The city have no right in the canal. They never had any. The negroes who were sent to aid those of the king, (the chain-negroes,) were the property of individuals, who willingly yielded their labour, without stipulating for any advantage to themselves or to the city. It was a voluntary curtesy. Nay, if the advantages held out by the governor to induce the inhabitants to send their negroes, may be viewed as the consideration of their services, they have already had the full benefit of it. The canal was not to be used as a drain for ever. It was expressly mentioned to them, that in time it would be changed into a canal of navigation for schooners. This time lias arrived, and as the use of the canal, as a drain, is incompatible with the use of it, as a canal of navigation, the city have no longer the right to empty the waters of their streets into it.
MaRtin J.I think differently. It is far from being clear to me, that the canal cannot be used both as a drain and a stream for navigation. Witnesses have informed us, that in the latter years of the Spanish government, large wooden gutters, gargouilles, had been placed oh each side of the canal, the issues, of which were stopped in time of rain, and the water suffered to settle and deposit the earth, it brought down, and when perfectly clear, it was allowed to find its way thro’ the canal. Thus the filling up of *279the canal was prevented and dirt was procured to raise the ground near it. As late as the year 1801, the royal schedule mentions the king’s intention that trenches might be dug to convey the water from the commons into the canal. Hence, I infer that the natural direction of the waters, of the city and the commons was, by the sovereign’s authority, changed and established as it now is. No one has a right to alter it.
Denisart, verbo labour, cites a case determined in one of the parliaments of France, Laurent vs. Warin, in which the court held that “ when in a “piece of land,, there is a water course which “ carries off the rain water, it is not lawful for “ the owner of the land to give it another direc- “ tion over the land, if the alteration occasion. “ any detriment to the adjacent estates.” Thus the law of France, the original law of this country, corresponds with that of Spain. If a newdirection is now given to the waters of the city, the owners of estates below it, down to the bayou, will, not be obliged to give it passage over their land, in which they may have made improve, ttients incompatible with the passage of these waters. Having bought their estates free from such a burden, they will now resist the imposition of it.
Neither, can I refrain from considering the advantage, held out to the inhabitants, the clearing of stagnating ponds, which occasioned deadly fevers, and gave birth to myriads of musquitoes, *280which so desolated them, that their houses became inhabitable, as objects of major importance, and as the price promised them for the labour, of their negroes. If the all-powerful hand of the sovereign might at all times, despoil them of these purchased advantages, of which there is no evidence, their right to them, like all other rights, has been strengthened and rendered less precarious by the change of government. Surely in the roost despotic, they could not fairly have been deprived of it. Turpis est fidem fatiere.
I cannot construe the plaintiffs’ charter as affecting the defendants’ rights. According to the counsel of the former, the city are to lose both the promised advantages—the use of the canal as a drain—the use of it as a stream of navigation. For it is to lose it as a stream of navigation, if they must pay for navigating it: the canal then will not be the property of the defendants, but of the plaintiffs.
The city council have not parted with any of their rights by their resolve. It is not to be presumed that it was their intention to make a present to the plaintiffs. Nemo presumitur donare. The reason, that this resolve was not sent to the Mayor for his consideration appears to me to be, that it is not for the disposal of any public property, or the payment of any monies, Resolves, for these objects, being the only ones that require the Mayor’s consideration.