Municipality No. 2 v. Orleans Cotton Press

18 La. 122 | La. | 1841

Lead Opinion

Bullard, J.

-In this Cause, the Court has had the' advantage of an able and elaborate discussion on both sides, as well in writing as oral, in which have been displayed the great resources of the Bax in ability and varied learning. Wehavebeen enabled at our leisure to weigh the arguments and examine the authorities on both sides, and to give to the whole subject that patient and dispassionate consideration due alike to the vast interest at stake, to the character of the parties and to public expectation. It would have been more satisfactory to ourselves if we could have be'en unanimous as to the final result; hut as there exists some difference of opinion among the Judges, I proceed to pronounce mine, and to set forth the grounds and reasons upon which it rests. I will not affect to conceal with what anxiety I examined again and again the principal question: in the case, when I discovered that I should have the misfor-turie not to concur with the senior Judge, who had been for so many years familiar with the vexed question of the batture in all its phases, while this is the first occasion, upon which it has been discussed, since I have been a member of this tribunal.

The Municipality claims to be owner of the alluvial formation fronting the suburbs Delord and Saulet, between' New Levee street and Front street, hounded on the upper side by Rof-fignac street and by property in lots separating it from Benjamin ; which lot or parcel of land, it is alleged, was forin'ed by alluvion long after those suburbs were laid out as faubourgs of the city of New Orleans, and after they were actually attached to, united with, and incorporated into, and made a part and portion of the city of New Orleans, or was Eft each of thef said, epochs, so inconsiderable" in its formation and extent as to ^ incapable of individual possession, use or occupation of any ldn¿ whatever, without the use of artificial means, the same being even at the lowest stages of the water of the river barely perceptible, and all the rest of the year entirely covered and forming a part of the bed of the river — by reason of which incorporation with said city (the petition goes on to allege) and the laying out and dividing the said land, of which the said faubourg is composed, into town lots, streets, &c., as a part of said city, the title to all the said batture or alluvion then so imperfectly formed or thereafter to be formed, became by law vested in the corporation of the said city of New Orleans, for the sole and exclusive use of the public and is now vested in the plaintiffs.

Upon the lot of ground thus described, it is alleged, the defendants have erected buildings and stores for pressing cotton, &c., and have appropriated the same to their sole and exclusive use as their property, and to the entire exclusion of the public and have converted the natural and lawful destination of the said land to public purposes and uses into private property.

It is further alleged that within the last ten years there has been formed in front of the lot of land above described, by gradual deposit of the river, a considerable space of batture or alluvion, now vacant and unoccupied except for public uses, and which is in like manner vested in the said Second Municipality for public use and benefit, and that the defendants, pretending to claim the same as their private property, and as forming a part of the ground described, have menaced and, as the petitioners believe, are about to occupy the same and to convert it to their own use to the exclusion of the public.

The plaintiffs conclude by praying judgment that the title is vested in the plaintiffs for the uses and purposes above mentioned, and that the defendants be forever enjoined from any use, occupation or possession thereof and for damages.

The defendants first pleaded the exception of res judicata founded upon the judgment rendered in the case of Henderson and others vs. the Mayor, Aldermen and inhabitants of the City of New Orleans; and in case the same should be overruled, they deny all the facts and allegations in the petition so far as they assert any color or pretence of title in the plaintiffs to the premises described: and they deny the plaintiffs’ title to any alluvion already formed or which may hereafter he formed in front of said premises.

The respondents further aver, that they are the riparian proprietors of the property claimed hy the plaintiffs, and as such entitled to all the alluvion which has been formed or may he formed in front of their said property. That they possess the same with all its rights and privileges, and especially as a part thereof, the right of alluvion, in virtue of a sale or concession of the King of France. That the said property with all its said rights was vested in these respondents, and those through whom they claim, from the date of the said sale or concession and that they cannot he divested of their right without their consent, and without a just and previous indemnity. They further aver that the plaintiffs have repeatedly admitted and recognized their right .and title hy formally putting them in possession of sundry portions of hatture successively formed before their property and attached thereto since the incorporation of the city in 1805, hy charging them with all the burdens and duties of front proprietors, and hy various other acts hy which the respondents’ right is distinctly recognized.

Upon these pleadings the parties went to trial in the court below, and the exception of res judicata having been sustained as to the lots of ground first described, upon which the defendants had erected their warehouses, and overruled as it relates to that portion of the alluvion lying on the outside of the levee and in front of the same property; and after a trial upon the merits, judgment having been rendered in favor of the plaintiffs for the land last described, according to the prayer of the petition, the defendants appealed.

The Municipality has not appealed from that part of the judgment sustaining the exception of res judicata, as to that portion tjle pr0per[.y jn controversy upon which the defendants’ bujldings are erected, hut they ask a modification of the judgment in that respect. We have therefore first to enquire into ... * the question whether the judgment in the case of Henderson and others against the Mayor, Aldermen and inhabitants of the city of New Orleans forms a bar to this action, as carrying with it the authority of the thing adjudged between these parties.

A careful examination of the arguments and authorities on this point has failed to satisfy my mind that this exception ought to have been sustained in thq, court below. It appears to me so doubtful that I think the judgment in this particular should jiot be disturbed, and that the whole case is fairly open before us on the merits, on the answer to the appeal.

Proceeding, therefore, to examine the case upon the merits, I begin by assuming as undisputed facts, that the Jesuits’ plantation, of which the lots in rear of the premises in controversy formed a part, was from its local situation, fronting on the Mississippi, and exposed to abrasion by its currents, entitled to any alluvial accretion upon its front, and that such was the condition of things in 1805, when the city of New Orleans was in-i corporated by an act .of the Territorial Legislature, and the property in question embraced within its limits. That in 1806 or 1807 a part of the land was laid out as the faubourg Delord, and lots sold in conformity to the plan. Such being the case, if the same land or that part of it which still fronts upon the river has ceased to enjoy the same advantage, to-the profit of the owners of such front, or has lost the right of accretion, and since that period the alluvion formed belongs not to the owners of the front lots but to the city, such a change — such a dismemberment of the property must have resulted either from the operations of law, or from the consent of the former or the present proprietors.It would seem, therefore, that the enquiry before the court is twofold — -first, into the effect of the act incorporating the city and embracing the property in question, now composing the faubourgs Delord and Saulet within its limits, and secondly, whether the laying out of the faubourg as shown by the plans and disposing of lots in conformity thereto, or any other acts of Madame Delord or her successors, taken in connection ... with, the various ordinances of the City Council, furnish sufñ-cient legal evidence of an intention, on her or their part, to dedicate the property claimed by the plaintiffs to public uses, so as to constitute a loeus publicus. Under the first head I‘will consider merely the legal operation of the act of 1805, wholly independent of the will of the then proprietor, and how far the character of the property was changed thereby from rural to urban, so far as it regards the right to profit afterwards by any alluvial-increase; and under the second, I will consider the effect of the same act, together with the several ordinances of the City Council, and especially that of 1831, by which a part of the faubourgs Delord, Saulet and Lacourse were finally incorporated, as it is termed, that is to say, admitted to all the advantages and subjected to all the burdens of the square of the city, taken in connexion with the acts and declarations of the ,parties.

The right to future aUuvial formation or ¿¡trigia, a¡nhe-pertyltseif ^md *;™attvihuteeof it, resulting from. natural law, in eonse-i^0eaice situation ¡^ndat° taches.

I. If the act of 1805 which incorporated and defined the limits of the city of New Orleans, embracing a large extent of territory from Lake Pontchartrain to the river and numerous plantations fronting on the Mississippi, and all previously entitled, according to the'existing laws, to any alluvion which might be formed upon their front, had declared in explicit terms, that after the passage of that act, the owners of such tracts of land . fronting on the river should no longer be entitled to any alluvion which might be formed, but that the same should thereafter accrue to the benefit of the city, there is not perhaps a single mind, capable of discriminating between the legitimate exercise of legislative authority and acts of sheer spoliation, that . . would not pronounce such an enactment to be without any constitutional validity. Will it be said that the rig-ht to future alluvial formations is not a vested right? I answer that such right is inherent in the property itself and forms an essential attribute of it, resulting from natural law in consequence of the local situation of the land, just as much as the natural fruits of a tree belong to the owner of the land ; and that such an attempt to transfer from the owner of the land to the city, the future , J increase by alluvion, would be as legally absurd, as if the legislature had declared, that after the incorporation of the city, - the fruits of all the orange trees within its limits should belong thereafter to the city and not to the owners of the orchards and gardens. If such would be our judgment upon an express enactment, a fortiori, should we declare that such an effect could not follow by mere implication.

But the argument is, as I understand it, that the character of the property was changed from rural to urban by the incorporation of the city; and inasmuch as urban property does not by law enjoy the right of alluvion, as is contended, consequently after that period, the city is entitled to the increase and not the front proprietors.

Admitting for the present, and for the purposes of this argument, that by the Roman and Spanish law, the right of alluvion is not enjoyed by urban estates, and that they form an. exception to the general rule, yet it appears to me the same difficulty recurs; for if the legislature without my consent places my property in a new category or gives it a new classification, or in consequence of which it is shorn of one of its original attributes, it is not easy to distinguish such an act from one by which the same result is spught to be obtained by direct enactment. It is after all but a circuitous way to the attainment of the same end and is equally repugnant to the first principles of justice, and to all constitutional restraint upon the legislative power. This argument presupposes that the original tract was entitled to alluvion, and I now speak only of the effect of the act incorporating the city and extending its limits so as to embrace the Jesuits’ plantation ; without regard to any subsequent acts of the front proprietors, from which an intention to dedicate to public uses might be inferred, and it appears to me, that in truth the act of incorporation might be laid entirely out of view and our inquiry confined to the evidence of dedication — on this point, the court I believe is unanimous.

But supposing these principles are questionable, and that I am mistaken in this view of the subject, is it true that urban property fronting on the river is not entitled to alluvion, and that such an exception is recognized by the Roman or the Spanish law ? This question leads me briefly to look into the doctrine of alluvion, its foundation and its limitations and exceptions. The doctrine, in my opinion does not cover a very wide space, and in this discussion, the question as it has been treated, and as I propose to treat it, becomes one rather of language and philology than of law.

The Roman legislator instead of giving the more exact and scientific definition of our modern Codes, announces with oracular brevity a great rule of natural equity ; “Prsterea, quod per alluvionem agro tuo flumen adjecit jure gentium tibi ad-■quiritur,” which I translate as follows: “moreover, whatever the river has added to your land becomes yours by the law of nature, (or nations)”, I use the English word land instead of Jield, because it appears to me that the word ager in the text is employed in its primitive sense to signify land or soil in the abstract, without regard to any idea of property or to any particular form or size, or shape, precisely as it is in the Greek, from which it is derived, (ágeos) and as it is in the compounds into which it enters both in Latin and several modern languages, such as “ agricultura, agrícola, agrarius, and agrimensor.” — It will not be pretended that agriculture is confined in any language to the culture of a Jield without a house or other building upon it, as the word ager signified according to Rodrigues and even the Roman Digest. The language ptself furnishes internal evidence that such was its primitive meaning, for the earliest as Well as the most useful of human arts, that which in a great measure feeds and clothes the great family of man, derives its name from that word in combination “with another 'which signifies to cultivate. Again, alluvion is a right founded on natural law, in which jjjg max;m certainly applies with all its force, that where the reason jg the same, the law is the same, and would that law distinguish between two contiguous estates or tracts of land fronting on a water course, and equally liable to be wasted by its encroachments, deny to that which should have a building upon it the natural chances of accretion, while it gives it to the other? I think not, any more than agriculture should be taken to mean the tilling of a field on which no edifice exists. That the word ager was sometimes employed to signify something different there is no doubt, and so is land in English ; its primitive signification is soil, ground; but it sometimes means a country or territory, as “the land of my fathers,” “the land of Canaan.” This arises from the poverty of human language and the impossibility of having a distinct word to signify every object in nature, and all the infinite varieties and shades of ideas. The Roman language at an early period was as poor as the Roman people. — Witness the fragments of the twelve tables which it requires a profound antiquarian to decipher. — But it adopted new words, with as much avidity as the Romans accorded to subject tribes the rights of citizenship; and we have the authority of Horace for saying that even in the Augustan age new words were always welcome, provided they flowed from a Grecian source.

“ Et nova factaque nuper habebunt verba fidem, si,

Graeco fonte cadant, pareé detorta.”

Not only the same word came to have different significations, but new and sometimes odd combinations of words were resorted to in order to express new ideas or objects. The word preedium, for example, about which so much has been said in the course of this argument, is supposed to have been derived from the word prseda, which means plunder, because it was originally an allotment of land, the spoils of conquered tribes ; as the word plunder among a certain class of our citizens is used to signify the scanty chattels of the poor.

Much stress is laid upon the definition of ager', in the Pai^ tidas (law 8, tit. 33, Par. 7) to prove that it was only fields without buildings on them, which enjoyed by the Roman law the right of alluvion. It is true the Partida says it means in Latin “como campo para sembrar en que no ha casa ni otro 1 x edeficio, fueras ende alguna cabaña ó cho5a para cobrar los frutos.” The authority of even Alphonso the wise, to fix by statute the meaning of a Latin word may well he questioned. That it did not always bear that narrow meaning, and sometimes signified land or soil in general, is manifest from the usage of the best authors. Virgil, for example, speaks of Sichaeus the first, husband of Dido, as “ditissimus agri Phre-nicum” — meaning as I understand it, the richest of the Phoenicians in land — and afterwards of Camertes as the richest of the Ausonians in the same species of property. — It is probable each had something more than a field without a house— .¿Eneas was promised in his future empire “a rich exuberance of soil — ‘‘divitis uber agri.” In the first book of the Geor-gies we find within the compass of a few lines the words tellus, arvum, ager, terra, and campus used, as nearly synonimous. But in the following lines I think the word ager is most manifestly used as contradistinguished from arvaf which we all know means fields; the soil is represented as parched with heat, while little streams are conducted so as to irrigate the fields; so that ager implies more than one field.

“ Et cum exustus ager morientibus eestuat herbis,

Ecce supercilio clivosi tramitis nudam

Elicit: illa cadens raucum per levia murmur

Saxa ciet, scatehrisque arentia temperat arva.”

