereignty.
Whether, the patents to the lands owned by those of the defendants, who claim as owners, convey title to the meander line, established in 1833, or not, it is certain that large parts of their lands have been worn away by the waters of the lake since the issuance of their patents, and that the resulting extension of the bed of the lake is claimed by the state. The strip of land in contest now forming a part of the lake, roughly estimated, ranges between the meander line of 1S33 and the present shore line, from 50 to 1,000 feet in width, and has a length of several thousand feet. The strip is located on the western side of the lake, at a point where Bayou Kelso empties into the lake, at Hackberry Island. It is covered by the waters .of the lake to depths ranging, say, from 1 to 3 feet. What gives to the strip value is that oil was discovered in the lake on each side of the strip several years ago in paying quantities, and is still being produced at these points.
The lake is approximately 18 miles long. It varies in width from about 4% miles to about 12 or 14 miles. At its northern end the Calcasieu river enters it through what is known as Mud Lake, and leaves it at its southern end, on its way to the Gulf of Mexico, a few miles distant. The river, before entering the lake, is 600 or more feet in width, and drains a considerable territory. It is deeper than the lake, especially north of it, where it is considerably deeper. It has what is considered a channel through the lake, which, we gather, is slightly deeper than the rest of the lake. Through this channel, which is about 1,000 feet wide, and which is some distance from the land in controversy, there is a perceptible current when the river, due to heavy rains, is high. In ordinary stages of the water in the river, there is, if any, only an almost imperceptible current in the channel. In very high water, a slight current has been noticed in the vicinity of the land here involved, but it is not thought that the current is sufficient to cause an erosion of the shores. These wear away at the point here involved to the extent of 5 or 6 feet a year.
The lake is affected more or less by the tides, especially at the southern end, up to which point they frequently flow. As a whole, its waters are usually fresh, though some
times they are brackish, and occasionally, due to weather conditions, are quite salt. The lake has an approximate depth of 6 feet, and is, perhaps, slightly deeper in that part of it that may be considered the channel of the river. The lake is navigable, and was navigable in 1812,. when Louisiana was admitted as a state of the Union.
As the lake was a navigable body of water on the day Louisiana was admitted to statehood, all of its bed as it then existed below high-water mark became the property of the state, without grant, by virtue of its inherent sovereignty. State v. Bozeman, 156 La. 635, 101 So. 4.
Hence the ease is presented: To whom does that part of the bed of the lake belong, formed by the washing away of the soil, since the admission of Louisiana to statehood? The correct solution of the case depends, among other things, upon the proper application of the laws of accretion and dereliction. These, so far as pertinent, are contained in articles 509 and 510 of the Civil Code. Article 509 reads as follows:
“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, whether it be a river or a stream, and whether the same be navigable or not, who is bound to leave public that portion of the bank which is required by law for the public use.”
Article 510 reads as follows:
“The same rule applies*to derelictions formed by running water retiring imperceptibly from one of its shores and encroaching on the other; the owner of the land, adjoining the shore which is left dry, has a right to the dereliction, nor can the owner of the opposite shore, claim the land which he has lost. This right does not take place in case of derelictions of the sea.”
It may be observed that articles 556 and 557 of the French Civil Code are substantially, and in fact almost-literally, the same as the corresponding articles 509 and 510 of our Code. However, the French Civil Code contains another article — article 558 — which was not carried from the Code Napoleon into our Code, and which reads as follows:
“Alluvion does not take place in connection with lakes and ponds, and the owner thereof always retains the land covered by the water, when it reaches the height of the outlet of the pond, even if the volume of water should decrease.
“On the other hand, the owner of a pond does not acquire any rights to the riparian lands which the water covers in case of extraordinary rise.” Cachard’s French Civil Code, art. 558.
■ In the Succession of Delachaise v. Maginnis, 44 La. Ann. 1043, 1048, 11 So. 715, 716, it was said:
“The principle underlying and determining the title to alluvion, in our system, is the equitable one expressed in the maxim, qui sentit onus, sentiré debet et commodum. As Pertalis, in his ‘Exposé des Motifs’ .of the Napoleon Code, quaintly states it: ‘There exists, so to speak, an aleatory contract between the riparious owner and nature, whose action may at any moment despoil or increase his estate. In which sense it may be said that rivers give or take away, like chance or fortune.’ If it takes away, the owner must bear the loss; if it gives, justice accords him the gain.”
