Mr. Justice Dávila
delivered the opinion of the Court.
The Rio Grande de Loiza is a common boundary between the lands of the parties in this litigation. The plaintiff is the owner of a property south of the river. The defendant of one to the north. With the flow of time and of the waters of the river, the erosive action of the current has changed the course of the river at the expense of plaintiff’s lands. This process has been developing gradually since the year 1914 and at the time that this complaint was filed, August 8, 1958, defendant’s property had increased its area by 7.40 cuerdas. To revendicate this portion of land plaintiff filed the present suit.
The trial court dismissed the action relying on the provision of § 302 of the Civil Code, 31 L.P.R.A. § 1169. This provision provides that “The augmentation which the banks of a river gradually receive from the effects of the current of waters belongs to the owners of the tenements adjacent to such banks.” The plaintiff maintains that the application of that provision is erroneous. She maintains that the second part of § 309 of the same Code, 31 L.P.R.A. § 1176 is the applicable provision. Said section provides in full: “When the current of a river divides itself into branches, leaving a tenement or a part thereof isolated, the owner of such tenement retains his ownership. He also retains it, if a piece of land becomes separated by the current.” (Plaintiff’s italics to indicate the part that should be applied.)
The Civil Code dedicates § § 302 to 309, both inclusive, to regulate the relations between the persons who possess lands bordering bodies of water. In each case it establishes to whom the lands affected by the changes of the body of water belongs. The phenomenon of accession of soil may take place in four different ways, to wit: (a) by [680]*680alluvion;1 (b) by avulsion;2 (c) by change of channel or course of a river;3 (d) by formation of islands.4 Ways (a), (b) and (d) are regulated by provisions taken from the [681]*681Spanish Civil Code, while the (e) modality was adopted from the Civil Code of Louisiana, § 306, and from Spain, § 307.
We shall consider in the first place the provision applied in deciding this case and then turn to the provision which appellant alleges should be applied.
Section 302 of our Civil Code — equivalent to § 366 of the Spanish Code — sanctions an ancient and traditional mode of acquisition. Without expressly using the word, the aforesaid section incorporates into the Code what the Romans called “alluvio” and which in our language is known as alluvion. Alluvion is defined as- “the increase of land which is successively and imperceptibly formed on the banks or shores of the river.” II Enciclopedia Española de Derecho y Administración 680, Aluvión (Madrid 1849). And in that same text on p. 581 it continues saying: “The alluvion, eon-, sidered as a means of acquiring property, is a right of citizens and it belongs with that class of rights which, as we said in the article entitled Acquisition, are deemed, to be primary or primitive. Emperor Justinian himself, accepting the doctrine of Gains, the jurist, expressly confirmed this when he said: Traeterea quod per alluvionenj. agro tuo. flumen adjecit jure gentium tibi adquiritur.’ However, this did not cause it to be known in the ancient legislation of that nation nor did it become established until the glorious era ■ of Emperor Justinian,-when an answer of Cassius, the jurist,: which was later, adopted as a rule, to a consultation made by the riparian lando.wners of the Po as to increases on some1 fields to the prejudice, of others, gave rise to the legislation approved in this connection.”
[682]*682In the Roman law the rule was expressed thus:
“Alluvion means a latent increment... What is added by alluvion to the land becomes of the same nature thereof... It is considered as added by alluvion what is added so gradually that you cannot tell how much is added at any moment of time ... What is added to our land by alluvion belongs to us... ” 2 Oyuelos, Digesto 105 (Madrid 1917).
The Wise King incorporated the rule adopting the cardinal idea set forth in the Roman Law. Thus, Title 28, of Par-tida III, states:
“Rivers sometimes swell to such a height, that they carry away a portion of one estate, and join it to another, situated elsewhere, on their banks. Wherefore we say, that the earth which a river carries away from an estate, little by little, and imperceptibly, because not all in a body, becomes the property of him to whose estate it is carried, and he who lost it, has no claim whatever to it.”
The same principle appears in the Napoleonic Code. Section 556 of said Code provides:
“The accumulations and increase of mud formed successively and imperceptibly5 on the soil bordering on a river or other stream, is denominated ‘alluvion.’
“Alluvion is for the benefit of the proprietor of the shore, whether in respect of a river, a navigable stream, or one admitting floats, or not; on condition, in the first case, of leaving a landing-place or towing-path conformably to regulations.”
