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

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 irk 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 the city of Cincinnati v. White, 6 Peters 431, and the case of Barclay and others v. Howell, 6 Peters 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 alluyial 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, lie 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 [p663] cannot be controverted; but if the thing granted was not in the grantor, no right passes to the granteee.

APPEAL from the district court of the United States for east Louisiana.

On the 3rd day of 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 customhouse, 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 endeavoured 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 [p664] 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 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 [p665] facts prepared by the parties; and on the 18th day of June 1831, the district court made a decree in favour 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 ot 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 customhouse, 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 customhouse, 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 3d 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 the 22d February 1770. This decree designates the city properties "of the city [p666] 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 dollars. 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 sea-shore, 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., &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, [p667] 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 labour, 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 [p668] 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 ship-builder.

There were, also, on this part of the bank, at the foot of the Levee, in front of the public square, several small wooden cabbins, 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 customhouse and Bienville streets, which was used as a customhouse; 2d, a large storehouse, also of wood, near the said customhouse, 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 customhouse, which was in a very bad condition, was abandoned at that time, and the United States customhouse 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 [p669] 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 draughted by Joseph Pelie, city survevor; 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 centre of the city from sixty-six to eighty feet wide. These augmentations have been made without encroaching on the vacant space [p670] 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. counsellor 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 Peré 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, p. 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 the 25th of 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 [p671] 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.

The case was argued by Mr Webster, and by Mr Livingston, for the appellants; and by Mr Butler, attorney-general, for the United States.

A printed argument, prepared by the counsel for the appellants in New Orleans, was also laid before the court.

The appellants insisted:

1. Upon the original plans of the city, as made by the king of France at its foundation in the years 1724 and 1728; from which it appears that the space of ground in question, to its whole extent, was designated as quays or wharves.

2. The concurrence in this fact of every plan of the city now extant having any semblance of authority, as that of Charlevoix's History, and the absence of any document that gives a contrary, or that does not give this destination to it.

3. The uninterrupted possession and enjoyment of the land, as common, by the inhabitants of the city, from the years 1724 and 1728 up to the commencement of this suit.

4. That all the lots and squares of the city have been sold or granted in reference to the plans before mentioned. This fact, admitted in clear and unqualified terms, might be considered as decisive of the case.

5. The universal understanding of the highest officers of the French government in the colony, and the notaries and persons engaged in the purchase and transfer of property, as exhibited in the various acts and documents, found in the record, and the repeated acts of the Cabildo or city council, exercising ownership and jurisdiction over the land.

6. That the streets of the city were never continued through this space to the river until the year 1818, when it was done by the corporation. It continued entirely vacant for public use as commons of the city.

Mr Webster, for the appellants.

The United States claim in this case the exclusive right over the property described in the proceedings, by virtue of their sovereignty; [p672] and as succeeding to the sovereign rights of the kings of Spain and of France, over the territory of Louisiana, before the treaty of cession. They claim this as ungranted or vacant land; and as such that it passed to the United States by the treaty. While they do not deny that it may be subject to certain uses by the inhabitants of the city of New Orleans; they do deny that these uses have given any right of property in the soil, or authorized any interference with it, so as to change or affect it in any manner.

This is opposed by the appellants. They assert this property to be exclusively theirs; and that it was the property of the corporation of New Orleans, before the United States acquired the territory of New Orleans. That it was theirs by its having been a part of the city of New Orleans, from the first establishment of the same, by dedication; when the place was first laid out by those who were proprietors of the whole soil: by possession ever since: and that if it had become enlarged by the addition of alluvion deposits, the additions, under the laws of France and of Spain, before the cession, and by the law of the United States, since the treaty, are the property of the corporation.

The position of New Orleans, and the peculiar character of the river Mississippi, make such additions from alluvion deposits frequent and extensive. The sinking of a frame of lumber, at the expense of the inhabitants of New Orleans, at a particular place in the river, opposite to the city, for the protection of the ground, has contributed to the rapid and extensive enlargement of the open space in front of the city. This enlargement has placed the levee, used for the purposes of trade, further in advance of the city; and has left the ground, now in controversy, in such a situation as not to be required for the uses of commerce. The corporation of New Orleans, therefore, proposed to sell and dispose of it, to be occupied and improved by those who may desire to purchase it. So fully is it manifested that for commercial or any other public purposes large portions of the property are no longer required; that it has, since the commencement of this suit, been sold by agreement between the United States and the corporation; and the proceeds of the sale, nearly one million of dollars, may belong to the successful party in this appeal.

But the question to be settled in the case before the court, on the proceeding in the district court of Louisiana, is not whether the corporation of New Orleans has a right to use the property. It is the question, whether by the treaty of cession, the United States acquired [p673] a right to the same, as having had transferred to them the sovereign rights of Spain, and afterwards of France over the territory. This is the right asserted by the petitioner, and put in issue by the answers and pleas.

The United States contend, that if the right of cominion did remain in the sovereigns of Spain and France, during the time the country was held by them, the property having been especially dedicated to public uses: by the cession the same became vested in the sovereignty of the United States, subject to those uses; and the use, not destroying or affecting the right of the United States to the land, passed, by the act of congress incorporating the city of New Orleans, to the corporation.

