Municipality No. Two v. Palfrey

By the court: (Slidell, J., absent.) Eustis, C. J. The municipality claims a certain lot of ground of an irregular form, bounded by Camp, Coliseum and Robin streets, in the former suburb Lacourse, as public property, or for the use of the public. The claim is based upon an alleged dedication to public use, by virtue of the original plan under which that part of the suburb was originally laid out and disposed of in lots to different purchasers, which is the same plan adjudicated upon, in the cases of Xiques et al. v. Bujac, and Livaudais v. The Municipality. There was judgment in the district court against the plaintiff. On an examination of the original plan, and considering the published prospectus, which preceded the sale and stated the conditions on which the property was offered for sale, we do not find any evidence whatever of the dedication of this space to the public use, or any transfer of ownership, or creation of servitude in relation thereto, by its original owner. This piece of ground was not enclosed by the municipality, until 1845. Previous to that time, we do not think the evidence established any use or occupation of it, inconsistent or adverse to the civil possession of the owner. We think there is no prescriptive right acquired by the municipality or the public, adverse to the ownership. This ground appears to have been very low and marshy, and inaccessible in wet weather. It was called by the old inhabitants, the Bayou des Armes, and not used until reclaimed in 1845. We do not think the non-payment of taxes for this ground makes, of itself, any difference as to the right of ownership, or proves an abandonment of it to the public use. It is not proved that it was assessed, and may have been omitted on the assessment on account of its condition and little value. Nor do we consider the receipt of taxes on the land since 1849, as in any manner affecting the rights of the municipality. The merits of the case seem to be independent of these facts. The district judge has, as well as in the case of Xiques et al., given his views at great length and with great care on the different points of fact relied upon by the counsel for the plaintiff. The case does not appear to present any difficult question of law. We think the district judge came to a correct conclusion. The judgment of the district court, is therefore affirmed, with qostsj