This mode of acquisition has been universally accepted. '“This ruling of the Roman law has universal endorsement of all the legislations. All, without exception, confirm it... ” :2 Falcón, Código Civil Español 52 (Madrid 1889). In [683]*683America it appears, among others, in the Codes of Argentina, art. 2572; Bolivia, art. 301 (it contains very explicit language in providing: “The increases formed successively and imperceptibly on the shores of the river by the action of the wafers are called alluvion. Alluvion benefits the riparian proprietor without the owner of the opposite side being able to claim the land he may have lost”); Brazil, art. 538; Colombia, art. 719; Cuba, art. 366; Chile, art. 650; El Salvador, art. 631; Louisiana, art. 509; Mexico, art. 908; Quebec, art. 420; Uruguay, art. 752.
In England, Bracton defined it thus:
“Alluvion is a latent increase, and that is said to be added by alluvion, whatever is so added by degrees, that it cannot be perceived at what moment of time it is added; for although you fix your eyesight upon it for a whole day, the infirmity of sight cannot appreciate such subtle increments, as may be seen in the case of a gourd, and such like.”
Hence, it was accepted as a fundamental principle of the common law. R. v. Lord Yarborough, 5 Bing. 163 (1828), 1 Eng. Rui. Cas. 458. The provision bequeathed to us by the Rome of classic times that the alluvion belongs to the owner of the land to which it attaches is accepted'' in India. In the case of Clarke v. Edmonton, 4 D.L.R. 1010 (Can. 1929), the Supreme Court of Canada quotes from the case of Sri Balsu Ramalaskmamma v. Collector of Godaveri District, L.R. 26 Ind. App. 107 (1899), as follows: “There does not appear to be in Madras, as in Bengal, an express law embodying the principle that gradual accretion enures to the land which attracts it; but the rule, though unwritten, is equally well established.” That was the law in prerevolutionary Russia. 1 Pedregal, Código Civil Español Comentado 584 (Madrid 1889). It prevails in the jurisdictions of the federal states of the American Union. Ford v. Turner, 142 So. 2d 335 (Fla. 1962); Heikkinnen v. Hansen, 360 P.2d 147 (Wash. 1961); Wyatt v. Wycough, 341 S.W.2d 18 (Ark. [684]*6841961); Freiland v. Pennsylvania R. Co., 47 Atl. 745 (Penn. 1901); Willet v. Miller, 55 P.2d 90 (Okla. 1936); Hubbard v. Manwell, 14 Atl. 693 (Vt. 1888); State of Kansas v. Meriwether et al., 182 Fed. 457 (8th Cir. 1910); Abott v. City of Fort Madison, 108 N.W.2d 263 (Iowa 1961); Helsey v. McCormick et al., 18 N.Y. 147 (1858). Underhill, Determination of Rights Along the Missouri River, 42 Iowa L. Rev. 58 (1956) ; Annotation, The Law of Accretion to Shore Lands, 58 L.R.A. 193 (1901).
As to justification for this rule which for so many years has governed the relations of riparian proprietors, which rule we have seen has been generally and universally adopted since ancient times, Bonel y Sánchez in their work II-2 Código Civil Español 171 (Barcelona 1890), say:
“This article provides what was treated in Rome under the term alluvionem in par. 20, tit. 1, book 2 of the Institutes of Justinian and was later reproduced in Law 26, tit. 28, Par-tida III: Quod per alluvionem agro tuo flumen adjecit jure gentium tibi adquiritur, pursuant to the paragraph cited, giving an idea or defining what was meant by alluvion thus: Est autem alluvio incrementum latens quod ita paulatina adjicitur, etc. The term incrementum latens alone would be sufficient to indicate the extent of the alluvion and the juridical sense that said accession embodied, so that said phrase is reproduced in our local laws without it having any similarity to any of the other provisions of our ancient codes and such definition embodies the idea that by the right of the citizens a tenement acquires the increases which it imperceptibly receives even if at the expense •of its adjacent owners. Hence the aforesaid Partida, translating this definition, states that everything the river carries away from an estate, little by little, and imperceptibly, because not all in a body, becomes the property of him to whose estate it is carried, and he who lost it has no claim whatever to it; and it is to the benefit of all the proprietors to accept mutually those insensible changes, which some commentators regard as inescapable effects of a tacit aleatory agreement with Nature.”
