Statement of the Case.
MONROE, C. J.
The case here presented for decision is stated by the counsel, respectively, as follows:
[331]*331“This suit was brought by the state of Louisiana against J. S. Richardson and Benedum & Trees in the form of a'petitory action, the state alleging that it is the true and lawful owner of all the property within the banks of Red river, below ordinary high-water mark, in section 24, township 13 north, range 11 west. * * *
“It is alleged that Benedum & Trees, as lessees of Richardson, have been drilling wells below ordinary high-water mark in said section, * * * and have been extracting therefrom large quantities of oil which belonged, and belongs, to the state of Louisiana. The suit was brought for the purpose of determining the limits of the state’s ownership in the bed of Red river at the point indicated, and to recover, from those who had extracted it, the oil produced from the state’s property.
“Defendants answered, admitting the title of the state to the bed of Red river; denying that they had trespassed on any portion of the state’s property; . denying that they had ever claimed any part of the river bed; and praying that the boundary of their property and that of the state might be judicially determined.”
It was made of record in the course of the trial that:
“The state does not contest the ownership of J. S. Richardson in section 24, in so far as such property is susceptible of private ownership.”
It appears that the state, through the Attorney General, requested the state board of engineers — •
“to establish what, in the opinion of the * * * board, * * * constituted a full bank, full stage; in other wor’ds, to establish what, in the opinion of the state board of engineers, would be synonymous with the expression ‘the ordinary stage of high water.’ ”
And that, in complying with that request, •the state board, through the chief state engineer, adopted the view and gave the directions as follows (quoting the language of the chief state engineer), to wit:
“We recognized that it was somewhat of a difficult question, and it would have to be reduced to units of length, as far as the banks of the river were concerned; that not every foot of the bank of the river could be taken into consideration, but the length should be reduced to a convenient unit; and they adopted one mile, constituted for examination and consideration, and my instructions to Mr. Bell [the engineer who was employed by the Board to superintend the work] were to run levels and determine that elevation in that unit where the river ceased to contain itself. Whatever that elevation was where the river ceased to contain itself and overflow the contiguous country, that condition was controlled within that unit, then the next was taken, and the mile was then determined and applied, and so on down the river. The unit system was established as a matter of convenience. It was impossible to determine every foot of the length of Red river, and, the slope of the river being so gradual, the difference within that mile could easily be checked off with the difference in the elevation within that limit or unit.”
Mr. Bell’s statement of the manner in which he executed, the instructions so given to him is as follows:
“Well, levels were first run along this bank— the original bank of the river— and then they were plotted, and the lowest elevation was taken as the unit to determine at what elevation _ the water will flow over the bank within that limit and overflow the land near it. We used this to establish the bank full stage.”
The view of the state, then, is that the “bank full stage” (meaning the stage at which the river ceases to contain itself within its banks) and the “ordinary stage of high water” are equivalents, and that all land lying below that level constitutes the bed of the river and is the property of the state.
Defendants contend that the land in dispute, being alluvion, formed upon land of which the defendant Richardson is unquestionably the owner, has become susceptible of private ownership, and is therefore owned by him, even were it below the level of the ordinary stage of high water (which they deny is the case); that the “bank full” stage is an extreme, and not an “ordinary,” stage of high water, and hence that the theory upon which the state and the engineers have proceeded is erroneous; and that the board, in attempting to determine the level at which the river ceases to contain itself, has theoretically established a higher level than is warranted by the facts. The learned counsel have also, this to say in their brief, to wit:
“Under the petition and under the stipulation” —the word “stipulation” being applied to the admission that “the state does not contest the ownership of J. S. Richardson in section 24, in so far as such property is susceptible of private ownership” — the state is definitely cut off from any claim or assertion of title to any land or to [333]*333the banks of the river (declared by article 455, C. C., to be in private ownership), or to anything lying above the ordinary stage of high water, and the sole issue, as held by the district judge, is the delimitation of that which is owned by the state as a sovereign — namely, the bed of Rod river.”