But without relying too much upon the authority of the poets, we have that of Niebuhr, one of the most profound scholars and acute philologists of modern times, and who had made the agrarian institutions of Rome the subject of long and laborious investigation. This authority, I venture to say, is worth all the lexicographers, whose works have been consulted and referred to in argument. In an appendix to his second volume of the history of Rome, he gives us much information concerning the Roman mode of partitioning landed property, the limitatio ©r survey, and the peculiar terms of the ancient national law. — He says, “ager, a district, was the whole territory belonging to any civil community, in opposition to terra . . a country, which comprised many such proprietary districts ; as for instance, terra Italia, Grsecia.. — Ml landed properly (ager in its restricted sense,) was either Roman or foreign— “aut Romanus aut peregrinus.” — All Roman land was either the property of the State (common land, domain) or private property' — “aut publicus aut privatus.” — The public domain is always called ager publicus, there-was also ager vectigalis, and ager municipalis according to the same author, and mentioned in the Pandects.

But the text of the Pandects shows that the word ager in reference to this subject of alluvion was used indiscriminately with Fundus and Prmdium. In three successive paragraphs these words are thus used :

1st. Praiterea quod per alluvionem agro nostro Flumen ad-jecit jure gentium nobis acquiritur.

2d. Si vis fluminis partem aliquam ex tuo prosdio detraxerit me0 Prs¡dio attulerit, halam est earn tuam permanere.

3d. Plane silongiore tempore fundo meo hseserit arboresque quas secttm traxefit in fundum meum radicis egerit; in eo tempore vidjitur meó fundo acqüisita esse.

It will hardly he contended that in the'se three paragraphs the three' different wo'rds employed imply as many different kinds of estates. Indeed throughout the whole .remainder of the first title O’f the 41st hook of the Pandects which treats of Islands formed of the beds of rivers becoming dry in consequence of a change of Course and returning again to the same channel, the words ager, prsedium and fundtis are used indiscriminately, indicating r'ather a difference of style among the different jurisconsults who contribute to that great work, than any essential difference of landed property upon the margin of the streams. In no part of it do I find any exception to the right of alluvion, unless it he that established by the law in agris limitatis, of which I shall have occasion to speak presently. — It is essential that the land should be bounded on one side by a water course, but it would - seem to have been immaterial by what name the riparian estate was called. J 1

Cities may acquire jure allu-vioms, but it must be as own- ^ jarían pro-pnetors for the alluvion is but an accessory to the principal es-late or land,

_ _ Cities may acquire jure alluvionis, it is contended. This I do not doubt, but then it must be as proprietor of the front .or r 1 as riparian proprietor. It would be absurd to say it could be . , otherwise, ior that is of the very essence of the right, the alluvion is but accessory, the front tract is the principal — the former cannot exist without the latter.

But to return to the law in agris limitatis which is greatly ... . . .... reiied upon to show that cities may acquire jure alluvionis in some manner not easily understood. Such a construction of that law is apparently countenanc'ed by what fell from the court in the case of Packwood vs. Walden, 7 Martin, N. S. 9, in which it was said, “according to the law of the Roman Digest in agris limitatis; although the right of alluvion is denied to fields of that description, yet it is granted to land on which a city is founded.” I think this an error arising from a hasty consideration of that law, and a translation manifestly erroneous. The text is as follows: “In agris limitatis, jus alluvionis locum non habere constat; idque et Divus Pius constituit. Et Trebatius ait, agrum qui hostibus devictis eá conditione concessus sit ut in civitatem veniret habere allu-vionem ñeque esse limitatum. Agrum autem manucaptum limitatum fuisse ut scieretur quid cuique datum esset, quid venisset, quid in publico relictum esset.

The translation of this law as given by the senior counsel of the plaintiffs is as follows: “It is certain that the right of alluvion does not take place in limited fields. This has been decided by a constitution of the Emperor Antoninus; and Trebatius says that land taken from a conquered enemy and conceded under condition of belonging to a city enjoys the right of alluvion, and is not considered as limited, &c.”

This translation is certainly justified by that of Hulot into French, who appears to consider the expression “eit condi-tione concessus sit ut in civitatem veniret,” as expressing- a gran|; t0 a cjty 0f ian¿ taken from tbe enemy. But such a construction is in my opinion, contrary to the idiom of the language, as well as irreconcilable with the history of the times, . . to which it refers. If it had been the intention to express a concession to a city, the word, expressing the grantee would have been in the dative, civitati, perhaps more properly, urbi. If, as is supposed by the plaintiff’s counsel, the city is the grantee, the words ed condicione are not only surplusage, but they make nonsense of the passage. Does the grantor make a condition with the grantee, that the thing given shall belong to the latter? If A. gives to B. a tract of land, it belongs' to the donee without any such condition. There can be no condition in such a ease; with whom would it be stipulated 1 With the grantee ? Then you would do so vain a thing as to make the grantee or donee consent to a condition, that the thing should belong to himself, which is already his by the donation or grant. If, on the other hand, we suppose the grantee to be understood indefinite, or not named with a condition that the land should belong to a city, no reason can be imagined, why a nominal grantee should be interposed, when the grant is to take effect in favor of a city. On the contrary, in my opinion the words liut in civitatem veniret,” establishes a condition of reversion to the Republic, whether we consider the concession as meant in favor of the conquered enemy, by leaving them in possession, subject to the will of the State, and devictis hostibus in a dative, or to an indefinite grantee under the same condition of reversion, and the same words in the ablative, merely expressive of the fact that the land had been taken from a conquered enemy. De Bréau Neuville, the learned translator of Pothier’s Pandects, considers the sense of the passage to be, that lands given back to the conquered enemy on condition of reverting to the Republic, enjoy the right of alluvion, and are not limited. Such a translation accords also with the practice of the Republic at that remote period. Pothier, in a note to this law and its context, remarks, that when lands were taken from an enemy, the possessors of such lots, when passing under the denomination of Rome, were sometimes permitted to retain a part; another part was distributed to the veterans, and another part was sold, * _ ‘■ l deducting that which was left to the ancient proprietor; but every part of those lands thus distributed were measured and bounded, and hence were called limitati.

But the most satisfactory authority upon this as well as other points of the Roman land law, is Niebuhr. In speaking of the Limitaiis, this author says, “ according to the Agrarian Institutions no land was held to be marked by boundaries, save what had been divided in conformity to the practice of the State, and to that mode of observing the Heavens which was adopted in taking auspices. Every other kind of boundary was regarded by the Romans as indefinite. The subject treated of by the Agrimensores, is land thus marked out: other land they only mention by way of contrast. Every field which the Republic separated from the common domain, was marked out by boundaries: no separation could take place without such a demarkation; and whenever there were any traces of the latter, although particular estates within the region subjected to it might still be a part of the domain, it was yet a certain proof that such a separation had taken place. On the other hand every municipal as well as every foreign region was held to be without boundaries, (arcifinious) or merely limited by natural or arbitrary land-marks.” “The land which was regularly limited and that which was indeterminate in form along with all the other characteristics of dniritary property, had both of them that of being free from direct taxes, but their value was registered in the census and tribute was levied accordingly. In other respects the limited fields had certain legal peculiarities, concerning which, scarcely any other express statement is preserved, than that they had no right to alluvial land, the determinateness of their size being the condition of their existence.”- — History of Rome, vol. TI. appendix I. — By Niebuhr.

There is no-msuflaw'wWoh right alluvion to particular localities, or portions of land, lar 'names; ^but pends^on the question ivhe-ther the land had fixed and invauabie limits sUle'hy"a°water course.

The same author further demonstrates that the limites which geparate¿ thege agrilimitati were not imaginary lines and stakes 01'lan(i marks, hut spaces of different widths, according to the size of the squares, left forever open and public as highways. . . f. , 1 hey were marked out according to a system, of which the author gives the general outlines in the following words: “ The principle of the Roman limitatio was to draw lines towards the four quarters of the heavens, parallel and crosswise, in order to effect a uniform division of the lots of land which were transferred from the public domain to private property, and to fix immutable boundaries for them. Hence these boundaries (the limites) were marked by a slip of land left for the purpose, untouched by cultivation, as balks or ways ; as their extremities were by a row of stones inscribed with numerals.” Ibid.

Such appears to have been the ancient law, not as introduced or first established, but rather confirmed at a later period by a constitution of Antoninus Pius ; for Trebatius, whose opinion is given, was himself a contemporary of Cicero.

There is a further passage in Niebuhr which tends to illustrate the clause “ ut in civitatem veniret,” which I cannot forbear to quote. “ There was,” says he, “ a by-class in the Roman system, when the Republic restored a conquered territory to its old inhabitants, subject to the payment of a tithe or some similar tax ; this, as long as the precarious possession lasted, was like any other impost, but the Republic had the right of claiming the land and turning out the possessors.”

tbe m°st attentive consideration of this part of the case it appears to me there is nothing in the Roman law which pro- , . _ . . vided that the right ot alluvion was restricted to land or portions °f land bearing particular names or having particular localities, ^ut ^ right depended altogether upon the question whether the tract had fixed and invariable limits or a natural boundary ,, J on one side at least, liable to be affected by a water course— nQ matter whef;herit bore the name of ager, pimdium or fundus, nor ^ hnd t^lat c^es ftu-med any exception to the general rule.

But the counsel for the plaintiffs endeavor to fortify their position by the aid of law 2G, title 28, Partida 3d. It is in the following words :

“ Crecen los rios a las vegadas de manera que tuellen e ' menguan a algunos en las heredades que han en las riberas dellos e dan, e crecen a los otros que las han de la otra parte. E porende decimos, que todo quanto los tíos tuellen a los homes poco a poco, de manera que non pueden entender la quantidad della porque -no lo llevan ayuntadamente, quo ,1o gañan los señores de aquellas heredades, h quien lo ayuntan, e los otros a quien lo tuellen non han en ello que ver. Mas quando acaeci'esse, que el rio llevase de una heredad ayunta-damente, asi como alguna parte della con sus'arboles, 6 sin ellos, lo que asi llevase non gañan el señorío dello aquellos á muya heredad se ayunta; fueras ende, si estuviesse y por tanto tiempo que raigassen los arboles en las heredades de aquellos á quien se ayuntasen ; ca estonce ganaría el señorío dellos el-dueño de la heradad do raigasen, pero seria tenudo de dar al otro el mercoscabo que recibió porende, según el aluedrio de homes buenos, et sabidores de lauores de tierra.”

This law is nearly a paraphrase of the Roman law prseterea and the following in which the words ager, fundus and prae-dium are used without distinction. The word heredad is used in the Spanish text to express the riparian property or land entitled to alluvion, and the counsel contends it must bear the same narrow meaning which they give to ager, to wit: a field' without a house. Heredad, in Spanish, I understand to mean a landed estate, and the text might well be translated by using that English word corresponding to the French word heritage, Thus the word conveys the same idea expressed,in the original1 law of the Digest by the words ager, fundus and prsedium. I say the original, because the wisdom of Alphonso was after all in a great measure hut reflected light, whose source was-the Roman law, and which was sometimes not a little refracted by passing through a Gothic medium.

The plaintiffs next invoke the 9th law of the same title of the 3d Partida, as giving in express terms to towns and cities anuvj011 which is formed in front of cities. The law is as follows ;

“ Apartadamente son del común de cada una ciudad ó villa, las fuentes e las plazas o fazen 'las ferias 6 los mercados á los lagares ó se ayuntan a consijo é los arenales que son en las riberas do los rios e los otros exidos e las carreras á corren los caballos, e los montes e las ochesas e todos los otros lagares se-mejantes d’estos, que son establecidos é otorzados para pro comunal de cada ciudad, &c.”

The counsel for the plaintiffs confidently assert that this law is clear and explicit in its terms and decisive of this controversy. The word arenales they contend means alluvion, and in this they are in some measure countenanced by what fell from this court arguendo in the case of Packwood vs. Walden, 7 Martin, N. S., 90. Bat does the word arenales necessarily mean allu-vion ? Certainly not, nor can I see any good reason for considering it as used in that sense in this law. None of the definitions of arenal to which our attention has been called in various dictionaries, conveys any such idea as alluvion, that is to say that portion of soil which is insensibly (poco a poco in the language of the Partidas) added to and becomes a part of land bordering upon a water course ; and the only comment of Gregorio Lopez upon the word is a qutere, “ quid de fluminibus?” as if he considered the arenales “ enlas riberas do los rios,” as forming apart of the bank itself of the river, and consequently its use already belonging to the public by a previous law of the Partidas and now given to towns in front of which they exist, and he suggests the enquiry whether the use of the rivers also be given to the city as well as the bank-

If it had been the intention of the law-giver to create an exception to the general rule, as recognized in the Partidas, that the alluvion belongs to the owner of the riparian estate or he-redad, such an exception would naturally have found its place in immediate connexion with the general law. Again, why treat of the accessory, without any allusion to the principal? I am rather inclined to think it means only the sandy heach common On shallow rivers, which are any thing rather than al-luvion formations, and which the inhabitants of cities or towns arc authorized to use in common for their domestic or perhaps agricultural purposes, or for public promenades, as the Arenal of Murcia on the river Segura; Mrs. Cushings Letters, vol. 2d, 342. Be that as it may, it appears to me clear, that all the Objects enumerated in the law are connected together and are referred to by the words establecidos y ortogádos ; and if the threshing' and grazing grounds and other Conveniences mentioned in the law, rest upon a grant to the towil, the arenales are in the same category, and according to my understanding of the law, it is only an enumeration of those things which are usually given or reserved by the sovereign for the use of towns or cities laid out by royal authority, or which they hold by usage or by concession. In that sense substantially, Gregorio Lopez appears to have understood it. “ Pireterea quod hie dicitur (que son establecidos) non intelligitur, quod a jure sunt statuti pyo civibus ; quia civitati vel castro de jure nihil corporate est deputatum, qUod sit de ejus pertinencia; nisi quatenus a lege aut consuetudine aut homirium dispositio'ne riperiatur concessum.” — Note 6.

But the counsel for the Municipality contends that the corporation is in a certain sense riparian proprietor, and therefore entitled to the increase by alluvion On the front. I cannot do justice to this part of the argument without quoting the language of the senior Counsel, iii which he developes his views on this point.

. “ To any person,” says the counsel, “ who has studied the Civil Law of Louisiana and knows the source from whence this text is drawn (art, 501, La. Code) as well as the legal acceptation of the term ‘finds riverain’ (riparious estate), this text is sufficient to form a decision on the conflicting claims of the city and private individuals — owners of lots which are only portions of the estate (finds) upon which the city is founded (fondée).

“ He will entertain no doubt that the city and not the owners ^ggg p,ts js riparjan proprietor.”' — 'Page 121.

it >p0 tiUild a city,” continues the counsel, “ town or village, J it is necessary, I conceive, to have first the ground (fonds). This (the fundus) being had, the town is built upon it. Thus built the town becomes inhabited, and the inhabitants, for the purpose of ingress and egress to and from their houses, &c., and for access to the river upon the borders of which it is situated, for returning therefrom, and for that of travelling over the whole front of the town, if their business requires it, have streets, roads, issues and avenues, which are no more than parts of the ground, foundation (fonds) upon which the town is seated.