Laurent, in VI Principios de Derecho Civil Francés 423 (Mexico 1895), states:
[685]*685“Portalis will give us reason for these provisions. In ancient law there was a struggle between the riparian landowners, the State, and the gentlemen of high justice. According to several customs the riparian took advantage of the alluvion, and others attributed it to the king when the river was navigable and to the gentlemen of high justice when it was not navigable. The riparians were sacrificed by a majority of the textwriters. Portalis says that the alluvion should belong to the riparian proprietor by virtue of the natural maxim that the benefit belongs to whoever runs the risk. Some riparian properties run a greater risk than others. There exists, so to speak, an aleatory contract between the riparian proprietor and nature, whose march may at every instant reduce or increase said tenement. In that sense it is said that rivers give and take as does fortune...”
On this point Manresa states in III Comentarios al Có-digo Civil 323 (7th ed., Madrid 1952) :
“But there is still another reason which has been opportunely advanced by F. Ricci, the Italian textwriter. It grows out of the agricultural industry’s own interest, which requires that accretion by alluvion should belong to the riparian proprietor. Who, indeed, can better cultivate and benefit from the ■alluvial land than the proprietor himself to whose land it is attached? To assign to someone else a strip of land formed by alluvion, apart from the fact that, as a general rule, it could not be cultivated as a separate unit, it would be necessary to impose on the riparian proprietor the new burden of a servitude, in ■order to facilitate the enjoyment of the former, which, besides being unjust, would give rise to suits and controversies.”
In the case of Morgan v. Livingston, 6 Martin’s Reports (O. S.) 19 (1819), the Supreme Court of Louisiana stated at p.242:
“Alluvion is a mode of acquiring property by natural law, .jure gentium, by those principles or maxims which regulated the conduct of men, before the formation of civil society.
“The Roman jurists, as Grotius informs us, proved this to he a natural right, from the maxim it is just that the advantages •of any thing should belong to him who supports its disadvantages.
[686]*686“This opinion of the Roman jurists seems to prevail in France. ‘Equity,’ says Brillon, ‘requires that he who suffers the incomodity, should reap the advantages. As nothing is more prejudicial than the vicinity of a river, which inundates, submerges, and deteriorates the neighboring fields, nothing is more just than that the proprietor, to whom the stream has often borne prejudice, should conserve, in exclusion to all others, when it becomes beneficent, a gift, less a gain than a reparation, less a present than an exchange.’
“The right of increase by alluvion is grounded on the maxim of law which bestowes the profit and advantages of a thing upon him who is exposed to suffer its damages and losses.”
See also: Succession of Delachaise v. Maginnis, 11 So. 715 (La. 1892) and Miami Corporation v. State, 173 So. 315 (La. 1936).
The Supreme Court of the Republic of Colombia expressed itself thus, in a decision copied in the annotation to <§> 719 of its Civil Code contained in Jorge Ortega Torres, Código Civil Anotado (Bogotá 1957) :
“The reasons that have given rise to the doctrine of accession by alluvion explain the need for the aforesaid requirements and help to indicate and determine the exact field of application of said institution.
“These reasons are: a) in the first place the lawmaker meant to establish in favor of the riparian propriétors' a compensation for the risk they run by reason of the fact that their land borders on the water; b) in the second place the law meant to prevent that riparian proprietors, whose condition as such proprietors is to their benefit, should be deprived from that benefit by virtue of a natural fact.”
The Supreme Court of the Republic of Colombia gives another reason. It is of incalculable benefit for a property-owner to border on a river which may serve as a water trough for his cattle as well as for other agricultural purposes. If the law did not grant him the right to acquire the alluvion, this would set up a barrier between his tenement and the river, thereby depriving him of the benefits derived [687]*687from a bordering on the river. See also: Lamprey v. Mitcalf, 53 N.W. 1139 (Minn. 1893); Cortés v. City of Manila, 10 Phil. Rep. 567, 570 (1908); VI Scaevola, Código Civil 602-605 (5th ed., Madrid 1949); II Valverde, Tratado de Derecho Civil Español 97 (4th ed. Valladolid 1936) ; 2 OyuelOS, op. cit., at p. 106.