The statement of facts on the part of the corporation, makes a complete case for them. The land claimed by the United States appears to have been designated for the use of the city ever since it was founded. The plans referred to show that there was always an open space fronting on the river, and the uses of it were only such as were consistent with the public use. A customhouse; a parade ground for the military; barracks for the soldiers, were erected upon it. These were permitted; but they did not destroy the title of the citizens to it, nor did such uses convert it into public domain. The easements thus permitted might have been revoked. It is stated that a markethouse, erected of wood, was taken down by the corporation, and replaced by one of brick.

The city of New Orleans was bound to support the exterior levee, and this has always been done at the expense of the inhabitants. This expense has always been considerable. The United States have never been called upon to do this.

All the facts of the case show that the situation of the streets of New Orleans; the general conformity of the plan to the plans of other French cities; and the principles of the civil law, which apply in such cases, have full force in the present question.

In the 19th division of the statement of facts it appears that in 1724 and 1728 plans of the city were made, and on both of which the ground now claimed by the United States is designated as quays. One of these plans, that of 1728, has been recently obtained from France. It shows such a dedication to public uses as brings the case within all the principles established by this court in the Cincinnati case, and in the Pittsburgh case, reported in 6 Peters's Rep. The binding force of such plans is shown in 1 Starkie on Evidence 169.

[p674] The ownership of property may be public, and the use private. The decision of this court in the case of the Dartmouth College, established this. If it should be decided that the United States might have a customhouse on this ground, or a parade ground; this will not sanction a claim to the property, or a right to sell it for the benefit of the United States. Have the United States a right to divert the property from the use for which it was dedicated, to enrich their treasury?

It appears that the dedication of land to public uses is an estoppel of all subsequent claim to it, as well by the civil law as by the common law of England. French Pandects, art. 15, 28; 3 Martin's Rep. 296, 303, 304; 11 Martin's Rep. 660.

The sovereignty of Spain over this property existed before the cession, for the sole purpose of enforcing the uses to which it was appropriated. This right, and the obligations imposed upon it, became vested in the state of Louisiana, and did not continue in the United States after the state was formed. Acquiesced in by the United States, under the treaty, in the first instance; it necessarily afterwards passed to the state. The United States cannot now enforce this use, and could not take the quay and dispose of it; and unless this can be done, there is nothing to support this action. The preservation and the enforcement of the use must be by the state government. By the act of congress incorporating the city of New Orleans, all the use of the property became vested in the city.

The petition presented to the district court does not recognise any trust. It asserts a full and sovereign right to the whole land; and if this court shall confirm the decree of the inferior court, the United States will hold it discharged from all trusts.

Mr. Butler, attorney-general, for the United States.

The nature and object of the suit have been misapprehended by the opening counsel. It is not a suit in equity. The suit was commenced by petition and not by bill; process of subpœna was not prayed; nor were any of the proceedings in the cause on the equity side of the court.

The object of the suit was to prevent the city corporation from selling the premises in question; and not, as the counsel supposed, to recover possession. The United States were themselves in possession; and the action brought by them (which was in many respects analogous to an injunction bill) is well known to the civil law as a [p675] prohibitory interdict; the nature and purpose of which are well explained in Livingston's answer to Mr Jefferson in the case of the New Orleans Batture. 5 Hall's Am. Law Jour. 270, 271, 272, 273.

The learned counsel for the city is also mistaken in supposing, that in order to maintain the decree appealed from, the United States must show that they have an absolute title to the lands in dispute, freed from any servitude or public use; such a title as to authorize the government to sell these lands, and to apply the proceeds at pleasure. The particular nature of their title was not stated in the petition. The averments were, no doubt broad enough to cover the absolute ownership of the premises; and in one of the aspects in which he should present the case, he would endeavour to show that the United States were the absolute owners; but it did not necessarily require such a title to maintain the petition. On the contrary, the averments contained in it would be sufficiently satisfied, and the plaintiffs would be entitled to the relief sought, if it were shown, either 1st. That the United States held the absolute ownership; or, 2d. That they held the title to the soil though charged with a servitude for the benefit of the inhabitants of the city, or of the public generally; or 3d. That the United States were entitled to a servitude in the lands, the title to the soil being in the city corporation: because in either of these three cases the attempt of the city to dispose of the lands in absolute ownership to individuals, without the consent of the United States, was an encroachment on their rights. The prohibitory interdict was an appropriate remedy for either of these three cases; and if it should appear that either had been made out, then the injunction by which the city was prohibited from selling these lands as private property, for its own exclusive benefit, was properly made perpetual.

The decree of the court below does not specify the particular ground on which it proceeded; and no explanatory opinion was delivered by the judge. If it can be shown that the United States have any such title in the soil, or to the use of the premises, as to make it inequitable for the city to proceed in its attempt to sell, then the decree must be affirmed. If this court should be of opinion that only a qualified title is shown by the United States, it could say so in its decree of affirmance; and thus protect the rights of all other parties. The real question in the case, therefore, is, have the United States such right in the soil or to the use of the premises, as to entitle [p676] them to a decree prohibiting the absolute sale by the city corporation?

In support of the affirmative of this question, it is contended:

1. That the corporation of New Orleans has no title whatever to the soil, nor to the use of the vacant lands in dispute; but that under the treaty of cession of 1803, the United States became, and yet are absolutely entitled to the same.

Although it is sufficient for the plaintiffs, in order to retain their injunction and decree, to show that they have a qualified interest in the soil or in the use; yet it is obvious, that to entitle the city corporation to proceed with the proposed sales, it must show a complete title free from any public use. In this view of the case, the question of title becomes a material one; and it is desirable, on many accounts, that it should be decided in the present suit.