“ What is the nature of this property (fonds) now? Is it not an urban property ?

“ To whom does it belong ? Necessarily to the community called a city; to that aggregation of persons who inhabit it. Each of them is proprietor of the lot on which his house is situated, and all possess in common the streets, roads, issues, and avenues, to the use of which every stranger, whose affairs lead him to the town, is in like manner entitled.”

He then supposes the prince or the individual who should have founded a city would no longer be regarded as proprietor, and eould' no longer sell the soil upon which the city is built than he could the inhabitants -r that he no longér remains master of the ground (fonds) upon which the town is built.

“ We must therefore conclude,” says the counsel, “that the ground (fonds) which was rural and by its conversion into a city has become urban, no longer does or can belong to its ancient master; that it is and can only be the property of the public — «of that aggregation of inhabitants, who by the fact alone of the roads, streets, issues and avenues being destined to their common use form one community.”

It is not easy to conceive how the city in the case thus supposed, in its corporate capacity, becomes proprietor of the port in such a sense as to profit by the alluvion. Take the square of the city, for example, which was laid out by the sovereign, the original plan exhibits a front row of houses — next, a vacant space marked quai, then the levee and the river, The front lots belong to individuals and are bounded in front by a locus publicus, the quai. In what sense is the corporation a front proprietor, even admitting that the owners of the lots fronting the quai are not so. I admit that if a batture should he formed in front of the square of the city, it would be an addition to a locus publicus, hut that does not prove what is contended for, because the city is not proprietor of the locus pub-licus, but only administrator. It belongs as much to a citizen of Ohio as to a citizen of New Orleans. It is a place left open for the convenience of commerce, and for the use of the whole world — a thing hors de commerce.

The Jesuits’ plantation,out of ■which the locus in quo arises was originally entitled to the allu-vion or batture in its front. The mere act of incorporation of the city in 1805 changing the name of this property from rural to urban, neither made the city a front proprietor, so as to acquire jure al-luvioniSf or deprive the front lots of the right to such accretion.

But so far as the case supposed is meant to apply t.o the locus in quo, it assumes as true what is yet to he shown, to wit: that the lots in front are not hounded by the river, that they are not liable to abrasion by the river to the loss of the owners ; and that the proprietors would not he bound to give a new levee or a new road, in the event of the existing one being carried away. These are questions which we are to examine in this case, and therefore we cannot begin by assuming that the corporation is the riparian proprietor. It is certain that the Jesuit’s plantation was originally entitled to the alluvion, and I am now only arguing what change was produced by the mere incorporation of the city in 1805. The question of dedication yet remains to be investigated — -for the present it is qpough to say that in my opinion the change of the name of the property from rural to urban, by the mere act of incorporation, neither made the city a front proprietor in the sense contended for by the plaintiffs, so as to enable it to acquire jure alluvio-nis, nor did it per se deprive the front lots into which the property was subdivided (provided they fronted on the river,) of the right of such accretion.

The counsel for the plaintiffs endeavor to fortify the claim of the city to the alluvion by showing that the charge of keeping up the levee is borne by the whole city and not by the front proprietors, and that, therefore, the former ought to enjoy all tjjg advantages resulting from the situation of the land' — upon the maxim, “ qui sentit onus, sentire debit et cominodum.” That this axiom of equity lies at the foundation of the right of alluvion may be true — it is but just that the risk and loss re-suiting from the situation of the land should be compensated by the chances of increase by alluvion. But the onus or burden spoken of is natural not civil. It is a risk arising from the exposed situation of the land, not the expense or trouble of making embankments to save the land or adjacent tracts from inundation. The right of alluvion exists on streams which do not periodically overflow, as well as others which do, and those police regulations which relate to the making and keeping up of levees have nothing to do,-in my opinion, with the question of alluvion.

The onus or burden consequent on the right of alluvion is natural, not civil; it is a risk arising from the exposed position of the land, not the expense of making embankments ; for the right of al-luvion exists on streams ■which do not overflow. The public, ofr the'corpora-us”ólMhe'levee and of the bank of the river; and the front proprietors caunot extend the levee sent of the eorl poration, which jh the meantime has the right to make all improvements for ful'toüní public commerce*116 4°

The arguments of the counsel drawn from the supposed inconvenience of having a port or any part of its bank owried by individuals, and the danger of the public being excluded from the use of it to the great detriment of commerce, would be en- ° titled to serious consideration, if it were not true at the same . , . _ . time, that the public, through the agency oí the corporation, has th© s°le use 0<? the levee and of the bank of the river. the front proprietors cannot extend the levee without the r r consent of the corporation, and that the city authorities have a . , right to make all improvements for rendering the whole most useful#to the public and .favorable to commerce. So far as it concerns the public convenience it seems to be of little importance whether the future increase of the batture shall be decided to belong to the public or to the fi’ont proprietors so long as the municipal authorities alone have the entire control of every thing on the outside of the levee and have a right to establish wharves and other conveniences which commerce may require. In most of the sea-ports of the Union it is believed the wharves are private property. Here they will be public, whoever may be considered the owner of the bank of the river, subject to the public use. The Louisiana Code is explicit on this point: “The use of the banks of navigable rivers or streams is pub-lie, &c., nevertheless the property of the river banks belongs to those who possess the adjacent lands.” “ On the borders of _ J the.Mississippi where there are levees, the levees shall form the banks.” — Art., 446, 448.

It is not pretended that the question which this part of the case presents, has ever been directly adjudicated upon by this court ? but it is supposed by .the plaintiff’s counsel, as well as the parish judge, that the court has on more than one occasion giyen a strong intimation, that in their opinion, the alluvion formed since 1805, belonged to the city in virtue of the act of incorporation, and especially in the case of Cochran vs. Fort et al., 7 Martin N. S. 622. In that case the plaintiff claimed a city lot fronting on the river, and the alluvion which had formed upon it since his purchase. The question presented was mainly one of fact, to wit, whether the batture in front of the lot was or was not at the date of the purchase susceptible of private ownership. If so, then it could not be presumed that the vendor of the plaintiff intended to sell it, and the only principle settled in that case was, that the sale of a lot, front to the river, according to a plan which shows the front line to be within the levee, does not carry with it alluvion, provided, at the time of the sale, a batture was formed of sufficient height and magnitude to be susceptible of private ownership. The converse of the proposition, it would seem, ought to be tried also, to wit, that the sale of a city lot fronting on the^ river, would carry the alluvion which had formed since the sale. The only difficulty in the case was to ascertain the mere matter of fact, to wit, did the batture in front exist or not at the time of the sale. The court decided in the affirmative, and consequently the plaintiff failed in his action. After deciding the matter of fact decisive of the case, to wit, that in February, 1803, a batture did exist which, with a five feet levee, might have been used as private property, the judge, who acted as the organ of the court, made the remark upon which so much stress has been laid, to wit, “ supposing this view of the subject incorrect, and that we were to conclude with the plaintiffs that no batture susceptible of ownership existed in February, 1803, their case would not be much stronger. The faubourg , ° ° was incorporated two years after. To enable them, therefore, to recover .in this action, they must show a batture created between the day of their purchase and the date of the act of incorporation, which was susceptible of ownership; for if the alluvion was formed afterwards, it became the property of the city, and not of the front proprietors.” Certainly, the decision of that case did not require such a remark. It was purely speculative, and although it may perhaps express the opinion of that able judge at the time, yet it does not appear to have been a point discussed during the argument, nor at all material in the case. The question now presents itself directly before us between the city and the owners of front lots in relation to alluvion, formed since the act of incorporation, and I am of opinion that the mere act of incorporation did not change the character of the property, and gives no new title to the city. On this point, I believe, we are unanimous.

The words used by me, as the organ of the court, in the case of the Municipality No. 1 vs. Municipality No. 2, 12 La. Rep. 49, have been also alluded to as indicating a strong opinion the other way. The expressions were, “ The pretensions of the defendants as set up in their answer to the exclusive ownership of the property in question, and those of the plaintiffs, &c., to take one hundred thousand cubic yards of sand from the batture ad libitum,, &c., are, in our opinion, equally unfounded and preposterous.” In that case there was an express dedication to public uses of the alluvion in front of the suburb St. Mary by a formal contract between the city and the front proprietors, and the act of 1836 refers to and sanctions that compromise; and expressly provides that “ the Municipality of the upper section of the city of New Orleans shall not in any manner obstruct or impede the inhabitants of any portion of the city, in the free use and enjoyment of any of their rights on the batture.” With such a legislative injunction, how could the Municipality with any propriety or consistency pretend to he the exclusive owners of a locus publicus, which it was their duty to administer according to its destination ? But that case and the present have not the most remote analogy to each other.

II. I now enter upon the second branch of this inquiry, to wit, whether the laying out of the Faubourg, as shown by the plans, and disposing of lots in conformity thereto, or any other acts of Madame Belord or her successors, taken in connexion with the various ordinances of the City Council, furnish suffi* cient legal evidence of an intention on her or their part to dedicate the property in question to public uses, so as to constitute a locus publicus. The petition alleges that, by reason of the incorporation with the said city, and the laying out and dividing the land, of which the Faubourg is composed, into town lots, streets, &c., as a part of said city, the title to all the said bat-tiire or alluvion, then so imperfectly formed or thereafter to be formed, became by law vested in the corporation of said city for public uses. It is not distinctly alleged, that there ever was a dedication to public uses in a legal sense of the word* resting essentially upon the express will of the dedicator, and assented to by the public, evidenced by the public use of it, according to the dedication. But the ideáis, if 1 understand it, that the annexation to the city successively of the different faubourgs, formed but a continuation of the square of the city, and imprinted upon the land in front of the street or road nearest the levee,- the same character which the corresponding part of the squares of the city possesses, that of a quai. This system is developed with ingenuity and learning in a pamphlet which has been, furnished us as a part of the argument in the case, but the author’s name is unknown to us. He considers the qUai, marked upon the original plan of the city, as belonging to the city, and not as a. locus publicus. It is of no consequence in the present case, whether the original quai, as designated on the plan made by the French authorities of Louisiana, be regarded in that light as granted to the city, or as a public place. The question is, admitting the old city to he, in that sense of the word, the riparian proprietor, and entitled to any alluvion which might he formed in front of it, whether it results from the plans of the different faubourgs, that all the land between the front row of houses and the levee partook of the same character with that in front of the old city, and that the city was, as relates to the land in front of the faubourgs, also entitled to the alluvial increase, — or in other words, that there was a continuation of the quai through the different incorporated faubourgs. The author, above alluded to, treats the old city as the nucleus, around which the faubourgs have gradually clustered, and stand in relation to it as children towards a parent, or perhaps more properly, as partners and associates.

The French government in laying out the ancient city ofN. Orleans, left an open space between the front row of houses anil the river, marked (pied on the plan, which was a dedication of this space to public use, and it became thereby a locus .publicáis. If in laying hut the Fau-bourgs, the an-bient proprietors of those riparian estates, had left an open space between the front street and the river, marking it as a public place . on the plan, it would have amounted to a dedication, if accepted by the public.

It seems to me clear, that the right to alluvion in front of each faubourg must stand upon its own peculiar grounds, that there is not necessarily any connexion between them. The' square of the city was laid out and founded by the Sovereign. The faubourgs were laid out by the proprietors of different estates in the vicinity, each having a right to alluvion', and the' question, what was the condition of the front afterwards, would depend not upon a general conformity of the streets and avenues to those of the' square of the city, but upon the disposition made of it by the former proprietor. The French authorities of Louisiana indicated an intention to devote to public uses, to consecrate as a locus publicus all the vacant space between the first row of houses and the river, by writing the word quai upon various parts of the plan, and by leaving it open for public use. If, in laying out the faubourgs, the ancient proprietors of those riparian estates did the same thing or' what was equivalent, then there is no doubt it amourited to a dedication, if accepted by the public. The present enquiry is' confined to the faubourg Delord, and to the plan of it made by Madame Delord; for with respect to the faubourg St. Mary, it was long since settled, that the alluvion belonged to the front proprietors, and it has subsequently been dedicated to public' Uses by a dompromise between them and the city.

It may not be amiss, however, to refer to what the court said in the case of Morgan vs. Livingston, with respect to the effect of the plan of a faubourg made by Gravier, and the condition of the property after its division into lots. “ On the morning r r J of the day,” says the court, “ on which Bertrand Gravier sent for a surveyor, to make a plan of his plantation into lots and streets, the land covered by it was rural property, burdened with riparious duties in his hands, and when the plan was finished by the division into lots .and streets, no alteration was wrought in these burdens. When nine months after Poeyfarre purchased the trapezium, he purchased a rural estate, burdened with riparious duties, having the portion of the bank, of the river before it as an accessory. The sale discharged the vendor from and imposed on the vendee, the duties of repairing the road and levee along the land conveyed. If any part of this portion of the road had been found out of repair, the syndic of the district would have compelled the vendee to repair it without the least inquiry into the circumstance, whether his deed bounded him on the road or on the river, if he was really the owner of the land, and separated from the river by the road only. The banks of the river, opposite to the trapezium, passing to the vendee cum onere, must have passed cum commodo. “ Had every lot in the faubourg been sold, the liability of the land which they covered, would have continued the same,” &c.

