Municipality No. 2 v. Orleans Cotton Press

[249] Martin, J.

dissenting. The plaintiffs olaimfor the public use and benefit a square of ground between Front and FTew Levee-streets, in front of the Faubourgs Delord and Saulet, which they allege to be 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 defend ants 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 & al. v. The Mayor of New Orleans & 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 incorporation 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 recognized. 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.

[250] 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.

*517The 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 Oompany, according to a plan which has been printed in the corner of the large plan or map of the city of New Orleans, published by Francis B. Ogden, in the year 1829. Soon after, a tract of land immediately above the city and extending thirty-two 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 1768, 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 out into a faubourg by Gravier. The assent of government to the erection results from an order which the Baron de Oarondelet, governor of the Province, afterwards gave to Gravier, to deposit the plan of his faubourg in the archives of the Oabildo,- 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 1805, 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 upwards, covering the tracts purchased by Gravier, Delord and Saulet. In February, 1806, Madame Delord erected her plantation into a faubourg, and it is expressly stated on the face of her plan, that it is intended as an extension and continuation of Gravier’s faubourg 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 tra- [251] pezium of land, which, on the 28th day of May, in the same year, she sold to Larchevéque or Larche, as follows:

“ Trois terrains, situés sur la latture, en face de son habitation, bornés d’un cité par le Sieur Bollechasse, et de l’autre par le Sieur Saulet, conformément au plan, fait par M. Barthélemy Lafon, en date du vingt Mars dernier, étant á la charge de faire et réparer le ehemin 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 loom 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 Tchoupitoulasstreet. 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 appeal's 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 di*518reet 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 inset 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, inset 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. Thé shape of this [252] piece of ground was such that it ran to a point formed by the oblique line of Saulet and the inset of the new levee, and towards the river the lines diverged. A strip of this trapezium, 34 feet front, and running along the inset of the levee, is marked with the name of “ Soletthe remainder of the trapezium was the land sold to Larche.

In the act of salé 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 k la charge de faire et réparer le chemin et levée 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 chai'ged with the burden of the levee, which is to be “ en face," and it was the charge to keep up this new levee which was thus intended to be imposed on him. We presume that the new levee and street were afterwards continued in a straight line, and the land thus purchased by Larche from Delord was thus protected by the new levee, and made to fail 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, sheds, &e., 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 [253] ground that all the land outside the levee was bank of the river, and could not be encumbered in any manner whatsoever. See 3 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, which led to the decision in that suit, in which it recognized the light of the city to have a new levee and road made in front *519of the loans 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, ,'&c. &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 he 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, &c.

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 Agar, Fundus, Prcedium and Clmtas, in the Roman law, and I coincide with the able view of that subject which the second judge of 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 [254] city before the extension, my first inquiry will be into the rights, privileges, &o., 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 D'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' Bes Saerm.

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, &e. &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 publicus, or ground dedicated to the public as streets, quay, &c., &c., 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.

*520This 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 them.

[255] 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 locuspublicus ceases to be applicable to its original destination, the sovereign, who has the regulation of the use of locipublici, 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, I refer to the decision of. the supreme court of the United States in the case of Cincinnati v. 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 v. The Mayor et al., which was sanctioned by the supreme court of the United States in the case of the Mayor, &c. v. 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. v. The Mayor et al. 5 La. Rep. 132. In one of which the French ting 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 sovereign or founder had parted only 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 v. The United States in Error, [256] for that portion of the quay which had been divided into squares and lots and sold, as this part of the quay had ceased to be applicable to its original destination; for the United States had succeeded to the rights of the West India Company by the treaty of cession, 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 S. statuendo. Is igitur locus demonstratur, ubicunque naves tuto stare possunt.” Ff. lib. 43, tit. 12,1.1, sect. 13.

The second is that part on land destined to the reception of merchandise *521landed or to be shipped; in the plan this is called the Quai. 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, “ Elumina 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, “ Elumina et portus publica sunt.” It would have sufficed to have said “ Elumina 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, “ De Portibus 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 unlade.”
“ Something that is artificial, as keys and wharfs and crams and warehouses and houses of common receipt; and something that is civil, viz.: [257] privileges and franchises, jus applicandi, 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 banks 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 w'ith 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 use 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; but 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 bank is part of the port and the whole port is public; besides there is no private estate contiguous to the river; the ground contiguous thereto having been dedicated to the public as a Quai, or part of the port, 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 publieus.

