Municipality No. 1 v. Municipality No. 2

| La. | Mar 15, 1838

Bullard, J.,

delivered the opinion of the court.

This suit commenced by injunction issued against the 2d Municipality of the city of New-Orleans, on the petition of the first Municipality, inhibiting the former “from proceeding any further in erecting wharves or other works, on the batture in front of the faubourg St. Mary, until the further order of the Parish Court.” The grounds alleged for this proceeding were, that the works then in progress had a tendency to obstruct a place, of which the public has the use; to prevent the navigation of the river, or to render it more difficult, and to fill up the port in front of Municipality No. 1, and to prevent ships and other vessels from easily mooting landing and unloading on the banks of the river within its limits.

The injunction was afterwards extended, so as to embrace several individuals engaged in constructing those works, under contracts with the corporation.

The original petition presented by the first Municipality, sets forth that the batture had been enjoyed by the inhabitants of the city, for public uses, in supplying them with the sand and earth necessary for the construction of buildings, filling up streets, lots of ground and side walks, and generally for other improvements in the city, until they were perpetually enjoined from such enjoyments, by a final decree of the late Superior Court, at the suit of Jean Gravier; that after-wards, in 1S20, Edward Livingston and others, then proprietors of the batture, entered into a compromise with the city of New-Orleans, by which they ceded and abandoned to them all their rights in the batture, within certain limits, and to the levee constructed upon it, as well as the soil upon which it is situated; in all the soil of Tchoupitoulas-street, the whole extent of the faubourg, giving said street a width of sixty feet, and upon the sole condition, that the lot of ground forming the object of the donation, should remain in the possession of said corporation, inalienable, and never employed for any public uses, except those for which the same was naturally destined; and that no buildings should be erected on the same, except a steam-pump and wharves, for the facilities of commerce; that in March, 1836, the city of New-Orleails was divided, by act of the legislature, into three separate municipalities, and that by the eleventh section jt was provided, that each municipality should have the exclusive right to make and enforce a 11 public laws and regulations within their respective limits, and to regulate, and at their own expense, make all improvements to streets, public squares, wharves and other public property, the use of which is now common, provided that such regulations shall not deprive the inhabitants of the other municipalities of the right of using the same, in common with the inhabitants of the municipality within which such property is situated, &c., and provided, that no disposition shall ever be made of the batture in front of the suburb St. Mary, in violation of the transaction or, compromise above referred to, and that the municipality of the upper section of the city shall not, in any manner obstruct or impede the inhabitants of any part of the city, in the free Use an'd enjoyment of any of'their rights on the said batture. The plaintiffs proceed to allege, that the second Municipality, in violation of their rights, and contrary to the provisions of the law, have taken exclusive possession of the batture in front of the suburb St.' Mary, and have ordered, and are constructing several works, in violation of the stipulations contained in the act of donation; that the works in question consist of wharves, made to such extent and in such directions, as to render it entirely impossible for the inhabitants of the first Municipality to enjoy their rights, particularly in taking the sand and earth necessary for their streets, buildings and other purposes, the defendants having appropriated to themselves almost all the superficies of sand bottom; that the second Municipality have opposed the first and its inhabitants in their usual free and public use of said batture, and that a portion of the citizens of the first Municipality, engaged in erecting buildings and filling up lots and streets, have been opposed and obstructed by the defendants in the enjoyment of their rights upon the batture.

The answer of the defendants admits that they are engaged in the construction of wharves on the margin of the river opposite to the faubourg St. Mary, and forming a part of the port of New-Orleans, but they aver that they have a legal right so to do; that such works are indispensably necessary for the use of that part of the port, and the safety and convenience of the citizens; that such works were ordered and begun by the city authorities before the division of the city into three municipalities; that, as the batture is situated within the second Municipality, it is their exclusive property and under their exclusive control. They deny that they have contravened the compromise in question, and as relates to the carrying of earth or sand from the batture, they deny that the citizens of New-Orleans or any portion of it, have any right to excavate earth from said batture, and transport it elsewhere, except with the permission of the authorities of the second Municipality, and at such times and at such places as they may designate. They conclude by praying that they may be declared to be the true and lawful owners of the batture, that they may be quieted in their possession, and that the injunction may be dissolved.