That the corporation has no title to the soil nor to the use of the premises in question, was expressly decided in 1833 by the supreme court of the state of Louisiana, in the case of D'Armas and Cucullu v. The Mayor, &c. of New Orleans; being the same case subsequently brought by writ of error before this court, and dismissed for want of jurisdiction. 9 Peters 224. The plaintiffs, as grantees of the heirs of one Bertrand, claimed a lot included within the original limits of the quay, granted by letters patent to those heirs, pursuant to the act of congress confirming their claim, which was founded on the entry and possession of Bertrand in 1788, under a permission given by the Spanish governor. The corporation of New Orleans having asserted a claim to the lot as part of the quay, Cucullu and D'Armas instituted a suit in one of the district courts of the state of Louisiana, for the purpose of establishing their title under the United States, and the district court decreed in their favour, which decree was affirmed, on appeal, by the supreme court. The corporation contended: first, that the whole vacant space was their property; and secondly, that it had been irrevocably destined to public purposes when the town was established, and thereby for ever rendered inalienable even by the sovereign. On the last point the judges differed, chief justice Martin holding in the affirmative, but being overruled by the other judges. On the question of title in the corporation, the judges were unanimous. Judge Porter examined the point at large, and judge Matthews concurred with him; and though chief justice Martin dissented from the judgment; he [p677] did not controvert the reasoning of judge Porter in this respect. It is shown by judge Porter, that according to the French law a city, or other community, can only acquire a title to land, or to the use of land, by letters patent from the king. He also shows, that according to the Spanish law, cities and other communities could not acquire title to the soil except by grant from the crown; though they might acquire title to the public use of land by grant, purchase or prescription.

The opinions of judges Porter and Matthews, in this case, notice all the prominent facts now relied on by the city, and answer almost every suggestion in the opening argument. Judge Porter shows that the case is distinguishable from that of the City of Cincinnati v. White, 6 Peters 431, by the circumstance that the lands were not set apart for public use by a private individual, but by the sovereign; and more especially because the questions were to be decided, not by the common law, but by the laws of France and Spain, which were in force prior to the cession.

It had been affirmed in the opening argument, that the United States had no greater or other power over the quays, than they had over the streets; and the counsel for the United States had been challenged to show a distinction between the two cases. This call had been answered by judge Porter, in the following words: "the streets of a town are no doubt what is denominated in our law, public places, and they are protected from change and alienation, by all the rules which apply to things of this description. But the power of the grantor over them, even if he should be the king, is, in my opinion, much more limited, than that he possesses over other things of the same kind. So long as the town remains unincorporated, and he retains the power of regulating its police and government, by laws and ordinances, he may modify, abridge or enlarge the streets, but he cannot deprive the inhabitants of the use of them; and for an obvious reason. Streets are indispensable to the enjoyment of urban property. Without them a town could scarcely be said to exist; the inhabitants of it would be as prisoners in their own houses. It may, therefore, be readily admitted, that the sovereign power of no country, could deprive the owners and occupants of lots and houses, of things indispensable to the use and enjoyment of the property sold or conceded; without violating the plainest dictates of justice, and the general principles of law, applicable to all other [p678] cases of the same kind. But its inability to do so would not proceed from their being destined to public purposes; but because, without them, the property granted could not be enjoyed. Just as, on the same principle, an individual who granted a portion of his land, which could not be reached but by passing over other portions of it, would be considered as having conceded to the grantee, the right of way over the part retained. It is a well settled principle, that whenever an individual or the law giveth any thing, there is impliedly given, at the same time, whatsoever is necessary to its enjoyment. The limitation, therefore, contended for on the power of the sovereign over streets, may be well conceded to the whole extent pressed in argument, without at all affecting his authority, or his rights over vacant ground not proved to be necessary to the use of private property."

The same opinion shows also, that even admitting that the vacant space in question, had really been dedicated to public use, by the king of France, that such dedication was not irrevocable, nor the land rendered inalienable; but on the contrary, the dedication might be revoked and the land alienated by the sovereign.

Judge Porter also arrives at the same conclusion, as to the want of title in the city, on other grounds. He shows that, unless words can make or change things, no part of the ground left between the city and the river, can be regarded as a quay, save that which was prepared for the reception and discharge of vessels, by the creation of the levee or artificial embankment. And admitting that this space was really a quay, he then argues, that only so much of it as is actually necessary to the loading and unloading of vessels, is properly to be regarded as public.

Thus far judge Porter had chiefly considered the case on the law of France. He then examines the law of Spain, which brings him to a result equally fatal to the claims of the city.

Judge Matthews, who concurred in this opinion, supported some of the points above referred to, by additional arguments and authorities. This decision, though not obligatory on this court, is entitled to the greatest respect. The case turned on the French and Spanish laws, with which this court is not particularly conversant. The state judges were familiar with those systems, and, as they must, no doubt, have been disposed to incline, on all doubtful questions, in favour of the city, their decision may be regarded as of the highest authority. It should also be mentioned, that the same decision in effect, [p679] though the cases were different in their circumstances, had been previously made by the supreme court of Louisiana, in the cases of the grants to Mentzinger and Liotaud, whose claims before the commissioners are also among the proofs in this cause. 3 Martin 296; Chabot v. Blanc, 5 Martin.