It having been established that the acquisition by alluvion is generally accepted, we must now explain how it operates. In the Enciclopedia Española de Derecho y Administración, supra, it is said:
“We have said that alluvion consists in the imperceptible and successive increase of land on the property adjacent to the banks of a river, which takes place with the lapse of time. This definition is the strictest and most common acception of the word alluvion; but it is likewise used by the commentators of the law to designate the increment attached to the land on one side of the river when the latter upon changing or abandoning its course, little by little, so that it cannot be perceived, leaves behind a dry part of its channel...
“The French Code, the English and almost all modern legislation which have adopted the Roman doctrine on this point, have not only acknowledged and taken the word alluvion in the first concept, that is, in the sense of a slow and imperceptible increase of the riparian tenements, but also in the second, that is, when the river recedes along one of its shores and leaves the other side dry. The French Code, with which almost all modern writers are in agreement concerning this matter, provides in its sec. 557 that relictions occasioned by a running stream retiring insensibly from one of its banks, and encroaching on the other, belong to the proprietor of the bank discovered by right of alluvion.”
Thus it was interpreted in Spain , in our time. To that effect Gayoso Arias, in an article appearing in XII Revista de Derecho Privado 617 (1925), entitled Casos de Accesión Natural, states:
. “... the increase must be attached gradually to the tenement bordering on the bank, and it must be attached by the action of [688]*688the current. However, this action may consist either of. sedimentation or recession, as we have seen, and hence, both must be slow, insensible, in order that it may come under the scope of said provision.”
See to the same effect the commentary of Portalis, State Counsel, in the Statement of Policy of the Code Napoleon, El Código de Napoleón, Curso de Legislación (Barcelona 1839).
The provision under consideration requires that the increase benefiting a riparian be gradual. No authority expresses with more preciseness what this term means in relation to alluvion, than does the Federal Supreme Court in the-ease of County of St. Clair v. Lovingston, 90 U.S. 46 (1874), after considering the Roman law, the Code Napoleon, the common law as it prevails in England and the states of the American Union, and the Spanish law as set forth, in Par-tida III, Title 28, Law 26, supra, to conclude that it is a principle of universal acceptance. The court states thus:
“In the light of the authorities alluvion may be defined as an addition to riparian land, gradually and. imperceptibly made by the water to which the land is contiguous. It is different from reliction, and is the opposite of avulsion. The test as to what is gradual and imperceptible in the sense of the rule is, that though the witnesses may see from time to time that progress has been made, they could not perceive it while the process was going on. ... The riparian right to future alluvion ... is an inherent and essential attribute of the original property. The title to the increment rests in the law of nature. It is the same with that of the owner of a tree to its fruits, and of the owner of flocks and herds to their natural increase. The right is a natural, not a civil one. The maxim ‘qui sentit onus debet sentire commodum’ lies at its foundation. The owner takes the changes of injury and of benefit arising from the situation of the property. If there be a gradual loss, he must bear it; if a gradual gain, it is his ...”
To the same effect, see Clarke v. Edmonton, supra. The Lovingston case was cited as a precedent in Kansas v. Mis[689]*689souri, 322 U.S. 213 (1944), when the court stated: “The States are not in dispute about the applicable law. They agree that when changes take place by the slow and gradual process of accretion the boundary moves with the shifting in the main channel’s course. Likewise, they agree that a sudden or avulsive change in that course does not move the boundary, but leaves it where the channel formerly had run.”
In Kansas v. Missouri, supra, the former claimed from the latter two thousands acres of land. It alleged that they belonged to its jurisdiction and that they had become a part of the State of Missouri because of an abrupt change of channel-of the Missouri river. The parties, as we stated above, accepted that the law is analogous to the applicable law governing individuals. The court, after considering the entire evidence, decided in favor of Missouri because the change in the river’s channel was gradual and imperceptible.
As to the requirement that the increase be gradual and imperceptible, Laurent states at p. 423 of the aforesaid text, that “in vain it is said that because the increase is insensible it is for that same reason imperceptible. The alluvion is insensible in the sense that it is not noticed when it is formed; but it.is- very.perceptible, because otherwise its possession would not be disputed.” And at p. 439:, “It is conceived that since the alluvial deposits are formed insensibly, they should belong by right of accession to the riparian proprietors ; but although they are successive and. imperceptible, these increases are at times very considerable.” “There are al-luvions which turn out to be larger than the principal tenement,” page 444. “The lands of new formation are formed at the expense of the-other riparians; would it not be fair-that these riparians be compensated for this slow expropriation caused by the action of waters?' The law does not grant them any compensation, because it is impossible to determine who are the riparians that have gained what the others have lost. When a river flows from one shore to [690]*690another, it is well known who is the benefited proprietor, but no one knows what direction is followed by the particles of earth carried away by the waters from the riparian proprietor; and in the case of alluvion, properly speaking, it is not known either from which fields the insensible increases which enrich ones at the expense of others are derived. Hence it is impossible to apply the maxim of equity which prohibits the enrichment of one at the expense of another.”
