
    No. 8493.
    Mrs. Catherine Zeller, Widow, vs. Southern Yacht Club.
    The alluvion or batture that forms upon the shores of Lake Pontchartrain is not susceptible of private ownership, such alluvion does not therefore'become the property of owners of lots fronting on said Lake.
    It is the accretion made by rivers and streams only, that belongs to the proprietors of the adjacent lands.
    APPEAL fromtlie Civil'District Court for the Parish of Orleans. Lazarus, J.
    
      Joseph Brewer, W. B. Pascoe, for Plaintiff and Appellant:
    1. The rule of construction that a later statute does not repeal a former statute unless by positive enactment or irreconcilable conflict; that one section of a statute does not repeal a former, if it can he construed as an exception to such former section, is more strictly enforced in reference to the Civil Code than even in the case of a statute.
    2. The former statute, section, article, sentence, is affected by the latter only so far as the exception specifically made is concerned; and this exception cannot he extended by implication or inference — because such extension would constitute a pro tanto repeal of the general law previously existing. C. C. Art. 23; 4 Rob. 71; 2 An. 919; 3 An. 399; 13 An. 329, 383; 20 An. 140; Bowen vs. Lease, 5 Hill, 221; Canal Co. vs. Railroad Co . 4 Grill & John, 1; Street vs. Commonwealth, 6 W. & S. 209; Commonwealth vs. Easton Bank, 10 Barr, 442; Brown vs. County Commis., 21 Penn. 37: Sedgwick on Con. Stats, and Con. Law, pp. 98-106.
    3. Lake Pontchaitrain is not an Arm of the Sea, hut is an inland basin, not having an immediate connection with the*sea, and situated above the level of the sea. The right of aceretion does exist on Lake Pontchartrain. C. C. Art. 510.
    4. “ Accession, ” is derived from the Latin work accessio, which means, an increase or addition. The derivative, accession, is the right to all which one’s own property produces, whether that property he movable or immovable, aud the right to that which is united to it by accession, either naturally or artificially. 2 Kent Comm. 360; 2 Blackstone Comm. 404; C„ C. Arts. 504 et seq. ¡ Bouvier’s Dictionary, verbo Accession. •
    5. The property claimed by plaintiff is both an accession and accretion.
    <3. A frontage on Lake Pontchartrain is what plaintiff acquired under her title. The boundary of her property, in the deed, was a frontage on the lake, and that she islegally entitled to.
    7. Usurpations and wrongs to private rights of property cannot he justified by considerations of benefit to commerce, and the right of expropriation of private property can only he exercised according to the forms of law. 12 An. 541.
    
      8- Defendant corporation is without title, and although it contends that the property claimed by plaintiff is common property, yet this same corporation has taken possession, occupy, use and enjoy this common property, to the exclusion of plaintiff and all other persons, which is a clear usurpation of a private right.
    
      Joseph B. Bornor, Brands W. Baleer, for Defendant and Appellee:
    1. Accession is that which becomes united to, or incorporated with other property, by reason of human agency. O. C. Arts. 504 etseq.
    
    2. One claiming of an accession to his property, must first tender the value of the materials and the piice of the workmanship to the person who made it. C. O. Art. 508.
    3. Alluvion, or batture, is the gradual and imperceptible deposit of earth by a river, or flowing stream, on its hanks. It results from the forces of nature, not by human inter- • vention. O. O. Art. 509; Domat Civil Law, Art. 2157.
    4. Accretion is the right to claim the alluvion, or batture, which is the thing. Bouvier’s Dict’y, verbo Accretion.
    
      5. It is essential to the right to accretion, that the land should be bounded on one side by a ■water-course. 6 M. 216 ; 9 M. 717; 18 La. 122.
    6. 'There is no right of accretion, alluvion, or batture, in favor of owners of land fronting the sea-shore. 12 La 324. 18 La. 122.
    7. Lake Pontchartrain is an arm of the sea, and there is no right of accretion upon its shores. Its shores are not susceptible of private ownership. C. C. Art. 450-1-2-3.
    8. The Revetment or Protection Levee, on the shore of Lake Pontchartrain, in the rear of the City of New Orleans, erected by the Mississippi and Mexican Grulf Ship Canal Company, under Act. 30 of 1871, are the property of the corporation of the City of New Orleans, under its exclusive control, and are not susceptible of private ownership or control. Act 30 of 1871; Act 16 of 1876,
   The opinion of the Court was delivered by

Todd, J.