Independently of the decisions of the local tribunals, it is submitted, that on the facts stated in the record, it is apparent that the city has no title. No law of France or Spain, nor any grant from either, nor any documentary evidence of any kind, is introduced or appealed to by the city, for the purpose of showing that the ground in controversy had ever been expressly granted to the city. The right of property depends on the state of the title in October 1800, when the country was retroceded by Spain of France; and in the absence of any written declaration of the right to this property, the presumption of law is, that it belonged, at that time, to the sovereign, as a part of the national domain. The circumstances appealed to by the other side, for the purpose of overcoming this presumption, and showing title in the city, must be referred to the laws by which the territory was governed prior to 1800; that is to say, the laws of France, from the settlement of the county, until 1769, when the Spanish laws were put in force, and the latter from that time.

The counsel for the city, in the pamphlet handed to the court as a part of the opening, whilst they admitted that the city had never received a grant from the French crown, yet contended, that by the designation of the premises on the plans of the city as a quay, and by the possession and enjoyment set forth in the case, the land was as completely separated from the domain, and as clearly vested in the inhabitants of the city, as if there had been a formal grant from the French crown. In answer to this, the attorney-general contended, that the most that could possibly be made of the designation on the plans, and the other facts relied on by the city, was, that the vacant space in question had been dedicated to public uses—they did not even begin to show a title in the corporation. By the French law, as it existed at the time the city was laid out, and from that time until the cession to Spain, quays and other public places in cities, belonged to the crown, as a part of the public domain. Domat's Public Laws, book 1, tit. 6, sec. 1, art. 7; Encyc. Math. Jurisprudence, art. Domaine.

As to the extracts from the Partidus and other Spanish laws, they [p680] only show that cities might, by the law of Spain, hold commons and other public places; they do not prove that cities, under that law, could hold the absolute titles in those places, nor any title whatever in the soil; and, above all, they prove nothing as to this particular case.

The law as to increases of land formed by alluvion, was, no doubt, correctly stated, by the opening counsel; but it could not help the city in the present case. The increase, by alluvion, was on the outer side of the levee, which had been greatly widened by it; whereas, the ground now in controversy, is wholly on the inner side. Besides, the increase by alluvion belongs to the owners of the soil to which it is added; and as the city corporation has been shown not to be the owners of the soil, they have no title to the increase, not even to the use of it. Livingston in 5 Hall's Law Journal, p. 120, 150, 172, 188. Nor is there any hardship in this; because the levee has been widened by revenues granted to the city by the crowns of France and Spain.

Title by prescription is also set up. But by the French law there can be no title by prescription against the crown, in any case, unless it be immemorial. Alard v. Lobau, 3 Martin, New Series, 293. And such things as are destined to common or public use, such as banks of rivers, &c. cannot be acquired by prescription. Domat's Civil Law, b. 3, tit. 7, sec. 5, art. 2. And though, by the Spanish law, cities and towns may acquire, by prescription, a title to the use of land for commons and other public places, they cannot acquire an absolute title in that way. But there is no such long continued and uninterrupted possession here, as is required by the Spanish law, to constitute a title by prescription. (For the rules of the Spanish law on this subject, see Institutes of the Laws of Spain, quoted in White's Compilation, p. 70.)

The opening counsel had contended, that if the right of dominion, the title, did really remain in the sovereigns of France and Spain, whilst they owned the country, yet that the title was held by them subject to public uses; and that, by the cession to the United States, and by the incorporation of the city of New Orleans, by the territorial legislature, under the authority of the United States, the title and dominion, subject to such public use, became vested in the city corporation. The answer to this argument will be found in the act of incorporation itself. It gave the corporation a capacity to acquire lands according to our law of corporations; and it vested in them [p681] all the estates, whether real or personal, which theretofore belonged to the city of New Orleans, or were held for its use by the cabildo, under the Spanish government, or the municipality, after the transfer of the province to France, and which had not been legally alienated, or lost or barred; but it gave to the corporation no new title to the land in question. The territorial legislature, indeed, had no power to grant such a title. The act of the 26th March 1804, which organized the territorial government, expressly declared that the governor and legislative council should have no power over the primary disposal of the soil. The act of incorporation, therefore, merely confirmed to the new corporation the old title, and we are, therefore, necessarily turned over to the former question.

