Hatch v. Arnault

The judgment of the court was pronounced by Epsxis, C. J. This is an appeal from a judgment rendered by the Fifth District Court of New Orleans, by which it was decreed that the Metairie Road of right belongs to the public, as far as the river Mississippi, at the place called Cannes Bruslées, as it formerly existed, and directing all obstructions to the free public use of the same to be removed. The appellants are owners of plantations fronting on the Mississippi, through whose lands the road passes, and who have been made defendants jn this suit. The plaintiffs allege themselves to be proprietors of land in the parish of Jefferson, situated between Lafayette and the lake. It is contended, on behalf of the plaintiffs, that having established the road to have been a public road, the soil is in the public, on the authority of the case of Renthorp et al. v. Bourg el ux., 4 Martin’s Reports, 97. This case was determined in 1816, and it was there held that the part of the roman law which declares the soil of a highway to be public properly, appeared to be in force in France, and was so in Louisiana when the co'untry passed under the dominion of Spain. In dissenting from the principle laid down in this decision to its whole apparent extent, we deem it proper to give some reasons for ourjreservation. A recognition of the doctrine without qualification, at this time, would be considered as an alarming disturbance of private right. As civilization and improvements have advanced in this State, as the navigation of our water courses has improved, and our lands been explored and reclaimed, new settlements have been established, and new means of passage been required. New roads have consequently been made by public authority, and old ones abandoned. The changes in the banks of the Mississippi necessarily produce the same result, and the old roads about villages have been in many instances enclosed and used as private property. The importance of the subject, with these facts before us, is, therefore, obvious. The court held that, under the roman law, the soil of the vice publicce was public property. But the difficulty with us is, in the application of the laws in relation to those great works — the roads of the roman empire — some of which exist to this day, to those of an infant colony like that of Louisiana, without population, and a portion of whose soil only was beyond the reach of annual inundation. Those of Rome were intended to be as permanent as the labor of man could make them, while those in Louisiana would necessarily be suchas he changes in the rivers and the future settlements would require. [486] The authorities on which the soil in a highway was held to be public are, Partida 3, 28, 6; the Cod9 of 1808, p. 94, art. 6; and 3 Martin, 303. The text of the Partidas authorizes no such conclusion, as to the property in the soil. The commentary of Gregorio Lopez gives no snch interpretation to it. The Code mentions highways, as among public things, the property of which belongs to a whole nation, and the use of which is allowed to all the members of the nation.” In the french text the corresponding words are, les grands chemins ; and, in the case of The Mayor v. Metzinger, 3 Martin, 303, nothing more is decided than that,roads and streets cannot be appropriated to prívate use, and that a grant of either would be void. That there are grands chemins, highways, of which the soil is public property, in the same manner as that of the via ¡public.ce in Rome, there is no necessity for our determining; but we desire it to be understood that we cannot assent to extending the principle to all highways or public roads throughout the country, and that the doctrine in Renlhorp’s case, is not to be understood as recognized without this limitation. i In support of our opinion that the property of the soil in rural roads in Louisiana is not public, in the sense .contended for, the uniform acquiescence of the government and the people in the appropriation of the land to private purposes when a road is .abandoned, is a fact entitled to great weight. When the public interests require the direction of a road to be changed, or whenever it becomes useless and is so considered by the proper police authority, the owner of the plantation through which it passes resumes dominion over it, and we have yet to learn that the right has ev.er been contested. But there-is still a stronger reason for the views we hold on this subject, and that is to be found in our legislation, which is in accordance with the uniform acquiescence in the right of the proprietor to resume the land when it is no longer required for a road. The counsel for the plaintiffs state, in their printed argument, after quoting the above noted authorities, to show that the soil of a public highway is public property : “ These are the public roads described in the first section of the act, approved the J2thof March, 1818, which provides that all l-oads in this State that shall have been opened, laid out, or appointed, by virtue of an order of any of the police juries in their respective parishes, are hereby declared to b & public roads. They do not differ from a street in a city; both are