4 La. Ann. 109 | La. | 1849
The judgment of the court -{Rost, J. absent,) was pronounced by
In the year 1807, the late Joseph Wiltz, the ancestor of the plaintiffs, laid out a part of his plantation in the present parish of Jefferson, into lots, and sold them to different persons according to a plan. The tract of land thus disposed of was four arpents front on the river, by forty in depth. The plan exhibits an avenue in the middle of the tract of one hundred and ten feet, and a row of lots on each side fronting on the avenue, making forty-two in number. Between the lots nearest to the river and the road a space was left undivided and vacant, as well as the batture in front; the remainder of the tract beyond the forty-two lots in the rear was in the same condition. There is written on the plan a prospectus, as it is called, which we thus translate :
“ Quartier de Plaisauce : Plan of the plantation of Mr. Joseph Wiltz, two and a half miles above the city, divided into lots sufficiently spacious to establish country houses, taverns, gardens, etc.
“ Note: The lots numbered and colored in red are the only ones for sale at present. New Orleans, 22d June, 1807. Drawn by H. Laclotte, architect.
.(Signed) J. Wiltz.”
“ Prospectus.
■ The .portion of the front, of the batture, of the pasture and of the cypress swamp, corresponding with the forty-two lots offered for sale at this time, and in conformity with the titles of the vendor, is abandoned in perpetuity in favor of the purchasers, to be by them enjoyed in common, with this sole condition, that the said purchasers shall not send in the common pasture but three head ■of animals for each lot, and shall cut wood in the swamp for their private use only and not for sale.” Provision is then made that the trees in the avenues shall be planted, and the ditches and roads shall be made by the purchasers.
The whole of the forty-two lots were sold to different persons in accordance with this plan, and under the conditions of this prospectus. In January, 1838, the proprietors made a partition of the front, the batture, and the rear of the tract, which they held under their several purchases of lots. The present suit is brought by the plaintiffs, the heirs of the original vendor, against the defendant,who holds under the sales made in conformity with the plan and prospectus, to recover those portions of the original tract, on the ground that the right of property was not transferred by their ancestor by the sales of 1807, but a right of use only, and that the right of use hns terminated by reason of the acts of the defendant. In the District court the plaintiffs recovered judgment for all that portion of the tract to which the district judge held the right of use only to extend, to wit; the batture, the space left in front, and the land in the rear of the forty-two lots. From this judgment the defendant has appealed.
The first question to be determined, and upon which all the others presented
It is conceded that the defendant is the owner of some twenty-two of the forty-two lots, which she holds by divers conveyances under the original title from Joseph Wiltz, given under the plan and prospectus before mentioned ; and that the plaintiffs are not at present owners of any portion of the forty-two lots, and were not at the time of the partition spoken of in 1838. The position of the defendant is, that the plaintiffs have no right, title, nor interest in the land sued for, to wit: the front, the batture, the pasture land and the cypress swamp, the same having been sold by the plaintiffs’ ancestor with the forty-two lots, the whole forming the plantation divided into the Quartier de Piaisance-.
If we consider the language made use of by the vendor in disposing of this property, it certainly has the appearance of doing violence to- its obvious sense, to insist that he intended to reserve, or did reserve, any title or interest adversely to the purchasers. Terms more absolute, definite, or comprehensive, could scarcely be used to indicate a complete divestiture of all right in the property on his part. He abandons inperpeiwity, in favor of the purchasers, the land i» front and in the rear of the lots. The term abandonment excludes any reservation as to the title, as positively as the term perpetuity excludes any limitation of time. Indeed, the terms used appear to express fully the obligation of the vendor under the roman law—preestare emptori rem habere licere.
But it is contended by the counsel for the plaintiffs that the condition, that the purchasers of the lots shall only be allowed to send to the common pasture three head of animals, and to cut wood for their own private wants, creates an use merely in the purchasers, and that the only interest conveyed to them was-the right of use or at most a right of usufruct. The most formidable objection to this construction is that presented by the contract itself, which is strengthened by the sense which both parties have acted upon up to the time of the institution of this suit,
In ascertaining the meaning of the terms used, and whether an usufruct only has been created by them, the diligence of counsel has brought to our aid the opinions of several authors who have treated the subject of usufruct in the language in which the contract under consideration is written.
Proudhon considers that perpetuity is contrary to the very essence of usufruct, and if the entire enjoyment of an estate has been expressly bequeathed in perpetuity to a community, the right bequeathed would have only the name of usufruct, and the property itself would pass by the description. He lays it down as a rule that, when in a testamentary disposition the gift is expressly intended to be perpetual* it does not create a mere right of usufruct, but conveys the ownership itself. The usufruct being essentially temporary, it is necessarily excluded by the perpetuity which the testator has established. It appears that the usufruct only is conveyed in cases in which the separation of the right of enjoyment from the right of ownership is clearly expressed in the act. In this view the authors who have written on the subject hold, according to the texts of the roman law, that the legacy of a house to inhabit it, that of an estate to enjoy it, that of a domain in order that the legatee may have wherewith to live, comprehends also the entire property of the house, the estate, and the domain, because it is one thing to express the motive or the cause of the bequest, and another to bequeath only the simple right of enjoyment.
Proudhon, Traite d’Usufruit, loe. cit.
We think the opinions of this author on this subject are in accordance with
But if no usufruct was created, it is urged by the counsel for the plaintiffs) tbat the purchasers of lots acquired in the batture, front, pasture ground and cypress swamp, no other right than aright of use.
The abandonment in perpetuity of these objects, as we have seen, was made in favor of the purchasers of the lots to be by them enjoyed in common, with this sole condition, that the purchasers shall not send into the common pasture ground more than three head of animals for each lot, and they have only the right to cut wood in the cypress swamp for their own use and not for sale.
It seems to us that the question presented by this position of counsel is already determined by the conclusion which we have adopted, that the right of property was not reserved to Wiltz, but passed, by the sale, to the purchasers of the lots. This right of use was confined to the pasture ground and the cypress swamp, and did not extend in its terms beyond them. The condition' evidently was intended to regulate the use of them among the purchasers, and purported nothing else. It was a regulation considered advantageous in order to enable each one to use the common property without detriment to it, or annoyance to each other. There is nothing unusual in it, nor does it conflict with any of the avowed objects of the sale, but is in furtherance of them all.
If there were any doubt concerning the extent and meaning of the terms made use of in this contract, the law would oblige us to construe them against the seller. The vendor is bound to explain himself clearly as to the extent of his obligations, and an obscure or an ambiguous clause must be interpreted against him. C. C. 2449.
We think the plaintiffs are without any right, title, or interest in the land which is the subject of the present suit.
The corporation of the borough of Freeport, within which the land in dispute is situated, has appealed from the judgment of the District Court in favor of the plaintiff's, and has appeared by counsel, who has presented an argument in writing in behalf of said corporation. The corporation claims the property in dispute as public, on the ground oí its having been dedicated to public use by the prospectus, plan, and sales aforesaid, all of which were recorded in the office of a notary public.
The evidence in this case does not establish a dedication of this kind to public use, and the corporation of Freeport has no interest whatever in this suit. Neither party has moved to dismiss this appeal; the party is before the court, but has adduced nothing which affects the rights of the defendant.
The judgment of the Dislrict Court is, therefore, reversed, and judgment rendered for the defendant, with costs in both courts.