The attorney-general next contended, that the absolute title to the premises in dispute had been vested in the United States by the treaty of cession of 1803. This was the conclusion of a majority of the court in the case of De Armas and Cucullu v. The City of New Orleans, before cited; and there are in the present record some evidences of title not presented in that case; and various arguments applicable to this point, not noticed in the opinions of Judges Porter and Matthews, may also be suggested. Title to land in Louisiana, as well as in other parts of this continent, was founded on discovery. Johnson & Graham v. M'Intosh, 8 Wheat. 593. The whole soil, subject only to the right of Indian occupancy, was treated as a part of the national domain. In September 1712, Louis XIV. granted to Anthony Crozat the commerce of Louisiana for fifteen years, with the mines, &c. in perpetuity. 1 Martin's History of Louisiana 178. White's Compilation 159. This grant extended the edicts and ordinances of the realm, and the customs of Paris, to Louisiana. In August 1717 Crozat surrendered his grant to the crown, and in the same year the commerce and government of Louisiana were granted to the Western Company for twenty-five years. The lands of the territory were also granted them in perpetuity. 1 Martin 198, 199. The site of New Orleans was selected in 1718 by Bienville, who had been commissioned as governor by the Western Company. 1 Martin 204, 244. The designation of the quay, and the general plan of the city, was made under the authority of the Western Company. But though that company held the title in all these lands at that time, this does not alter the case. They represented the sovereign, not only in their capacity to make grants of land, but also in the regulation of commerce. In designating the quay, they acted in the [p682] latter character, as well as in the former: and the case must therefore stand on precisely the same ground as if the city had been laid out by the crown, at a time when the whole title was in it. The Western Company surrendered their grant to the king in January 1732 (1 Martin 287), and the French crown was thus re-invested with its original title, and all lands not previously granted were reunited to the public domain, and so continued until 1769; when the secret treaty made in 1763, by which Louisiana was ceded to Spain, was promulgated, and the territory delivered to the Spanish authorities. 1 Martin 329; 2 Martin 2. The premises in question having never been granted to the city, and being a part of the public domain at the time of this treaty, passed by it to the crown of Spain, by which it was held as a part of the domain belonging to that crown, until 1803, when the treaty of retrocession, made at St Ildefonso on the 1st October 1800, by which Spain ceded Louisiana to the French republic, was carried into effect. 2 Martin 182. The title to these premises being in the king of Spain, and not in the city of New Orleans, at the time of the execution of the treaty of St Ildefonso, it passed to the sovereign of France as a part of the national domain; and under that treaty the French republic acquired, to use the language of their cession to us, "an incontestable title to the domain, and to the possession of the said territory." The title thus acquired by France, together with the sovereignty of the country, passed, by the treaty of cession of 1803, to the United States. The second article of this treaty declares, that in the cession are included "the adjacent islands belonging to Louisiana, all public lots and squares, vacant lands, and all public buildings, fortifications, barracks, and other edifices, which are not private property." This enumeration was probably unnecessary, but seems to have been inserted from greater caution, and as if with a view to this very question. It is evident, from the language of this article, that public lots and squares in cities were not regarded as the property of the cities, but as the property of the crown; and as there were no such public lots and squares within the territory of Louisiana, except in the cities of New Orleans and Natchez, public places in those cities must have been specially intended by the framers of the article. The vacant space now in controversy, was a public lot or square within the meaning of the treaty; and as it has been decided by the highest court of the state of Louisiana not to be the property of the city, it necessarily passed to the United States.

[p683] It was contended in the opening, by the learned counsel for the city, that even admitting that the sovereigns of France and Spain had the title to, and the control of these premises, and that the same passed to the United States by the treaty, it did not necessarily follow, that the United States yet retain such title and control; and it was argued, that on the creation of the state of Louisiana, that state became invested with all the title and control of the former sovereigns. This argument was attempted to be supported by the third article of the treaty of cession, and the act admitting Louisiana into the union; and it was said, that if such was not the case, the inhabitants of the ceded territory would not possess all the rights and advantages of citizens of other states; nor the state be placed on an equal footing with the other states. But the third article of the treaty relates only to the rights which are to be enjoyed by individuals; and the act of congress of the 26th of February 1811, authorizing the formation of a state government, required as a condition, that the people of the proposed state should for ever disclaim all right or title to the waste or unappropriated lands within the territory; and that the same should be and remain at the sole and entire disposition of the United States. This condition was acknowledged in the state constitution, and reiterated in the act of the 8th of April 1812, by which the state was admitted into the union.

The ownership of the premises by the crowns of France and Spain as a part of the public domain, and the consequent title of the United States, are supported by many acts of ownership, and by frequent recognitions of the city authorities; the most important of which are enumerated in the agreed statement of the facts proved, and of evidence offered by the plaintiffs. It was said by the opening counsel, that these were not evidences of title, but only evidences of the exercise of a claim of title, and of acquiescence by the city authorities. That remark was a mere solecism; for what is evidence of the exercise of ownership, especially when acquiesced in by the adverse party, but evidence of title? Proofs of this sort are the very highest evidence of title; and they, therefore, deserve the particular attention of the court. In the present case, the acts of ownership on the part of the crown, and of acquiescence on the part of the city authorities, commence from a very early date.

Among the proofs produced by the corporation, are the papers relating to fourteen sales, and other documents; which were introduced to prove that the houses in the front row of the city were [p684] described as bounded in front by the quay; and, also, to show that the city lots extended no further. Among these sales there are several of lots on the quay; not bounded by the quay: but, as would seem from the descriptions, actually situated on it, and forming part thereof. The grant to Broutin is for a lot "on the wharf," to be held by him and his heirs and assigns as his own property; "subject to the services which may be imposed by his majesty by reason of his domain:" and on certain conditions to be performed by him, "under the penalty of the said lot being re-united to his majesty's domain."

