Milne v. Girodeau

Carleton, J., delivered the opinion-of the court. This is a petitory action brought for- the recovery of a lot of ground in the town, of Milneburg, at the end of the rail road, on lake Pontchartrain, composed, according to the plan of that town, of a part of lots 1 and 2, in square No. 1, being sixty feet front on Champes Elyssées street, and extending in depth one hundred and twenty feet, and fronting on the American wharf. The defendant, who is in possession of the lot, avers, in his answer, that it makes a part of the sea shore, is common property, and that plaintiff cannot have'the ownership thereof. There was judgment for the defendant, and plaintiff appealed. It appears to us that the testimony shows fully, the ground in question, lies much below high water mark, and forms part of the bed of the lake, and is not, therefore, susceptible of piivate owneiship. Louisiana Code, articles 440, 1. 2. 3 and 4. Where the petition claiming certain lots of ground, is silent on the subject of defendant’s buildings being a nuisance, the plaintiff cannot demand its a-balement. But the counsel for plaintiff insists, that the buildings erected on thé lot by the defendant, are a nuisance, and ought to be abated under a decree of the court, in the present case. The judgment of the District Court being against him on this point also, he has urged its consideration before this tribunal. We concur, however, in opinion, with the court below. The petition is silent upon the subject of the nuisance, and we think it would be altogether anomalous, and produce much confusion, if the parties were permitted to raise and settle controversies by argument, which had no relation to the pleadings in the cause. It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be affirmed, with costs.