In order to facilitate the expression of our views upon the questions at issue, and the better to enable the parties in interest to understand those which relate to the facts, the subjoined rough sketch has been prepared (see page 984), and, though no attempt at accuracy has been made in its preparation, it may serve the purpose indicated, with the following explanation, to wit:
The area designated “Peninsula,” down to the line “PI,” represents the natural, left, descending, bank of the river, is high and dry land, covered with hardwood trees, such as oak, pecan, and hackberry, has long been in cultivation, and is not here in dispute. At some time in the past, the “Peninsula,” then, no doubt, merely part of a larger body of land, with a different configuration, was included in what was known as “Stallings’ Bend Plantation”; but (probably at a later period) the river occupied as its bed the areas or part of the areas designated “Bay” and “Hook of the Peninsula,” and still later the destroying power of the river became so directed against the land at the lower and outer side of its bend, and its constructive operations to the upper and inner side, that it began depositing its sediment against the lower end of the Peninsula and thereby added the “Hook,” beginning at PI and extending around the bend and northeastwardly until it is said to lose itself in broken sand bars about the upper line of section 19. In that process deposits were also made in the area between the Hook and the Peninsula, but in less degree than upon the Hook, and in less degree in the area lying in section 24 than in that lying in section 25.
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Statement of the Case.
MONROE, C. J.
The case here presented for decision is stated by the counsel, respectively, as follows:
[331]*331“This suit was brought by the state of Louisiana against J. S. Richardson and Benedum & Trees in the form of a'petitory action, the state alleging that it is the true and lawful owner of all the property within the banks of Red river, below ordinary high-water mark, in section 24, township 13 north, range 11 west. * * *
“It is alleged that Benedum & Trees, as lessees of Richardson, have been drilling wells below ordinary high-water mark in said section, * * * and have been extracting therefrom large quantities of oil which belonged, and belongs, to the state of Louisiana. The suit was brought for the purpose of determining the limits of the state’s ownership in the bed of Red river at the point indicated, and to recover, from those who had extracted it, the oil produced from the state’s property.
“Defendants answered, admitting the title of the state to the bed of Red river; denying that they had trespassed on any portion of the state’s property; . denying that they had ever claimed any part of the river bed; and praying that the boundary of their property and that of the state might be judicially determined.”
It was made of record in the course of the trial that:
“The state does not contest the ownership of J. S. Richardson in section 24, in so far as such property is susceptible of private ownership.”
It appears that the state, through the Attorney General, requested the state board of engineers — •
“to establish what, in the opinion of the * * * board, * * * constituted a full bank, full stage; in other wor’ds, to establish what, in the opinion of the state board of engineers, would be synonymous with the expression ‘the ordinary stage of high water.’ ”
And that, in complying with that request, •the state board, through the chief state engineer, adopted the view and gave the directions as follows (quoting the language of the chief state engineer), to wit:
“We recognized that it was somewhat of a difficult question, and it would have to be reduced to units of length, as far as the banks of the river were concerned; that not every foot of the bank of the river could be taken into consideration, but the length should be reduced to a convenient unit; and they adopted one mile, constituted for examination and consideration, and my instructions to Mr. Bell [the engineer who was employed by the Board to superintend the work] were to run levels and determine that elevation in that unit where the river ceased to contain itself. Whatever that elevation was where the river ceased to contain itself and overflow the contiguous country, that condition was controlled within that unit, then the next was taken, and the mile was then determined and applied, and so on down the river. The unit system was established as a matter of convenience. It was impossible to determine every foot of the length of Red river, and, the slope of the river being so gradual, the difference within that mile could easily be checked off with the difference in the elevation within that limit or unit.”
Mr. Bell’s statement of the manner in which he executed, the instructions so given to him is as follows:
“Well, levels were first run along this bank— the original bank of the river— and then they were plotted, and the lowest elevation was taken as the unit to determine at what elevation _ the water will flow over the bank within that limit and overflow the land near it. We used this to establish the bank full stage.”
The view of the state, then, is that the “bank full stage” (meaning the stage at which the river ceases to contain itself within its banks) and the “ordinary stage of high water” are equivalents, and that all land lying below that level constitutes the bed of the river and is the property of the state.
