French v. New Orleans & Carrollton Railroad

The judgment of the court was pronounced by Rost, J. Bertrand Gravier established the present faubourg St. Mary, in 1788, as far back as St. Charles street. Poydras street was marked upon tho plan of it as being seventy feet wide. Bertrand Gravier died in 179G, and the following year his entire estate was adjudicated to his brother Jean Gravier, who, at various times during his ownership, extended the faubourg beyond St. Charles street. There was at that time on the land, in a direction parallel to the continuation of the side lines of Poydras street, and included within them, a plantation ditch, used by Gravier for the purposes of draining, and also to boat timber out of the swamp, for the use of his plantation and of a pottery he worked at the time. In the plan of the first extension of tlje faubourg made by him in 1802, the word Basin was written on a square lot situated at the upper end of the drain ; the upper line of Poydras street was prolonged as far as the faubourg extended, but below the square marked Basin, the width of that street was reduced from seventy to forty feet. Adjoining the lower line, Gravier reserved a breadth of thirty feet of land through which the drain passed, and adjoining that land below, he dedicated to public use, another street forty feet wide, to which he gave the name of ¿¡anal street. [85] All tlie adjoining lower lots of this and the subsequent extensions of the faubourg were sold, either by him or by the sheriff under execution, as fronting upon Poydras street above, and upon Canal street below, according to the plan of division of the faubourg. The city corporation accepted the dedication of Canal street, and of the continuation of Poydras street, for the public use; but did not, and could not accept the dedication of the space between them, Gravier having at all times expressly reserved the right of property to it. That strip of land and the basin were subsequently sold under execution as the property of Gravier, and the defendants hold them under a sale that binds them not to make a canal. The question of dedication in relation to that property, came before the Supreme Court in the case of the Carrollton Railroad Company v. Municipality No. Two, and it was held that no dedication had ever taken place, and that the title was in the assignees of Gravier ; hut -after expressing this opinion, the court further said: “ The plaintiffs complain of the judgment of the Parish Court, because the judge declines deciding to what uses they should apply the Canal and basin, and ask us to amend the judgment in that particular. This request we must decline, as we do not think it proper to give such an opinion in the present state of the case. The plaintiffs have a regular title from Jean Gravier, and are vested with all his rights; as to the manner in which they may choose to exercise them, we will not express an opinion in advance.” This suit was instituted in 1838, by various purchasers of property fronting upon the aforesaid streets, for the purpose of obtaining the decision of the court on this single point. The plaintiffs allege that the site of the canal and basin can only be applied to the purposes for which they were intended by Gravier; that the defendants have no right to enclose the same, nor to erect sheds or buildings thereon, so as to interfere with the right of view of the petitioners ; they pray that the defendants be compelled either to dig out said canal and basin, so that the same may be navigable to the bayou St. John, or to abate the nuisance occasioned by its unfinished condition, and to fill it up in conformity with the police regulations of the city, and that they be enjoined from erecting buildings thereon. The defendants answered, alleging their perfect ownership of the property, and their right to use it as they may think proper, without hinderance from the plaintiffs. No further steps were taken in these proceedings till 1844, when John McDonogh, a purchaser at sheriff’s sale of some of the squares fronting upon Canal and Poydras streets, and situated beyond eight squares from the inhabited part of the faubourg, intervened. The original plaintiffs appeared to have abandoned the suit, and the contestation is now exclusively between the intervenor and the defendants. The court of the first instance gave judgment in favor of the defendants, and the intervenor appealed.* His counsel has argued that the question presented by the issue, is neither one of dedication nor of servitude, but he has failed to show how it can be any thing else; he admits that there was no divestiture of the title, and therefore no dedication. If it be true that, although the title has remained in the defendants, they can neither enclose their land nor erect buildings upon it, theirs is, in legal parlance, an imperfect ownership. The only imperfect own [86] nerships of immoveables recognized by our laws are those which result from the immovable being charged with an usufruct, a right of use or a servitude. Civil Code, arts. 482, 484. ^ *s not: Prel:ended that the immovable is charged in this case either with an usufruct or .a right o.f use; and if the intervenor has any right at all to control the use of it, that right must'be founded upon a servitus realis. His counsel, well awar.e of the necessities of his case, has alleged that he had acquired the right of view, by the disposition which Jean Gramer had made of the land in controversy in the plan of the faubourg, and that the erection of buildings upon that land or of enclosures placed around it, would abridge that right and render it imperfect. "We must therefore inquire whether a right