The “ member of the Louisiana Bar” whose argument has been mentioned, undertakes to maintain two propositions. First, that the city of New-Orleans acquired, at the time of the union of the suburb Delord with the city, all the riparious rights which Madame Delord possessed by virtue of a valid contract, and for a Valuable consideration. And secondly, that Madame Delord has never disposed of-any portion of her riparious rights in favor of the defendants. The record does not furnish us with any evidence of any such express contract, as is supposed. In 1805, the plantation which afterwards became the faubourg Delord, formed an integral part of the city by the act of incorporation. After it was laid out as a faubourg, it remained for many years what was termed one of the unincorporated boroughs or suburbs of the city, that is to say, not yet entitled to participate with the square of the city in the advantage of being lighted and guarded at the common expense. This last step was not taken until 1831, when by an ordinance of the City Council, a part of the faubourgs Delord, Soulet and Lacourse, between the upper line of the faubourg St. Mary and the centre of Lacourse street, was incorporated, and required to pay the same taxes, and authorised to enjoy the same rights and privileges as the inhabitants of the square of the city. Ordinance of April 8, 1831, City Laws, 63. Up to that period I have seen no sanction by the city authorities of the plan of a faubourg adopted by Madame Deloxd, much less any contract by which she abandoned the front of her land to the city. Indeed, the uniform legislation of the City Council from that time until the inception of this suit, repels such an idea. In 1817, an ordinance was passed concerning the unincorporated boroughs and suburbs within the city of New-Orleans, which provided among other things, that “the levees adjoining the estates bordering on the river, situate in front of unincorporated boroughs or suburbs, which have hitherto been kept in repair at the charge of the proprietors, whose lands are hounded by the river, whether by a particular clause stipulated between the Vendor and the purchaser, or of an obligation anterior to the settlement of said boroughs or suburbs, shall continue to be kept in repair at the expense of the said proprietors, in the manner' prescribed by the ordinance concerning highways, bridges and levees within the liberties of New-Orleans.” The ordinance last referred to was passed in 1815, and requires the front proprietors to keep up the levee. The ordinance of 1830, the execution of which led to the suit between the city and Henderson and others, treated those who held lots under Madame Delord as front proprietors. It directed a new levee to he laid off by the city surveyor, commencing at the lower line of the faubourg Delord, and running parallel with New Levee street to Roffignac street, and then to the upper line of Mr. Byrne’s property. It directs the proprietors to be notified and requires them to complete and deliver said levee on the first day of November, and it was made the duty of the mayor to notify the front proprietors of lots in the faubourgs Delord and Saulet, and it further directs the woik to be done at their expense in case of contravention, besides a penalty of one hundred dollars. A new road and levee were directed to be laid off in advance of the former ones, and the questions which arose in the case of Henderson et al. vs. the Mayor, Aldermen and Inhabitants, presupposed the plaintiffs to be in point of fact riparian proprietors, for they related to the obligation of the latter to furnish a new road, and to make and keep up the new levee.

uie píans^shcní MadameDdord clIUl IlCi VcUUccS having ever dedicated the front of her property on the river to public use: on the contrary she continued to exercise acts of ownership as a riparian proprietor, and was required by the city ordinance of 1830 to keep up thelevee in front as such.

But if on the part of the city authorities every official act which has been brought to our notice, tends to show that the city did not understand there was a dedication, resulting from Madame Delord’s plan of a faubourg, which constituted the city the riparian owner, as is now pretended, how do the subsequent acts of Madame Delord and her successors accord with the theory of a dedication to public use ? On the 26th of May, 1806, she sells to Larche three lots on the batture, according to the plan of Lafon, of the 21st March of the same year, the purchaser taking upon himself the burden of making and keeping in repair the road and levee in front of said lots. On the 6th of June, 1807, she sells to Armand Duplaritier her plantation of about seven arpents, fronting partly on the river and partly on the great route of Tchapitoulas, and among other title papers handed over, appears a plan of the plantation by Lafon, of the 6th February, 1806. None of the plans in the record contains any indication of the front having been dedicated to public use, and her contract with Larche and with Duplan-tier shows that she did not so understand it. She continued to exercise acts of ownership as a riparian proprietor not only without opposition on the part of the city, but the last ordinance of 1830 by the city authorities, acting as a police jury, and laying out a new road and levee, imposes upon her successors, as riparian proprietors, the burden of keeping up the levee ajong tjj_ejr front;.

Lafon’s plan of the 6th of February, 1806, is now before me. It exhibits the side lines of the plantation of Madame Delord, which separates it below from the faubourg St. Mary, and above from that of Soulet, as running diagonally down to the water’s edge. The front lots are represented as hounded on New Levee street, and the levee is marked along the side of the street and between it and the river, at a distance of about fifteen toises from it. There is no mark indicating any intention on the part of Madame Delord, to give up her claim or title to the land forming the levee and on the outside of it. Since the date of that plan, the land upon which the cotton press stands, has been formed, and the levee and public road, laid out by order of the City Council in 1831, are about two hundred feet outside of New Levee street; and all the land between New Levee street and the new road and levee belongs, according to the judgment rendered in this case, to the front proprietors. The intervention of a public road between the front tract and the river does not prevent accretion by alluvion, because the road and the levee themselves belong to the front proprietors, subject to the public use. — 6 Martin Rep. 230 ; Sirey for 1822, part 2d, page 191.

It is true the public has always possessed and used the levee and the ground between it and the water’s edge ; and if the city authorities, under whose administration such a right has been enjoyed, had no other title but that which would result from the presumed consent of the front proprietors, such enjoyment in the presence of the latter might tend to show an acceptance on the part of the public of a dedication to public uses. But the law itself gives to the public a right to such enjoyment independently of the consent of the front proprietor, and such use is not legally inconsistent with the ownership by the riparian proprietor. Nothing therefore can be inferred from the public use of the bank of the river and the land on the outside of, the levee, and the batture as fast as it forms. The city authorities have the exclusive control of the levee and the banks of the river as a part of the port of New Orleans.

The principles which govern in cases of dedication to public uses are considered as well settled. They were recognized by the Supreme Court of the United States in the case of the city of Cincinnati vs. White’s Lessee, 6 Peters’ Rep., and were assumed by the present senior judge of this court as the basis of his opinion in the case of De Armas et al. vs. the city of New Orleans; 5 La. Rep., 148. “ The law applies to it” (a dedication) says the court, “ those rules adapted to the nature and circumstances of the case, and to carry into execution the intention and object of the grantor and to secure to the public the befit held out and expected to be derived from and enjoyed by the dedication. That there was no particular form or ceremony necessary in the dedication of land to public uses and that all that was required was the assent of the owner of the land, and the fact of its being used for the public purposes intended by the dedication.” Tested by these principles I cannot find, in the case now before us, any evidence of an intention on the part of Madame Delord or her successors to dedicate the front of her or their land to the public use.

But the principle that the intervention of a public road does not cut off the right of alluvion, or in other words, that a tract of land separated from the river by a public road is still considered as fronting on the river, and a riparian estate has been contested in this case on the ground that the land over which the road runs was paid for by the city in pursuance of the judgment of this court in the case of Henderson et al. vs. the City, and that consequently the city became the absolute proprietor of the road and levee, and front owner. Even supposing this to be true, which I am not disposed to admit, and that the road opened under the ordinance of 1831, became by the judgment of the court the absolute and irrevocable property of the city, still it is nothing more than a public road, via publica. This court in the case of Morgan vs. Livingston decided in the most explicit manner this question. The language of the court in that case leaves no doubt upon that point, supported, as the principle is by unquestionable authority. The very p0¡nt now urged Was considered and overruled. The COUl’t SaVS ! J

“ The bank passes with the field even when there is aninter-vening public road. Ripa cedit fundo, 1. Riparum, if. rer. divis. Inst. eod. tit. — Dicit verum si via est media. Ripse, respectu proprietatis sunt illorum, quorum prsediis haerent, sed quid si via esset in medio, interflumen et agrum vel domum ? Res-ponde idem ut Ripse sunt eorum. Csepola, &c.

“ If there be a public road between a field and the river, still that which is made by alluvion accrues to the field. Si meum inter agrum et fluvium interjaceat publica via tamen meum fieri quod alluvio adjicit. Grotius &c. Gronovii, nota 68.

“ But the defendant’s counsel urges that this must be understood of a private road — one of which the soil belongs to the owner of the field and is burdened with a right of way, and he refers us to the law, Atticus, fif. 41, 1,38, and to Grotius, who holds there is no principle of natural law which justifies the position that the owners of estates, separated by a public road from the river, have a right to alluvion, and admits that the field has the alluvion, if it be a private one, which owes a road ■ — qui viam debeat; Grotius, &c. &c.,' — so that the soil of the road be the property of the riparious owner.

“ The expression used by the writers whom Grotius condemns, is viapublica, a public road.

“ A public road is that of which even the soil is public; it is not in a public road as in a private road, the soil of which does not belong to the public, while we have only the right of walking and driving over it; the soil of a public road is public. Viam publicam earn dicimus cujus etiam solum publicum est, non sicuti in privates via ita esse in publica accipimus; vim privatro solum alienum est. Jus tantum eundi et agendi no-bis competit; vise autem public®, solum publicum est. — ff. 43, 8, 2, sec. 21.

“ We conclude that in the present case the intervention of the public road between the trapezium and the river, cannot be considered, as a proof of the intention of the parties to give the land conveyed another boundary than the river.”

I have copied this part of the opinion of the court in the case of Morgan vs. Livingston, not only because it is the language of the court, expressing its deliberate judgment upon a leading point in the case, which point is again made in the case now before us, but because it was written by the present senior judge, then the organ of the court, in pronouncing its decision.

There is a striking resemblance between this case and that above alluded to, decided by the Cour Royale of Lyon and reported in Sirey for 1829, 2d part. In that case the Commune of Roques insisted that the property of the defendants was separated from the Garonne by a public road (chemin communal) and consequently the alluvial increase could not attach to it, although it might be otherwise if separated only by the towpath (chemin de halage) because the latter is but a servitude imposed upon the riparian property. But the court held otherwise, and relying upon the same authorities from the Roman Digest and Institutes which are quoted in the case of Morgan vs. Livingston, decided that a public road does not legally interrupt the adhesion between the front lands and the river, which-it separates, because the road makes a part of the land itself,, if not quoadproprietatem, at least quoad commodum et incom-modum.

This argument is based upon the supposition that the new road in front of the Cotton Press, laid out under the ordinance-of 1831, belongs to the Municipality in full property, or is a public road, and has been purchased from the front proprietors' in pursuance of the judgment in the case of Henderson et al. vs. the City. But there is no evidence in the record that such is the case. That judgment proceeds upon the ground that the land over which the new road was laid out belonged to the front proprietors. The city was enjoined from proceeding to’ open the road without paying an indemnity to the front proprietors, and the injunction was maintained by the final judgment until the city should pay that indemnity. Nothing further appears to have been done. No expropriation has ever j;a]cen piaCe; either according to the mode pointed out by the Code, or to the act of 1832 relative to the opening of streets. The judgment of the District Court, which was affirmed, was ... .... , “ that the injunction be continued m torce as relates to the making of the road until the defendants shall indemnify the plaintiffs for the damages which the establishment of said road may cause them respectively,” &c. The court decided little more than the abstract question of right, to wit: that the front proprietors, or those under whom they hold, having already given one road, according to the condition, express or implied, of the original grant, were not bound to furnish another without indemnity. Surely that judgment did not per se divest them of their title to the land over which the road passes. Until the amount of indemnity shall have been assessed, there is no price of the thing to be forcibly sold, and the act of 1832 makes the payment of the indemnity or tender and refusal a' condition precedent to the divesting of the title. Until then the title of the ancient proprietor is unimpaired.

To conclude : Upon a view of the whole matter which this case presents, I am of opinion that the act of incorporation of 1805 did not and could not legally affect the right to alluvion, Which belonged to the original tract of land, that afteivVafds composed the faubourgs Saulet and Delord.

That each part of it fronting on the river was still entitled to the right of accretion notwithstanding the act of incorporation.

That the laying out of the faubourg in 1806, according to the plan in the record, viewed in connexion with other acts of Madame Delord and of the City Council, do not furnish legal evidence of a dedication to public uses, and that the purchasers of front lots still remained riparious owners.

That urban property fronting on a water course is entitled to alluvion as well as rural estates and that - cities can acquire' jure alluvionis only in virtue of a title which would Constitute them front proprietor's.

That the defendants, must be considered as owning down to the road, last laid out, and that the intervention of the road does not in law prevent them being regarded as front proprietors, and entitled to any alluvion which now exists or may hereafter be formed between the levee and the water, subject to the public use under the administration of the municipal authorities.

A majority of the court concurring in these views, it is ordered, adjudged and decreed, that the judgment of the Parish court be annulled, avoided and reversed, and that ours be for the defendants, with costs in both courts ; reserving, however, to the public the use of the levee, and of all the alluvion which existed at the inception of this suit, or which now exists, or may hereafter be formed between the levee and the river, to be administered exclusively, and its use regulated, according to law, by the City Council of the Second Municipality.

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Concurrence Opinion

Garland, J.

Concurring generally in the reasoning of the learned judge who has delivered the opinion of the cójirt, and fully in the judgment, I will give a few of the reasons upon which my judgment is based.

It is the unanimous opinion of the court, as I have always understood, that previous to the act of the 17th of February, 1805, incorporating the city of New-Orleans, the plantation of Madame Delord was a riparian estate, and entitled to th.e alluvion in front of it. It is also agreed, that that act of the Legislature did not, in any manner, affect her title to the property, or interfere with her right to enjoy it. If, therefore any change has taken place in the title or right of enjoyment, either by her or those who hold under her, it must be in consequence of some act of her or them. What is the act that changes the tenure by which the property is held, or deprives them of that provision of the constitution which says, “nor shall private property be taken for public use, without just compensation.”

In February, 1806, Madame Delord laid out a portion of her plantation into lots, extending the streets that previously existed in the Faubourg St. Mary running parallel with the river and giving them the same names, and laying out new streets at right angles (or nearly so) with them, giving them new names. Tchapitoulas street was then the public road alongside the levee, which was a servitude on the land, and she, in laying out the lots, left it as a street, and between it and the edge of the water on the batture, laid out a range of squares, subdivided into lots, having New Levee street in front, between which and the water’s edge, there was left an open space, extending along the whole front, on which not a word was written nor is any thing said about the use of it, nor to whom it belongs. In the rear of the lots a large space is left in the same manner. The strip in front, which has been much increased by alluvion, is the subject of controversy. Now did the mere act of laying off the land into lots change her title or right of enjoying it in the mode prescribed by law? I suppose, it did not of itself, because if she had the next month destroyed her plan, and again planted cotton or cane on the land, she could have done so, and no one would have any claim to the lots or the streets, or any right to disturb her in the enjoyment of the whole property. -Then what deprived her of her right to close up the streets, and deprive the public of the use of them ? It was, in my opinion, because she sold the lots, and held out to the purchasers by the plan a right of way, specially mentioned, which they and their successors have a right to use as long as they are proprietors of the property.

The right of alluvion is not based exclusive-Jj sub.Jeot t0 th® expense and burden of keeping up roads and levees. The Ro- “¶" ^mode^ a°^ltyr¿ySnatu™i iaw^tliat "it is just the advantages of the íoñ'g'to 'himwho ^13’

What the presiding judge of this court said in the case of Morgan vs. Livingston, 6 Martin 236, in relation to Bertrand Gravier, his plan and its effects, has been repeated verbatim in the opinion just read.