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 runs alongs the first line of lots be carried away, a new levee, a new quai and a new street must be provided out of the coffers of the city. The levee must be maintained and repaired in *522tlie same maimer. To those charges the owners of the lots on Levee-street [258] 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 bank, how can it be said that the owners of those in the front streets are exclusively to enjoy the benefit of alluvion 1 “ Eum sequantur commoda, quern sequuntur incommoda.” A third reason is, that every lot appears by the plan to be an ager limitatus. It has been urged — first, either that there is no ager limitatus or else that all fields are agri limitati; in other words, that the doctrine of ager limitatus does not exist. I think it does: every field that is not bounded by water is an ager limitatus, for it cannot be diminished except by an earthquake, whioh is an event so rare as not to be taken into view in the regulation of civil rights, nor can it be increased. Every field that has a sea, lake or river for one of its boundaries, is susoeptible 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 bounded by 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 agrisfi is urged to be 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 be known what lands remained at the disposal of the State after the distribution to the soldiers.

A similar instance exists in the laws of the United States in regard to the division of public lands, into ranges, townships, sections, &c.

A fourth reason is the intervention of a street between the lots and 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 deci sion of this court in the case of Morgan v. Livingston, 6 Martin, 19 ; [259] 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 Oarondelet 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 Oode Hapoleon, the examination of which would not assist us, and on several laws quoted from the Corpus Juris Oivilis.

It appears to me that we cannot allow to the defendants the benefit of the Boman laws if they be invoked for the purpose of establishing that an estate *523not 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 prinoo. 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 Jure Bell, et Pac. 2, 8,11.

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 [260] by the parish.

Let us, however, examine those Roman laws on which the court of cassation relies. They first refer us to the law “ Prasterea ” of the Institutes, which defines the alluvion; next, to the law “inagrislimitatis,” of the Digest; next, to the Institutes, lib. 2, tit. 1, sect. 4, “ Riparum; ” and lastly to the law “Atticus,” ff. 41,1, 38.

Hone of these except the law Atticus supports the proposition that the intervention of a highway between a river and a field 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.”

“Hee tamen impedimento viam esse (ait,) quo minus ager, qui trans viam alluvioni relictus est, Attii fierit; nam ipsa quoquc via fundi essetf ff. 41, 1, 38.
“ Fundi, et per hoc Attii, quod est verum quantum ad emolumentum non ad proprietatem.” “ Item quo ad incommodum, quia si quandoque destruitur, ex eodem fundo juxta quod est reparatur.” There are other laws in the Digest to the same effect: “ Aem via publica vel fluminis Ímpetu vel ruina amissa est, vicinus proximus viam prcestare 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 cokctata, interveniunt magistratus.” ff. 43, 8,1,25. On this law, Gothofredi has the following note: “ Ut scilicet vicini, viam prasstant.” 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, oh. civ. 13 Sirey 1, 1, that the communes, being owners of vicinal ways {cheinins vicinaux) and bound to keep them in order and to refurnish them if there be occasion for it, are alone entitled to the alluvion formed before [261] 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,. *524that in a ohemin communal, the estate before which it was is bound 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 be 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 be furnished by the owners of the contiguous lots. He has cited no authority, but has supported his position on the alleged ground, that the owner of the lot is the riparious proprietor. This cannot he admitted. Hirst, 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 loom puhlieus, because, “ if it claim the original dedication to the river, it has all the rights amd privileges of riparian proprietor.” Mayor v. U. S. in Error, 10 Peters, 717. We have already seen, that it has all the riparian burdens.

I am now to inquire whether there is any difference with regard to the ground covered by the Haubourg 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 fanbonrg as the West India Company was of the city.

[262] This plan is evidently that of a continuation and extension of the city; all the 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 ease of Cucullu & De Armas v. 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 qua! 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 publiem, was equally manifested by the plan, and still farther by the occupation and use which he permitted the people to make of it. Hrom 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 *525and 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 v. 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. [263] No evidence of the abandonment and dedication was offered except the pcvrol evidence of declarations which he had made to that effect. There was no attempt to prove this dedication by the production of plans, as in the case of Cucullu & De Armas v. The Mayor et al. ; and in the supreme court of the United States, in the case of The Mayor v. United States in Error, 10 Peters, 622 ; or of other written evidence. The plaintiff succeeded through the gross neglect of Ms opponent, in failing to produce legal evidence.

