New Orleans v. United States
35 U.S. 662 (1836)

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U.S. Supreme Court

New Orleans v. United States, 35 U.S. 10 Pet. 662 662 (1836)

New Orleans v. United States

35 U.S. (10 Pet.) 662

Syllabus

The United States alleged, by a petition presented to the district Court of the United States for the District of Louisiana, that by the treaty of cession of the late province of Louisiana, the United States succeeded to all the antecedent rights of France and Spain as they then were, in and over the province, the dominion and possession thereof, including all lands which were not private property, and that certain lots and vacant lands in front of the City of New Orleans, which the petition asserted passed to the United States by the cession, had by an ordinance of the city been directed to be sold for the use of the city. The petition prayed that the City of New Orleans should be perpetually enjoined from selling the same or doing any other act which shall invade the rightful dominion of the United States over the said land or their possession of it. The City of New Orleans claimed the ground which lies between the line of the front houses of the city and the River Mississippi:

First, as having been left by the King of France as quays for the use and benefit of the city.

Second, because if since the foundation of the city the space of ground became wider than was necessary for the use of the city as quays, it was occasioned by alluvial deposits in front of the city in consequence of works erected by the inhabitants at the expense of the city to advance the levee in front on the river.

Third, because by the laws of Spain, in force when the alluvions were formed in front of the city, such formations belonged to the inhabitants of the cities, who may dispose of the same as they may think convenient, on their leaving what is necessary for the public use.

The District Court of Louisiana ordered the perpetual injunction as prayed, and that decree was reversed on appeal.

In order to dedicate property for public use in cities and towns and other places, it is not essential that the right to use the same shall be vested in a corporate body. It may exist in the public, and have no other limitation than the wants of the community at large.

The principles upon which the case of City of Cincinnati v. White, 6 Pet. 431, and the case of Barclay v. Howell, 6 Pet. 498, were decided examined and affirmed.

If buildings had been erected on lands within the space dedicated for public use, or grants of part of the same have been made by the power which had authority to make and had made a dedication of the same to public use, the erection of the buildings and the making of the grants would not be considered as disproving the dedication, and the grants would not affect the vested rights of the public.

The question is well settled at common law that the person whose land is bounded by a stream of water which changes its course gradually by alluvial formations shall still hold the same boundary, including the accumulated soil. No other rule can be applied on just principles. Every proprietor whose land is thus bounded is subject to loss by the same means which may add to his territory, and as he is also without remedy for his loss in this way, he cannot be held accountable for his gain. This rule is no less just when applied to public than to private rights.

It would be a dangerous doctrine to consider the issuing of a grant as conclusive evidence of a right in the power which issued it. On its face it is conclusive and

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cannot be controverted, but if the thing granted was not in the grantor, no right passes to the grantee.

On 3 March, 1825, the Attorney of the United States for the Eastern District of Louisiana filed a petition in the district court stating that the Mayor of the City of New Orleans, in pursuance of an ordinance of the city council thereof to that effect, had advertised for sale in lots the vacant land included between Ursuline, levee, and Garrison Streets and the public road in the City of New Orleans, and also the vacant land included between the custom house, levee and Bienville streets, and the public road in the same city.

That by the treaty of cession of the late province of Louisiana to the United States, they succeeded to all the antecedent rights of France and Spain, as they then were in and over the province, the dominion and possession thereof, including all lands which were not private property, and that the dominion and possession of the vacant lands endeavored to be sold by the city council had, ever since the discovery and occupation of the province by France, remained vested in the sovereign, and had not at any time prior to the date of the treaty been granted to the City of New Orleans.

"Wherefore, inasmuch as the said attempt of the said city council to sell the lands as private property is an invasion of the rightful dominion and possession of the United States in the premises,"

the petition prays that the mayor, aldermen and inhabitants of New Orleans may be summoned to appear and answer the petition, and in the meanwhile that they may be inhibited by injunction from proceeding further in the said attempt or from doing any act to invade the rightful dominion and possession of the United States in the said land, and that after due proceeding, the injunction be made perpetual, and also for all other suitable and needful relief.

The district judge ordered an injunction according to the prayer of the petition. In December, 1827, the Corporation of New Orleans filed an answer to the petition of the United States which, after the usual reservations, denied all the material facts and allegations in the petition; and positively denied that the dominion and possession of the pretended vacant land, which the respondents had offered to sell by an ordinance of the city council

"was or did (at the time

Page 35 U. S. 664

of the treaty of cession to the United States) remain vested in either the King of Spain or the sovereign of France, either as vacant land or under any other denomination, and that the same passed as such to the United States."