publici juris, belonging ■wholly to the public, and not susceptible of exclusive possession by any one person.” But to this argument the proviso of the second section of that act furnishes an answer. It reads thus: “ Provided also, that nothing in this act shall be so construed as to affect in any manner the rights of individuals to any batture or alluvion already formed on the front of any tract of land, which lies on any navigable river or water course within the limits of this State, nor to prevent any owner of the soil on which a public road shall pass to resume the use and possession of such soil whenever said road shall have been abandoned by the public, or shall have been transferred elsewhere with the consent of the owner, and with that of the competent authority.” It results, then, from the terms of this act, which was passed two years after the decision in Renthorp’s case, that the soil of public roads did not always belong to the public, and that the public right was defeasible on the abandonment of the roads. Our laws underwent a reyision in 1825, and the Code of that year contains [487] some provisions on this subject, which require notice. That Code retained the article of the Code of 1808, which we have quoted, concerning highways. Code of 1825, art. 444. Code of 1808, p. 94, art. 6. These are in the chapters entitled The Divisions of Things ; and under the chapter of Servitudes are the following articles : Art. 760. Roads are of two-kinds, public and private. 701. Public roads are those which are made use of as high roads, which are generally furnished and kept up by the proprietors of estates adjacent to them. 702. Private roads are those which are only open for the benefit of certain individuals, &c. In the projét of the Code, to these and art. 703, this remark is appended: “ These provisions, which are not in our Code, are of the greatest importance in this State, where the cases mentioned may so frequently occur.” In the french text the terms chemins publics are used in articles 700 and 701; and, as we have before noted, in article 444, the word highways is rendered in french by the term grands chemins. The' distinction made by the Code appears to be between grands chemins, which is translated highways, and chemins publics, which is translated public roads. ' The former are of that class of public things, the property of which is vested in the whole nation; and the latter may be made on land subject to private ownership.- The roads, old-and new, throughout Louisiana, we believe generally to have been what are denominated in the Code public roads. Hence, it by no means follows, that because a road is a public road that the public has any right to the soil, after it shall have been abandoned. That there are in the country roads of the class of via publica we are not under any necessity of contesting; and, having placed what we conceive, to be necessary and proper limits to the application of the decision in Renthorp's case, we proceed to the consideration of the present case. Have the plaintiffs established that the Metairie road to the river Mississippi, as described in their petition, was a highway, the soil of which is in the public, is the first question to be examined. The plaintiffs contend that the affirmative of this proposition is proved by the evidence adduced by them. They rely upon a decree or judgment rendered by Galvez, the governor general of Louisiana, in 1779, in certain proceedings instituted by the commandant of the settlement of the Germans ága'inst Pascalis de Ldbarre, in' order to compel the latter to restore a bridge, which he had destroyed', on this road. It is'true that, in the' decree of the governor, the road is recognized as a royal road, as is stated in the argument of the counsel, but we do not find that the' question as to the property in the soil was determined, or even mooted, in those probee'dings, the only question being as to the public right to the road. Labarre was condemned to replace the bridge, but we cannot infer from what was' then done, any thing more than the recognition of the public right by the governor; still less can' we conclude that this road was of a different character, as to the property, from the ordinary public roads in the country. By an act of the Legislative Council of the territory of Orleans, of the 28th of February, 1805, entitled “ An act for opening the road called the Matairie, Sec.," the attorney general was directed to present to the Superior Court a petition, setting forth that the road had been long of right used and occupied as á public road, and praying that the court would decree that the said road belonged to the public, and that the same might not be in future obstructed in consequence of the unfounded claims of individuals. Under this statute an in [488] quest was had, at the instance of the attorney general. "" On'the minutes of the court, under date of the 11th of February, 1806, this entry is made in the case: “ Upon hearingthe claims of the parties, it is decreed that, the said road belongs of right to the public.” The attorney genéra^claimed the road as, having been long of right used and occupied as public highway, and prayed that it might