Gleisse v. Winter

9 La. 149 | La. | 1836

Bullard, J.,

delivered the opinion of the court.

This case cannot be distinguished from that of Depassau vs. Winter et al. decided at the June term, 1834. 7 Louisiana Reports, 1. When that case was argued the bench was not full; some doubts having since arisen, we have reconsidered it with much deliberation.

in a possesso-gainCtpos;sessioñ of a space of ground situated behind the Le-jt a„d the public street mjhe cay where the plain-possession more r¡parfanear’pr0!! prietor, (the Jo-suLlplMebeinof ship qVe/Jthat the question, whether it be in fact the plain-tined to public use, is one of ti-tie-which cannot No^testímmyiá admissible, ex-oept as to the fact of posses-|1.1°ntlcancl distur" A corporation petitOTy^cUont clear the hanks of ri-that the land o"? There is no orMremony0™ °es,s.aiT. in the dedication ot lands to public sent o/the own" “d ^ actually used for llic public purposes intended by the appropriation, it is sufficient.

It is contended that the defendants having shown a destination to public use of the locus in quo, no possession of it can be acquired, and no possessory action maintained, This argument assumes as a fact that there has been a destination to public use, while the principal if not the sole question in the case is, whether evidence of that fact, be admissible in this action, it being merely possessory. There 3 a . r . . is, therefore, the appearance of reasoning m a circle. The actual possession or occupancy for more than a year is shown, and the deed from the Nuns proves the plaintiffs to be riparian proprietors. It appears to us that the locus in quo, being situated back of the levee, is from its natural position susceptible of private ownership. The question, whether it be-in fact the property of the plaintiffs, or whether it has been devoted to public use, is in our opinion essentially one of title, and the Code of Practice, article 53, declares that in possessory actions no testimony shall be admitted except as to the fact . . . i t i , ,, ,. of the possession or as to the disturbance, and ail testimony relative to property shall be rejected. This doctrine was recognised and applied by this court in the cases of Williams vs. Kelso, and Thomas vs. Baillio, 7 La. Reports, 406 and 410.

But, it is contended further, that the defendants are without remedy if turned over to a new action as plaintiffs, and that , . . they cannot maintain a petitory action. I he right of corporate bodies to maintain such an action has several times been recognised in this court, and especially in the case of the Trustees of Natchitoches vs. Coe. 3 N. S., 140.

But, even admitting that the question of a dedication to public use may be examined in this case, it is perhaps doubtful, according to the evidence, whether such dedication in point of fact has been shown. If is not proved to have been’ used by the public under such a dedication. The Supreme Court-of the United States in the case of the City of Cincinnati vs. White, said, “ There is no particular form or J i, . , i. ceremony necessary m the dedication of lands to public use. All that is required is the assent of the owners of the land, and the fact of its being used for the public purposes intended-by the appropriation. This was the doctrine in the case of Jarvis and Dean, already referred to, with respect to a street, and the same rule must apply to all public dedications.” 6 Peters' Reports, 431.

Upon< this last point we express no opinion, but upon the whole we think the question of dedication ought to be left open, and in the mean time the plaintiffs maintained in their possession.

It is, therefore, ordered, adjudged and decreed, that the judgment, of the District Court be reversed; and it is further ordered, that the plaintiffs be maintained in their possession, reserving to the defendants the light, if any they have, to institute any legal proceedings for the purpose of establishing the rights claimed by them in favor of the city of Lafayette, or the public in general; the defendants and appellees to pay costs in both courts.