Barracks were erected on the premises by the French government before the year 1757; and the troops were frequently exercised thereon. The commercial use of the quay was also under the authority, and for the benefit of the crown, or those who represented it, as contradistinguished from the city. From 1769 to 1803, there are various acts of ownership on the part of the Spanish crown; most of which also involve a recognition by the city authorities of the title of the crown. The barracks erected by the French government, and the use of the premises as a parade ground, were continued. On the 22d of February 1770, governor O'Reilly, acting in the name, and with the authority of the king, granted to the city, among other things, a tonnage duty to be paid by vessels and boats coming to the city, to be appropriated to the reparation of the levee. Several imperfect grants, and two complete titles were also made by the Spanish governor, as the representative of the crown, between 1788 and 1803, of portions of the quay; which grants, after the cession, were confirmed by acts of congress. [The attorney-general here reviewed the cases of Magnon, Chessé, Bertrand, Urtubuise, Mentzinger, and Liotaud; and laid great stress on the grants by the Baron de Carondelet to the two latter; and on the allegations in their grants, that the lots granted were part of the royal lands, &c. As to Magnon's case, he insisted, that the opinion of the attorne-general merely spoke of the proposed grant as a thing that might be disagreeable to the city council: but not as an act that would violate their rights.] In three of these cases (those of Mentzinger, Bertrand and Liotaud) the title thus derived from the United States was held valid by the supreme court of Louisiana. Prior to 1793, the Spanish government erected a customhouse and a tobacco warehouse on the premises; the former of which existed at the period of the cession to the United States, and has been since kept up by them.

[p685] The use thus made by the governments of France and Spain, was all that the nature of the subject and the circumstances of the times required or admitted; and the facts that some small buildings were erected by the city authorities during this period, and that the inhabitants of the city sometimes used it as a common, are not inconsistent with the title and ownership of the crown. There is no instance, from the laying out of the city to the present day, until the attempt which led to the present suit, of any pretence on the part of the city authorities that they were capable of granting these lands; and until the late cases in the state courts, they never alleged that the crowns of France and Spain before the cession, and the United States since, had not the power to make such grants.

The acts of the parties after 1769, show beyond controversy, that in the judgment of all the Spanish authorities, the land in question belonged to the crown, and not to the city. And even were it proved, (which is not admitted) that according to the French law, the ground between the lots appropriated as private property, and the water, was all called quay, and was the property of the city authorities; yet if the government of Spain, after the country passed under that jurisdiction, deprived the city of this property, and held and used it as the property of the Spanish crown, this court will not now revise the decision of the Spanish tribunals, and inquire whether the title to this ground was justly or unjustly taken from the city authorities and vested in the crown. But they will recognize and support the title as it existed and was recognized by the proper tribunals at the time of the cession to the United States. And as it is not pretended that any change in the title took place between the times of the cession to France, and the transfer by France to the United States, the rights of the United States, and of the corporation, must be tested by the state of the title, as understood and maintained by the Spanish authorities, at the time they ceded the country to France. For if the property originally belonged to the corporation, or municipal authorities, and was unjustly wrested from them, and converted to the use of the Spanish government, as public property, the courts of the United States will not revise and reverse decisions which the despotic character of the Spanish government authorized and sanctioned. Those decisions may have been made in direct violation of the principles which regulate and protect private property, according to our institutions; but they are, nevertheless, binding on the parties affected by them.

[p686] Since the cession to the United States, and the incorporation of the city, the former has claimed, with the acquiescence of the latter, the full ownership of these premises. In 1806, the corporation presented, under the act of the 2d of March 1805, to the register and commissioner of the eastern land district of the territory of Orleans, a claim to certain lands in the vicinity of the city, alleged to have been granted at the time the city was established, to the inhabitants of the city, to be used as a common for ever, and prayed for their confirmation. This claim seems to have been understood by all parties, as embracing the land now in controversy, as well as other land. The board rejected the claim as to certain lands occupied for fortifications, and also as to all "lots and vacant parts of land between the said fortifications and the city, and within and in front of the city, between Levee street and the river." This decision was acquiesced in at the time; and if the premises in question had been as clearly embraced in the petition, as they are in the decree of the commissioners, the decision would have been conclusive. It may be said, that the premises now in dispute were not embraced in those proceedings; and if this be so, the fact furnishes strong proof that at the time the claim was made, the city authorities did not suppose they had any title to these lands. Had they then claimed any such title, they would, no doubt, have preferred a claim for the confirmation thereof, under the act of congress of the 2d of March 1805.

In 1812, the city council passed a resolution directing an application to be made to congress, for the grant of a lot on the quay, to be used for the erection of a fire pump; in which resolution, they expressly admitted that the vacant space between the river and the front line of houses, could never be sold or rented to private individuals, or disposed of, except for objects of public utility; and the whole resolution, and the application made to congress, proceed upon the admission, that the government of the United States was alone competent to make a grant of any portion of these premises.

Pursuant to the application, congress, by the act of 3d April 1812 (4 Bioren & Duane 400), granted to the corporation of the city of New Orleans the use and possession of a lot between Levee street and the high road; with a proviso, that if the same should not be occupied for the purposes indicated, within three years, or should thereafter cease to be so occupied for the term of three years, the right and claim of the United States should remain unimpaired. The act of the 20th April 1818, vol. 6, p. 346, "authorizing the disposal [p687] of certain lots of public ground in the city of New Orleans and town of Mobile," and the act of 30th March 1822, vol. 7, p. 24, supplementary thereto, were both passed at the solicitation of the city corporation, and both contain similar recognitions of the title of the United States. The act of the 28th February 1823, vol. 7, p. 120, in relation to the lot on which the navy storehouse is situated, and which is thereby granted to the corporation, admits of the like remark. The act of the 21st April 1806, vol. 4, p. 61, granting to the corporation of the city of Natchez the right of the United States to all the land lying between the front street and the Mississippi, on condition that the premises should neither be cultivated nor occupied by buildings, but that it should be planted with trees and preserved as a common, may also be referred to as evidence of the general understanding, that the title in vacant places of this sort had, by the treaty of cession, been vested in the United States.

