Page:An introduction to Roman-Dutch law.djvu/154

 Rh 114 THE LAW OF PROPERTY The seashore. Public rivers. he may require his neighbour not to project his building into it.^ The seashore is insusceptible of ownership.^ The use of it is common to the people of the State, so that every member of the community may use it for any lawful purpose not inconsistent with the rights of others.^ The seashore extends on the land side as far as the highest winter flood.* Rivers are either public or private. Public rivers are such as flow perennially ; ® rivers which do not flow perermially are private. But a public river does not become private merely from the circumstance of its having dried up ia one summer.^ Private rivers are matter of private right and call for no further reference in this place. Public rivers are publici juris. As such they cannot be privately owned, but may be used and Gr. 2. 1. 23 ; 2. 34. 8. ^ Grotius (2. 1. 21), apparently in order to reconcile two inconsistent texts of the Roman Law (Inst. 2. 1. 1 and 2. 1. 5), makes the shore below mid-tide res communis, the shore above mid-tide res pvblica; but the distinction is devoid of significance. As to the rights of the Crown and of the public in the seashore in the modern law, see Appendix A to this Book (infra, p. 182). ' This in Roman Law included the right of building; and the ground occupied became the property of the owner of the fabric, but only for so long as the building stood. Dig. 1. 8. 6. pr. ; 41. 1. 14 ; Voet, 1. 8. 3. lowest ebb, but this is not stated. ^ Dig. 43. 12. 1 . 3 : Publicum flumen esse Cassius deftnit, quod perenne sit. Does the same criterion apply to a rivus ? In Cape Law : ' Under the designation of public streams are included all perennial rivers, whether navigable or not, and all streams which, although not large enough to be considered as rivers, are yet perennial, and are capable of being applied to the common use of the riparian proprietors. Under the designation of private streams are included rivers and streams which are not perennial, and streamlets which, although perennial, are so weak as to be incapable of being applied to common use.' Sir Henry de Villiers C. J., in Van Heerden v. Wiese (1880) 1 Buch. A. C. at p. 7. In the (Union of South Africa) Irrigation and Conservation of Waters Act, 1912, public stream is defined (sec. 2) as ' a natural stream of water which, when it flows, flows in a known and defined channel (whether or not the channel is dry during any period),, if the water thereof is capable of being applied to the common use of the riparian owners for the purposes of irrigation ' ; and ' a stream which fulfils these conditions in part only of its course shall be deemed to be a public stream as regards that part only '. « Dig. 43. 12. 1. 2 ; Vermaah v. Palmer (1876) Buch. at p. 28 ; Be Wei v. Hiscock (1880) 1 E. D. C. at p. 257.
 * Inst. 2. 1.3. On the seaside it extends presumably so far as the