Defendants contend that the land in dispute, being alluvion, formed upon land of which the defendant Richardson is unquestionably the owner, has become susceptible of private ownership, and is therefore owned by him, even were it below the level of the ordinary stage of high water (which they deny is the case); that the “bank full” stage is an extreme, and not an “ordinary,” stage of high water, and hence that the theory upon which the state and the engineers have proceeded is erroneous; and that the board, in attempting to determine the level at which the river ceases to contain itself, has theoretically established a higher level than is warranted by the facts. The learned counsel have also, this to say in their brief, to wit:
“Under the petition and under the stipulation” —the word “stipulation” being applied to the admission that “the state does not contest the ownership of J. S. Richardson in section 24, in so far as such property is susceptible of private ownership” — the state is definitely cut off from any claim or assertion of title to any land or to [333]*333the banks of the river (declared by article 455, C. C., to be in private ownership), or to anything lying above the ordinary stage of high water, and the sole issue, as held by the district judge, is the delimitation of that which is owned by the state as a sovereign — namely, the bed of Rod river.”
In order to facilitate the expression of our views upon the questions at issue, and the better to enable the parties in interest to understand those which relate to the facts, the subjoined rough sketch has been prepared (see page 984), and, though no attempt at accuracy has been made in its preparation, it may serve the purpose indicated, with the following explanation, to wit:
The area designated “Peninsula,” down to the line “PI,” represents the natural, left, descending, bank of the river, is high and dry land, covered with hardwood trees, such as oak, pecan, and hackberry, has long been in cultivation, and is not here in dispute. At some time in the past, the “Peninsula,” then, no doubt, merely part of a larger body of land, with a different configuration, was included in what was known as “Stallings’ Bend Plantation”; but (probably at a later period) the river occupied as its bed the areas or part of the areas designated “Bay” and “Hook of the Peninsula,” and still later the destroying power of the river became so directed against the land at the lower and outer side of its bend, and its constructive operations to the upper and inner side, that it began depositing its sediment against the lower end of the Peninsula and thereby added the “Hook,” beginning at PI and extending around the bend and northeastwardly until it is said to lose itself in broken sand bars about the upper line of section 19. In that process deposits were also made in the area between the Hook and the Peninsula, but in less degree than upon the Hook, and in less degree in the area lying in section 24 than in that lying in section 25. That portion of the Bay which lies in section 24 is, in general, lower than the banks indicated by the lines P and P2 (save, perhaps, part of P2, extending into section 24), and, for the accommodation of those who are engaged in drilling and operating oil wells, bridges have been constructed between the two points mentioned, which stand 10 feet or more above the mean level of the intervening surface, and the floors of the derricks used in drilling the wells are equally elevated. Beyond that, it is shown that the ground (save, perhaps, in the ridges to which we will refer) is soggy, covered with a semiaquatic growth of willows, cottonwoods, and cockle burrs, and in its present condition wholly unfit for cultivation. It is said that, years ago, a portion of it was cultivated, and that cattle were pastured there; but our understanding of the testimony upon which that statement is based (that of Messrs. Robinson and B. W. Marston, Jr.) is that it refers to land owned by defendant on the Peninsula. It is shown that the area in question is broken by ridges, the elevations of which or most of which, are below the level of the contour as established by the state engineers — the oil wells having, apparently, been drilled as a rule upon the higher ridges; and there are witnesses who testify (and we find their testimony entirely credible) that, by drainage, plowing across the ridges, and thus leveling the land, and raising and “turning in” cow peas, it could be brought to a condition about equal, for purposes of cultivation, to a considerable proportion of the cultivated land in the parish.
Opinion.
[1] The major premise of defendants’ first proposition is found in the admission that:
“The state does not contest the ownership of J. S. Richardson in the section 24, in so far as such property is susceptible of private ownership.”
The minor premise is the assumed demonstration that every well on section 24 is located on land susceptible of private ownership. And the conclusion is that the owner[335]*335ship in J. g. Richardson of the land here claimed is beyond contest.