It is also matter of public history, of which the court will take judicial notice, that during the pendency of the present writ of error, the corporation of New Orleans has petitioned congress to grant to it the very lands now in controversy, and that the argument of the cause was delayed for one or two terms, for the express purpose of enabling the corporation to present this application, and to obtain a decision thereon.

In accordance with these admissions, has been the actual conduct of the parties ever since the cession to the United States. In 1819 the United States erected on the quay a building which is yet occupied by them as a customhouse and courthouse; and they also caused the same and the adjacent grounds to be enclosed with a fence; and if they have not had the exclusive use of the remainder of the premises in controversy, neither has there been any such use on the part of the corporation. Under these circumstances the possession follows the legal title, and was therefore in the United States at the commencement of the suit, as alleged in their petition.

II. If the corporation of New Orleans has any legal interest in the premises, it is not such an interest as can authorize the absolute sale of said premises, in lots, to individuals; because the interest of the city is, at most, a mere servitude for the benefit of the inhabitants of the city, or of the public generally, whilst the title to the soil is vested in the United States.

In discussing the first point it had been shown, that the corporation of New Orleans had no title to the soil; and on the most liberal [p688] construction of the facts, and with every disposition which might be felt to maintain and extend their interests, it would seem to be impossible to go farther than the opinion of chief justice Martin, who merely contended that the quay had been irrevocably dedicated to public use for the benefit of the inhabitants of the city and the public at large, and that the property was therefore put hors du commerce. Indeed, the greater part of the opening argument had been directed to this point; and if nothing more than this has been established, then it is plain that the decree must be affirmed. Suppose the lands to have been dedicated to public use, and the city corporation to have the legal title to such use, yet the fee charged with this public use, must have remained in the crowns of France and Spain, and from them must have passed to the United States, who, as the present owners of the soil, have a right to enjoin the city corporation from proceeding to sell for its own exclusive benefit. Supposing the city corporation to have the legal title in the servitude; it is plain that this does not authorize it to sell the whole estate, appropriating the proceeds to its own use, and that too without the consent of the owners of the fee. On the contrary, according to the rules both of the civil and common law, if the property ceases to be used for the purpose to which it has been dedicated; if the servitude is abandoned or extinguished, the whole estate reverts to the owner of the soil, whose title then becomes absolute. In such case, the original owner, or those who have succeeded to his rights, will hold the land freed from the incumbrance of the servitude.

III. If the corporation has any title to the soil, then the same is charged with a servitude held by the United States for their own use, and for the use of the public generally.

If upon any ground it should be held, that the title to the soil has passed to the city corporation, then, as it is admitted and contended by the counsel for the city that the lands were originally designed for public use as a quay, the question will arise, by whom is this servitude held? According to the law of France (as already shown), all public places, including quays, are held by the crown for the use of the public. This title passed to the Spanish crown, and was retained by it, until retroceded to the French republic. By the treaty of cession of 1803, this servitude passed to the United States; and until they grant it to the state, or to the city, they must continue to hold it, provided that have a capacity to do so under the constitution of the United States. That they had such a capacity during the [p689] existence of the territorial government, cannot admit of doubt; and they must now have the same capacity in this respect, in regard to Louisiana, which they possess in regard to the other states. Under the powers to lay and collect imposts, and to regulate commerce, they may undoubtedly acquire and hold wharves, storehouses, &c. And in a great commercial city like New Orleans, what constitutional difficulty is there to prevent them from holding, for the purpose of facilitating the collection of imposts and the regulation of commerce, the use of a tract like the quay? It might not be necessary or expedient in ordinary cases, for the United States to acquire a servitude of this sort in so large a tract; but their power to hold such a title cannot depend on the extent of the tract. Besides, although the territories adjacent to the Mississippi river have been formed into states, the United States yet have an interest in the navigation of the Mississippi; and have so lately as 1824 (Laws U.S. vol. 7, p. 329, 331), granted lands to the parishes of Point Coupee and West Baton Rouge, for the purpose of keeping up levees on the bank of that river. It is therefore submitted, that the servitude in these lands may be well held by the United States, for the benefit of the citizens of the United States, and of all others who may wish to use the same for the purposes of a quay.

Mr Livingston, for the appellants.

It has been truly said by the attorney-general, that this is a suit of importance. Whether we consider the value of property actually depending of its decision, or of that which may be involved in the principles which the decision may establish. But to the appellants, its importance is far greater than any considerations of pecuniary value could give to it. Decided in favour of the United States, the decree gives them, not only the land contended for in this suit, but all that lying in front of the city. It cuts off from all access to navigation, the second commercial city of the union; shuts up their streets; renders their wharves useless; and, worse than an invading enemy, invests them with a blockade that their valour can never raise. Well, therefore, might the attorney-general call it an important cause. But, happily, importance and difficulty are not synonymous. These fatal results of a decree against the appellants, may, I think, be avoided by a reference to two cases lately decided in this court; those of Cincinnati, and Pittsburgh: to which the attention of the court has been already drawn.

[p690] The facts are essentially the same in character; or where they differ, they are stronger in our favour. The law by which they are to be governed, is the same; call it civil or common law, it is founded on the principles of justice, which never vary; and the only difference between the two systems is, that the rules which have been established by the decisions of this court, were, under the laws which govern this case, matter of statutory enactment.