If that be true, as to Bertrand Gravier and Poeyfarré, and those holding under them, why is it not so in relation to Madame Delord, Larcheyeque and Duplantier, and those holding under them ? The sale from Madame Delord to Larche-véque is so nearly similar to that of Gravier to Poeyfarré, as to approach identity. A perusal of the whole of this case, will show that the majority of the court are not about to depart as far from the principles, upon which it was decided, as some of .* , . -a • t t i • i tnose wiio aided m establishing them.

I am not one of those who hold, that the right of alluvion is based exclusively on the principle of being subject to the ^ x j. o j expense and burden of keeping up roads and levees. The _ . . . . , . . . , Koman jurists say, it is a mode of acquiring property by natural law, and comes from the maxim, it is “just, the advantages of a thing should belong to him, who supports its disadvantages.” Therefore says a French writer, “ nothing . . . . , is more just than that a proprietor, to whom a stream has often borne prejudice, should have, to the exclusion of all others, when it becomes beneficent, a gift, less a present than an exchange.” 4 Nouv. diction, de Brillon, 278. The learned chief of this court has said, “ the right of increase by alluvion is grounded on the maxim of law, which bestows the profit and advantages of a thing upon him who is exposed to suffer its damages and losses.'” 6 Martin, 243. Roads and levees have nothing to do with the right to alluvion; it is the liability to lose a portion of the land by the abrasion of the waters, that gives the benefit, and a man is as much entitled to the alluvion formed in a river, on the banks of which there is neither road nor levee, as he, who is on a river that has both.

The plan of Mme. 1) clord, leaving an open space between N. Levee street and the river, was not a dedication of this space to public use. There was nothing marked or written on it indicating an intention so to dedicate it.

A good deal has been said in argument about urban and rural property. If by this, it is meant that there is a difference between the tenure, by which property is held in a city, from that in the country, I have not been able to see it. I understand something about urban and rural servitudes and uses; but they differ essentially from the titles by which property is held, and I know of no law by which these accessories or burdens can ipso facto deprive a person of title.

But it is said that Madame Delord when she left the strip of batture in front of her lots, intended to give it to the public, and that, although she said not a word about it on her plan, yet it is dedicated to public uses. This is a matter of fact, and let us examine it, She does not say, either verbally or in writing, it was her intention to give it. • She certainly knew she had a right to the batture in front of her property, as a number of squares were laid out on it, and the levee was not made in front of them until sometime after, when it was made at the expense of the front proprietors. Can any one believe, it was her. intention t,o give this batture to the public, when she was daily selling it. In less than ninety days after she* made her plan, she sold lots on the batture to Saulet and Larche; in these .sales she specifies, they are to keep up the road and levee, and she abandons to each of them all her pretensions to the river, (elle se desiste de toutes pretentions sur le fleuve). In the sale to Duplantier she is very explicit. The sale is for seven arpents, “face au fleuve, et 1’autre partie a la grande route des Tchoupitoulas,” together with “tous les droits de propriété qu’elle a et pour avoir sur la dite habitation.” I think, my learned colleague will admit, that when a person has a property that will sell readily at good prices, and is actually selling, it is not a strong presumption of an intention to make a donation to the public.

But it is said, the plan is a sufficient dedication, and the plan of the square of the city is constantly referred to, as-if it was similar. If the words, quay, port, public square, or any thing indicative of an intention to give, were on the plan, and the public had usedfhe’i ground, I should say, it was a sufficient dedication; hut there is nothing of the kind shown. The case of the city of Cincinnati vs. the lessee of White, 6 Peters, 432, is much relied on, and is said to sustain this dedication. That case is no.t, in my opinion, understood either as to the facts or the real points decided. It does not appear positively, what words were used to prove a dedication. My colleague says, none; I think differently. The court says, “ a plan was made and approved of by all the proprietors; and, according to it, the ground lying between Front street and the river, was set apart as a common, for the use and benefit of the town forever; reserving only the right of a ferry ; and no lots were laid out on the land thus dedicated as a common.” The language used by the court proves something was written on the plan, otherwise how could the right to a ferry landing have been reserved. On page 440 the court again says, “ in the present case there having been an actual dedication fully proved, a continued assent will be presumed, until a dissent is shown.” Full proof, I think, means something more than a blank space on the plan. But the real questions in the case were not, whether the plan did not exhibit a dedication, but whether it must not be proved by a deed in the same form, as was necessary to convey title; and also, if there had been a deed, if the grant was not void, the proprietors not having the legal, but only equitable title to the land; and there being no grantee in existence to accept it, the city not being incorporated when it was laid out. The court held neither a deed nor a grantee was necessary, and said, “no par- ... - . . . . ticular form or Ceremony is necessary m the dedication of land to public use. All that is required, is the assent of the owner of the land, and the fact of its being used for the purposes intended by the appropriation.” I agree most cordially to all this, and if the assent of Madame Delord or those holding under , . T , U C ■ i • ner, was shown, 1 should conform my judgment to it.

There is no particular form, necessary to a knd^to^public quf^u^Msent “^fac^of aits 1)e!n& used for the purposes intended.

It is said this assent has been shown by the notorious public use of the ground for thirty-five years. Where the evidence of the notorious use for that space of time is to he found I am unai)je t0 discover. It is certainly not in the record. For some time after the lots were laid off it is not probable much business was transacted in that quarter; the levee was used there, it is to be supposed, as at other places near the city. More recently, the evidence shows the city did not keep up the road or levee but-compelled the front proprietors to do it. The people there were not considered in the incorporated limits of the city until 1831. The record is full of evidence showing that the levee and batture were appropriated to private purposes, covered with saw mills, wood yards, sheds to make shingles under, and shops of various descriptions. Pilié, a witness, says he never saw a place so incumbered, he had great difficulty in passing along, and so indefensible did the corporation in 1830 regard their pretensions or so powerless was it to enforce them, that the Legislature had to pass a law to enable the Mayor to remove the obstructions. The execution of this law gave rise to the suit of Henderson and others vs. the Mayor, &c., 3 La. Rep., 563; 5 idem, 416; on the second trial of which case, the corporation admitted in the record, that the plaintiffs were the owners and proprietors of the lots and of the batture also.

The admissions made by the attorney of the corporation in that case, it is now said, are not binding, as he had no right to make them. His want of authority has not been shown to my satisfaction, and I know no reason why the regularly appointed attorney of a corporation cannot make admissions as well as the attorneys of individuals, and why they should not be as binding on the principal. Corporations have no higher privileges or rights than citizens unless specially granted, and are especially bound by the acts of their agents, as they cannot be bound in any other manner. It is to me rather a curious doctrine that the corporation can constitute itself the champion of the public, to vindicate or assert its rights, and its acts can the next moment be repudiated. If the admissions made were null, why were they not so declared at the time. We are informed the decision of the case was based on them, if so they were valid, and being valid then, are equally so now, unless shown to have been made in error or fraud. I do not recog-mze the existence of a tyrant public which no law can bind,that can assert a right to the property of a citizen and deprive' him of it by its ipse dixit at pleasure, under the plea of necessity or the public good. The doctrine bears the impress of another sphere and has its origin in imperial Rome, or in the' benighted days of France and Spain. But if the public is so1 far above all law, it does not prove its agents and champions are so ; and corporations cannot by assuming or usurping the' exercise of the powers of the sovereign relieve themselves from their proper responsibility. They cannot, under the pretext that their creator has been slumbering for years, suddenly arouse him and make him rudely seize upon the property of the citizen in his first waking moments. I concede that if it were shown the admissions were made in gross error'and fraud,■ they would be void; but there must be some stronger evidence of this, than the mere fact that they are prejudicial to the claims of the plaintiff.

It is not denied that if a tract of land owes a road to the public ; being one of the servitudes imposed by the grantor, that the alluvion belongs to the proprietor, but, it is said, if the proprietor of his own accord give a road, or one is taken from him by expropriation, under the acts of the Legislature of 1818 relative to roads, and that of 1832 relative to streets in the city, that then he is not entitled to’the alluvion that may be formed on the other side of the road. I have sought in vain for' any good reason for this distinction'. No man is presumed to give without compensation, and when for public' purposes private' property is appropriated, n'o' more is taken than is necessary for the purpose inteil'ded and stated. I should rather* hear a good common sense reason given. for such a distinction, than the citation of a disputable case from' a foreign* tribunal.

It is further contended that the place in front of this property jg a part 0f p0rt jjjg cjjy5 an¿ being so, the whole 0f (jjg jjTer js public property. To this it may he replied, it was not a part of the port in 1806, nor was it so until .... a number of years after, any more than the river is a port at other places. Port, with us, has a definite meaning, and that of New Orleans specific boundaries, and it whs not until 1821 that the Legislature extended it to the place in controversy. Afterwards Congress extended it. to the limits of the three Municipalities; 2 Moreau’s Dig., 259 ; 9 Laws U. S., 593. I am not aware of the law which says, when the Legislature extends the port of a city, that the citizens thereby are deprived of their rights to their property.

I have no apprehension that the city will be cut off from the river by an increase of the batture, and if there is one mode more effective than another by which such an apprehension is to be realized, it is by placing, hors dn commerce, alarge spac’e in its front which could not be disposed of, except by the Le'-< gislature or Congress.

The Code specifies the rights, privileges and uses to which the public are entitled upon the shores .and banks of rivers, and in the ports and harbors, and I am disposed to give full ef-feet to .them. As long as the public has need of the use of the bank of the river, the levee and batture in front of it for the convenience of the citizens and for commercial purposes, I thing it is entitled to such use, and the Municipality the right to the administration; the soil remaining in the proprietors and owners of the front lots. Whenever the space shall become so large as not to be wanting for public use, the law provides a mode for extending the levee, and putting the owners in possession ; La. Code, arts.

I therefore am of opinion that the judgment of the Parish Court should he reversed’só far as stated in the judgment, ordered to be recorded, and the rights of the parties must be regulated by it.

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Dissenting Opinion

Martin, J.,

dissenting. — The plaintiffs claim/or the public use _ ' and benefit a square of ground between Front and New Levee streets, in front of the faubourgs Delord and Saulet, which they allege to he a locus publicus, and to have been illegally occupied by the defendants. They claim also as a locus publicus the batture formed or to be formed before said Front street, which they allege, the defendants claim and partly occupy without title, and they pray that the defendants may be enjoined from any use, occupation or possession thereof.

As to that part of the petition which relates to the square of ground, the defendants pleaded, as res judicata, a judgment of this court in the case of Henderson et al. vs. the Mayor of New-Orleans et al.; 3 La. Reports, 563. Being vendees of the plaintiffs in that suit, they deny the present plaintiffs’ title to any part of the premises. They aver that they are riparian proprietors, and as such, entitled to any batture formed or to be formed in front of their property. They set up title in themselves, through several mesne conveyances from the original grantee of the king of France, and allege that their rights, or those of the persons under whom they claim, have been frequently recognized by the Mayor and Aldermen of the City of New-Orleans, and by the plaintiffs, by putting them into possession of sundry portions of the batture successively formed in front of their property and attached thereto, since the act of incox-poration of the city; by charging these respondents with all the burdens and duties of riparian proprietors, and by doing various other acts and things by which the right, title and ownership of the defendants in and to the property and rights in controversy were distinctly recognised. They also pleaded prescription.

The exception of res judicata was sustained so far as it relates to the square of ground, but overruled in regard to the batture formed or to be formed outside thereof. There was judgment in favor of the plaintiffs, for the alluvion formed or to be formed along the levee, opposite to the square of ground, &c., &c.

The plaintiffs have not appealed, but have prayed that the judgment sustaining the plea of res judicata, so far as it regards the square of ground, be amended in their favor, and on this part of the case, I have come to the same conclusion as the other members of this court.

The facts of the case are these. In the early part of the last century, the city of New-Orleans was founded by the then king’s grantee of the colony of Louisiana, viz.: the West India Company, according to a plan which has been printed in the corner of the large plan or map of the city of New-Orleans, pub-lishedhy Francis B. Ogden, in the year 1829. Soon after, a tract of land immediately above the city and extending 32 arpents in front along the Mississippi, was granted by the Company to Bienville, who sold it to the Jesuits, and the latter owned it until the dissolution of their order in 1763, when it was confiscated, divided into smaller tracts and sold. Gravier, Delord, and Saulet, by several mesne conveyances, became the proprietors of these tracts or a part of them. In the year 1788, the tract contiguous to the city was laid put into a faubourg by Gravier. The assent of government to the erection results fro man order which the Baron de Carondelet, Governor of the Province, afterwards gave to Gravier, to depositthe'planof his faubourg in the archives of the Cabildo, and by the subsequent appointment of Alcaldes de Barrios, Syndics and inferior public officers, and the extension of the city government over' the faubourg. In the year'1805y the city of New-Orleans was incorporated by an act of the’Legislative Council of the Territory of Orleans, and its limits extended to a considerable distance dpwards, covering the tracts purchased by Gravier, Delor'd and Saulet, In February, 1806, Madame Dblord erected her plantation into a faubourg, atid it is expressly'stated on'the face of her plan, that it is intended as an extension'and continuation of Gravier’s fau-bourg or of the city of New:Orleans.-

Saulet soon after followed the example of Madame Delord, and the plan of his faubourg expressly states its being made in extension and continuation' of her' faubourg.

There appears on Madame Delord’s plan, outside of the levee, a trapezium of land, which, on the 28th day of May, in the same year, she sold follows: to Larcheveque or Larche, as:

“ Trois terrains, sitúes sur la batture, en face de son habitation, bornes d’un cote par le Sieur Bellechasse, et de Tautre par le Sieur Saulet, conformément au plan, fait par Mr. Barthélemy Lafon, en date .du vingt Mars dernier, étant a la charge de faire et réparer le chemin et levée en face du dit terrain.”

This trapezium was afterwards much enlarged by alluvion, and the latter, by several mesne conveyances, became the property of the defendants, and included the locus in quo, which is the subject of the present suit. It is, therefore, proper to give an accurate description of it, in doing which it becomes necessary to notice the adjoining grounds.

The line between the plantations of Saulet and Delord ran very obliquely from the river: the old levee ran along the king’s highway or Tchapitoulas street. Previous to 1806, Madame Delord had constructed a new levee, about one square or three hundred feet from the old levee, thus taking in a portion of the batture; the precise date when this was done, is not ascertained, but it appears to have been before her plantation was converted into a faubourg. Inside of the new levee, Madame Delord had laid out a street which was called New Levee street; the new levee and the street did not run direct as far as the line of Saulet, but at some distance, say three or four hundred feet, if we may judge from the plan and scale, made an insett or turn from the river, and ran towards the old levee and king’s road, until it intersected the aforesaid oblique line. There was thus left a triangular trapezium or irregular piece of ground, lying between the oblique line of Saulet and the insett of the new levee. New Levee street stopped at Roffignac street, and persons who were proceeding out of the city, along the former, were thus compelled to go into the king’s road at Roffignac street. The shape of this piece of ground was such that it ran to a point formed by the oblique line of Saulet and the insett of the new levee, and to-war(js ¿ver t^g lineg diverged. A strip of this trapezium, 34 feet front and running along the insett of the levee, is marked with the name of “Soletthe remainder of the tra- . pezium was the land sold to Larche.

