dissenting. In our former decision between the parties, in remanding the case for a partition by licitation, we observed: “ It appears to us erroneous to style the Magazine street market a locus pubUcus. ^ Market-houses are not included in the enumeration oí public things, contained in Articles 444, 445 and 446 of the Civil Code. A market-house may welL be the subject of private ownership. In many cities, butcher’s meat, fish and vegetables are sold in shops, like any other commodity. Even in New Orleans there are to be found market-houses which belong to individuals, &c. A‘ * * * But from this general power of establishing markets and regulating butchers, it does not seem to follow, that the city corporation must needs be the owner of all the market-houses within its limits, any more than of all the bakeries and taverns, whose occupants are subjected to the same municipal supervision, &c.” A. K.
It cannot be denied, that the police of the city extends over all the market-houses within its limits, whether held by lessees under it, or owned by individuals. Neither can it be denied that the city has the exclusive right to fix the rent of its own market-houses, and regulate the mode of collecting the same But has it the exclusive right either to lease or to direct the mode of collecting the rent of market-houses belonging to individuals? Clearly not. Then, in her joint ownership of such property, as in the case at bar, it is difficult to perceive any good reason why the city should be vested with any more right than the other party in fixing and collecting the rents thereof.
The plaintiff is appellant from a judgment making the following rule absolute, and claims the exclusive right to collect the rents of the property in question, pending the litigation, viz:
“ On motion, &c. — It is ordered by the court, that plaintiff do show cause why they should not accept the proposal of Zouis Aimingú/ud to collect the revenue of the lower Magazine street market from and after the 1st January, 1857, and to account to the owners of said market at the rate of $1,833 38 per month, until the sale of saidmarket be effected,pursuant to the judgment of the Supreme Court.”
The court a quo considering it necessary, in order to secure the interest of both parties in the collection of the revenues until the partition by licitation under the decree of this court, ordered that the plaintiff “ proceed at once to farm out the collection of said revenues in the usual manner, and after due advertisements, by sale at public auction, the farmer or lessee to take the same only up to the said licitation, and that in the meantime and until the plaintiff shall have so farmed said revenues, Zouis Arming and be appointed, and authorized to collect said revenues from and after the 1st of Janua/ry, 1857, and to account for the same at the rate of $15,000 per annum, and to pay over to the City Treasurer on the last day of every month, the sum of $1,250, on his entering into bond in the sum of $20,000 in favor of plaintiff and defendants, according to their respective rights, for the faithful performance of his duties,” &c.
By a judgment of the Sixth District Court of New Orleans between the parties, tlieir respective proportions in the property in question has been finally fixed.
The only ground urged in answer to the rule is, “ that the collection of the revenues of the markets of this city is entrusted to the Common Council of the city of New Orleans, and they cannot be divested of said trust. That the maintaining of the rule would cause plaintiff damages in the sum of $500.”
It is evident that the proposition assumed, can only apply to market-houses of which the city is the exclusive or sole owner, and not t© such as belong to individuals, or of which it is a joint owner, as in the present case. It is difficult to perceive in what respect the appellant is aggrieved by the order of the court authorizing a third person, under a heavy bond, in consequence oí the disagreement of the parties, to collect the revenues of the property and to account to them for tho same, as we have Seen. There is not an iota of evidence in the record, to show the alleged damages. On the contrary, both parties are damaged by the course of the City Council, Neither party having the exclusive possession or control of the property, it was therefore fit and proper, under the pe'culiar circumstances of the case, for the court, in the exercise of its discretionary and equitable power, thus to protect the interest of both parties, and to make the property bring as large a revenue as possible. And it must be observed, that the plaintiff complains with bad grace, for the order has conferred upon it more authority than that sanctioned under the rules prescribed by law, as to the rights and obligations of parties in regard to private ownership. The appellees, perhaps, would have the right to complain, but they have not done so.
K am, therefore, of opinion, that the judgment of the cow* below ought to be affirmed.
Spofford, J., concurred in this opinion