Now, what are the requirements that should be present in order that a landowner may claim the increases to the area of his property caused by the change of course of a river which is the common boundary with another property? Santamaría in his work Comentarios al Código Civil (Madrid 1958) sets them forth succinctly citing Gay de Montellá:
“There are three precise general conditions for claiming an alluvion on a tenement bordering a stream, according to Gay de Montellá (I Tratado de la Legislación de Agitas 199 (1956)), to wit: (a) the tenement should have as its boundary the same river or stream channel; (b) that the deposit or land abandoned by the waters which constitutes the alluvion be attached to the bank or shore and form an integral part of the riparian tenement, and (c) that this deposit be formed slowly or imperceptibly, by the action of nature and not by the action of man.” 6
After examining the evidence presented to the trial judge, we shall immediately notice that in the present case all three conditions required for alluvion exist. The boundary of defendant’s property is the Rio Grande de Loíza; the portion of land in dispute forms an integral part of defendant’s property. Using the words of the trial judge “the parcel claimed has merged with defendant’s property.” The controlling fact in cases of alluvion is that the increase to the property as a result of the change of the river’s channel be [691]*691gradual, as it was established by the Roman law and sanctioned by our Civil Code, that it be formed little by little as determined by the Wise King, or imperceptibly as provided by other legislation and the common law. And that the increase in the case at bar has been so, is clearly revealed by the evidence presented by both parties. The river has changed its course gradually, imperceptibly, little by little. The increase has been formed little by little, gradually — it commenced in 1914 — it has been by action of the river and in it the hand of man has taken no part. As stated by the trial court “In the change of the river’s channel neither party has taken part.”
The fact that the exact area which has come to form part of defendant’s property may be determined because the courses and distances of the portion of land in controversy herein may be established is of no significance. What is important and controlling is that the process of increment be gradual, caused by the action of the course of the waters; that the deposits or land abandoned by the waters which constitute the alluvion be attached to the banks or shore and form an integral part of the riparian property.
. In the eases of accession by alluvion due to the change of the river’s channel and its encroachment upon the lands of the property situated on the opposite side of the river, the increment on the gainful tenement has been at the expense of the opposite tenement. By reason of the erosive force of the current, the bed of the river is displaced leaving dry the former bed on which the flow of the river deposits particles of earth, sand, and stone which it carries from tenements located from up river. This portion of land thus formed is annexed to the adjacent land. If this process is slow, gradual, imperceptible to the eyes, when it is sought to be observed from day to day, it is a typical case of alluvion. In a majority of these cases it could be determined, by surveys carried out during the years in which the river has been [692]*692changing its channel, by plats drawn up and by the testimony of persons who know the community, what part of the perimeter of the increased tenement formed part of the tenement on the opposite side of the river. But the law universally accepted adjudicates to the riparian property the benefit of the increases that gradually and imperceptibly have enlarged the tenement at the time when such increases have not yet been identified because of the impereeptibility of its formation, and once adjudicated, the owner of the favored tenement should not lose, because of the fact that with the lapse of years they may become a considerable alluvial increment, what the law has periodically adjudicated to him.
In the case of Clarke v. Edmonton, supra, the Supreme Court of Canada held that alluvion was proper even if the increment was identifiable. To support its position it cited, among others, an Irish case. Citing from the opinion of Judge Gibson in the case of A-G v. M’Carthy, 2 Ir. R., 288-289 (1911), “each insensible addition attaches to the principal land, and though in result, the aggregate of additions may shew a substantial enlargement of the original territory, this cannot displace retrospectively the ownership of the previous minute accruing accretions. In other words, where the increase is imperceptible in its progress, that increase becomes the property of the owner to whose land it attaches as it is formed; it is vested in him de diein diem and no additional increase resulting from flood conditions can deprive the owner of the increase which had already vested in him.”