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OVERTON, J.
This is an action to try title, brought by the state of Louisiana and the Louisiana Land
& Exploration Company, the assignee of the state’s lessee. The land involved is located at Hackberry, in the parish of Cameron, and, though once above water, is now under the waters of Calcasieu Lake. This condition of the land is due almost entirely, if not entirely, to the washing away of the surface of the land by the waves on the lake. The land, which abuts the present waters of the lake at the point in contest, is owned by some of the defendants, who contend that their property lines extend to a meander line, run in 1833, by the United States government, through H. T. Williams, surveyor, which they adopt as the shore line of the lake in 1812, when Louisiana was admitted into the Union as a state. Their contention is that the patents, under which they hold, convey title to this line, and that the only part of the bed of Calcasieu Lake, which the state owns is that part which was its bed in 1S12, when Louisiana was granted statehood. Others of the defendants who own mineral leases or other mineral rights emanating from their codefendants, who assert ownership in the lands, adopt the same position that their codefendants do. On the other hand, it is the contention of plaintiffs that, as the lands are washed away by the waves, or as they are worn away by other natural process, and become, by the extension of the waters of the lake over them, a part of the bed of the lake, to that extent title to them vests immediately in the state by virtue of its sovereignty.
Whether, the patents to the lands owned by those of the defendants, who claim as owners, convey title to the meander line, established in 1833, or not, it is certain that large parts of their lands have been worn away by the waters of the lake since the issuance of their patents, and that the resulting extension of the bed of the lake is claimed by the state. The strip of land in contest now forming a part of the lake, roughly estimated, ranges between the meander line of 1S33 and the present shore line, from 50 to 1,000 feet in width, and has a length of several thousand feet. The strip is located on the western side of the lake, at a point where Bayou Kelso empties into the lake, at Hackberry Island. It is covered by the waters .of the lake to depths ranging, say, from 1 to 3 feet. What gives to the strip value is that oil was discovered in the lake on each side of the strip several years ago in paying quantities, and is still being produced at these points.
The lake is approximately 18 miles long. It varies in width from about 4% miles to about 12 or 14 miles. At its northern end the Calcasieu river enters it through what is known as Mud Lake, and leaves it at its southern end, on its way to the Gulf of Mexico, a few miles distant. The river, before entering the lake, is 600 or more feet in width, and drains a considerable territory. It is deeper than the lake, especially north of it, where it is considerably deeper. It has what is considered a channel through the lake, which, we gather, is slightly deeper than the rest of the lake. Through this channel, which is about 1,000 feet wide, and which is some distance from the land in controversy, there is a perceptible current when the river, due to heavy rains, is high. In ordinary stages of the water in the river, there is, if any, only an almost imperceptible current in the channel. In very high water, a slight current has been noticed in the vicinity of the land here involved, but it is not thought that the current is sufficient to cause an erosion of the shores. These wear away at the point here involved to the extent of 5 or 6 feet a year.
The lake is affected more or less by the tides, especially at the southern end, up to which point they frequently flow. As a whole, its waters are usually fresh, though some
times they are brackish, and occasionally, due to weather conditions, are quite salt. The lake has an approximate depth of 6 feet, and is, perhaps, slightly deeper in that part of it that may be considered the channel of the river. The lake is navigable, and was navigable in 1812,. when Louisiana was admitted as a state of the Union.
As the lake was a navigable body of water on the day Louisiana was admitted to statehood, all of its bed as it then existed below high-water mark became the property of the state, without grant, by virtue of its inherent sovereignty. State v. Bozeman, 156 La. 635, 101 So. 4.
Hence the ease is presented: To whom does that part of the bed of the lake belong, formed by the washing away of the soil, since the admission of Louisiana to statehood? The correct solution of the case depends, among other things, upon the proper application of the laws of accretion and dereliction. These, so far as pertinent, are contained in articles 509 and 510 of the Civil Code. Article 509 reads as follows:
“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, whether it be a river or a stream, and whether the same be navigable or not, who is bound to leave public that portion of the bank which is required by law for the public use.”