Plaintiff’s demand is not however, confined to the sites of oil wells, but relates to a body of land, said to constitute the bed of the river, of which those sites are but parts. If all the land claimed has been demonstrated to be susceptible of private ownership, defendants’ conclusion is sustained, and plaintiff’s demand must be rejected.
It can hardly be denied that anything which constitutes property, or an interest in property, and which possesses any value, or conceivable value, for any purpose whatever, is susceptible of private ownership, unless there be some law to the contrary. The “law to the contrary,” in this instance, is said to be that which declares that the beds of navigable rivers are “public,” and hence not susceptible of private ownership. The case then turns upon the question: Is the land in dispute part of the bed of Red river, within the meáning of that law — the navigability of the river being conceded?
The learned counsel for plaintiff begin their argument with the statement, that:
“It is settled as a principle of federal constitutional law that the absolute ownership of the beds of navigable waters within the states is vested in the states, respectively; * * * by force alone of their admission into the Union under the Constitution,”
In support of which they quote familiar and conclusive authority. They aver that “the boundary line of the state’s property is fixed at ordinary high-water mark,” and there can be no question as to the accuracy of that statement.
They make the statement contained in the following quotation from the opinion in McGilvra v. Ross, 215 U. S. 76, 30 Sup. Ct 31, 54 L. Ed. 95, to wit:
“The title and rights of riparian, or littoral, proprietors in the soil below high-water mark * * * are governed by the laws of the several states, subject to the rights [i. e., as to navigation] granted to the United States by the Constitution.”
And that statement is likewise incontestable.
We therefore start from the basis of the two propositions, the one as well settled as the other: (1) That the state of Louisiana, in virtue of her sovereignty, owned the land underlying the waters of Red river below mean high-water mark; (2) that the rights of riparian proprietors with respect thereto are governed by the laws of Louisiana.
The laws of Louisiana, so far as they may be thought to bear upon this inquiry, are contained in the Civil Code and read as follows:
“Art. 453. Public things are those, the property of which is vested in a whole nation, and the use of which is allowed to all the members of the nation; of this kind are * * * the beds of rivers, as long as the same are covered with water.”
“Art. 455. * * * The use * * * of the banks of navigable rivers, * * * is public. * * * Nevertheless the ownership of the the river banks belongs to those who possess the adjacent lands. * * * ”
“Art. 457. * * * The banks of a river * * * are understood to be that which contains it in its ordinary state of high water; for the nature of the banks does not change, although for some cause they may be overflowed for a time.
“Nevertheless on the borders of the Mississippi and other navigable streams, where there are levees, established according to law, the levees shall form the banks.”
The French version of the article last above quoted (formerly 448) contains the word “lit” (bed), in the first line, instead of “rive” or “borde,” which was, no doubt, changed to “banks,” in the translation, because of the difficulty of construing it with “les rives” and “les bordes,” as subsequently used.
“Art. 509. * * * 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 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.”
[337]*337In Morgan v. Livingston, 6 Mart. (O. S.) 19, plaintiff, claiming under J. B. Poeyfarré, brought a petitory action for the recovery of certain property, lying on the river front and described as “batture,” alleging that it had formed to his land after his purchase and that defendant had taken possession of it without title, to which defendant answered that the description, “frente al rio,” in the sale to Poeyfarré, did not convey a riparious estate, because the land had been sold ad mensuram and according to a plan, because there was a royal road between the land and the batture, because the batture was in existence at the time of the sale to Poeyfarré and was not included in the description, and because there was a levee between the land and the river.
“Batture” (said Judge Martin, in the course of his opinion, p. 216), “is, according to Richelet and the French Academy, a marine term, and is used to denote a bottom of sand, stone or roclo mixed together, and rising towards the surface of the water; its etymology is from the word ‘battre,’ to beat, because it is beaten by the water. In its grammatical sense, as a technical word, and we believe, in common parlance, it is then an elevation of the bed of a river, under the surface of the water, since it is rising towards it. It is, however, sometimes used to denote the same elevation of the bank, when it has misen above the surface of the water, or is as high as the land on the outside of the bank.” (Italics by the present writer.)
Whether, at the time of the sale to Poeyfarré, there existed a batture, susceptible of private ownership, seemed to have been regarded by the court as dependent entirely upon its existence, vel non, above the surface of the water.
