dissenting. In .1825, many executions were issued against Jean Gravier. He had made a plan of that portion of the suburb St. Mary, bounded by St. Paul, Common, Bolivar and Hevia streets. He divided it, by the plans, into thirty-two squares, which the sheriff seized and sold, in January, 1825, according to the plan.
There were eight squares fronting upon Common street, numbers 29, 25, 21, 17, 13, 9, 5 and 1. The numbers 29 and 25 were reserved from the sale, ashaving been previously sold; number 21 was adjudicated to Mr. Bates, but had also been previously sold, to Mr. Freret, so that the purchaser acquired no title. The other five squares on Common street, were respectively adjudicated to Licquet, Caillon, Henderson, Herman, and Goodman. Bates could not obtain possession; and, in consequence of it, and other supposed inaccuracies of Gravier’s plan, which exhibited no scale or measure of the streets and squares, an entirely new plan was made by Louis Bringier, Surveyor General of the State, and adopted by most of the purchasers at the sheriff’s sale, by a notarial act, dated the 14th’ of July, 1831. By it, another square was added to those fronting on Common street, from the vacant ground of Gravier in the rear; and Bates, who had purchased nothing, was allowed the square adjudicated to Licquet; and so successively, Caillon, Henderson, Herman, and Goodman, were assigned the successive squares in the rear of those purchased by them. Most of the purchasers signed this act, and are, therefore, bound by it. Their locations inter se, are not only binding upon them by the agreement, but are probably entirely quieted by prescription.
But Herman never signed this act, and, of course, is not bound by it. His widow and heirs are entitled to their location, according to Gravier’s plan, if it can be found, and there be no just reason to prevent their obtaining it. A plan should be a picture of the ground, and those who purchase by a plan, should have the ground it depicts, if possible.
The district court has made a most clear and exact statement of the material facts which the record presents, and have come to the conclusion, that it was not possible to locate these purchasers according to Gravier’s plan, and, therefore, compels the widow and heirs of Herman to submit to Bringier’s plan and *355location, although not parties to it. He presents so strong a case of equity, on behalf of the plaintiff, after an elaborate examination of all the circumstances, put of which Bringier's surveys and plan were adopted, not only by the purchasers, from the sheriff, of Gramer's property, but by the city, that I regret the defendants have not yielded to his conclusions, especially as there cannot be much difference between the value of their square and the one assigned them by the plan immediately in the rear. They insist, however, that their square can be located by Gramer's plan, and will submit to no other location.
I am forced, by the evidence, to decide, that they can be located by that plan, and, to yield to their demand, except so far as the streets laid out by Bringier, especially St. Jean street, may encroach on their location. These were adopted by the city ; werepublicly opened, without opposition, onbehalfof the defendants; have been used for twenty year's, and cannot now be disturbed. The fact, that Bringier opened the four streets, in front of the defendants, fifty feet wide, while, by Gramer's plan, they were not more than forty, if so much. Also, a different location of St. Adeline .street, and other changes of the plan, will probably deprive the defendants of a front on that street, because their front may be located more than a hundred feet in the rear of its present site. If this should be the result, they must submit; for the city alone had the right to open, make, and keep in repair the streets, and were not bound by Gramer's location of St. Adeline street. Besides, their defence is a hard one ; and they cannot maintain title to ground which their location, according to Gramer’s plan, by which they purchased, does not call for, except by naming a street'which did not exist, and which was afterwards located elsewhere.
The titles, plans, and evidence, fully prove, that St. Paul street was well known and established on the ground, at the early day at which the sheriff’s sales were made, and that this street, also square 29, and Gironde street, as to their front on Common street, corresponds on Bringier’s plan exactly with Gramer's plan, so that the corner of Hospital and Common street corresponds on the two plans and on the ground.
Now, the plan of Gravier shows five squares and five streets fronting on Common street, between that corner and the square adjudicated by the sheriff to Dr. Herman, according to that plan. The squares have each five lots, fronting on Common street. It is well known, and sufficiently proved, by the titles, plans, and evidence, as specially stated in Gramer's sale to Freret, and the exchange of the latter with the Charity Hospital, that the lots were each sixty French feet in width. Gramer's streets averaged forty French feet in width. So, that, using these data, we find, with certainty, that the corner of Herman's square and Common street, on the river side, should be fixed at seventeen hundred French feet, from the corner of the Hospital square and Common street, on the river side.
The city surveyor should, therefore, locate the defendants corner on Common street, on the river side, at the point this calculation gives.
They are entitled, by Gramer's plan, to two hundred and forty French feet on Common street, running to the rear from the point just established, by four hundred and twenty French feet in depth.
This location will probably remove the defendants upwards of one hundred feet in the rear of their present front on St. Adeline street. If so, the plaintiff is entitled to this point, with all the ground between that street and the defendants’ location; no street can be opened immediately in front of the defendants *356location, without the authority of the city. They will be indemnified however, probably by having two fronts on St. J ean street.
Equity obliges me to declare also, that the plaintiff willbe entitled to the defendants’ rights, under the act of the 14th July, 1831, and plan of Bringier, and, by virtue of those rights, to locate the remainder of his quantity on the ground immediately in the rear of the two hundred and forty French feet fronting on Common street, belonging to the defendants, including in that, two hundred and forty feet on St. Jean street, which has been opened by the city, without opposition from the defendants.
There probably was some difference between the courses of the side lines on Gravier’s and Bringier’s plans. It is so imperfectly proved, that it cannot be considered.
I think the judgment of the district court should be reversed, and the cause remanded, with directions to the district court to cause the defendants to be located and quieted in their possessions, according to the opinions herein expressed, at the distance of fourteen hundred French feet on Common street, in the rear of the corner of that and Gironde street; and that the plaintiff should be condemned to pay the costs of the appeal.
An application for a re-hearing was refused.