Pickles v. McLellan Dry Dock Co.

The opinion of the Court was delivered hy Poché, J. Plaintiff, as lessee by transfer of the city of New Orleans, of a feny known as the Third District Perry, plying from the foot of Esplanade street to Olivier street, on the opposite hank, complains that the defendant Dry Dock Company lias, hy driving piles and locating a portion of their dock in front of Ms landing, illegally encroached on the space of one hundred and fifty feet allowed him under his contract for landing conveniences of his ferry-boat at the foot of Olivier street. Hence, he brings this suit with a view to obtain redress through a judgment ordering the removal of the illegal obstructions interposed hy the defendant company, and,he cites the city to defend and protect him in the full enjoyment of his contract. The city intervenes and joins plaintiff in his prayer for redress. For answer the defendants plead the general issue, and specially urge their right to locate their dock and to drive piles in the bed of the river, as complained of, on the ground of the ownership by one of their incorporators of the riparian property in front of which they are operating, and on the authority of the Police Jury of the Parish of Orleans, right hank, under whose ordinances they had established their dry dock, which is a necessity of commerce and navigation, and that no part of the space occupied hy them is necessary to the conveniences of the ferry. They also allege that the piles, as driven hy them, are beneficial and not injurious to the ferry landing, and that plaintiff has not complied with the contract which he has set up as the basis of his action. They prosecute this appeal from a judgment in favor of plaintiff as prayed for. The consideration of two bills of exceptions reserved hy defendants involves the discussion, in a great measure, of all the law which governs the case. The first bill grew out of defendants’ objection to the introduction in evidence of the notarial contract of lease between the city and plaintiff, the objection being that the contract did not show on its face, and no [414] evidence had been offered to show, that the contract had been awarded in compliance with the clause of the city charter which provides that “all contracts for public works, or for materials or supplies ordered by the council, shall be offered by the controller at public auction, and given to the lowest bidder who can furnish security satisfactory to the council, or the same shall, at the discretion of the council, be advertised for proposals.” * * * The district judge correctly ruled that the objection went to the effect and not to the admissibility of the evidence. How could the court decide whether or not the document contained proof of the manner in which the contract had been concluded, without admitting and considering it in all its parts? But referring the objection to the alleged nullity of the contract for the reason contended for, we look in vain in defendants’ answer for any averment of such illegality; hence, they were correctly ruled out of a position which had not been set up in their pleadings. The practical result of defendants’ contention on this point would be a judgment annulling and setting aside a contract between the city and a lessee of an important franchise, useful and almost indispensable to the public, by means of a collateral attack, in a suit which merely involves the question of the power of the city of New Orleans, within her corporate limits, to regulate and control the use of the river banks, and to restrict private parties in their claim of unbridled license to enjoy the use of said river banks as their interests may suggest. That mode of attack of a contract finds no sanction in law, and it cannot be tolerated in practice. These considerations are sufficient in themselves to dispose of all the positions assumed by the defendants touching the alleged illegality and nullity of plaintiff’s contract, and they preclude all discussion of the grounds of such nullity, The other bill involves the alleged error of the trial judge’s ruling-in excluding proffered evidence to show a dedication to public use by the police jury of the space sought to be occupied by the defendants, as necessary to commerce and navigation, to show the occupation by them under the rights of a riparian proprietor, and to show further that the space thus occupied was not necessary, and had never been adapted, to the use or conveniences of a public ierry, and the use of the same by the defendants and their predecessors for over fifty years. There is no merit in this contention. Under a proper exercise of its police power, the State had the undisputed right to recall and to abrogate all the authority previously [415] granted by the legislature to the former police jury of the parish of Orleans, (right bank) and to vest the same power in another and distinct State functionary. That is precisely the meaning and the practical effect of Act No. 7, of 1870, which incorporated that portion of the parish of Orleans in the city of New Orleans. Under that legislation all the powers conferred to the city of New Orleans under its charter could be legally exercised over every foot of the territory which had thereby become a part of that city. Abascal et al. vs. Bouny, 37 Ann. 538. And among those powers, one