As stated in the opinions heretofore handed down herein, this is a possessory action in which the plaintiff seeks, as against the city of New Orleans and its officers and employees, to be quieted in the possession of certain property situated within the corporate limits at West End. In our opinion on the rehearing, we showed that the land in dispute lies directly north of plaintiff's property, which she acquired from Henry A. Seiler on November 30, 1889. In that *Page 527 opinion we also said, among other things, that our disposition of the case "will practically dispose of the title to the property in controversy," even over plaintiff's objection that titles should not be gone into in a possessory action. In accordance with the views expressed in the opinion, we affirmed the judgment appealed from. It appears, however, that the court below went beyond the issue involved in the case, deciding the question of ownership. The mistake was not called to our attention until plaintiff applied for the second rehearing, and that rehearing was granted, mainly, for the purpose of inquiring into plaintiff's complaint in that respect.
Plaintiff contends and we think her contention is borne out by the record, that the action was held by the district judge to be possessory in character; that it was tried in conformity with the rules governing such actions; that all evidence tending to show title to the property was objected to by plaintiff's counsel, and was excluded by the trial judge, except to show the possession of the parties. Therefore our decree that the ownership of the property, its ownership not being at issue, was in the defendant, was erroneous, and whatever in our opinion supports that decree can have no bearing on the sole question involved — the possession, vel non, of the parties litigant. In so far as the opinion affects that question, however, we reaffirm the views therein expressed. We think it is pertinent to add thereto, however, that no complaint, apparently, was ever made by plaintiff, by her husband, or by her sons, of the action of the authorities in consistently claiming and treating the property in dispute as a locus publicus. This was done by the state Legislature when it adopted Act 209 of 1906 and Act 9 of 1910, authorizing the municipality to fill in, improve and embellish, as a recreational park, together with other lands, the lands lying under the waters of *Page 528 the lake between the protection levee and its southern shore. It was done by the municipality, when it employed the Jahncke Navigation Company to fill in the property in controversy; when, through its engineer, it notified Theodore W. Bruning, the husband of the plaintiff, to remove his restaurant from the inside of the levee and his bathhouse from the outside of the levee; when by ordinance adopted in 1882 it leased lot 14, located partly on the property in question, to David Rosenberg for a period of 25 years, and by letter of the city attorney it notified Mrs. Bruning, the plaintiff, and Mrs. Williams, her daughter, who were then occupying the leased premises, to remove therefrom within 30 days, because the property was required by the municipality for "the completion of the scheme of improving West End." In response to these demands, plaintiff's husband vacated concession space No. 17, which he was occupying, and plaintiff and her daughter vacated concession space No. 14, which they were occupying. Plaintiff's husband, on his removal, addressed a letter to the mayor of the city, asking that the building in which he operated his restaurant be donated to him, which request was granted. It was also done when the city, through its engineer, addressed a letter to plaintiff's husband, the body of which letter reads as follows:
"Recently, Mr. W.J. Warren (assistant city engineer) advised me that you pointed out to him a stone at the northwest corner and a post at the northeast corner of what you claimed to (have) bought representing the north boundary line of your property; please advise me if this is correct, and particularly whether you lay claim to any property north of the line drawn between said stones and post, and if you do so what is your authority therefor."
Neither plaintiff, who then owned, admittedly, the property south of the line drawn between the stone and post, nor her husband, who was managing the property for his wife, *Page 529 answered this letter or set up any claim, at that time, to the property lying north of the line in question. On the contrary, about 4 months thereafter, upon the demand of the city engineer, the plaintiff's husband removed his bathhouse, which then stood on the outside of the revetment levee between it and the seawall.
That the municipality claimed and exercised the exclusive administration and control of the property is further shown by its tender thereof to the Navy Department of the United States government for its use during the war with Germany. The tender was accepted, and the property was used for some time as a naval training station. After the close of the war, the federal government donated the buildings which it had erected on the land to the city, which had them removed.
For the reasons assigned, the judgment appealed from is set aside, in so far as it purports to determine finally the ownership of the property, the possession of which is in controversy between the parties litigant; and in all other respects the said judgment is affirmed, plaintiff and appellant to pay all costs.
O'NIELL, C.J., concurs.