McCearley v. Lemennier

40 La. Ann. 253 | La. | 1888

The opinion of the Court was delivered bj7

Bermudez, C. J.

The record contains a motion to dismiss, of which no other mention need b© made than that it presents no merit and is overruled.

The object of this suit is to have a certaio road declared pubMo and to recover damages for its obstruction by the defendant, who pretends that it is private property.

From an adverse judgment, the plaintiff appeals.

The road, with a bayou known as Chd Off Bayou, begins at the public levee on the Mississippi river in the direction of Red river, and runs, more or less, along the side of the bayou several miles, except where it becomes itself a cut o#" through cultivated lands at a distance from the bayou on “Rurnstown” plantation, which is now owned by the defendant.

It is claimed that the road through those lands is a public road: because it was dedicated as such to the public; because it has been used as such by the public for upwards of thirty years, and because it was made such by law.

The record is barren of any evidence to show the alleged dedication. Nemo presumitur dona/re.

It contains testimony, however, to show the use by the public during thirty years, but this use, for that length of time and longer by the sufferance or tolerance of the owner, has been declared to be insufficient to convert a private into a public road. Morgan vs. Lombard, 26 Ann. 462; Torres vs. Falgoust, 37 Ann. 497, and authorities cited,

An attempt was made, which proved unsuccessful, to establish that the police jury had considered and treated this road as'a public road. The reverse is, we think, established by the evidence.

By the act of 1818, which now forms part of the R. S. as Sec. No. 3368, it was provided 1hat all roads opened, laid out or appointed by the Legislature or police juries, and all such made by individuals whose lands front rivers or bayous, shall be deemed public roads.

The defendant contends, however, that this law must be construed together with Art. R. C. C., 455, which declares that the use of the banks of navigable rivers or streams is public.

If this is done, and we think it ought to be, the inference is that the law, in its second part, invoked by the plaintiff was designed to apply to such roads only which run along navigable streams, bayous, etc.

This is, indeed, the construction placed upon the section in question by the police jury of Concordia parish, as appears by an ordinance passed by it, to carry out the law in 1859, in which it is declared that all roads in the parish laid out, opened, or appointed by the Legislature or the police juiy, and made on the front of their respective lands by individuals, when such lands have their fronts on any of the navigable rivers or bayous in this State, shall bepubMo.

The term 11 navigable” was pronounced as never having been intended to apply to streams only capable of an imperfect navigation, in times of flood and very high water. Were the mere fact that a steamboat or flat has been up some distance a stream in high water — a sufficient ground for declaring it navigable — every slight depression of the soil in Louisiana would become a ncwigable stream and be opened to rafts and boats and convenience of a few persons, to tbe total destruction of the planting interest. Boykin vs. Shaffer, 13 Ann. 131.'

On the question of navigability of the bayou, the evidence shows conclusively, that no boats or crafts capable of transporting cottou, and not even skiffs, have been known to pass through it, unless possibly, at long intervals, in stages of high water and when the hanks were overflowed. The growth of trees has made the bayou such that skiffs or logs can hardly be put through.

The charge that the defendant is estopped from denying that the road is public, because he was a member of a police jury which declared it to be sucli and of a committee of supervision, is unfounded.

Reference to the ordinance alluded to, shows that the defendant was one of a committee to lay out a new road.

G-ranting that, as such, he caused hands, placed under his direct or indirect control by the parish, to repair the road in question, it does not hence follow that he treated it as a public road.

He no doubt thought that, as the public used the road with his tolerance, it was proper that hands paid by the public should at least then, iu an urgency, do some work on it, to keep it in passable condition. This would be sufficient justification..

On tbe other hand, it appears that, considering that tbe road in question was not a public road, the plaintiff, with a number of citizens, petitioned the police jury to make it a public road.

It is unnecessary to consider the claim in damages, the case being with the defendant, as was found by tbe district judge.

Judgment affirmed.