In the act of sale from Delord to Larche as quoted above, the following charge or obligation was also added, to wit, the' levee was to be at the charge of Larche.

“Etant a la charge de faire et réparer le chemin et levee en face du dit terrain.”

From this description and contract it appears: First, that the trapezium was outside of the levee, and if the levee is to be considered as the bank of the river, then the trapezium was a part of the bank of the river.

Second, that the obligation on the part of Larche to maintain the levee, was not intended to apply to the old levee, but was imposed on the presumption, that the new levee was to be continued on a straight line, to join the line of Saulet, and thus constitute a protection against inundation to the land sold to Larche. This view of the matter is also corroborated by the words in which Larche is charged with the burden of the levee, which is to be “en face f and it was the charge to keep up v"this new levee which was thus intended to be imposed on him. We presume that the new levee and street were afterwards con-tinned in a straight line, and the land thus purchased by Larche from Delord, was thus protected by the new levee, and made to fall within it.

In 1830, the City Council ordered a levee to be made in front of the faubourgs Delord and Saulet. The surveyor, in .executing this duty, found the ground encumbered by wharves, ■^heds, &c., and by steam saw mills, erected by the then claimants, under whom the defendants hold. The Mayor ordered ■them to be removed, and an injunction obtained to prevent this ■was dissolved by the district court, and on appeal this judgment was affirmed, on the ground that all the land outside the levee was bank of the river, and could not be encumbered in any manner whatsoever. See 3d La. Rep. 563.

In that case the counsel for the city made the following admission. “ It is admitted, that the plaintiffs are the proprietors of the different lots of ground as stated in their petition, and as such entitled to the increase of the batture in front of the same.” 5 La. Reports, 419. And the court was induced to act upon this admission, whieh led to the decision in that suit, in which it recognized the right of the city, to have a new levee and road made in front of the locus in quo, on paying the defendants for the ground taken for the road.

In 1815 an ordinance was passed by the City Council, requiring the front proprietors in the unincorporated suburbs to keep up the levee, &e. &c.

In 1817 another was passed, directing that the levees joining the estates bordering on the river and situated in front of the unincorporated suburbs should continue to be kept in repair at the expense of the proprietors, as provided for by the act of 1815.

In 1831 the unincorporated Faubourgs Delord, Saulet and Lacourse were incorporated and required to pay taxes, and authorized to enjoy the same rights and privileges as the inhabitants of the original city, etc.

We have been favored with elaborate arguments and numerous and voluminous briefs. I have not felt it my duty nor my inclination, and I have doubted my ability to examine the classical disquisition which has been given us, on the words Ager, Fundus, Prsedium and Civitas in the Roman law, and I coincide with the able view of that subject which the second judge ©f this court has presented to the profession. I have also thought fit to escape from a discussion of what is called the law of Arenales, and of the difference, if any exists, between the rights of rural and urban estates, in regard to alluvion. Assuming that on the extension and continuation of the city over a contiguous estate, with the authority of the State and the consent of the owner, there is a like extension of all the rights and burdens enjoyed and borne in the city before the extension, jQy firS(; enquiry will be, into the rights, privileges, &c. of the city as originally founded; next, into the consequences of the annexation of the Faubourg St. Mary and that of the Faubourg . , .Delord.

For the better understanding of the conclusions to which I have come, I am to examine the effect of the plan of the city of New Orleans, as originally laid out on the ground which it covers, and the part of the river in front of it. The plan is conclusive evidence of the intention of the founder to retain no property on any part of the ground within the designated limits except the square before the church and the lots, which appear to have been intended for the occupation of individuals who might obtain them by sale or donation. The square being marked Place IP Armes, was evidently reserved for military purposes, and it is an historical fact that between the years 1730 and 1757 barracks were built on it along Saint Peter and Saint Anne streets. Our jurisprudence is unacquainted with the division of property known to the Romans as Res Sa-crse.

The spot marked on the plan for a church has been viewed as a donation to the religious order, who exercised the clerical functions in the colony. In no part of the plan is there designated any lots to the particular use of the city, for jails, market-houses, town halls, &c. &c. So that with the exception of the spot for the church, the square before it, and the lots, every inch of ground comes under the denomination of a locus pub-licus, or ground dedicated to the public as streets, quay, etc., etc., for the benefit not only of the inhabitants of the city and of the colony but of all the subjects of the King and even of aliens.

This conclusion rests upon the principle that the plan having separated by distinct lines what was retained by the founders for future disposition, all the rest was evidently abandoned by fhem.

The nature of the right thus acquired by the public was one of absolute property and not of use only. • When the whole or any part of a locus publicus ceases to he applicable to its original destination, the sovereign, who has the regulation of the use of loci publici, may direct its future application to any other object of common utility to the inhabitants of the place, and if necessary to order the sale of it on a ground rent for the benefit of the city, or apply the proceeds of the sale in the same manner.

In order to establish that there is no need of any other evidence in the plan of a city of the dedication of any part of the ground covered by it to the public, except the negative one which results from its not being laid out into lots or in any other manner designated as intended for another object, 1 refer to the decision of the Supreme Court of the United States in the case of Cincinnati vs. the Lessee of White; 6 Peters, 432. With regard to the whole space between Front street and the river in that case, the court grounded their opinion on the circumstance that this space was left open and not divided into lots.

That decision was the basis of my opinion in the case of Cucullu & De Armas vs. the Mayor et al., which was sanctioned by the Supreme Court of the United States in the case of the Mayor, &c. vs. the United States in error.—10 Peters, 662.

In order to show that the public have the absolute property and not the use only of loci publici I refer to the cases cited in Cucullu et al. vs. the Mayor et al; 5 La. Rep., 132. In one' of which‘the French King ordered houses to be built upon a! quay, reserving a ground rent thereon for the use of the city the right of which would have expired on that part of the quay’ ceasing to be applicable to its original destination, if the sove^ reign or founder had partedjonly with the use.

If the Supreme Court of the United States had thought that the West India Company parted only with the use of the quay' or large strip of ground in front of the city of New Orleans,? they would have given judgment for the United States in the' case of the Mayor vs. the United States in error, for that por-' tion of the quay which had been divided into squares and lots an(j goj^ ag pai,t q£ jjjg qUay had ceased to he applicable t0 *ts original destination; for the United States had succeeded to the rights of the West India Company by the treaty of ces* sion, and would have succeeded to the ownership of the property if the use only had been granted.

I am now to examine the effect of the plan on the part of the river in front of the city, or rather the port of New Orleans.

A sea port consists of two principal parts: the one within and the other without the river. The first is that on which vessels lie at anchor, and was by the Romans called statio.

“ Stationem dicimus a statuendo. Is igitur locus demonstrate, ubicunque naves tuto stare passunt.” — ff. lib. 43, tit. 12,1. 1, sec. 13.

The second is that part on land destined to the reception of merchandize landed or to he shipped; in the plan this is called the Q,uaL It includes the whole space between the levee and the first line of lots, for the word “ Quai,” is written twice thereon at an equal distance from the lots and the levee. This latter part as well as the other is public, for the law says “ Flu-mina et portus publica sunt.” If the part which was within the river was the only one that was public it would have been useless to have told us, “ Flumina et portus publica sunt.” It would have sufficed to have said “ Flumina publica sunt,” for the river includes the statio and after having told us that the whole was public it would have been useless to have said that a part was so.

This view of the subject is supported by the authority of Sir Matthew Hale, in his treatise, “ DePortibus Maris.”

“ A port is quid aggregatum, consisting of somewhat that is natural, viz: an access to the sea, whereby ships may conveniently come) a safe situation against winds where they may conveniently lie; and a good shore where they may well un-lade.”

“ Something that is artificial, as keys and wharfs and crams and warehouses and houses of common receipt; and something that is civil, viz: privileges and franchises, jus appli. candi, jus mercati, and divers other additaments given to it by civil authority.”

The Quai being a public place lying between the lots and the river would prevent the owners of the lots from having any property in the hanks of the river, even if any such could be held by individuals within a port; for the lots are not contiguous thereto; and in a sea port exclusively destined to commerce, the. property of any individual is inconsistent with the destination of that part of the port.

Elsewhere, the banks of the river are the property of the Owners of contiguous estates, although the public has the úse of them ; a fisherman may fasten his bark to the trees on the banks; he may erect a hut or cabin to shelter himself from the weather; he may dry his net thereon; all have a right to a tow-path; hut in a sea-port there are no trees to which a bark may be fastened; the extension of a net to dry could never be permitted ; no hut or cabin could be tolerated; no tow-path is needed or could be used; no property in the bank can exist in any individual, because the hank is part of the port and the whole port is public ; besides there is no private estate bonti-' guous to the river; the ground Contiguous thereto having been dedicated to the public as a Quai, or part of the poít, and as such not being susceptible of private ownership, and being hors de commerce. It therefore follows that if an alluvion was formed in the port it Would partake of the nature of the ground contiguous to the river, and be, like it, a locus pühlibus.

A second reason why the alluvion thus formed should not become the property of the owner of the lot immediately opposite thereto, is, that the city must be the immediate sufferer by the first encroachment Of the river. If the levee, the quai, 'or the street which i-Uns along the first Hire Of lots he carried Oway, á tíeW levee, a new quai and a new street must he provided Out Of the coffers Of the city. The leVee must be maintained arid repaired in the same manner. To these charges the owners of the lots on Levee street do not contribute one cent more than the owner of any other lot in the city. If the owner of every lot must he an equal sufferer from the action’ of the river on the hank how can it be said that the owners of those in the front street are exclusively to enjoy the benefit of alluvion 1 “ Eum sequantur commoda, quem sequuntur in-commoda.” A third reason is, that every lot appears by the plan to he an ager limitatus. It has been urged — first, either that there is no ager limitatus or else that all fields are agti li-mitad ; in other words, that the doctrine of ager limitatus does not exist. I think it does : every field that is not hounded hy water is an ager limitatus, for it carinot he diminished except hy an earthquake, which is an evgnt so rare as not to he taken into view in the regulation of civil rights, nor can it he increased. Every field that has a sea, lake or river for one of its boundaries, is susceptible of increase or diminution; the first is an ager limitatus ; the second an ager arcifinious.

All the lots in New Orleans are agri limitati, for as the street runs along the river in front of them none of them are hounded hy the river; and as the street is not at their risk and charge, they cannot be injured by the action of the water thereon.

The law “in agris,1’ is urged to he an act of positive legislation : the application of it to land granted to soldiers is indeed of this kind, for the reason expressed in the law itself, to wit: that it might he known what lands remained at the disposal of the State after the distribution to the soldiers.

A similar instance exists in the laws af the United States in regard to the division of public lands, into ranges, to’wnships,. sections, etc.

A fourth reason is the intervention of a street between’ the lot^cnd the river. One of the counsel for the defendants (Mr.Hunt) denies this position and contends absolutely that the intervention of a public road does not form an obstacle to the acquisition of the alluvion; and relies on the decision of this court in the case of Morgan vs. Livingston, 6 Martin, p. 19; and he reminds me, that I had the honor of being- the organ of the court in that case.

The reasons for the opinion there given will be stated hereafter.

. This case cannot avail him, for the plaintiff claimed his title to the alluvion through several mesne conveyances from the original grantee ; and it was allowed to him avowedly on the ground, that, as successor to that grantee he was bound to keep up the road, and if it was lost to furnish another; and that the property was still rural, the assent of the Spanish government to the erection of Gravier’s faubourg, not having been given until the arrival of the Baron de Carondelet in Louisiana several years after Gravier’s sale to Poeyfarré, under whom the plaintiff claimed.

The other case on which this counsel relies is one of the Court of Cassation. That tribunal formed its judgment on an article of the Code Napoleon, the examination of which would not assist us, and on several laws quoted from the Corpus Juris Civilis.

It appears to me that we cannot allow to the defendants the benefit of the Roman laws if they be invoked for the purpose of establishing that an estate not bound to furnish a new road on the destruction of the old one, is entitled to the alluvion notwithstanding the intervention of a road; for in that respect they are not declaratory of the natural law nor grounded thereon ; but on the contrary, are positive and arbitrary laws, deriving all their force not from reason but from the will of the prince. Grotius holds that there is no principle of the natural law which justifies the position that the owners of estates, separated by a public road from the river, have a right to the alluvion, unless it be an estate which owes the road, “ qui viam debet.” — Gro. de j., b. et p. 2, 8, 17.

If the law under consideration is to be extended to a case in which the soil of the road be the property of a parish, it is derogatory to, and in direct violation of the natural law, for in that .case the benefit and the burden are separated; the benefit goes to the owner of the estate, and the loss is borne by the parish.

Let US; however, examine those Roman laws on which the Coart of Cassation relies. They first refer us to the law “Prate-, rea.” of the Institutes, which defines the alluvion; next, to the law . “ magnslinjitatis, of the Digest; next, to the Institutes, lib. 2, tit. 1, sec. 4, “ Riparum;” and lastly to the law “Atticus,” ff. 41, 1, 38.

None of these except the law Atticus supports the proposition that the intervention of a highway between a river and afield does not prevent the acquisition of alluvion by the latter, and this law gives as a reason for the acquisition that the field owes the road; id est, as Grotius says, a field, “ qui debet viam.”

“ Nec tamen impedimento viam esse (ait,) quo minus ager, qui trans viam alluvioni relictus est, Attii fieret; nam ipsa quoque via fundi esset.” — ff. 41, 1, 38.

“ Fundi, et per hoc Attii, quod est verum quantum ad emo-lumentum non ad proprietatem.” “ Item quo ad incommodum, quia si quandoque destruitur, ex eodem fundo juxta quod est reparatur.” There are other1 laws in the Digest to the same effect: “ Aemvia publica vel fluminis ímpetu vel ruina amissa est, vicimus proximus viam prxstare debet.” ff. 8. 6. 14. Gothofredi has the following note, “sed impensa publica,” but the Gloss, adds, “ sed contra observatur.” “ Si vise publicas commeatus sit, vel via coactata, interveniunt magistratus.”- — ff. 43, 8, 1, 25. On this law, Gothofredi has the following note: “ Ut scilicet vicini, viam prsestant.” The neighbors are to furnish a road, but it is not said that they are to be paid for it.