of the most important was the right to regulate the use of the river banks, to establish and control wharves and ferries, and to designate the places of mooring for ships and steamboats. It follows, therefore, that from the moment that Algiers became a portion of the city of New Orleans, all the previous ordinances of the police jury of the parish of Orleans, right bank, purporting to confer landing or mooring privileges, and which had been granted under a power since abrogated, had to yield in force and effect to the regulations of the council of the city of New Orleans on the same subject-matter, and that the latter alone became the law binding on all alike. Numerous decisions of this Court, in perfect harmony with general jurisprudence on similar questions, have settled beyond the domain of possible discussion the doctrine that a city vested with the powers enumerated in the charter of the city of New Orleans has the undoubted and necessary power to regulate the use of the banks of any water course on which it borders, and that in this State such authority is not restricted by Article 455 of our code, which declares that “the use of the banks of navigable streams or rivers is public,” and “that according everyone has a right freely to bring his vessels to land there,” etc. It is now well settled that this general right must be modified and controlled by municipal regulations when adopted in conformity with chartered authority. In the case of Watson et al. vs. Turnbull. 34 Ann. 856, (which singularly is not refen-ed to by either counsel in this suit), we had occasion to examine our jurisprudence on this question. The contention in that case on the part of plaintiffs was that the city of New Orleans had no right to place “hitching posts” along the river bank in front of their property, on the ground that they had already placed, at their own expense, all the posts that were required, and that there was no necessity of commerce requiring the placing of [416] 'such posts by tlie city, and that by such act the city would deprive the riparian owners of their free use.'of the'banks of the river. .The Court held: “Within the corporate limits, the city of New Orleans, under her charter and under the general law, has the right to control, manage and[administer the use of the river banks for the public convenience[and[utility, to establish wharves and landings.” * * * “Riparian proprietors have no right to appropriate to their exclusive use these banks, and tlieyjhave no private property in the use thereof, which is public. The discretion of the city authorities in determining what are proper and[needed facilities for commerce, and on what part of the river bank, within her limits, they should be established, is manifestly not a proper subject for judicial control or interference. Whatever incidental damage may result to proprietors from the exercise of these unquestionable corporate rights, is damnum absque injuriet.” We have taken the pains of making this copious extract from that opinion for the reason that it covers almost all the points which we are now discussing, and because it formulates a rule of law of easy understanding, as a logical.result of numerous adjudications which we had examined, and to which we refer in the opinion. We have carefully considered tlie[authorities relied on by defendants, but they do not refer to cases which involved the corporate powers of the city[of New Orleans to regulate the use of the river banks within its limits. They [can draw no more strength from the case of Ellerman vs. Morgan’s R. R., 34 Ann. 698, as the point in contest herein was not involved in the issues therein discussed. We said there: “The case presently before this court is not one in which the city seeks to prevent the defendants from using their wharf in any manner, or to appropriate it and enjoy it for other purposes.” One of those'[questions is presented in the instant case, and that is the right of the city to prevent the defendant company from using its wharves and docks in a manner injurious to the public or in conflict with franchises or privileges emanating from her authority. From tlie foregoing considerations it follows that under the law as it is now settled, it is immaterial to the real issue in this case, whether the defendants were or not riparian owners, whether they had obtained any franchises from the former police jury, and whether the space allotted to plaintiff was or not necessary to the ferry landing or to the conveniences of the public, and we may add that the defendants were without legal authority to raise the objection that plaintiff had not fulfilled his contract. Werges vs. Railroad Co., 35 Ann. 648. [417] Evidence on all these points was therefore manifestly irrelevant, and it was properly rejected. Under these views we leave defendants without any law to support their contention, for, as stated in the first part of this opiuion, all the principles of law applicable to their case were involved in their bills of exceptions. Our examination of the testimony has satisfied us that plaintiff’s complaint is well founded ; that defendants have illegally encroached on a portion of the space allotted to him under his contract with the city, and we therefore conclude that the judgment appealed from is correct in all particulars. Judgment affirmed.