In the case of Brighton & Howe General Gas Co. v. Howe Bungalows, 1 Ch. 372, 13 Br. Rul. Cas. 183 (1924), the question in issue was whether to grant accession by alluvion, if the increase could be identified. The general accepted rule was that the increment by alluvion profits the tenement to which it is attached, but it was alleged that it was so “where no other person can show a title to that soil.” The court refuted this contention and stated that “So qualified, the [693]*693general rule, whether in relation to natural or to artificial accretion, becomes a mere platitude.”
As we have previously stated, the increment by alluvion may be caused by sediments of the soil that the current carries or by the insensible recession of the water from one shore to the opposite. Commenting on the alluvial formation and considering the aspect of whether the proprietor of the adversely affected tenement could claim from the proprietor favored by the alluvion, Ruggiero in I Instituciones de Derecho Civil 618 (Madrid), upon considering the provisions corresponding to the Italian Code maintains that:
“Patrimonial settlements between landowners of those shores that have been washed away or covered by the waters and those who are favored by the increment do not lie; the former cannot, not even when (as in the second of both figures) the loss suffered may be easily recognized, claim from the opposite shore the land it has lost.”
The Supreme Court of Philippines in Cañas v. Tuason, 5 Phil. Rep. 688 (1906), had a similar question brought before it for consideration. The owner of a property bordering a river claimed as her own a parcel of land of 30 hectares (equivalent to 76.33 cuerdas) which by the action of the San Mateo River had become a part of the property situated on the opposite side of the river. The parcel in controversy was situated thirty years prior to the filing of the action as forming part of plaintiff’s property. The decision rendered was against plaintiff under the authority of § 366 of the Philippine Civil Code, concomitant to the same section of the Spanish Code and to § 302 of our Code. Section 368 treating on the phenomenon of avulsion was invoked and upon refusing to apply it the court stated: “No witness declared that any of the pieces so separated had been carried to the other side of the river. This fact alone shows that the testimony of the witness is not sufficient to bring the case under article 368 [equivalent to our 305]. Although a piece [694]*694of land of the size of a hectare may have been separated from Mariquina, yet if it were destroyed by the river and were not carried to Payatas, article 368 would not apply. We are inclined to think that what the witnesses observed was, as testified by one or two of them, that the bank was eaten away every year to a certain extent by the river; that is, that the river, to use the word employed by counsel for the appellants in their brief, destroyed the bank of the river. From the evidence in the case it is impossible to say that the current of this river has separated from the Mariquina estate a known parcel of land and has transported it to the Payatas side. The mere fact that thirty years ago the land now in question was on the Mariquina side of the river is not sufficient to prove that article 368 is applicable.”
As stated by the Supreme Court of Philippines, it is unimportant whether the current carries away a considerable piece of land, if it is dissolved, as it generally happens, and is carried down river. To that effect the Supreme Court of the United States has expressed the following in the case of Nebraska v. Iowa, 143 U.S. 359 (1892) at p. 369:
“... two things must be borne in mind, familiar to all dwellers on the banks of the Missouri River, and disclosed by the testimony: that, while there may be an instantaneous and obvious dropping into the river of quite a portion of its banks, such portion is not carried down the stream as a solid and compact mass, but disintegrates and separates into particles of earth borne onward by the flowing water, and giving to the stream that color which, in the history of the country, has made it known as the ‘muddy’ Missouri; and, also, that while the disappearance, by reason of this process, of a mass of bank may be sudden and obvious, there is no transfer of such a solid body of earth to the opposite shore, or anything like an instantaneous and visible reaction of a bank on that shore. The accretion, whatever may be the fact in respect to the diminution, is always gradual and by the imperceptible deposit of floating particles of earth. There is, except in such cases of avulsion as may be noticed hereafter, in ail matter of increase of bank, always a [695]*695mere gradual and imperceptible process. There is no heaping up at an instant, and while the eye rests upon the stream, of acres or rods on the forming side of the river. No engineering skill is sufficient to say where the earth in the bank washed away and disintegrating into the river finds its rest and abiding place. The falling bank has passed into the floating mass of earth and water, and the particles of earth may rest one or fifty miles below, and upon either shore. There is, no matter how rapid the process of subtraction or addition, no detachment of earth from the one side and deposit of the same upon the other.”
See also, Laurent, op. cit., p. 423.