Judge Mathews, 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 a man of his property upon evidence of such declarations, without any proof of a consideration.” 1 Condensed Reports, 454.

The anonymous counsel for the plaintiffs very appropriately observes, “ The great mass of mankind have a clear, and, as it were, intuitive perception of 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 of 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 Oravier’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 v. Livingston, was tried, and, by consent, [264] 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 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 Ora*526yier 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 1813,1 insisted on declaring that the premises were a loans publiaus, 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. v. Bourg et ux., under circumstances somewhat similar, 4 Mart. 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 public 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 in 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 Louisiana district.

[265] 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 claim.

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 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 v. The Mayor, 1 Condensed Rep. 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 *527be 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 v. Walden, and Cochran et al. v. Fort et al., that alluvions now formed before the city, are loci publici. I coincide with this opinion [266] and believe that Gruvier could not be considered as owner of the levee or bank of the river after he had ceased to own the riparious estate.

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 the batture be formed after the incorporation of the faubourg with the city, it became the property of the city and not of the front proprietors.” This was 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 1884, 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 v. 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 made 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 [267] at great expense and keep in repair levees which resist the waters of the river and preserve the city from inundation.”

In applying to the Eaubourg St. Mary, the principies 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 *528should 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 ? 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 inquiry 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 seashore, 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 light 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 con-[268] tiguous 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 owner-• ship; who 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 tarnishing the streets than the owners of any other lots. If the alluvion be the commoéum which corresponds to the inoommoctum 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, if 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 *529the Faubourgs Delord and Saulet, within which is the locus in quo, whioh [269] 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 Faubourg 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.

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 v. 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 were 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 loci publici, 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 [270] use of those places by the public. This use, for upwards of 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 squares, and 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 theking’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 publico, 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 Or-*530leans 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, [271] they acquitted a part of the price for which they had 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 Mew 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 publiai, and wore 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 Mew 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, accounts '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 Mew 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 [272] of land out and inside of it, which might be necessary for the reception of merchandise landed or to be 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 Delord, by destroying the contiguity to ■the river of-the estate which she retained, abandoned all claim to the banks.

*531The defendants urge that their rights and those of the persons, under ' whom they claim, have been frequently recognized by the mayor and alder■men of the city, and by the plaintiffs, by putting them in possession of sundry portions of the batture, &e., 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 tíme 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 [278] the citizens. With a knowledge of these facts, but little importance should be 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 Oivil Oode, art. 448, says, “ on the Mississippi, where there are levees, the levees shall form the banksand 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 show 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. 0»pola, the author which the counsel has placed before us, expressly says, p. 447, “ rip» non venduntur, sed magis accedunt rei vendit» ; quod apparet: quia per se vendi non possunt cum riparum usus sit publicus, de jure gen. ut de leg. riparum, nam proprietas sola per se esset imitilia”

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

*532But 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 coin-[274] pelled 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 be given, as was given to the alleged recognition of their rights by the plaintiffs, and other acts of theirs set forth in the answer. The plaintiffs do not sue 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 act 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 & al. v. The Mayor & al. Both of these were made on admissions by the predecessors of .the plaintiffs, which, in my opinion, 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 beyond 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 [275] 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, but not that of the 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; but 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 admissions which had been made in these cases. *533Admissions 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; but 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 Oucullu and De Armas, the subject matter of the suit had been adjudicated upon in a previous one, of Gonzales v. 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 be made, but 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 v. 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 Cueullu and De Armas, so often [276] referred to, I was under the necessity of dissenting from the majority of the court.

But in looking hack and reviewing what had been decided upon on that occasion, I see nothing, in my opinion, which I would change or modify; and I have the satisfaction of knowing 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, hut 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 course can be pursued.

After all that has been said, written and printe^d 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 he 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 v. 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 a series of private intrigues, the object of *534which will he 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.

[277] Upon the whole matter, therefore, I have come to the conclusion,

First. That the founders of a city or faubourg on the banks cf 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 publio 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 seaport 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 faubourg, necessary for the purposes of lading and unlading merchandise, 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 [278] acquired an equitable title thereto, and ought not now to be disturbed; but the rights of the public as to what is not in the actual possession of the defendants, must not be affected by the judgments which they have obtained.

I am therefore of opinion that the judgment of the parish court be • affirmed.