Sicard v. Chitz

Rost, J., delivered the opinion of the court. [113] The plaintiff seeks to recover damages from the defendants, for breaking down, illegally, as he alleges, a dam, causeway, or dike, constructed by him across the mouth of the upper' channel of False River. The defendants deny their liability, and aver, that the plaintiff had erected a dam across the principal pass of the upper channel of False River, which is a navigable stream, and a natural water course, thus preventing all water communication between False River and the Mississippi, and depriving the planters on False River of the water necessary to their various purposes; that a petition praying for the abatement of that nuisance was signed by a large number of planters, and presented to the police jury, and that the defendants abated the nuisance by order of the police jury, and in conformity with an ordinance passed to that effect. Judgment was given in favor of the defendants in the District Court, and a new trial having been asked, and refused, the plaintiff appealed. In the course of the trial several bills of exception were taken, which the opinion we have formed does not make it necessary to notice. The act further defining the organization, authority and functions of the police juries, approved the 25th March, 1813, authorizes them to make all such regulations as they may deem expedient: For the making and repairing of causeways, dikes, and sewers. For the clearing of banks of rivers and navigable streams, for the purpose of securing a free passage for boats and other small crafts. They are likewise empowered to cause to be opened again, such ancient natural drains as have been obstructed by the owners of the adjacent lands, and to prescribe the mode to be observed in that respect. 2 Moreau's Digest, 241, 242. It is difficult to conceive a case that would come more clearly within the legitimate exercise of those powers than that which has given rise to the present suit. The plaintiff had not merely obstructed, the banks of the river; he had [114] stopped the river itself, and that river a branch of the Missis-sippj} and the only water communication between that stream and one of the oldest and largest settlements in the , , state. The construction of dikes and levees, and removal of obstructions in the beds of rivers and navigable streams, are under ihe exclusive jurisdiction of the police jury in the parish through which these streams run. So, where the defendants by iiee01' jiuy6 Pof Pointe Conpée, cut away a dam, and removed the thetlTed°na and which had been False River, by 7/eM, tEat"they inean action for damages at the smt ot the plainThe plaintiff has alleged, that the work complained of was erected on his own land, and could not be destroyed without his consent; but he shows no title, and the witnesses only say that the water course over which the dike was constructed runs through .his land; the evidence of the same witnesses shows, that this water course and the other pass of False River, were at one time the only channel of the Mississippi ; that the other pass is and has long been entirely obstructed by a raft, and that the pass upon which the dike was constructed is at the present time the only water communication between the Mississippi, False River, and the several streams which receive their waters from False River. We have no doubt, from the testimony, that this pass has in a great measure been filled up by the deposits of the Mississippi, but it is conclusively shown that it is not yet susceptible of private ownership. The construction of dikes upon if, and the removal of obstructions in its bed or on its shores, are, therefore, under the exclusive jurisdiction of the police jury, and judging from the course pursued by them in this instance, power could not be placed in safer hands. The solemn and guarded manner in which they proceeded in the exercise of an undoubted right, is worthy of all commenda- . .. ° . . . tion. Upon receiving the petition of the inhabitants of If alse River, they appoint a committee of their own body, to examine the premises and report. A report favorable to the 1 1 * petitioners’ demand being made, they resolve that the nuisance shall be abated, and pass an ordinance accordingly, Tliey add another member to the committee already named: they take care to provide that two shall form a quorum, and they order the committee to go and clear the stream of all obstructions, if the plaintiff, on their request to that effect, refuses to do it himself. The plaintiff refuses, and the deed .g a[.e ^ 0pjnj0n tjiat jt wag ]awfuiiy done, and that the plaintiff ought to take nothing by this action. [115] It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be affirmed, -with costs.