Ker Company v. Albert Couden

• Decision Date: 19 February 1912
• Docket Number: No. 11,11
• Citation: 56 L.Ed. 432,223 U.S. 268,32 S.Ct. 284
• Parties: KER & COMPANY, Plffs. in Err., v. ALBERT R. COUDEN
• Court: U.S. Supreme Court

223 U.S. 268

32 S.Ct. 284

56 L.Ed. 432

KER & COMPANY, Plffs. in Err.,

v ALBERT R. COUDEN.

No. 11.

Argued April 27, 1911.

Decided February 19, 1912.

Messrs. Oscar Sutro, E. S. Pillsbury, Aldis B. Browne, Alexander Britton, and Evans Browne for plaintiffs in error.

[Argument of Counsel from pages 268-273 intentionally omitted] Solicitor General Lehmann for defendant in error.

[Argument of Counsel from pages 273-275 intentionally omitted] 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 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 J. 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, § 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 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 u...