Concurring generally in the reasoning of the learned judge who has delivered the opinion of the court, 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 [242] the city of Mew Orleans, the plantation of Madame Delord was a riparian estate, and entitled to the 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 *512place 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, c * deprives them of that provision of the constitution which says, “ nor shall pn-. ate 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. Tehoupitoulas-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 Mew Levee-street in front, between which and the water’s edge, there was left an open spa’ce 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. Mow 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 [243] 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.
What the presiding judge of this court said in the case of Morgan v. Livingston, 6 Mart. 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, Larchevéque and Duplantier, and those holding under them ? The sale from Madame Delord to Larchevéque 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 those who aided in 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 expense and burden of keeping up roads and levees. The Roman jurists say, it is a mode of acquiring property by natural law, and comes from the maxim, it is “just, the advanta • ges of a thing should belong to him, who supports its disadvantages.” There • fore 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.” *5134 Nouv. Diction, cle 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 tb profit and advantages of a thing upon him who is exposed to suffer its images and losses.” 6 Mart. 243. Boads 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. [244]
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 some time after, when it was made at the expense of the front proprietors. Gan any one believe, it was her intention to 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 «he 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, “/ace aw feme, et l’autre partie a la grande route des Tchoupitoulas,'” together with “ tous les droits de propriété qu’elle a et peut 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 [245] on the plan, and the public had used the ground, I should say, it was a sufficient dedication; but there is nothing of the kind shown. The case of The City of Cincinnati v. The Lessee of White, 6 Peters, 432, is much relied on, and is said to sustain this dedication. That case is not, 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 *514of the town for ever; 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 particular form or ceremony is necessary in 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 her, was shown, I should conform my judgment to it.
[246] 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 be found I am unable to 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, woodyards, sheds to make shingles under, and shops of various ■descriptions. Pilié, a witness, says he never saw a place so encumbered," he ihad 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 v. The Mayor, &c. 3 La. Rep. 563 ; 5 Id. 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 bindihg • on the .principal. Corporations have no higher privileges or rights than citi- , zens 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 .curions-,dactrine that the corooration can constitute itself the champion of *515the 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 [247] 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 recognize 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 im press of another sphere and has its origin in imperial Eome, or in the benighted days of France and Spain. But if the public is so 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 Mm rudely seize upon the property of the citizen in Ms 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 Ms own accord give a road, or one is taken from Mm 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. Mo man is presumed to give without compensation, and when for public purposes private property is appropriated, no more is taken than is necessary for the purpose intended and stated. I should rather hear a good common sense reason given for such a distinction, than the citation of a disputable ease from a foreign tribunal.
It is further contended that the place in front of this property is a [248] part of the port of the city, and being so, the whole bank of the river is public property. To this it may be replied, it was not a part of theport in 1806, nor was it so until a number of years after, any more than the river is a port at other places. Fort, with us, has a definite meaning, and that of Mew Orleans specific boundaries, and it was not until 1821 that the legislature extended it to the place in controversy. Afterwards Congress extended it to the limits of the three municipalities; 3 Moreau’s Dig. 259; 9 U. S. Laws, 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 du commerce., a large space in its front which could not be disposed of, except by the legislature or Congress.
*516The 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 effect 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 think 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 am therefore of opinion that the judgment of the parish court should be reversed so far as stated in the judgment, ordered to be recorded, and the rights of the parties must be regulated by it.