of view is a servitude which unimproved lands can, in any case, -acquire upon other lands, and, if-so, how it was acquired to the lands of the intervenor? The laws on servitudes in force at the time those faubourgs were created, are found in the Partidas. The law 1st, tit. 3lst, of the 3d Partida divides them into two classes. The first constitutes those which a house enjoys on another house; these are named urbana. The second, are those which an -estate enjoys on another estate; they are called rustica. The second law of the same title describes the right of -.view as feeing exclusively urban, and such as a house can acquire over another house. The intervenor is the owner of swamp lots; it is not pretended that there were any houses on them when he purchased them, nor that there are any now. If then the right of view presupposes the existence of a house at the time it is alleged to have been acquired, how can the intervenor avail himself of it under the state of facts disclosed by him. He was clearly entitled to a right of way from the lots to the inhabited parts of the city, and he obtained it by the dedication of Canal and Poydras streets; but a right of view was not in the contemplation of the parties at the time, and is not a servitude that attaches in favor of waste lands. If it did, it is not perceived how the inter-venor .ever acquired it. “ Servitudes not established-by law could, at that time, be acquired in three ways only: 1st. By the grant of the owner to the persons who were to enjoy them, and for a valuable consideration. 2d. By his last will establishing the servitudes. 3d. By use and lapse of time. Law 9th, tit. 31st, Partida 3. The intervenor claims under an implied grant from Jean Gravier; but the laws then in force did not recognize such an implication, and required the grant to be expressly made to the party who was to enjoy it, and a consideration of some kind to be given by that party. ¡í Non enimpersolampromissionem, acquiritur servitus, nisi realiter constituatur. Gregorio Lopez, on the law cited. Here there was no contract, no acceptance, no consideration. Jean Gravier never offered to dedicate the land in controversy to public use; but, on the contrary, retained it as his own, and subsequently tried to form a company to whom he might sell it for $100,000, on condition that part of the price should go to the construction of the canal. In this attempt he failed, and ,the land remained as if the old drain had never been upon it. If a right of view could be implied from such -facts, the law in force at that time limited that right to the neighboring estate. The words neighboring estate had a technical meaning under the Roman law and the laws of Spain, which, on this subject, are the same. They meant the estate contiguous to that in fa [87] vor of which the right was claimed. See Pardessus, Disser. p. 353, and authorities there cited. Domat, Legum, p. 31, tit. 2. Now, in this case, Canal street and the continuation of Poydras street had been dedicated to public use, and were placed out of commerce by the acceptance of the dedication. They were the neighboring estates of the squares and lots fronting upon them, and if the right of view could attach at all, before houses were built, in favor of the purchasers of those lots and squares, that right would not extend beyond the breadth of those streets. The designation on the plan of the actual use of the strip of land situated between them, did not affect the right of property of Gravier, and left him at liberty to use it in any other lawful manner he saw fit. ■ To illustrate this position, let it be supposed that Gravier had extended the faubourg only on the lower side of Canal street, and that above the upper line of said street the words — ■plantation of Jean Gravier — had been inserted on the plan made of it. According to the argument of counsel, the intervenor would have acquired by that fact a right of view over the whole plantation, and Gravier and his representatives would have been forever debarred of the rights of extending the faubourg there, and of dividing the plantation into building lots. An argument that would lead to such consequences cannot be well founded in law, and the cases quoted in support of it are all based upon an entirely different state of facts. The analogy attempted to be established between the rights of the defendants, and those of the Navigation Company to the middle of old Canal street, entirely fails. That street was laid out as a single street, and the proprietors on both sides of it purchased their lots with reference to that previous destination. The authority given to the Navigation Company to extend their canal through the middle of it, was a change of destination of public property, not a divestiture of private ownership. Here Gravier gave to the public, who accepted them, two distinct and separate streets, and reserved, as his own, a strip of land thirty feet wide between them. The dedication was accepted with that reservation; the city of New Orleans never attempted to interfere with his ownership; and the intervenor purchased the squares he owns, with full knowledge of those facts. The fact of his purchase did not impair the right of ownership of Jean Gravier to what he did not sell, nor was the subsequent use which he, or his assigns, were to make of it, fixed by the use to which it was applied at the time of the formation of the faubourg. They may now divide it into town lots, provided they dedicate to public use those portions of it included within the lines of the cross streets. There is no error in the judgment appealed from. Judgment affirmed. Footnotes [*] Tiio plaintiffs also appealed.