be decreed to belong to the territory. Several of the owners of plantations through which this road passed resisted the claims thus set up, by a formal protest and answer. It appears that witnesses were examined on both sides, and that the case was several days on trial; but there is no evidence'of any judgment having been rendered, except the extract from the minutes just given. The practice act of 1805 required all judgments to be signed. No judgment’haVingTeen signed in this case', there is no res judicata. The only effect we can give to the act of the Legislative Council, and the proceedings under it, as facts existing at the time, is to consider them to be in affirmance of the decision of the governor general that, the Metairie road to the Mississippi was_ a public road. It must be observed that, the proprietors of the plantations through which this read passed,- from time to time, resisted, or obstructed its establishment, as the intervention of the public authority in 1779, and in 1805, sufficiently proves. It was a subject of contention which has become not the less difficult to solve as its origin has become more remote, and the facts in relatiou to it less easy to be ascertained by evidence. Taking it, therefore, as' fully proved that, the road in question was a public road, to which class does it belong? We have not considered the Code of 1825 as altering the law as it stood at that time, but. as declaratory of it, and while it recognized the doctrine in Renlhorp’s case to its proper extent, established those reservations which were necessary, as the country in its settlement was continually undergoing changes. Article 444 provided that highways, great roads, vite publica;, were public things; and article 701 that, public roads were those which are made use of as high roads, which are generally furnished and kept up by the proprietors of estates adjoining them. Article 661 provides that, services imposed for the public or common utility, relate to the space which is to be left for the public use, by the adjacent proprietors, on the shores of navigable rivers, and for the making and repairing of levees, roads, and other publie or common works. There is nothing before us which distinguishes this road from any of the public roads in the country. In the early settlement of the colony it may have been much frequented, but, as the lands on the river were occupied, its utility diminished, and, for more than thirty years, it has been abandoned. There is great force in the position which the proprietors of lands through Which this road passed have invariably maintained in relation to their rights as owners. This road is one of the oldest in the colony; and, if it was intended to reserve it to the crown in property, as a grand chemin, or permanent highway, it is very singular that no mention was made of it in the original grants and titles which run from the Mississippi to the lake, without any exception or reservation. A survey has been shown, made by the surveyor general in 1803, in which the road is marked as chemin de la Metairie. On being examined on the inquest, had in 1806, and being asked whether, in the titles of the lands of the inhabitants which had passed through his hands, there was any indication of such a road, he answered: *• Never having had any instructions from the governor upon this subject, and believing the road to be a public road, 1 have always [489] marked it in those titles of land which have passed through my hands.” No title has been exhibited other than the survey mentioned. It is a fact, which we are not permitted to overlook, that this road, which it is attempted to assimilate, as to its character, to the great roads of the roman empire, was never reserved by any act of the sovereign poweras partof the domain, in any grants of land adjacent to, or in its vicinity, nor designated by land-marks or admeasurement in any ancient plan, as streets and public places always are ; nor was it con’ structed and kept up in any manner indicating permanency, or distinguishable from an ordinary road. It has none of those characteristics in its origin, history, construction, or purpose, which accompanied those monuments of enterprise and labor, which, to this day, bear witness to the greatness of that wonderful people, whose institutions and works were not only organized for domestic prosperity, but extended to her colonies as elements of universal dominion. The plaintiffs’ claims rest upon the occupation and use of the public road during a time sufficient to establish the public right to it as a public road,'but they have shown no right of the public to the soil. The road has been since abandoned by the public for more than thirty years, during which time the possession of the defendants under their titles has been undisturbed. The main road on the river they have kept up;'this road has gone into disuse. The public authorities do not attempt to reestablish it; as far as theyjare concerned, it has been rightfully resumed by the proprietors of the soil, and is no longer for the use of the public. The judgment of the District Court is, therefore, reversed, and the plaintiffs’ petition dismissed, with costs in both courts.