Article 510 reads as follows:
“The same rule applies*to derelictions formed by running water retiring imperceptibly from one of its shores and encroaching on the other; the owner of the land, adjoining the shore which is left dry, has a right to the dereliction, nor can the owner of the opposite shore, claim the land which he has lost. This right does not take place in case of derelictions of the sea.”
It may be observed that articles 556 and 557 of the French Civil Code are substantially, and in fact almost-literally, the same as the corresponding articles 509 and 510 of our Code. However, the French Civil Code contains another article — article 558 — which was not carried from the Code Napoleon into our Code, and which reads as follows:
“Alluvion does not take place in connection with lakes and ponds, and the owner thereof always retains the land covered by the water, when it reaches the height of the outlet of the pond, even if the volume of water should decrease.
“On the other hand, the owner of a pond does not acquire any rights to the riparian lands which the water covers in case of extraordinary rise.” Cachard’s French Civil Code, art. 558.
■ In the Succession of Delachaise v. Maginnis, 44 La. Ann. 1043, 1048, 11 So. 715, 716, it was said:
“The principle underlying and determining the title to alluvion, in our system, is the equitable one expressed in the maxim, qui sentit onus, sentiré debet et commodum. As Pertalis, in his ‘Exposé des Motifs’ .of the Napoleon Code, quaintly states it: ‘There exists, so to speak, an aleatory contract between the riparious owner and nature, whose action may at any moment despoil or increase his estate. In which sense it may be said that rivers give or take away, like chance or fortune.’ If it takes away, the owner must bear the loss; if it gives, justice accords him the gain.”
The fact that our Code omits article 558 of the French or Napoleon Code does not indicate that it was the intention of the framers
of our Code to make the rules concerning alluvion and dereliction apply to lakes. The omission of article 558 from our Code made no difference. Article 509 thereof grants the right of accretion to the owners of land abutting on rivers and streams, thus limiting the right, under the rule, enumeratis unius est ex-clusio alterius, to such owners, and indicating by the use of those terms, that the bodies of water must be running water, confined by banks, and the same rule applies as to relictions, the right to which is granted by article 510, where the term ‘‘running water” is used. This, in effect, has been held in Slattery v. Arkansas Gas Co., 138 La. 793, 804, 70 So. 806, and Bank of Coushatta v. Yarborough, 139 La. 510, 517, 71 So. 784, where it was virtually said that articles 509 and 510 of our Code do not apply to lakes.
Our conclusion is that these articles do not apply to lakes. Hence the question is presented whether Calcasieu Lake is a lake or a section of the Calcasieu river, within the contemplation of the laws governing accretion and derelictions?
In Prance, from which our Civil Code is largely taken, what is termed Calcasieu Lake would probably be considered a mere expansion of the Calcasieu river, and therefore the entire lake would likely be treated as a section of the river, for there a lake through which a river flows, though called a lake, is deemed, in the application of the laws governing alluvion and dereliction, a section of the river. Dictioxmaire Generale du Notariat et du Droit Civil Moderne, vol. 4, page 350, sub. “LacRepertoire du Droit Praneais, Puzier Herman, vol. 25, page 783, sub. “Lac,” No. 13, vol. 4, p. 57, Nos. 47 and 48, sub. “Alluvion,” vol. 33, p. 235, No. 734, sub. “Riviere.” In our opinion, however, the better view— with reference to the laws, governing alluvion and dereliction — is to regard such a vast ex-panse of water as Calcasieu Lake as being in fact a lake, although a river empties into the sea through it.