The answer prayed that the petition should be dismissed and the injunction dissolved.

In December, 1829, the Corporation of New Orleans filed a supplemental answer to the petition of the district attorney of the United States in which they ask leave to add the following pleas to those contained in their original answer. They say that the inhabitants of the City of New Orleans are the true and lawful proprietors of the property.

1. Because all the space of ground which exists between the front line of the houses of the city and the River Mississippi was left by the King of France, under the name of quays, for the use and benefit of the said inhabitants, as appears by authentic copies of the original plans of the foundation of the city.

2. Because if since the foundation of the City of New Orleans the space became wider than was necessary for public use and for the quays of the city, it was in consequence of an increase formed by alluvion in the greatest part of the front of the city, and the works which were successively made, from time immemorial, by the inhabitants of the city at their expense, to the levee in front thereof, to advance it nearer to the river than it was formerly.

3. Because, by the laws of Spain which were in force at the time the alluvions were formed and said works were made, alluvions formed by rivers in front of cities belonged to the inhabitants thereof, who may dispose of the same as they think convenient on their leaving what is necessary for the public use.

Further, they say the vacant lots claimed in the petition are worth the sum of at least sixty thousand dollars, of the property and disposal of which the respondents cannot be deprived unless they were previously indemnified therefor by the government of the United States.

The United States, in December, 1830, filed a replication to these pleas denying all the allegations contained in the answer, and the supplemental answer to the petition.

The case was afterwards submitted to a jury, but on the jury's not being able to agree, they were discharged by the court with the consent of the parties. Afterwards, the trial by jury being waived by consent, the case was submitted to the court upon statements of

Page 35 U. S. 665

facts prepared by the parties, and on 18 June, 1831, the district court made a decree in favor of the United States, being of "opinion that the defendants had not exhibited sufficient evidence to support their title to the premises in dispute," and decreed that the injunction of the United States be made perpetual.

The Corporation of New Orleans prosecuted an appeal to this Court.

The statement of facts exhibited, as proved by the United States, contained:

1. A reference to proceedings before the commissioners of the United States, under the acts of Congress relating to the adjusting of land claims in Louisiana, relative to certain claims of lands within the property asserted to belong to the Corporation of New Orleans, which claims had afterwards been confirmed by Congress.

2. A grant for a part of the land to Francisco Loiteau. The particulars of the claims, referred to in No. 1, and of the grant to Loiteau, are stated in the opinion of the Court.

3. Evidence that on the ground the United States, in 1819, erected a building for a custom house, in which the courts of the United States are held; that previous to 1793, the Spanish government had erected on part of the ground two buildings, one used as a custom house at the time of the cession, the other as a tobacco warehouse; that a portion of a brick house still existed on the lot granted to Francisco Loiteau; that the corporation had erected water works on part of the ground, which are rented to individuals; barracks for the accommodation of the garrison of New Orleans were placed on the ground by the French government in 1757, which existed and were occupied at the time of the cession.

4. An act of Congress of 1812, granting to the City of New Orleans a lot of ground in the city; an act of 3 March, 1822, entitled "an act supplemental to an act entitled an act authorizing the disposal of certain lots of ground in the City of New Orleans and Town of Mobile," which was alleged to have been passed at the instance of the Corporation of New Orleans.

5. A copy of proceedings before the commissioners of the United States on certain claims of the Corporation of New Orleans relative to part of the ground.

6. An ordinance of Don Alexander O'Reilly, dated 22 February 1770. This decree designates the city properties "of the City

Page 35 U. S. 666

of New Orleans," but does not include in the same the property in controversy.

7. The mayor, aldermen and inhabitants derive a large revenue from duties imposed on vessels and boats moored at the levee, in front of the City of New Orleans. It amounted, during the year 1830, to $30,000. And a duty has always been collected by the municipal authorities of New Orleans on vessels moored at the levee since the promulgation of the ordinance of O'Reilly above referred to.

On the part of the Corporation of New Orleans, the following statement of facts, and also the documents annexed to the same, were filed in the cause:

1. From time immemorial, both before and subsequently to the cession of Louisiana to Spain, there has existed, for the convenience of commerce, both in the towns of France and in those of the French colonies situated on navigable streams or on the seashore a vacant space between the first row of buildings and the water's edge, which vacant space is generally termed a quay and is destined for the reception of goods and merchandize imported or to be exported. These quays are of various dimensions, regulated in seaports by commercial operations and convenience and in those situated on rivers both by the above considerations and by that of the encroachments which the rivers may make on their banks.