From these I conclude that under the Roman law, highways were -charges on the estates through which they run; and I presume that they are so in France, otherwise the law Atticus does not support the decision of the Court of Cassation. That court has however held in a decree of the 12th December, 1832, ch. civ. 13 Sirey 1, 1, that the communes, being owners of vicinal ways (chemins vicinaux) and bound to keep $hem in order and to refurnish them if there be occasion for it, are alone entitled to the alluvion formed before them: as in the case cited by the counsel, the owner of the estate over the way is entitled to the alluvion. The probable ground of the distinction is, that in a chemin communal, the estate before which it was is hound to furnish another in case of its destruction.

Taking these two decisions of the Court of Cassation as my guide, I must say that, as the owner of a lot in New Orleans is not bound to furnish another street, if the former he destroyed, the intervention of the street prevents the acquisition of alluvion by the lot. One of the learned counsel has, however, urged, that a new street must he furnished by the owners of the contiguous lots. He has cited no authority, hut has supported his position on the alleged ground, that the owner of the lot is the riparious proprietor. This cannot he admitted. First, because the intervention of the street prevents the lot from being riparious. Second, because riparious estates on the Mississippi are bound to furnish a road, in consequence of an express clause in the grant, which binds them thereto ; and there is no such clause in the grant .of the lot. I conclude then, that none of the lots in the city of New Orleans can have any right to the alluvion formed before them.

The Supreme Court of the United States has taught me, that such an alluvion belongs to the city as a locus publicus, because, “if it claim the original dedication to the river, it has all the rights and privileges of riparian proprietor.” Mayor vs. U. S. in Error, 10 Peters, 717. We have already seen, that it has all the riparian burdens.

I am now to enquire whether there is any difference with regard to the ground covered by the Faubourg St. Mary, which is immediately above the city and contiguous thereto.

Whatever evidence of the dedication to public use by the founder of the city of New Orleans results-from the plan, which preceded the sale of lots therein, must result of the like dedication by Gravier from the plan of his faubourg; for Gravier was as much the founder of his faubourg as the West Indiq Company was of the city.

Where the plan of a City or Fau-bourg fronting on a navigable river, or the sea, has an open space between the front row of houses or street, and the water, it becomes part of the port, and is a Igcus publicus, dedicated to public uses, without any otlier designation whatever.

This plan, is evidently that of a continuation and extension of tjle cjty . aj] th.e streets of New Orleans are continued through the faubourg. The river forming a curve at the end of the city, a new row of squares was added, and the first or front street of the city became the second of the faubourg.

The whole space between the new row of squares and the levee was left open, evidently as the quai of the faubourg.

In the case of Cucullu and De Armas vs. the Mayor, I adopted the suggestion of the counsel for the appellant, that the word quai, written twice on the space between the front lots and the levee, evidently shows, what would otherwise appear from a mere inspection of the .plan, that the space was designated as a part of the port: and I reiterate that the absence of the word quai would not have made any impression on my mind, nor changed my opinion as to the right of the public in that space of ground.

The abandonment by Gravier of the whole ground beyond the levee as a locus publicus, was equally manifested by the plan, and still farther by the occupation- and use which he permitted the people to make of it. From the year 1788 to 1806, the inhabitants of New Orleans resorted to the large alluvion which had been formed beyond the levee, for sand, to raise the streets and lots, as they would have resorted to a common of turbary for the purpose of getting turf, without ever having been disturbed by the former owner. ■ And we are informed by the court, in the case of Gravier vs. the Mayor, hereafter quoted, that he made abundant declarations of his having abandoned the land beyond the levee to the public use; declarations which confirm the evidence, which results from his plan and conduct.

In the latter year his heir, probably at the suggestion of others, resorted to a suit against the Mayor and Aldermen of the city of New Orleans, to be quieted in the possession of that alluvion. His claim was resisted on the ground, that his ancestor had abandoned and dedicated to the public use as a locus publicus, all the space before the front row of squares in the faubourg. No evidence of this abandonment and dedication was offered, except the parol evidence of declarations which he had made to that effect this dedication by the production of plans There was no attempt to prove in the case of Cucullu and De Armas against the Mayor et al.; and in the Supreme Court of the United States, in the cáse of the Mayor vs. United States in Error, 10 Peters, 622; or of other written evidence. The plaintiff succeeded through the gross neglect of his opponent, in failing to produce legal evidence.

Judge Matthews, in delivering the opinion of the court, said,

“ The evidence of abandonment is merely conversation which passed a long time ago. It would be dangerous to divest d man of his property upon evidence of such declarations, without any proof of d consideration.” 1st Condensed Reports, 464.

The -anonymous counsel fdr the plaintiffs very appropriately observes, “ The great mass of mankind have a clear and, as it were, intuitive perception df what is just and right; and though it be not always able to assign a satisfactory reason for its opinions, it rarely errs in the judgment which it forms, especially on questions involved in controversies, publicly discussed.”

“ The tenacity with which the inhabitants of New Orleans have adhered to the belief, that the city was the owner of the batture in front of it, is truly surprising, and affords a strong presumption in favor df the rights of the city.”

In August, 1813, as Attorney General of the State, I instituted unsuccessful proceedings in the nature of an information against the vendee of Gravier’s heir, claiming for the public use all the space between the levee and the river in front of the' faubourg, as part of the port of New Orleans. But for reasons' which cannot be mentioned here, no appeal was taken. In the year 1819, the city having lost all hope of success against this vendee, the proprietors of the lots in the faubourg, fronting the levee, instituted several suits, in order to claim the alluvion before the respective lots as their property. One of them, that of Morgan vs. Livingston, was tried and, by consent, brought to the Supreme Court, with the intention, that the judgment pronounced thereon, would put an end to all the other suits. I was then a member of this tribunal. One of my colleagues . _ JO was the judge of the superior court of the territory, who had drawn the judgment of that court in 1807. The other had received a power of attorney from some of the heirs of Gravier in France, who had retained their interest in his succession, and this power containing a clause of substitution, he had availed himself of it by a substitution, in favor of the son-in-law of the parish judge, from whose court the appeal Came up. The latter member of this court having declined sitting in this case, it was submitted to the other two, to wit, the late presiding judge and myself. Entertaining the opinion, on which I acted as Attorney General in 1813, I insisted on declaring that the premises were a locus publicus, not susceptible of private ownership, and hors de commerce, on the same principles I had laid down as to a public road, in the case of Renthorp et al. vs. Bourg et ux., under circumstances somewhat, similar, 4 Martin, 97. My colleague still entertaining the opinion he had formed in 1807, absolutely refused to concur with me, and after a delay of two years we agreed to act on the case, as it was placed before us, both of the parties having an interest to keep the p'ublic claim out of View. My colleague consented to abandon the claim of the defendant, and I drew the judgment, which is printed in the sixth volume of my reports. The defendant complained to the Legislature, and made an unsuccessful attempt to have Us impeached. On the return of the case to the Parish court, the judge thought it improper to proceed to the trial of the' cases of the other front proprietors, as he might be charged with partiality, his son-in-law being the substituted attorney iri fact of one of the parties interested. The suits were therefore dismissed, and brought in the district court; from which they Were removed to the' court of the United States for the Louisian^ District-.-

It is believed, that the plaintiffs, alarmed at the trouble of following their suits to the city of Washington, made a compromise by abandoning one half of their supposed claims.

Shortly after, a more important compromise was made between the Mayor, Aldermen, &c., of the city, the vendee of some of Gravier’s heirs, and some of his other heirs, so that a line was drawn parallel to the levee, at a certain distance from it, and the alluvion beyond it was abandoned to the city.

In the case of Gravier vs. the Mayor, 1st Condensed Reports, p. 551, the Superior Court of the late territory held, “ that Bertrand Gravier had divested himself of all title to that part of his tract on which the Faubourg St. Mary is established by selling the lots fronting and adjoining the highways, and if no alluvion existed at the time when Bertrand Gravier ceased to be the owner of the land adjoining'the high road, that an alluvion afterwards formed would not become the property of Bertrand Gravier.”

The court gave as a reason for this opinion, “ that if Bertrand Gravier could be considered as the proprietor of the road or of the levee lying between this road and the river, he would nevertheless not possess that title of property which gives the right of alluvion, for that the destruction of this property by the encroachment of the river would be a public and not a private loss, since it could not be appropriated to. the use of any individual and the said road and levee would have become necessarily liable to be kept in repair at the public expense.”

This opinion of the court will receive considerable support from what will be shown hereafter, to wit: That the bank of the river can neither be alienated nor be retained in separate ownership from the contiguous estate and therefore must either belong to the public or to the owners of lots in the faubourgs as a concrete body.

It is in accordance with this principle that this court held in the cases of Packwood vs. Walden and Cochran et al. vs. Fort et al., that alluvions now formed before thebity, are loci publici. I coincide with this opinion and believe that Gravier could not be considered as owner of the levee or bank of the river after he had ceased to own the riparious estate.

which formed in front of the Fau-oourgs ot the City ofNew Orleans, after their incorporation amPnc**of ^he front proprie-

I was a member of this court and concurred in the opinions in those cases. One of the counsel for the defendants in commenting upon the judgment in the latter case, observes : “ The learned judge (Porter) who pronounced the decree in the fervor and glow of composition supposes a case which did not in reality exist, and expresses upon it a hasty opinion, thrown out incautiously and without sufficient reflection,” to wit: “ that if J the batture be formed after the incorporation of the faubourg . . pi- , - . with the city, it became the property ot the city ana not ot the proprietors.” Thiswas indeed an obiter dictum but clearly resulted from a consideration of the case before the court. I then thought and still think that this court gave a correct exposition of the law of alluvion. This was the jurisprudence of the Superior Court of the late territory and of the Supreme Court of the State for upwards of a quarter of a century, to wit: from the year 1807 to the year 1834, when Judge Porter left this court. Every judge that sat in these courts appears to have concurred in the establishment of it; there never was a dissenting opinion among us in this respect; and I never felt any dissatisfaction therewith. In the case of New Orleans vs. the United States in error, 10 Peters, 717, the Supreme Court of the United States thought, that “ if the dedication to public use- of the ground before the city of New Orleans be established it would be of the highest importance that the vacant space by alluvial formations should partake of the same character and be subject to the same use as the soil to which it becomes united.” They added : “ if this was not the case, by the continual deposits of the Mississippi, the city of New Orleans would in the course of a few years be cut off from the river and its prosperity impaired.” “ If the city can claim the original dedication to the river, it has all the rights and privileges of a riparian proprietor.” “ But there is another consideration of great weight on this subject. It appears that the city from time immemorial has been compelled to construct at great expense and keep in repair levees which resist the waters of the river and preserve the city from inundation.”

In countries governed by the civil law, the ports or landing places of cities situated on navigable rivers, lakes or the sea, are locus publi-cas, in which individuals have no right of property.

In applying to the Faubourg St. Mary, the principles which the Supreme Court of the nation recognized in the above cases as regulating the rights of the city, as to that portion, of it which is covered by the plan made by the West India Company, it does not appear to me that this court errs. The dedication to public use of the ground between the levee and the first row of houses in front of the Faubourg St. Mary has been shown. Is it not then of the highest importance that the accumulations by alluvial formations should partake of the same character and be subject to the same use as the soil to which it becomes united ?

If this was not the case, by the continual deposits of the Mississippi would not the city in the course of a few years be cut off from the river, and its prosperity impaired ? As the city justly claims the land to the river has it not all the rights and privileges of a riparian proprietor ? Does this not result also from the consideration that the city has constructed and kept in repair the levee 1 Conscious that no one of these queries can be correctly answered in the negative, I cannot admit that Judge Porter’s exposition above quoted is not perfectly correct. On enquiry I cannot learn that there is any country governed by the civil law, in which there is a city situated on a navigable river, lake or sea shore, where there is a port, in which the landing place or port is not a locus publicus, on which individuals have not any such rights as are claimed for the defendants, and if this be the case, it is strong evidence of the practical rule of law that no such right exists.

Alluvions formed before the city may be considered in two points of view:

First. As partaking of the nature of the locus publicus immediately contiguous to the river and assuming its character; and it is only as a locus publicus that it is claimed in the present suit.

Secondly. As belonging to those who bear the burden of riparious ownership; which in a city are not the owners of front lots ; because they in no case bear any of the burdens of riparious ownership. They do not bear' any more of the expenses of maintaining the levee or furnishing the streets than the owners of any other lots. If the alluvion be the corwmo-dum which corresponds to the incommodum of a riparious estate, the alluvion must accrue to the benefit of all the owners of lots in the city, not individually but as a concrete body, whose rights are to be vindicated by the Municipal authorities. " It is in this view that the Supreme Court of the United States considered the city as a riparious owner. In the case under consideration it is useless to consider whether the alluvion before the city be a locus publicus, or the property of all the owners of lots in the manner above stated. Some of the counsel have urged that the river might carry away not only the levee but the quai and the street, and thus the front lot might be required for those purposes, and even further, that these lots themselves might be carried away by the action of the river. These events are possible ; but the contingencies are so remote as not to be a basis for legal reasoning. In laying out cities on the bank of a river where the cupidity of individuals does not interfere, it is usual to leave such a margin of land between the first line of lots and the river, that by no event in the ordinary course of things, could the first line of lots be interfered with by the river. But if it should happen otherwise it would require but a feeble appeal to the common sense and justice of his fellow citizens for the owner .of a front lot to establish that if his lot be taken from him for a levee, quai or street he must be compensated for it.

I believe that what I have said in the first part of this opinion, as to the port, the quai, and the bank of the river before the original city of New Orleans, is applicable to the same objects in the faubourg St. Mary, and also to the faubourgs Delord and Saulet, within which is the locus in quo,' which is the subject of the present suit. In the year 1805, the Legislative Council of the Territory of Orleans, incorporated the city of New Orleans, extending its limits over the faubourg St. Mary and a considerable distance above. Madame Delord was the owner of a plantation, immediately adjoining the faubourg St. Mary; and in the following year she sought to avail herself of the advantages, which the annexation of her estate to the city offered, and divided her plantation by streets, parallel and perpendicular to the river, into squares and lots; and her plan expresses to have been made for the extension and continuation of the fau-bourg St. Mary, and what is the same thing, of the city of New Orleans. We see on it a street immediately in front of the levee, and running alongside of it, which is called New Levee street.

