6 La. Ann. 450 | La. | 1851
The judgment of the court was pronounced by
The plaintiffs are the owners of a piece of land on the bank of the river opposite New Orleans, having some two hundred and forty feet ou the public road, and extending in depth to the Mississippi. This land, with a lot adjoining it, which the plaintiffs had leased to one Rouse, has been used as a ship-yard for nearly thirty years, and for the most of that time has been occupied for that purpose by one or other of the defendants. It was originally leased to Bailey and Marcy, and subsequently to their successors, the present defendants, Salter and Marcy. They also partially occupied the adjoining lot, called the Rouse lot, under a sub-lease from Rouse. In addition, they occupied an_ adjacent lot belonging to themselves. The lease appears to have been extended under a verbal agreement until the year 1849, when Rouse, having notified the plaintiffs that he intended to give up his lease, the plaintiffs notified the defendants of the fact, and offered a lease of both lots to the defendants for the term of three years, at the rate of $2700 per annum, payable monthly. The defendants declined accepting the proposal, considering the rent too high, and notified the plaintiffs that they had made up their minds to give up the leased premises, which they hoped to be able to do by the 1st of July ensuing. Their letter bears date, March 28th, 1849, and states, that with regard to Rouse’s lot they had nothing to say; that plaintiffs might rent it to whom they pleased. This letter was answered on the 3d of April, as follows, by the agents of the plaintiffs : “Your letter of the 28th of March has been received; and not being able to come to an arrangement with you, I have changed my mind on the subject, and hereby notify you to return the premises which you now occupy, to wit, the ship-yard leased by you from me, at the expiration of your month’s rent, to wit, on the 1st of May, 1849; my intention being to build on said property, and to contract for said buildings to be commenced on the 2d of May next, considerable damage might result from any delay on your part to comply with the present notice.”
On the 17th of May following, the plaintiffs instituted proceedings against the defendants for the purpose of having them ejected from the premises leased, and recovering possession thereof. Judgment was rendered in favor of the plaintiffs on the 7th of June next ensuing. On an appeal, we were under the necessity of reversing that judgment, and dismissing the petition of the plaintiffs, on the ground of the unconstitutionality of the act of the Legislature under which the proceedings were conducted. Heirs of Duvergé v. Salter and Marcy, 5th Ann. 94. This was at the January term of 1850; and on the 1st of February,
The principal difficulty between the parties is stated, on behalf of the defence, to be a floating dry-dock, belonging to the defendants, which is fastened in front of the plaintiffs’ land. It is also contended, that the amount of the verdict is excessive, and unsupported by law or evidence; and that the only damages which can be recovered must be proportionate to the loss sustained. The defendants, in support of their pretensions to lay their dock in front of the plaintiffs’ property, and to fasten it to the shore, refer to the articles of the code on tho subject of navigable rivers, which are classed among public things.
The use of the banks of navigable rivers is public. Every one has a right to bring his vessels to land there; to make fast the same to the trees which are there planted; to unload his vessels; to deposit his goods; to dry his nets, and the like. Nevertheless, the property of the river banks belongs to those who possess the adjacent lands. Art. 446. On the borders of the Mississippi, where there are levees, the levees shall form the banks. Art. 448.
It appears that the defendants’ dry-dock is moored in front of the property leased by them — that is, the principal part of it is so moored; the rest being in front of the other lot. The dock is some two hundred and thirty feet long, and the width proportionate; it is secured by chains at both ends to the shore, and there is a staging from the shore to the dock. When the witness Gardere testified, he had been on the premises two days before, and there found fire-wood for the use of the dock, and men at work in connection with the work doing on a vessel which was in the dock; there were boys at work boiling pitch and tar, •and materials for ship building: and no change had been made in the location of the dock for ten months previous. It is admitted by the plaintiffs, that the defendants offered the plaintiffs, on the 31st of May, 1849, the possession of the premises leased by them. The plaintiffs refused to receive it, on the ground that the dry-dock of the defendants, which was floating in front of the leased premises, moored to the shore, and connected with it by permanent staging, was not removed; and that defendants had openly avowed their intention never to remove it; and the plaintiffs, that they still persist in their refusal to accept the delivery of the leased premises, until the removal of the dock. The dock is moored about sixty feet from the shore; the staging is like that used for ships on this side of the river, except that it is stronger, on account of the distance of the dock from the shore.
The premises occupied by the defendants we have seen were ship-yards, used for years for that object alone. It is the river front, and their proximity to New Orleans which gives them their value. These establishments, which are matters of necessity in a port like this, have been considered proper subjects of
This is nothing else than a formal acknowledgment of these necessary establishments, and of, at least, a forbearance of the exercise of the public use in respect to them, by the withholding of any authority to interfere with them from the ordinary municipal power.
On the first application of the plaintiffs for the delivery of the premises, Marcy, one of the defendants, originally averred, that they had as much right there as any one else — meaning the place occupied by the dock as it then lay — and that he would not give it up. This right is asserted to the last, and is the point on which the case turns.
So far as the right of the plaintiffs to hold and use the property as a ship-yard is concerned, the objection comes with a very ill grace from those who have occupied it under a lease from the plaintiffs for that purpose; and if the right of property and the sanction of law can constitute ownership, the plaintiffs certainly have it. To offer to return the land, and at the same time render the front inaccessible for its ordinary uses, by the location of this floating mass, appears to us to be mere mockery. The pretensions of the plaintiffs to keep their dock permanently in front of the plaintiff’s properly are equally in violation of the public right, under which they are asserted, as to the owner to whom ■ they have paid rent. Every payment they have made during the years of their tenancy has been a virtual recognition of the plaintiffs rights, and a denial of the pretensions now for the first time set up. It would be an unnecessary work to show how totally unfounded the defendant’s claims are, under the general law concerning the navigation of rivers and the uses of their banks. The subject has been examined, and the authorities referred to, in the recent case of the Carrollton Railroad v. Winthrop, 5th Ann. 36.
Under these conclusions, it only remains to examine the subject of damages and rent allowed by the judgment appealed from.
The 1st of May was the day after the termination of the lease of the defendants, and was the day on which the plaintiffs demanded the possession of their property, in 1849, by giving the notice to quit the premises at a seasonable time previous. This fact'the defendants well knew, and regulated their work accordingly. We can make no discrimination in relation to the rent of the two lots, because the dock .lay in front of both, that is, on the dividing line ; and because the right of "the defendant is formally asserted as to both. The price asked by the plaintiffs for the hire of the ship-yards for a three years’ lease, was $1200 for Rouse's, and $1500 a year for thatoccupied by them. It is proved, we think, satisfactorily, that this rent was not exorbitant. The plaintiffs fixed that price, as they had a right to do; and it rested with the defendants to continue to retain the property, or to give it up. The rents of this description of property are high; and more than this sum, it is proved, has been offered for lots in the vicinity not so well situated as these. The facts of this case differ materially from those in the case of Rodriguez v. Combes, 6 M. R. 275, cited by counsel.
The judgment of the district court is therefore affirmed, with costs.