17 La. Ann. 171 | La. | 1865
This is a,petitory action, in which the plaintiffs, Elizabeth Mendez and the heirs of the late Thomas Dumas, claim the ownership of two tracts of land, forming a part of a piece of ground in the Second District of this city, styled the Highland road, running from Bayou road to Canal Carondelet, between Johnson and Galvez streets, of which two tracts, they allege, defendant has taken illegal possession; they allege, also, that said strip of ground was a part of a larger tract ofdand owned by their author and themselves, and was reserved as a road of ingress and egress to the said Canal Carondelet, and that they have never been divested of the legal ownership ; that the lots sold to the author of defendant were sold to front on said Highland road; that, since the streets have been laid off in that vicinity by the city of Hew Orleans, said lots of defendant now front on Galvez street, making said Highland road no longer necessary as a passage, and that, consequently, the soil thereof is returned by law to them as owners.
The defendant pleads the general issue, denying that plaintiffs have any cause of action, and makes the following assignment of errors :
1. Those of the plaintiffs who claim by right of servitude are barred by prescription.
2. Those of said plaintiffs who claim ownership are shown by the evidence to have divested themselves of all such rights by making the road a locus publicus.
3. The plaintiffs have no interest to stand in judgment in the matters herein involved, and therefore cannot be heard.
We are of opinion that the heirs of Castañedo have not shown a right to stand in judgment as against defendant.
The other plaintiffs, Elizabeth Mendez and the heirs of Dumas, have introduced the original title to the tract of land, comprising within it this Highland road, and under the provisions of our law, and as the road has long since ceased to be used for public purposes, and is not required by the defendant and other purchasers fronting thereon, its soil reverts to them as owners. C. C. 474, 654. 3 A. 482.
The alleged dedication by the plaintiffs of this road, in selling lots fronting thereon, was not such as to divest them of the property in the soil so reserved.
The defendant evidently has no right to the ground in question, his title showing that he bought lots fronting on said road ; and, as to him, the plaintiffs have shown a good and sufficient title to the property.
We think, however, the district judge erred in decreeing a title to the defendant ttpon paying a certain sum. The ends of justice will be met in decreeing the plaintiffs to be the owners and entitled to the possession of said land, reserving all other rights for further adjustment.
It is therefore ordered, adjudged and decreed, that the judgment of the district court be avoided and reversed, and that plaintiffs, Elizabeth Mendez and the heirs of Thomas Dumas, be decreed to be the owners of the property described in their petition and known as the Highland road; and that they be put in possession thereof. It is is further ordered, that the defendant, Baptiste Dougart, remove the fences and improvements thereon within thirty days from the maturity of this judgment, - or, in default thereof, that plaintiffs have them removed at his cost. It isfurther ordered that the rights of servitude, of rent and of damages, be reserved to the parties annually; and it is finally ordered, that the costs of the lower court be paid by the defendant, and the costs of appeal be paid by the plaintiffs and appellees.
