New Orleans v. Paine

Suit in equity by the city of New Orleand against Ruffin B. Paine, deputy surveyor general of the United States for the state of Louisiana, to enjoin the obliteration of an old survey, and the making of a new one, directed by the secretary of the interior. In the circuit court an injunction was denied, and a temporary restraining order dissolved. 49 Fed. Rep. 12. Complainant appealed to the circuit court of appeals, where the decree was affirmed. 51 Fed. Rep. 833, 2 C. C. A. 516. Complainant thereupon appealed to this court. Affirmed.

Statement by Mr. Justice BROWN:

This was a bill in equity filed in the circuit court for the eastern district of Louisiana by the city of New Orleans, suing as residuary legatee under the will of John McDonough, deceased, against the deputy surveyor general of the United States for the state of Louisiana, to enjoin him from surveying and locating a new back line or rear boundary of a French grant, and from dividing into sections lands alleged to belong to the plaintiff north of, and contiguous to, such new back line.

The grant in question was made April 3, 1769, by the proper authorities of the province of Louisiana, then an appanage of the French crown, to Pierre Delille Dupard, and was described as '30 arpents of front to the river, upon the whole depth which shall be found unto Lake Maurepas, of the land where heretofore were two villages of the Collapissas savages,' etc. Upon the acquisition of the territory of Louisiana by the United States, under the treaty of 1803, the greater part of this grant was confirmed to John McDonough, Jr., & Co., and was described by the board of land commissioners as having 'thirty-two arpents front on the Mississippi river, with a depth as far as the Lake Maurepas, with side lines diverging as they extended into the interior,' etc. McDonough, having purchased the interest of his partner, devised his portion of the grant, upon certain charitable uses, to the city of New Orleans and Baltimore, and, upon partition made between the said devisees, the lands described in the bill fell to the plaintiff. In due course the government surveyed and fixed the front and side lines of the grant, but it seems that neither of these lines touched Lake Maurepas, nor was it included between them. When, in 1885, the state of Louisiana, claiming adversely to the city of New Orleans under the swamp-land grant of March 2, 1849, (9 St. p. 352,) raised the question before the general land office as to what depth the claims were entitled, the surveyor general of Louisiana, to whom the matter had been referred, decided that the grant should extend to Lake Maurepas and the Amite river, by extending its lower side line back to said water boundary. On appeal to the commissioner of the general land office, the decision of the surveyor general was affirmed: but, on further appeal to the secretary of the interior, Mr. Lamar, he decided, on January 6, 1888, that the depth of the grant should be determined by a straight line drawn through the center of the grant from the front to the rear, terminating at the point of intersection of a line drawn at right angles thereto, so as to touch the lowest point of the southern shore of Lake Maurepas.

The matter was referred to the surveyor general of Louisiana, who directed the defendant, Paine, as deputy surveyor, to examine carefully the southern shore line of Lake Maurepas, and if entirely satisfied, from reliable evidence, that there had been a change in said shore line since the grant was made, in 1769, he was to run the line according to such location, and not according to its then location. These instructions were approved by the commissioner of the general land office under date of March 4, 1890. The defendant, the deputy surveyor, proceeded under these instructions, and satisfied himself that the southern shore line of Lake Maurepas had, for an indefinite time, been a moving line, slowly extending itself south and southwest; but as to where the shore line wan in 1769, he could form no definite conclusion. 'The only thing which seemed certain is that it was a long way from where it now is, and in fixing upon the distance * * * I have tried to adopt a location which would probably give the claims all the depth they are entitled to, without extending them so far as some of the evidence would require.' The bill averred that this survey was approved by the surveyor general, and was forwarded to the commissioner of the general land office, 'and thereupon, and in due official course, the said surveys of the said R. B. Paine were duly paid for by the United States, including his said survey and location of said back line of said Dupard grant.'

This survey seems, however, never to have been formally approved, and on May 14, 1891, Mr. Chandler, then acting secretary of the interior, wrote to the commissioner of the general land office, saying that he found nothing in the decision of the department of January 6, 1888, to indicate that it was the intention of the secretary to authorize an investigation as to whether the shore of the lake had been changed since 1769, but, on the contrary, it seemed to be clearly indicated that the southern shore of the lake, as it now exists, should be fixed absolutely as the starting point, and determine the back line of the said grant. 'You will instruct the surveyor general accordingly.' In pursuance of this, the commissioner of the general land office instructed the surveyor general to enter into a new contract with some competent deputy for the establishment of the back line from the southern shore of the lake as it now exists, and thereupon a new contract was entered into with the defendant, Paine, for a resurvey upon the basis of such instructions. Thereupon plaintiff filed this bill to enjoin such resurvey.

A restraining order was issued upon the filing of the bill, and a day fixed for the hearing of the motion for an injunction. A demurrer being filed to the bill, the case was brought to a hearing upon bill and demurrer, and a decree entered denying the injunction and dismissing the bill. 49 Fed. Rep. 12. From this decree an appeal was taken and allowed to the circuit court of appeals, by which court the decree of the circuit court was affirmed, and an appeal allowed to this court. 2 U.S. App. 330, 2 C. C. A. 516, 51 Fed. Rep. 833.

J. L. Bradford, for appellant.

Asst. Atty. Gen. Maury, for appellee.

Mr. Justice BROWN, after stating the facts in the foregoing language, delivered the opinion of the court.