After a trial below, the court was of opinion, that the second Municipality had a right by law to construct the wharves and embankments which they had undertaken on the batture, and consequently, the injunction was dissolved so far as it applies to the continuing the construction of those works; but, considering that the defendants had no right to prevent the citizens of the whole city from taking earth on the batture, the plaintiffs were by the same judgment quieted in the lawful enjoyment of that right, and the second Municipality was perpetually enjoined from disturbing the plaintiffs in its enjoyment.

In the first part of the judgment, both parties have acquiesced, and the defendants prosecute the present appeal from that part only which inhibits them from disturbing the plaintiffs in the enjoyment of their right to take sand and earth from the batture within .the limits of the second Municipality. The inquiry in this court is, therefore, solely as to the extent and qualifications of that right, and the correlative duties and obligations of the Municipality No. 2, in reference to the same.

According to the terms of the tween ° the6 city ofNew-Orleans, the front proprietors andpri-íhíbattare^da-tember2Utlmo" the entire hat-space between New Levee-st. front of the fau-is^dedfcataUto those0fi>S<which it is naturally pal* of the port of New-Orleans. traUon ^'this public ^piace, on it, is confided theíecond Mu-nicipaiity,whose duty it is, to administer it in to°promoteethe important purpose lor which it was dedicated, pede any rightto the use of it, to the citizens gen-eraiiy.

We have attentively examined and considered the act of J donation of the 20th of September, 1820, between Livingston and others and the city of New-Orleans, as well as the act ....... ... , ... of the legislature dividing the city into three distinct mum-cipalities, and defining the powers and duties of each. Undoubtedly that contract embraces a dedication to public J . 1 uses of the property in question, so far as it was an object of private ownership, and its declared uses are those to which it ’s naturally destined. Being contiguous to the bank of the river, and within the port of New-Orleans, its primary and paramount u’se is to facilitate the loading and unloading of vesse¡s and other water craft engaged in an extensive and increasing commerce ; hence, the city of New-Orleans reserved the right of building wharves for the facilities of tra(^e whenever they, should think proper. The eleventh section of the act of 1836, while it confers on each municipality the exclusive right to make and enforce all public jawg anj regulations within its limits, and to regulate and at their own- expense make all improvements to the streets, public squares, wharves and other public property, the use of which is now common, provides that no disposition shall ever be made of the batture in front of the faubourg St. Mary, in violation of the transaction or compromise in relation thereto, abover eferred to, “and the municipality of the upper seclion 0f the city of New-Orleans shall not in any manner obstruct or impede the inhabitants of any portion of the city in the *ee use anc* enjoyment of any of their rights on the batture.”

The administration of this public property according to the . . . . f r , true intention or the contracting parties and of the legislature, was> therefore, confided exclusively to the second Municipality. It is their duty to administer it in such a manner as 1 , , to promote the important purposes lor which it was dedicated, and not to impede any right to the use of it on the part of citizens generally. That the inhabitants generally have , ® J. - ® J a right to take the curt or sand necessary for their improve-meats in the city, under a reasonable regulation on the part of the municipal authorities, appears to us, to result from the transaction itself, in which the donors stipulate, that while they are engaged in constructing the new levee and filling up streets, and until their works are completed, the city council shall forbid the public to take away earth or sand from any part of the batture, except within a limited extent. From the contemporaneous construction by the city council, their exercising jurisdiction over the whole city, who passed various ordinances to regulate the exercise of this right, and from the consideration that the act of the legislature continued those ordinances in force until they should be duly repealed, (section 10,) and that the second Municipality appears to have pursued the same policy.

