Heirs of David v. City of New Orleans

Buchanan, J. In the year 1807 Livaudais and Robin, owners of two adjoining tracts of land above the city oí New- Orleans, fronting on the Mississippi river, laid out their land into squares of town lots, intersected by streets, under the. name of Faubourg of the Annunciation, and offered the lots for sale, according to a plan made by Lafon, a civil engineer, deposited in the office of a notary public, with an act of deposit signed by them. Tiie laud embraced in this plan now constitutes a portion of the First District oí tile city of New Orleans. The plaintiffs in these two consolidated suits are the heirs of the original proprietors of the Faubourg Annunciation, Livaudais and Robin, and bring their petitory actions against the city, claiming two portions of groin..! of one hundred and twenty feet square each, situated, tllg-one in square 93 and the other in square 94, of Lafon’,s plan of the Fahbourg, at the junction of Melpomene street and Dryades avenue, (Cours des Dryades.) Those portions of ground have been taken possession of by the city, which has erected a market house upon the same, from which it derivos a considerable revenue. The defendant pleads in defence of the action, that the property claimed by plaintiffs is a public plací-, and part of a public highway; that the same was so designated in the original plan of the Faubourg; and. by the acts of those tinder whom the plaintiffs claim title, the same was dedicated to public use forever. It was admitted on trial, that the capacity of petitioners and their titles ¡ire as recited in the petition. It was also admitted, that on the property in dispute,-there exists a public market; that said market was built- by Patrick Irwin, by agreement with the Second Municipality; that the agreement was, that Irwin was to enjoy the revenue of said market for eight years; at the expiration of which time, he should deliver the market to the corporation, upou receiving one half of his original expenditure for the construction of the market; that this term has expired; that the city paid Mr. Irwin eight thousand dollars, or thereabout; and that plaintiffs notified the Second Municipality, at the time the market was erected, of their claim to be proprietors of the property now in dispute. Under these pleadings and admissions, it is seen that the question is [405] purely and simply one of dedication to public use, as a highway or street. The evidence of such dedication is supposed, by defendant’s counsel, to-be found in certain dots or points, which, on Lafon’s plan, extend in two parallel rows along- the east side of Dryades avenue, until they reach, severally, a point in the squares 93 and 94, one hundred and twenty feet distant from Melpomene street; where the said row of dots diverge at right angles from the general line of Dryades avenue, to a distance of one hundred and twenty feet; and then, turning again at right angles, strike Melpomene street at the distance of one hundred and twenty l'eet from Dryades avenue. No words written upon the plan indicate the meaning of these recesses of one hundred and twenty feet square, in the adjacent corners of squares 93 and 94. Those recesses lie without the general line of the street upon which is written in the plan, “ (lours des Dryades,” Two civil engineers have been offered, by defendants, as witnesses to explain the meaning of the plan of Lafon, in reference to the dedication alleged. Those witnesses differ in their interpretation of the plan. One of them, L. H. Pilié, the city surveyor, testifies, that “he considers the piece of ground on which the market is built as part of Dryades street, for the reason that on Dryades street there are points indicating trees, and that that line of trees continued all around this piece of ground.” “ His opinion is, that the piece of ground on which the market lies is part of the ‘ Cours des Dryades ’ and of Melpomene street:-” The other engineer, Mr. Buisson, “being asked if, from the plan before him, he could consider the space on which is built the Dryades market as being included in the ‘ Cours des Dryades, ’ answered, there is no such designation on the plan.” “This piece of ground is not indicated on the plan as a public place, for want of tlie indications which the others have.’’ (The witness had previously stated that there are but two public squares marked on the plan — -the “ Place de VAnnunciation” and the “Place dn Marché.”) “Being asked if, by examining the plan, he could not declare that that portion of ground on which the market is built, is not a portion of tlio (Jours des Dryades, he answered, there is no indication that it is.” In this conflict of the opinions of professional draftsmen and surveyors, would, we think, be unsafe to infer an intention on the part of the authors of the plan of the Faubourg Annunciation to create a £;>ublic place at the junction of Melpomene and Dryades streets, composed of fractions of the adjacent squares Nos. 93 and 94, from the sole fact that a line of dots, xn-obably representing trees, is depicted on the plan, as retreating from the general course of Dryades street at this particular -point. The authorities upon the question of dedication of individual property to public use, seem to require something more definite and precise than the proof of dedication-offered by the defendant in this case. In another case of a similar character to this, growing out of the same plan of Lafon, Judge Martin held that evidence was inadmissible to show [406] the meaning attached by Livaudais to a word written upon this plan, '(1 ‘•ü'óliseé'’”)'. which- Kvfifi'blailiied‘ ás’ 'evidencfngí-'a'jaedicatioiairtorpntóic -uB.e.’K; ai iii'‘tlih:pfes’¿ñ't'Cíi6lélho wbrds--'ar'e'writteii'iqboirth'at'portionof thé-planfi-! wh'icii'repíefebhts 'tlie-laiidhow in dispute/ 5 That-land is.