In California where, as we have said, a similar provision to our § 302 exists, the question has been given the same treatment. O’Connor v. Rumiano Brothers Company, 321 P.2d 122 (Cal. 1958). The Federal Supreme Court had a similar question before it for consideration and it decided it in like manner recognizing the right of the owner of the riparian property which had been increased by alluvion. Jefferis v. East Omaha Land Co., 134 U.S. 178 (1890). See also, Judgment of the Supreme Court of Spain of May 4,1928, 183 Jwr. Civ. 606.
We now turn to consider the provision that plaintiff-appellant maintains should have been applied. We said that it was the second part of § 309 of the Civil Code which provides: “When the current of a river divides itself into branches, leaving a tenement or a part thereof isolated, the owner of such tenement retains his ownership. He also retains it, if a piece of land becomes separated by the current.”
In support of her theory the plaintiff reads isolatedly the second part of the section as if it were a separate provision without any relation to the preceding statement. If we were to consider it that way we would find that on one hand § 302 grants to the owner of the tenement benefited by the alluvial increments the ownership thereof, while the separate provision invoked by plaintiff denies it.
[696]*696All the commentators who study the corresponding* provision of the Spanish Civil Code, invoked by plaintiff— the second part of our § 309 equivalent to § 374 of the Spanish Code — do so under the concept of formation of islands. They all consider that that part of the invoked section governs a. specie of island formation; when a portion of land is abruptly separated from the property affected adversely by the current, the detached portion remaining isolated in the bed of the river. Scaevola comments the second part of § 374 thus:
“Another modality that may be presented by the formation of islands, decides the second part of the section under analysis. The islands mentioned therein admit as a cause a detachment or separation of part of the land of the adjacent property, which portion arises in the middle of the river. It is, therefore, a case analogous to the avulsion or manifest force of the river. Indeed upon commenting sec. 368 we noticed that for such a situation to exist it was not necessary that the known portion of land be annexed to the property on the opposite side. Even if said portion is formed in the middle of the channel, as long as it meets the requirement of being known by its composition and aspect and by revealing the owner in whose possession if has been, it shall remain the property of the latter. Well, this equitable rule is embodied in the second 'part of sec. 37U-” (Italics ours.) 6 Scaevola, Código Civil 640-41 (5th ed. 1949)1
And upon commenting § 373, equivalent to § 308 of our Code, Scaevola states at p. 634:
“There are several kinds of islands: those that form a delta, governed by § 374 .and those that remain floating on .the surface of the water, whose land belongs to their original owners, as long as its instability does not cease; this latter kind of islands is the one to tohich § 37 k refers, loheri it provides that the owner of the property retains the oivnership of the■ portion of the land separated therefrom by the current.” (Italics ours.) ■ • ...
Section 374 is similarly construed by Manresa, op. cit.f p. 359; III PuiG Brutau, Fundamentos de Derecho Civil 233-[697]*697(Barcelona 1933) ; II Borrell y Soler, Derecho Civil Espa-ñol 231 (Barcelona 1955); 2 CASTÁN, Derecho Civil Español Común y Foral 241 (9th ed., Madrid 1957) ; 2 Valverde, Tratado de Derecho Civil Español 103-105 (4th ed., Valla-dolid 1936) and III Sánchez Román, Estudios de Derecho Civil 144-45 (Madrid 1900). See ,also, Padilla, Código ■Civil Anotado 622 (Manila 1953).
Hence, we reach the inescapable conclusion that the provision of § 309 invoked by appelllant is not applicable to the .facts of this case.
No words seem more appropriate for application to the facts presented by this case than those expressed by Judge Estey of the Supreme Court of Canada in his individual opinion in the ease of Queens County v. Cooper, 4 D.L.R. 705, 719 (1946). In this case the situation was the opposite of the one in the case at bar. The owner of the tenement increased by the alluvion brought an action to prevent the defendant from interfering with the peaceful enjoyment of the increment added to his tenement.
“The relative positions of the appellant and the respondent have been determined by nature. The appellant here has been fortunate, the respondent unfortunate. Sometimes nature favours one and sometimes another, but such are changes incidental to the soil abutting upon a body of water. The law recognizes such changes as inevitable and adjusts the rights of the parties as and when and to the extent that nature alters their positions. It is the natural process of accretion that has altered the areas...”
For the reasons stated, the judgment appealed from is affirmed.
Mr. Justice Blanco Lugo did not take part and Mr. Justice Rigau and Mr. Justice Ramirez Bages dissented.