2. Nevertheless the government or municipal authorities of those places frequently permit buildings, intended for purposes of public or private convenience, such as market houses, fountains, baths, coffee houses, &c., to be erected on part of those quays.

3. Towns in the French colonies have never been incorporated like those of the United States; they are founded in virtue of orders emanating from the government or from the minister of the marine and transmitted to the governors of the colonies, and their administration was confided to intendants, who had authority to enact the necessary police regulations.

4. The governors of colonies, on receiving these instructions, issued their orders to the chief engineer of the colony, or, in default of such officers, to a surveyor, to draft a plan of the projected town. This engineer or surveyor drafted the plan and signed it, with mention of the place and day, month, and year when it was completed. This plan, thus signed and dated, was delivered over to the governor,

Page 35 U. S. 667

and lots and squares were granted or sold out to individuals, with reference to it.

5. The chief engineer was an officer of the royal corps of engineers, and performed the duties both of military and civil engineer.

6. For a number of years before the Revolution there has existed in France an office attached to the navy department in which all manuscript plans and maps of the French colonies or their cities, forts, fortifications, &c., were deposited.

7. All the land on the banks of the Mississippi in Lower Louisiana is alluvial. This river is subject to annual and periodical rises, and unless its waters were confined within the channel by strong embankments, they would overflow all the adjoining land until they fell and retired within the bed of the river -- that is to say, during about five or six months in each year. But for these dykes, or levees as they are here called, the construction and maintenance of which cost the inhabitants, who are, and have always been, liable to the performance of this duty, a great deal of money and labor, the whole country bordering on this part of the Mississippi would be uninhabitable during the spring and summer.

8. During this rise, the Mississippi is continually effecting changes in its banks; it undermines them in the bends, and carrying off the earth which it detaches, deposits it on the points, so that in many parts of these bends, as soon as the waters fall and return to their accustomed bed, the land on the margin, being deprived of support, gives way, falls into the stream, disappears, and is carried down by the current until it is united to the bank at some lower part of the river.

9. For these reasons, it is an almost universal usage among persons dwelling on the banks of the river to build their houses at a sufficient distance from its margin to allow space for the construction of new levees and to furnish new public roads without being compelled to remove their houses and other buildings whenever the levees and roads are carried off by the stream.

10. Under the French and Spanish governments, the vacant space between the first row of buildings and the margin of the Mississippi always existed; it never was divided into squares and lots. The streets of the city have never been laid off or continued from said row of houses to the river. It was only in 1818 that the corporation caused the said streets to be prolonged as far as the levee.

11. Under the Spanish government, there was, on this vacant space, near the river, a wooden market house constructed by the

Page 35 U. S. 668

cabildo (council) between St. Anne and Dumaine Streets. This building was demolished by the corporation and the present market house constructed on the same spot.

There was also on this square and adjoining to the levee between Dumaine and St. Philip Streets a wooden building belonging to Mr. Arnaud Magnon, who had erected it in virtue of an authorization from the Spanish governor. This same Magnon had, with the permission of the cabildo, built, near the same spot and lower down than his house, between the river and the levee and on an alluvion then recently formed, a large shed or scaffold which he used as a workshop, he being a shipbuilder.

There were also on this part of the bank, at the foot of the levee in front of the public square, several small wooden cabins which the cabildo had permitted individuals to erect there after the fire of 1798, who were subject to the payment of a small annual rent for the benefit of indigent orphan children. These huts were destroyed after the cession of Louisiana to the United States and at the instance of the corporation.

There were also on this vacant ground, under the Spanish government, 1st, a wooden building between custom house and Bienville Streets, which was used as a custom house; 2d, a large storehouse, also of wood, near the said custom house, in which the tobacco (of which the government had a monopoly) was stored. This storehouse did not exist at the time the United States took possession of the country. The custom house, which was in a very bad condition, was abandoned at that time, and the United States custom house was established, at the time of the cession, in a small building situated on a portion of the ground occupied by the old royal storehouses between Dumaine and St. Philip Streets.