The plaintiff, having title by purchase to a lot situated on Lake Pontchartrain, seeks in this suit to be declared owner of the “batture, accession or accretion, formed and to be formed between the former frontage of the lot and the waters of the lake,” and to recover of the defendant two thousand dollars for trespassing thereon.

An exception was filed by the defendant, substantially to the effect: “ That the petition disclosed no cause of action; that the plaintiff seeks to recover an accession or accretion on the shore of Lake Pontchartrain, and the right of property does not exist in such accession or accretion on said lake, the same being an arm of the sea.”

The exception was sustained and the suit dismissed, and the plaintiff has appealed.

We think the judgment was correct.

Accession “ is that which is united to, or incorporated with, the property,” and under certain conditions belongs to the owner of the property to which it becomes united. The term is generally applied to what is united to the property by artificial means. C. C. 504, 507, 508.

“Accretions” are the gradual and imperceptible augmentations of the soil situated on tlxe shore of a river or other stream,” and are called “ alluvion',” and sometime “ batture.”

“ The alluvion belongs to tlio 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.” C. C. 509.

“ Preeterea quod per allvvionem agro tuo jlumen adjaeit, jure gentium tibi adquiritur.” Justinian, lib. 41, tit. 1, law 7, sec. I.

The only thing that can, in tins suit, he embraced under the claim of “ accession ” as distinguished from accretioh, alluvion, or batture, which last result from natural causes alone, is the protection or revetment levee, constructed by public authority after plaintiff’s acquisition of the lot between the bank of the lake and the waters thereof. Even if such construction could be the subject of private ownership, the ground on which it rests must first-be shown tobe plaintiff’s, before she could claim any interest in the levee, or other improvement made thereon.

The next Article of the Code, following the one recognizing accretions or alluvion on rivers becoming the property of the owners of the contiguous soil,- declares:

“The same rule applies to derelictions by running water retiring-imperceptibly from one of its shores and encroaching on the other; the owner of the land adjoining the shore left dry, has the right to the dereliction.”
This right does not take place in case of derelictions of the sea.” C. C.-510.
. “ JEt quidem naturali jivre eommunia sunt omnium heecjaer aqua pro' fluens, mare, et per hoc littera mcms.n
JEst autem littum marts quatenas hybernas fluetus maximus excurrit.” Justinian, Ins. lib. 2, tit. 1, sec. 1-3.

The plaintiff, however, denies that Lake Pontehartrain is either the sea or an arm of the sea, and, therefore, contends that this question of' accretions or alluvion on the sea shores has no applicability to this case. It might be a sufficient reply to this, to say, that the only acknowledged right to accretions as property under our law, are those formed on rivers and running streams; and that there is no recognition of any property right therein, when formed on lakes, bays, arms of the sea, or other large bodies of water, and that the modes or ways of the acquisition of property are limited to those expressly prescribed bylaw and cannot be extended by implication. But we consider this question virtually disposed of in the case of Milne vs. Girodeau, 12 L. 324. That was a petitory action to recover a lot lying on the same body of water, Lake Pontehartrain. On this lot the defendant had erected buildings. In the opinion of the Court it is stated :

“ The defendant, who is in possession, avers in his answer that it makes a part of the sea shore, is common-property,' and that plaintiff cannot have the ownership thereof.
■ “ It appears to us that the ground in question lies much below high water mark, and forms part of the bed of the lake, and is ,not, therefore, susceptible, of private ownership.” .

We have attentively examined the case of Hollingsworth vs. Chaffe, 33 An. 547, to which we have been referred, and find it has no bearing on this case.

The judgment of the lower court is, therefore, affirmed with costs,

=Levy, J., absent;  