Article by Andrea B. Carroll
In this Article, Andrea B. Carroll inquires whether riparians on a nonnavigable lake (1) have mutual rights to access the entire surface of the lake or, rather, (2) merely have the limited right to access the portion of the surface overlying the bed they respectively own. Carroll observes that the resolution of this question depends almost entirely on the state in which the parties litigate and that most American jurisdictions use one of two approaches: the so-called “common law approach” or the so-called “civil law approach.” Carroll argues that courts that accept the distinction between the common law and the civil law approaches are perpetuating a false choice, because the “civil law rule” is not actually a rule of the civil law at all. It is, instead, the relatively modern and spontaneous generation of one European jurisdiction in response to peculiar policy choices. The rule of civil law is exactly the same as that of the common law; indeed, the common law rule has civilian roots. Carroll further asserts that the United States Supreme Court made an error of interpretation over one hundred years ago that brought this distorted distinction into American jurisprudence and that courts throughout the country have perpetuated the error. In this Article, Carroll demonstrates that there are not, in fact, divergent civil and common law rules of riparian access, and she encourages courts to change the nomenclature to correct the persistent error.
About the Author
Andrea B. Carroll. Professor of Law, Louisiana State University, Paul M. Hebert Law Center.
Citation
80 Tul. L. Rev. 901 (2006)