The right to ‘ami from this batture, is not a corporate right, hut one common tanfdFthe city" The use of this right 1S t0 he s<> regulated,as not great6 objeetshof asweUas'toproi all the citi-;

The use of the batture, therefore, is, in our opinion, to be regulated by municipal authority ; and those regulations so framed as to accord equal priviliges and equal facilities to the inhabitants of every part of the city, and consistent at the same time with the more imporfant primary purpose of the original dedication, that of facilitating the landing and mooring, the lading and unlading of vessels, and the conveyance of merchandise and produce between the river and the city, in the manner least burdensome to the producers and consumers. The pretensions of defendants, as set up in their answer, to the exclusive ownership of the property in question, and those of the plaintiffs, as evinced in their ordinance of the 9th of February, 1837, to take one hundred thousand cubic yards of sand from the batture ad libitum, (if, indeed, either party has seriously urged such pretensions,) are, in our opinion, equally unfounded and preposterous. ’ , . , 1 . . . r r . , ,

, . , . . . . , , The right t.o take dirt or sand is not a corporate right, but one common to every inhabitant of the city of New-Orleans; and it might tend to defeat the great object of the dedication, ° „ , , , , if every one were allowed the unregulated right to excavate where and to what extent they might think proper.

It has not been insisted upon in argument, nor does it appear to have been the opinion of the Parish Court, the ordinance of the second Municipality, regulating exercise of this right, is null and void, because it violates the transaction or the act of 1836; nor could such a question properly entertained in this case, because the nullity of that ordinance is not alleged. If it be void, every citizen might disregard it, and an attempt to enforce it would be a trespass. It is not the ordinance which is complained of, but the vexatious manner in which certain individuals have been treated while endeavoring to take earth from the batture. We cannot presume that those acts of annoyance and vexation were authorized by the second Municipality, and if they were, the perpetrators would be amenable to the laws, notwithstanding such authorization, if done in violation of private rights, as well as in contravention of the ordinance itself. The power to regulate does not imply the right to destroy and unjustly to' impede; and we concur with the Parish Court in opinion, that in the absence of positive law on the subject, it would be a matter of much difficulty for a court of justice to declare how far the regulating power in this case ought to extend, and where it ought to stop, and to lay down any general rule. Of one thing, however, we have no doubt, that the regulation ought to afford equal lights and equal facilities to all, and such as to prevent abuses, and especially not to defeat other great purposes of public utility.

injunctfo^wiii byüieToourtlna case where it h¡ and wherS the recUsnotVcorl porate one, but common to every inhabitant.

Thus far the opinion of this court coincides substantially with that of the Parish Court; but in the conclusion, we are compelled to differ. As soon as the question as to the right of the second Municipality to proceed with the wharves and embankments, to which alone the injunction sued out was applicable, and the further question as to the exclusive ownership asserted by the defendants as a reconventional demand, were disposed of, the remaining question appears to us to one merety °f trespass, and relates to the alleged-annoyances and acts of oppression towards individuals, not’ shown to have -been authorized by the defendants. It is obvious, that the corporation is without capacity-to maintain an action for damages for a quasi offence done to a private . . . 1 citizen. We think, therefore, there was error in perpetually enjoining the defendants from disturbing the plaintiffs in the enjoyment of the right in question: 1st, because such injunction was not demanded, but only damages ; and 2d, because the right itself, being necessarily under a lawful and reasonable regulation by the defendants, is so indefinite as to furnish a subject of perpetual dispute; and the injunction itself, by restraining the legitimate action of the city council, might interfere with other rights equally sacred.

Nor will an injunction be maintained, when the purpose of the suit is to restrain the action of the city council, when the right claimed is indefinite, and when such injunction might tend to limit a legitimate exercise of authority vested in the council.

It isj therefore, ordered, adjudged and decreed, that the judgment of the Parish Court be annulled and reversed, and proceeding to render such judgment as in our opinion should have been given below; it is further ordered and adjudged, that the injunction allowed at the inception of this suit, be dissolved; that the claim for damages on the part of the plaintiffs be rejected, and that the claim of the defendants to be recognized as the exclusive owners of the property in question, be also dismissed, reserving to them their authority to administer .the same for the public use, according to law and that the costs of both the courts be paid by the plaintiffs and appellees.