The plans of Faubourgs De-lord and Saulet laying off these plantations into City lots and squares, divested the owners of all interest, except in the lots and squares sold to individuals, &c. All the rest was dedicated to the public. The land or space between New Levee street and the river became a locus pubBcus, destined to the pubUc use. This dedication required no further evidence than the plan and the use of these places" by the public.

About the same time Saulet, the owner of the plantation above, and contiguous to the preceding, imitated his neighbor. His plan is avowedly made for the extension of her faubourg, is divided in the same manner, and New Levee street is continued through it. The plans of both the faubourgs, if my opinion in the case of Cucullu and De Armas vs. the Mayor, &c., and that of the Supreme Court of the United States, 10 Peters, 662, be correct, establish the fact, that the former proprietors of these faubourgs, as founders of a new part of the city, divested themselves of all interest in every part of them, except in the lots which the plans presented as objects of sale to individuals in that portion of the estate, which had been divided'into squares, lots and streets; to wit, from the levee to a street in the rear of the last row of lots : all the rest was dedicated to the public ; that is to say, - all the streets, and the land between New Levee street and the river as a quai; these were locipublici, hors de commerce, and destined to the use not only of the inhabitants of these faubourgs, of those of the rest of the city of New Orleans, of which these faubourgs formed a part, and of the State, but also of the inhabitants of any other country.

This dedication required no other evidence than the plan and the use of those places by the public. This use, for up-war¿g 0£ thirty-five years, has been a matter of public notoriety, and the presumption is extremely strong, that it began immediately after the division of the faubourgs into streets, and j i . SCJUai’GS, SUMÍ lots.

The ground between New Levee street and the levee as a quai, the levee or bank and that part of the river, where the ships were to lie, constituted the port of New Orleans, in front of the faubourg Delord. The obligation, under which Madame Delord had been, to furnish a royal road, according to the king’s grant to her author, had been complied with, by giving through her estate the road now known as Tchoupitoulas street. The obligation, to maintain the levee, being a real and not a personal one, vanished as to her, except as a lot owner, on the sale of the lots ; for then it bore on all the estate, on which the burden of the levee had been imposed; and that burden, like a rent charge, bore on every part of the estate.

The ground, which had now become the property of the public, loci publici, by the consent of the sovereign, had been impliedly exempted from the burden, because the State which had succeeded to the rights of the former sovereign and original grantor, by extending the limits of the city of New Orleans over these estates, had consented, that as urban estates, they should be subdivided into squares and lots, and intersected, as in the rest of the city, by streets, and the whole burden of riparian ownership remained on the lots, until assumed by the city.

As we have already seen in the case of Gravier, with regard to the faubourg St. Mary, Madame Delord, after the sale of all the lots in her faubourg, was without any interest in the levee or bank of the river, and the repairing and replacing the levee could not be a burden on her, since it never was a personal one, and she had parted with the estate, which was encumbered therewith. So long as the proprietors of the lots bore the portions of this burden, with which their respective lots were chargeable, they acquitted a part of the price for which they bad purchased their lots; for a portion of that price was the assumption of a part of the charge which bore upon the whole estate.

The extension of the limits of the city of New Orleans over the estate of Madame Delord, by the act of 1805, could not change its character, or affect it without her consent. We have the'evidence of this consent in the intention which she manifested almost immediately, to avail herself of the advantages which the inclusion of her estate within the city presented. This evidence results from the plan which she published in February, 1806, expressly made for the continuation and extension of the city over her estate, and the subsequent sale of lots in accordance with it.

By this plan the character of her estate was instantly changed. She retained no part of it, except the lots into which it was divided; all the streets, and principally the whole space between the margin of the river and the front lots were dedicated to the public use, became loci publici, and were ipso facto hors de commerce. If this view of the subject be correct, no act of Madame Delord, with regard to any part of the ground outside of New Levee street, in making sales thereof, can be considered in any other light, than as done in violation and ignorance of her own plan and of the rights of the public. And the little attention that was paid to these remote parts of the city by the municipal authorities, who confined their care to the square of the city, account for these invasions and irregularities.

It is further to be considered, that the acts of Madame Delord, with regard to any portions of the batture, merely release or abandon her claims and pretensions thereto, but give no substantive title to her vendees, and this mode of transfer of itself, manifests her own want of confidence in any right to the batture.

The port of New Orleans was extended over that part of the river, in front of the new faubourg, which was susceptible of being occupied by vessels lying at anchor or fastened to the bank, and over the levee and portion of land out and inside of it, which, might be necessary for the reception of merchandize lanc]ed or t0 "fog shipped. Both these parts of the port became public, and if the opinion, which I have expressed when examining the original plan of the city, be not incorrect, no part of this port was susceptible of private ownership. Madame De-lord, by destroying the contiguity to the river of the estate which she retained, abandoned all claim to the banks.

The defendants urge that their rights and those of the persons, under whom they claim, have been frequently recognized by the Mayor and Aldermen of the city, and by the plaintiffs, by putting them in possession of sundry portions of the batture, &c., by charging them with riparian burdens and duties, and by doing various other acts and-things, &c., &c. These allegations, if proven, would have considerable force, if the plaintiffs sued in the right of the Municipality, or if they claimed any thing belonging to the corporation; but they only vindicate the right of the public to loci publici, things out of commerce, and in which the corporation, represented by ’the plaintiffs, can have no property. The dedication to public use being once established, cannot be affected by any act of the municipal officers.

The plea of prescription cannot be invoked in regard to what is hors de commerce, and not susceptible of private ownership or even possession.

Nothing, which should govern this case, should be drawn from the acts of the corporation. It was well known to every one, familiar with the history of the city, in what feeble hands its administration had been for a long time placed. ■ That numerous abandonments and violations of public and even of municipal rights, duties and obligations had been constantly permitted; and we have only to instance the sale of the squares between the front of the original city and the levee, though the Legislature afterwards thought fit to sanction it. Other instances of similar conduct are well known; that in many of their ordinances, which have been submitted to, there has been manifested great ignorance of their own rights and duties, as well as of those of the citizens. With a knowledge of these facts, hut little importance should he attached to their acts as evidence of the rights of the public on any subject whatever.

I will now proceed to notice some of the leading arguments of the counsel for the defendants.

It is urged that the alluvion has no necessary connection with the levee, and as a deduction from this, that a proprietor may sell the body of his estate, and retain the ownership of the bank of the river. The Civil Code, Art. 448, says, “ on the Mississippi, where there are levees, the levees shall form the banks;” and as the alluvion is an accretion to the bank, there is a necessary connection between the alluvion and the levee. Authorities have been cited from common law writers, to show1 that a riparian owner may sell his right on the bank, separately from the estate. The converse of this is the rule of the Civil Law. Cropola, the author which the counsel has placed before us, expressly says, (page 447,) “ ripeé non venduntur, sed magis accedunt rei venditfe quod apparet: quia per se vendi non possunt cum riparum usus sit publícus, de jure gen. ut d. leg. íiparum, num proprietas sola per se ésset inutilis.'''

If the matter was res nova, I would say, that the sale of the trapezium was illegal. We have seen, that it was outside of the levee and unconnected with any land on the inside. The bank being' a legal accessory to the contiguous estate, cannot be sold separately frorai it, nor retained when the estate is sold.

If is like a right of way, which cannot be separated from the creditor estate, nor retained when the latter is sold.

But the municipal' officers have slept over the rights of the city, in'permitting the vendees of the defendants, mediate or immediate, and the defendants themselves for a long time, to occupy and improve the trapezium and the alluvion formed thereon as their private property, and in consequence thereof, the defendants have acquired equitable rights, which must now protect them.

The defendants’ counsel have further urged, that the plaintiffs have compelled them by' several ordinances, after their admission into the city, within the period of nearly a quarter of a century, from 1806 to 1831, to support all the riparious charges as rural owners.

To this the same answer may he given, as was given to the alleged recognition of their rights by- the plaintiffs, aná other acts of theirs set forth in the answer. The plaintiffs do not fine in their own right, nor for any thing belonging to the corporation, but only vindicate the right of the public in loci publici.

The dedication being established, cannot be affected by any áct of the plaintiffs.

Perhaps the burden of riparian duties was more than compensated by an exemption from all city taxation, which the inhabitants of the faubourg have enjoyed until the year 1831. Had the levee been made through the faubourg by the corporation, they would have been chargeable in common with all the other inhabitants, with the expense of supporting the levee' through the whole extent of the city and the faubourgs. Perhaps they might have compelled the city to maintain their levee at the general expense, but refrained from doing so, to avoid taxation.

Much reliance has been placed on the judgments in the two cases of Henderson et al. vs. the Mayor et al. Both of these were made on admissions by the predecessors of the plaintiffs,which, in my O'pinion, were made either in ignorance or in violation of the rights of the public. As these rights are inalienable, they cannot be destroyed by admissions, made by those whose duty it is to protect them. But judgments obtained upon such admissions, must form a very equitable claim in favor of those who obtained them, and ought not to be disturbed, so far as regards the direct subject matter of the decision, though they cannot be extended béyond it.

Corporations in the Civil Law, are considered as in a continual state of pupilage; and their administrators as the tutors of .minors. Until very lately, minors were entitled to relief in all cases, in which they could show, that a proper defence had not been made for them. It is not very clear, that the same right does not exist in favor of a corporation, whose interests have been neglected by its administrators. In those cases, the city might have sacrificed its own right, hut not that of the J ° . . . ° public. This is not said with a view of intimating, that those judgments ought not to have their effect, in regard to what is the actual subject of the decision; hut they ought not to operate beyond the strictest limits of the matter passed upon.

It appears to me that the idea of res judicata, which has-been so much pressed upon the court, did not arise from the decisions themselves, but from the supposed effect of the ad-' missions which had been made in these cases. Admissions made by private individuals in the course of litigation, will bind their rights, and have the effect of alienating them, unless shown to have been made in error; hut admissions made by parties, who have not the power of alienation, have not the same effect.

A singular fatality seems to have attended every attempt on the part of the city, to assert its claim on the object of, litigation. It has been seen, no evidence of the plan of the faubourg St. Mary was produced, and parol dedication and abandonment was alone relied on; although the plans could easily have been procured, being in the archives of the city.

In the case of Cucullu and De Armas, the subject matter of the suit had been adjudicated upon in a previous one, of Gonzales vs. the Mayor, in the Superior Court of the Territory, and the counsel had pleaded this suit as res judicata. He had even ordered a copy of the record to he made, hut omitted to give it in evidence, and by this strange and fatal omission, the city lost that case ; for the plea of res judicata would unquestionably have been sustained.

In the case of Henderson vs. the Mayor, it has been seen also what admissions were made prejudicial to the interests of the city; and I fear, that the consequences of these mistakes have been injurious to the assertion of the public rights in the present case.

In the very important case of Cucullu and De Armas, so ..... referred to, I was under the necessity of dissenting from the majority of the court.

But in looking hade and reviewing what had been decided Up0n QIj that occasion, I see nothing, in my opinion, which I would change or modify; and I have the satisfaction of lprowing, that my views in that case were substantially, sanctioned by the highest tribunal of the nation.

I should greatly have- distrusted my own opinion, in being the sole dissenter from that of my able and learned colleagues in the present case, but that the subject is one which I have so long and so fully considered, and that the difference of our opinions is so radical, that no middle Gourse can be pursued.

After all that has been said, written and printed on this case, it appears to me, that it may be reduced to a single inquiry, viz., who is the owner of the bank of the river in front of the city of New Orleans and of its faubourgs ? For that the alluvion belongs to the owner of the bank of the river, I do not understand to be denied by any one; and from the facts I can come to no other conclusion, than that the public is the owner of the bank of the river, and therefore entitled to the alluvion.

After giving the subject the best consideration in my power and regarding it in all its aspects," I am of opinion, that the judgment of the Parish Court is correct. If it be reversed, I am apprehensive that the consequences depicted by the Supreme Court of the United States in the case of New Orleans vs. the United States, in Error, 10 Peters, 717, will result. “ By the continual deposits of the Mississippi, the city of New Orleans would, in the course of a few years, be cut off from the river, and its prosperity impaired.” It is also obvious, that it will give rise to aseries of private intrigues, the object of which will be to extend wharves, thereby increase the alluvion, and carry the levee near to the margin of the river, with a view to give new acquisitions to individuals, and create an interest adverse to that of the public.

Upon the whole matter, therefore, I have come to the con-elusion,

First. That the founders of a city or faubourg on the banks of a navigable river do by the plan and the acts of sale of lots in accordance therewith, make a dedication of all the land within the limits of such city or faubourg which is not by the plan reserved for the purposes of lots to be sold ; and especially of all such parts of the land, of which the public have the useful domain, and which are essential to the prosperity of a city or faubourg so situated; to wit: the streets and bank of the river; and that the attempt on the part of the defendants, assigns of the original founders, to resume a part of the land so dedicated and abandoned, is a violation of the contract rights of the purchasers of lots and of the public, and tends to impair the original contract.

Secondly. That the founders of a sea port city or faubourg on the banks of a navigable river, do by the plan of the city or faubourg so founded, intend to create a port, and that the river and the land adjoining the river in front of such city or fau-bourg, necessary for the purposes of lading and unlading merchandize and of commerce in general, constitute the port, which is locus publicus, and that the destination and dedication of land so situated is especially to be presumed, as well from the plan as from the intention to found such city or faubourg, and is clearly evidenced in the present case.

Thirdly. That the levee or bank of the river, being an accessory to the principal estate, cannot be separated from it by any act or intention of parties.

Fourthly. That alluvion formed in a port partakes of its nature and of that of the street immediately along the river, is locus publicus, hors de commerce, and does not belong to the owners of the front or of any other lots in the city.

Fifthly. That the corporations of the city having stood by .and permitted individuals to expend large sums of money, and make purchases of the property in dispute and in some measure recognized their rights, the latter have acquired an equitable title thereto and ought not now to he disturbed ; but the rights of the public as to what is not in the actual possession of the defendants must not Tie affected by the judgments which they have obtained.

I am therefore of opinion that the judgment of the Parish Court be affirmed.

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Concurrence Opinion

Simon, J.

I have carefully considered the opinion which judge Bullard lias prepared; it expresses so fully my ideas upon the important questions which this case presents, that I deem it sufficient to state, that the conclusion to which he has arrived, appears to me correct on all the grounds therein assumed; and that I perfectly concur with him in the opinion and judgment which he has just pronounced.

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Concurrence Opinion

Morphy, /.

The opinion just delivered by judge Bullard, sets forth so fully and satisfactorily the views of the majority of this Court, on the several questions submitted in argument, that I cannot believe it necessary for me to do more than express my entire concurrence in them.