-certainly 'ou.tr.of the' general ‘lilies1 <Sf any- stl-eét. •1 It N hot- designated aS a public square," or place"; blit"wé ai/é called' upon to decl&L'eut terb'eteueli; upon-the strength-/-, of ah ornamental border of dots or p'oihts, -'which may, w -may not, ham' been intended to designate' trees; for this'is-eh'tirely''Conjectm.-al;.'there'-.' being lió evidence to show the meaning of the authdFof the- plan-.-e^eii supposing that stích bvidence couldlitive-beeií admitted uíidel-ttíe i-uling of Judge Mai-tin,' in the case .in 16th’ Louisiana, above- quoted-. •■/In the. same case,’' page 513, the court says’: '■'/■ . ■> . • i. “There"is no evidence of the alleged dedication,'-oui of the plan ibthis - “ case;'and none in the iilan, out of the word- ‘Uolisiiim.’-'- In this same ¡ “ plan is marked a locus publicus, called ‘La j/luee de l’Annonciatioii ’ i'fiU “ the middle of ivliich is'a spot, designatédüs'á plab'efor'aóKúl-dh-:”-' ' The 'doctrine of the case quoted evidently is,’ that'the iiit'eiitioh to ■ dedicate to public úse must be signified' hi a manner hót-liablé io doubt or " misconstruction,'by son..' .hug- mbre''than symbÓl'á-' Of úhdertain import,'1 or fanciful adornments with whicli it has pleased "a‘draughtsman- to de — - oorate'á plan of'property.'" Nemo iri'bsnmitur clonare.' : .. ’’ ' '• A Again, in íhe'greát case of Municipality No. Two v. The Orleans Cotton-press Company, 18th Louisiana Repórte; pa'ge 244, tlie! organ- -of filie majority of the’court,'in the 'decision iehcléretí,' laid dowh a'blear and'1 precise riile'for'testing'a dedication tó públic úse; -to‘be'iinferred-from-a plan; '• ‘ 'Thé: ’Cdiirt held ■ 'that - words dlidióativé-1 'of1 -an - -intention- do • igive ■ shoúl'dbe found' oivthd'plan, 'in'-' order to clothe -it -Withi such-an- effect;. andj mbiéover, that tlie’public should have-a'ccceptéd 'the--dedication, byi úslúg'fihe gróúúd'foi* the purposes indicated/;,The:-cóiirtla¡ssTimed that-/ Words of dedication niúst have been used ill the plan-'which was the subió je'ót'of the deciSióú oí tlie'Súpi-eme' Court-of-the-’United--States,;-in- -the; city of Cincinnati v. White’s lessee, 6th Peters, 432, and-.quoted -with api,-probation thé fdllOwitígideDÍsion-in¡that oaseth.-i.v; / .d .:<¡ .;•• ■uff No particular fonm/ór.cSreíndny.ls.neceSsaryiinthp.dedication, of lane]., to publicusei bAllfihhitis¡required is-the.ass.eiitepffilie oypier.of tbplancj,-) a»d,ytjip:ifaqt,,of,,Its..:beipg,, ú$pd.,f,,thqip.p^-pintended,.by thp ap-mBtifim-nsi -hi .... -'.ibi--:-; mi j ¡/..,,, ...Jlj^vipgie^pmihed alj-'pii'dy^hg.forqi.qf th,e inferential grant or dedicar ti!q^.j.fll,.t|ii?1(}^v|.^i-vis p.ext, enquire,yvlqit are the f^icjs .plisclosed by jtlie lppO^fllinp-fl^oj^tp ,t]i<5, t-ycj essenti^lSj^uqcier the high authorities/just’ q-ijilqtp.(;lj;jl^t,.tlie a^pnt.qf thpopner of .the land; 2d; the accepta^cp and use by tj^ppubljp^pcQr.qiing|p the purposes 0f tlip dedication. Uppn’th’e firstpoint jtjis.^^itiipldiof^-e^o^d^ that simultanepiisly \vi,th the first move on’the part qijlq^p^auth.orities t^wajeejs taldng possession of the land in controversy,' they were warned by the plaintiffs that filie latter claimed.the lanaas'tí¡eÍi- - - - * i was done m filié ^ 'th’áít* filib1! pliiin-iti/h-jj ’U> ii.-dif [407] tiffs, or the authors of tlieir title, bad sold lots bonndéd -by'tihfee' prem- • ises as a public place. ' " ■ w-<. ■- ' -. Upon tbe second point there is no evidence that defendants ever 'used the premises in contest as. a public highway, the purpose to which their answer alleges that they were dedicated^ On the contrary, the first use made of ’this land was, to lease it to an individual for the purpose of building a market-house, of which the emoluments were received by the lessee during the term of the lease, and subsequently by the corporation as a branch of its revenues. A dedication to public use as a highway was surely not fulfilled by converting this land into a site for a market. In two cases, David and Livaudais v. Municipality No. Two decided in December, 1853, and not reported, and in The Heirs of Guillotte v. The City of New Orleans, decided in November, 1856, also not reported, it was expressly held that a market-house is not necessarily public property, but maybe the object of individual ownership. It is a place to which the public have free admission for the purpose of purchasing provisions. But the right of selling them is not free to the public, at'large. That right is usually reserved to a limited number, for a rent, paid.. So far from beiiig a -public placo, a market may. be one'.,of the most profitable investments for capital, if we may judge from the market erected on this very land — a market which cost the city, as tire evidence shows, eight thousand dollars,- and is now farmed out by. the city at twelve thousand five hundred dollars a year. ■: ¡. The original ownership of the land' being established and admitted to have been in the plaintiffs, it was incumbent on defendant to slipw, that such-ownership had been divested. This he has failed to do. ¡ ,T-hp,proof does not makeout either an original grant, or any .act of plaintiffs,-, or of their authors equivalent to a grant, of the locus in quo, for a public highway; neither is the assent of the owner of the land proved, nor. the acceptance and-use by the city for the purposes of the -dedication pleaded by them. - We therefore conclude, - that the evidence is insufficient to show the dedication; and were this otherwise, the city forfeited the same by misuser. - ' ' . .. Jrrdgment affirmed with costs.