On that question, and concerning the contention that the land which had been sold was separated from the river by the levee, the court said (pages 228, 229):
“We conclude that the existence of a batture above the surface of the water is not proved, and rather disproved. * * * Finally, that the uncontradicted testimony of two witnesses proves that the premises in dispute did not exist, as a batture above the water, when Poeyfarré acquired the trapezium of land before which it stands, and therefore that no proof results (as is contended by defendants’ counsel), from the batture, of an intention of the parties to give to the land sold another boundary than the river. * * *
“The bank of a river is defined to be that which confines the river in its utmost height; * * * ‘rvpa putatur esse guce plenissimum flumen continet; * * * The bank is that space which the water covers when the river is highest in any season of the year. * * * The levee, then, as well as the batture, under the surface of the water, is a part of the bank, and the bank is a part of the river, which consists of three things, the water, the bed, and the bank. If these two objects, the levee and the batture, form a part of the river, they do not exist beyond the river, and, consequently, not between the river and the trapezium.”
The court reached its conclusion as to the nonexistence of the batture without reference to the ordinary stage of high water, and the plain inference from the opinion and decree is that, if it had been, shown that such a thing as a batture was visible above the surface of the water, at its ordinary stage, when Poeyfarré acquired the adjacent property, it would have been held that it was susceptible of private ownership and that there would have been judgment for defendant.
The definition of the word “river,” as given by Judge Martin, has been elsewhere somewhat elaborated as follows:
“A river, then, consists of water, a bed and banks, these several parts constituting the river, the whole river. It is a compound idea; it cannot exist without all its parts. Evaporate the water, and you have a dry hollow. If you could sink the bed, instead of a river you would have a fathomless gulf. Remove the banks, and you have a boundless flood.”
In Cochran v. Fort, 7 Mart. (N. S.) 622, 633, Porter, J., in determining that the bat-' ture there in controversy was susceptible of private ownership, said:
“Whether it was of suflicient height to be susceptible of ownership at the period of the sale from Hevia is the next question. * * * There is no positive evidence before us at what height batture may be reclaimed from the river, and appropriated to private use. It is not, perhaps, susceptible of direct proof, much depending on the position of the alluvion, the force of the stream where it is formed, and other circumstances. It is proved beyond doubt that, so far back as 1793, the batture opposite Hevia’s lot was of suflicient height to enable him to erect a cabin on it; that it continued to increase [339]*339in extent and height from that time until 1803; that in the last-mentioned year it was only covered by high water to the depth of five feet. With this elevation, a levee of less size than many found on the Mississippi would have enabled the proprietor to have excluded the river, and convert the soil to such purposes as he might have thought proper, or found profitable. We have been unable to discover in all the evidence any reason for saying this batture was not susceptible of ownership, except it being covered during the annual innundation of the river by the water. But this circumstance does not authorize the court to conclude that the alluvion was not susceptible of ownership.”
There is no other reference in the opinion from which the foregoing excerpt is taken to the “ordinary stage of high water” save that from which it appears that, at such stage, the land in controversy was submerged to a depth of five feet, and there is no suggestion that, on that or any account, it was to be considered part of the bed of the river.
In Cire v. Rightor, 11 La. 140, the court dealt with the question, here and there under consideration, as one of fact, saying:
“On the merits, this case is strongly analogous to that of Cochran v. Fort et al., and turns upon a question of fact, to wit, whether, in 1812, a batture had been formed of sufficient height and magnitude to be susceptible of private ownership. The jury, to whom this question was submitted, decided it in favor of defendant, and negatived the allegation in the petition that, at the time of the sale from Conway, no batture existed in front of the lot in question. The evidence on this point is before us, and, after a careful examination of it, we are unable to pronounce that the verdict is erroneous.” (Italics by the present writer.)
In Barré v. City of New Orleans, 22 La. Ann. 612, it was said (in the original opinion):
“If, at the time of the sale of riparian land, the alluvion attached has attained a sufficient elevation above the waters to be susceptible of private ownership, the alluvion does not pass with the land, unless so expressed.”