In Jones v. Lee, 77 Mich. 35, 43 N. W. 855, 856, in speaking of a lake, in which the Muskegon river enters, the lake emptying through a short passage into Lake Michigan, it was said:
“There is no rule of law which would authorize this body of water, merely because it is a theoretical expansion of a river, to be treated as anything but a navigable lake, which would not put the expansions of the St. Lawrence on a similar footing. A river is characterized by its confining channel banks, which give it a substantially single course throughout. A lake occupies a basin of greater or less depth, and may or may not have a single prevailing direction.” See, also, Nee-peeNauk Club v. Wilson, 96 Wis. 290, 71 N. W. 661; Illinois Steel Co. v. Bilot, 109 Wis. 418, 84 N. W. 855, 85 N. W. 402, 83 Am. St. Rep. 905; Alabama v. Georgia, 23 How. 505, 16 L. Ed. 556, 559, the last case, defining the word, “river,”
One may lose or acquire property only by one of the methods prescribed by law. Zeller v. Southern Yacht Club, 34 La. Ann 837; Sapp v. Frazier, 51 La. Ann. 1718, 1726, 26 So. 378, 72 Am. St. Rep. 493. It cannot be said that the state acquired the property in contest by virtue of its sovereignty, as it did the bed of the lake, as the bed existed, at the time the state was admitted into the Union, for whatever title the state may have to the land in contest is purely a derivative title. The only remaining method presented by which the state could have acquired the property is under the laws relating to accretion and dereliction. Since these laws do not apply to lakes, and since Calcasieu Lake is properly a lake, and not a section óf a river or stream, it would therefore seem that,
as the water washed away parts of the surface of defendants’ lands, by the action of the waves!, thereby making the subsurface / of these parts a part .of the bed of the lake, the state did not acquire such subsurface, and the defendants did not lose it. Hence the state’s claim of title to such parts must fall.
In conflict with the conclusion, here reached, would seem to be a ruling in the quite recent ease of New Orleans Land Company v. Board of Levee Commissioners of Orleans Levee District, 171 La. 718, 132 So. 121, 123. In that case.it appears that the board of levee commissioners appropriated certain land, claimed by the New Orleans Land Company, the greater part of wl}ieh, by virtue of the erosive action of the waters of Lake Pontchartrain, had become a part of the bottom of the lake. In awarding damages for the land appropriated, the court refused to allow any for that part of the land submerged, and, in giving its reasons leading to this refusal, said:
“In determining the issues involved in this case, it is of no practical value to ascertain whether Lake Pontchartrain should be classed as a salt-water tidal lake or a freshwater inland navigable lake. The legal situation with which we are concerned here is the same in either case. The water bottoms of both classes of lakes are owned by the state to the high-water mark.”
So'far as relates to fresh water navigable lakes, with which we are presently alone, concerned, there .can be no question that their bottoms belong to the State, up to the high-water mark, by virtue of its sovereignty. But this means their bottoms, as they existed, at the time the state was admitted into the Union, and does not- include that part of such bottoms, later formed by the action of the waters in washing away the soil, of lands, privately owned, and thereby submerging them. The submerged lands still belong to the owners. The New Orleans Land Company Case, to this extent, must yield to the views herein expressed. It may be said that the question there presented, as to ownership of the submerged part, played no important part in ■that controversy, for, being submerged, and with nothing apparent to add to its desirability, it obviously had but little, if any, value in private hands.
The trial'judge rendered judgment, rejecting plaintiffs’ demands, and decreeing defendants to be the owners of the lands and of the respective interests therein claimed by them and situated between the present shore line of Calcasieu Lake, and the eastern boundr ary line of their property as originally acquired from the United States and the state, and reserving to the parties to this suit the right to institute any necessary proceedings in the future for the purpose of locating and having fixed the boundary line existing beJ tween the defendants’ properties and those belonging to plaintiffs, according to the boundary originally existing.
Understanding from this judgment that the eastern boundary line of defendants’ property is to be fixed, when the proper proceedings are had, at the ordinary high-water mark, as it existed at the time the land was patented, which mark the record does not disclose, the .judgment appealed from should be affirmed, for the presumption is that the patents conveyed title only up to the water line at the date of their issuance, and it is ordinarily contrary to the policy of a state for it to alienate any part of the bed of its navigable waters. Massachusetts v. New York, 271 U. S. 65, 87, 46 S. Ct. 357, 70 L. Ed. 838, 849; Morris v. United States, 174 U. S. 196, 235, 19 S. Ct. 649, 43 L. Ed. 946, 960; State v. Bayou Johnson Oyster Co., 130 La. 604, 612, 58 So. 405.
The judgment is affirmed.
ST. PAUL, ROGERS, and BRUNOT, JJ., dissent.