12. Before the cession of this country to the United States, this vacant space, throughout the whole extent of the front of the city, was used by the public. It was at that time covered with grass and weeds, and the horses and cattle of citizens were sent to pasture upon it. Since the cession and since the increase of the commercial business of the city, the vegetation has disappeared, but the inhabitants of the city have, particularly since the cession, continued to use the greater portion of this space for the transportation, lading, and unlading of goods and as a place of deposit for materials, &c. The streets running at right angles to the river were prolonged by the corporation as far as the levee, and this prolongation was executed and kept up at their expense. In 1818, they made, and have

Page 35 U. S. 669

since kept in repair at their own expense, a new street or high road on that large open space at the foot of the levee and throughout its whole extent.

13. Under the Spanish government, the inhabitants possessed the commons all around the city, a part of which they appropriated to various uses. Governor Carondelet, at the request of the cabildo, caused a plan of it to be prepared by the surveyor general, Laveau Trudeau, which was not finished until the year 1798, a copy of which plan is annexed to the proceedings in this cause.

14. The levee in front of the city has always been made and kept in repair by the inhabitants of New Orleans. In 1805, this levee was generally, throughout its whole extent, three and a half feet high, from fifteen to twenty feet broad at top, and widening towards the basis.

15. Before the year 1815, this levee was undermined in many places by the river, and threatened to fall in. In order to prevent this accident, which would have compelled the corporation to make a new one nearer the houses and consequently on the vacant space, they caused, at their own expense, carpenter's work to a large amount to be done in front of the levee, by means of which it was put in the strong and solid state in which it now is. The point at which this work was most required, and where most of it was performed, was between St. Louis and Toulouse Streets, where the soil on which the levee rested was so much undermined by the current that the water sprung up through it in large quantities, and the owners of the houses in that quarter feared that their foundations would give way. The works above mentioned arrested the progress of a danger which was so justly apprehended.

16. Since the taking possession of Louisiana by the United States, an alluvion has been and is still continually forming in the River Mississippi in front of the City of New Orleans, particularly towards the upper end and lower extremities of the city. These alluvial formations are exhibited, together with the Streets made in 1818, in the plans drafted by Joseph Pelie, city surveyor, and which are annexed to the record.

17. In consequence of works ordered by and performed at the expense of the corporation, the levee in front of the city is now, in the upper part of the city, one hundred and forty feet wide; in the center of the city from sixty-six to eighty feet wide. These augmentations have been made without encroaching on the vacant space

Page 35 U. S. 670

between the street opened in 1818 and the water's edge on the alluvial soil since formed on the outside of the levee.

18. Parts of this vacant space might be disposed of to individuals without at all interfering with the public use of it or with the loading or unloading of goods, the levee, as it now is, being amply sufficient for all these purposes.

19. There are two copies of plans of the city annexed to the record, the one made in 1724 by Mr. De Panger and signed by him, the other made in 1728 by Mr. Nicholas Broutin, on both of which the vacant space, the subject of the present controversy, is designated by the name of "quay." The former of these plans is not authenticated; the latter is authenticated according to all the forms required in France for the authentication of copies of acts or instruments in foreign countries. These two copies of plans are taken from copies deposited among the archives of the city since the end of the year 1819, and which Moreau Lislet, Esq., counselor at law for the corporation, had caused to be obtained from the office of plans and maps of the French colonies attached to the department of the navy, and of French colonies. Nicholas Broutin was the engineer of the King of France in Louisiana.

20. Authentic copies of various instruments by which lots situated in front of the city were granted or sold under the French government before the cession to Spain and in which they are designated as situated on the quay or fronting the quay.

21. A plan which is found in the work of Pere Charlevoix, the Jesuit, entitled "History of New France, with the historical journal of a voyage, undertaken by order of the King, in North America," published at Paris in the year 1724, in three volumes, in quarto, vol. 2, 423, in which also, the vacant space, the subject of the present controversy, is denominated a "quay."

22. The laws of France and of its colonies prevailed in Louisiana from the first settlement of the colony until 25 November of the year 1769, when Alexander O'Reilly, captain general, invested with full powers for that purpose by the King of Spain, abolished them and substituted in their stead the laws of Spain, which were in force at the time this suit was instituted.

23. Three works, entitled "Histoire de St. Dominique, par Moreau de St. Mary," in two volumes, in quarto; "Histoire de la Nouvelle France, par le Pere Charlevoix," three volumes, in quarto; and "History of Louisiana, by Francois Xavier Martin" in two

Page 35 U. S. 671

volumes, in octavo, are admitted to be works of accuracy and authenticity, on the subjects of which they treat, and may be referred to as evidence in this cause.

Page 35 U. S. 710

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