Same Case — On a Re-hearing-.
THE final judgment of the court was pronounced by
Rost, JV*Both parties having applied for a re-hearing, we -will first examine the grounds upon which the application of the defendants rests. They complain that while the opinion of .the .court is in their favor on every claim set up by them, except the claim for damages, the court reverses the judgment, and decrees in favor of the plaintiffs what was never in any manner, -way, or shape, in thought, word or deed, controverted by the defendants, to wit, that the plaintiffs had the right to enclose that portion of their ground forming the northern side (the court erred in calling it the western side,.) of the continuation of First street.hetween Dublin and Madison streets. We .copy from the original brief of the counsel who makes this application, what follows ;
“ The reasonable interpretation of the fourth section of the act incorporating the Railroad .Company is that, First street should;be extended to the river, *284and that the passage through .the same should be preserved. The fifth section °f ^1® acl:’ authorizing the company to .expropriate the land of others, forces them to furnish the street on each side of the railroad to the Mississippi river; and the defendants have the right to ¡compelí th.e .company to take up the road in Madison street, unless they open First street to it, .and passable .streets .on both sides.”
Such palpable contradictions require no comment. A street was expressly claimed en both sides of the railway, up to Madison street.
The .defendants’ .counsel now asserts that the five posts cut down at the upper end of First street w,er,e all between the railway and the southern line of said street, and were intended only by the plaintiffs to block up the south side, not the north .side, which he says the town never claimed. This may be so; b.u.t .the counsel did not so represent it in his argument, and the evidence does not make it certain. The line of intersection of First and Levée streets occupies the whole south side of First street, crosses the-railway, and extends .some distance north of it to the point where it intersects the line of Madison .street. Nothing in the record .shows that no posts had been placed north of .the railway; and if there is error in the judgment in this respect, it is the result of the argument of counsel .and .of the loose manner in which the facts of this part of the case have been placed before the court. It is unnecessary, however, to determine the question.
The counsel for the plaintiffs insists that there has b.e.en no dedication of the prolongation of First street on the northern side of the railway, between Canal Avenue and Dublin street. W.e held that the plaintiffs could not, without a .breach of good faith to the public and to individuals, resume the possession of those portions of ground, which they had deliberately dedicated for streets, or .over which the public has notoriously exercised a right of passage during more than .ten years. W.e consider lire plan under which the plaintiffs sold a portion .of their town property, and on which the ground alluded to is represented as .open, .and the use which persous on foot appear to have had of it since the establishment of tile railroad, an sufficient proofs of dedication. It would have .been .so, if the plaintiffs had had no object in leaving the space open, and had not.made a continuous use of the ground in the ordinary business of the company. But the evidence shows that, from the .time the plaintiffs commenced to construct the railroad to th.e present day, this space has been used as a place of .deposit for railroad iron and .all other materials required for it; that it has never bean in a situation to be used as part of the public highway; and that it is-more convenient than any other for the purposes to which it is applied by the company.
We admit that there is no particular form or ceremony necessary in the dedication of land to public use, and that all that is required is the assent of the .owner of the land, and the fac.t of its being used for the public purposes intended by the .appropriation. Jarvis v. Dean, 3 Bingham, 447. But when the dedication is no.t express, and is ,to be inferred from the acts and conduct of the.owner and the user by the public, these ought to be such as exclude any other hypothesis bud that of dedication. In all such cases, the consent of the •owner must clearly appear.
We were of opinion that this case came within the rule adopted by Lord Ellenborough, in Rex v. Lloyd, 1 Camp. 162, “ that if the owner of the soil throws open a passage, and neither marks by any visible distinction that ho ¿yeans to preserve .all his rights oy.er it, nor .excludes persons from passing *285through it by positive prohibition, he shall be presumed to have dedicated it to the public.” Upon mature reflection, we think, as our predecessors appear to have thought in the case of, the City of Lafayette v. Holland, et al., 19 La. 286, that the rule itself is laid down too broadly; and that, if a piece of ground is left unenclosed for the convenience of the owner, who uses it for a specific purpose in the usual course of his business, the fact that he does not exclude persons from passing through it, or that, when the ground is situated within the limits of a town, he has represented it as open and unenclosed, as it really was at the time, upon a plan on which he has sold other town lots, not necessarily connected with that open space, cannot, under any circumstances, be fairly considered as proof of the dedication of the ground thus left, open, to public use. Nor do we think that the division, on the plan, of the square fronting upon this open.space into building lots, as entitled to much weight, when it is shown that none of those lots have been sold. The intention of the owner to make-the dedication is far from being manifest, and his acts and conduct may be easily explained otherwise than by a dedication, especially when witnesses testify, as they do here, that the place could not have been dedicated to public use, without manifest injury to the company. The plan in this case did not give a new destination to this portion of ground; it was a mere picture of it, as it stood. We are satisfied that the lots sold by the plaintiffs in the other streetR, were purchased with reference to the pre-existing state of things, and that no one purchased under the belief that the plan would give to the public any rights which it had not before.
The error assigned by the plaintiffs’ counsel has been shown, and the judgment must be amended in that respect.
It is therefore ordered that the judgment rendered by this court on the 22d November last, (supra p. 282) be amended by inserting therein the word northern instead of western, and that the defendants be forever enjoined from disturbing the fences and enclosures which the plaintiffs may erect at the intersection of First street and Canal Avenue,'north of the line of the railway, and also at .the intersection of First street, north of the lino of the railway and Dublin street, leaving the said Canal Avenue and Dublin street .open in their whole breadth across First street. It is further ordered that the judgment as .amended be affirmed.
Slidell, X, being a stockholder in the Railroad Company, did not sit on the trial of this case.