Objections have been raised to the form of the action, which it will be necessary to remove before we examine the merits. It has been said that the counsel who opened this case erred in calling it a suit in chancery, for the following reasons: it is not so entitled; no process of subpœna was issued; and a jury was once impanelled to try the issue of title. This court will not regard the want of form, where it is not essential to the great ends of justice. If the words, therefore, "in equity," are not placed at the head of the record, but the whole scope of the petition is to obtain an equitable relief, the omission will not be fatal; those words can be no more than a direction to the clerk, on what docket to place the cause. The want of a subpoena is supplied by a summons, and the appearance cures all defects of mesne process. As little can the objection avail, that a jury had once been summoned; for feigned issues to try facts are among the ordinary proceedings of courts of equity.

But it is objected, that here the relief prayed for is not equitable, but one given by the common law of the country; that the perpetual injunction prayed for by the bill and given by the court below, is nothing more than the interdict of the civil law; and authorities are taken from a pamphlet, published some years ago, to prove the position: and that the author of that pamphlet, now the counsel for the appellant, proved, as it is said, conclusively, that a suit commenced in the same form with this, having the same object, and in which the same relief was obtained, was not a suit in chancery. All this is true. But an essential circumstance is forgotten in the statement. The suit in question (Gravier v. The Corporation of New Orleans) was brought in the territorial court of Louisiana, under the first grade of government; a court, proceeding according to forms, essentially those of the civil law; governed in its decisions by the rules of that law: and, consequently, knowing no distinction either in its decrees, or its modes of procedure, between equity and common law. The object of Gravier's suit, was to be quieted in his possession: a relief which, if the suit had been in a chancery court, would have been [p691] given by perpetual injunction; and if according to the laws which governed the territory, by the equivalent remedy of a perpetual interdict. The same remedy was given, by the territorial court, that would have been given by a court of equity, had the distinction been known to the laws of the country; but it was not known; therefore, the proceeding in that case, was not a chancery proceeding, but one in the ordinary execution of the powers of the court. Here, on the contrary, the suit is brought in a court having chancery jurisdiction; the relief sought is an equitable relief; and it will not surely be required, that authorities should be cited to prove, that whatever may be the laws of the state in which a court of the United States is situated, that court has equity jurisdiction: and although, the courts of such state might give relief, according to the forms of the common law, in cases strictly of equity jurisdiction; yet those of the United States are bound to class them according to the nature of the remedy sought for.

The reference to the pamphlet, from which the argument has been drawn; the flattering terms in which the attorney-general has been pleased to speak of it; and the possibility that, in looking at it, the court may recur to other parts then those immediately relating to the question before them, oblige me to ask their indulgence for a single observation; irrelevant, it is true, to the case, but which I am happy to find an opportunity of making. That pamphlet was written under circumstances in which the author thought, and still thinks, he had suffered grievous wrongs; wrongs which he thought, and still thinks, justified the warmth of language in which some part of his arguments are couched; but which, his respect for the public and private character of his opponent, always obliged him to regret that he had been forced to use. He is happy, however, to say, that at a subsequent period, the friendly intercourse with which, prior to that breach, he had been honoured, was renewed; that the offended party forgot the injury; and that the other performed the more difficult task (if the maxim of a celebrated French author is true), of forgiving the man upon whom he had inflicted it. The court, I hope, will excuse this personal digression; but I could not avoid using this occasion of making known, that I have been spared the lasting regret of reflecting, that Jefferson had descended to the grave with a feeling of ill will towards me.

The opening counsel has also been supposed to have fallen into another error, when he stated, that the object of the suit was the [p692] recovery of the absolute ownership of the property for the United States. That he has not erred, is evident from the words of the petition: they claim the dominion and possession, the union of which amounts to absolute ownership.

It is true, as has been argued, that there are cases in which the court may modify the decree according to the circumstances which are proved; but this can only be when the proof is in conformity with the case alleged: when it is not, it destroys the force of the rule that the allegata and probata must agree; and as a consequence, that the decree must conform to both. Here it supposed that the court may either decree the property in full dominion to the United States, or that they may establish the property in them, with a servitude to the city, or give the property to the city with a servitude to the United States; but neither of these kind of titles are put in issue, neither of them are alleged in the pleadings; and, as will be shown, neither are proved by the evidence. They cannot recover a servitude by asking for the fee; and if the land in the hands of the corporation is subject to the servitude of a common use in favour of all the inhabitants of the United States, the government of the United States cannot enforce that use by a suit in their name.

The demandants then in this, as in all other cases, must prove their case, and prove it as stated. They allege dominion and possession; both must be proved if they can have the relief prayed for, viz. a perpetual injunction to quiet possession. But if they do not show actual possession, how can they be quieted in it? If they do not show property, there can be no equity in their demand; for chancery will never interpose in favour of an illegal possession: actual possession has not been attempted to be shown, and an actual adverse possession for more than one hundred years is expressly admitted.

No position can be clearer, than that for this defect of proof alone, the bill must be dismissed; and I might add, if it were necessary, that equity will not interfere to quiet a possession until after the title has been settled. But we do not desire a decree on this point, which would not put an end to the controversy. We are prepared to show conclusively that the United States have no title to the land or to a servitude on it; and that the whole title is vested in the defendants, subject to uses, for the observance of which they are amenable to the laws, to the courts and to the authorities of the state exclusively.

[p693] 1. The title of the United States. This rests on the second article of the treaty ceding Louisiana.

That gives to them the dominion of the province of Louisiana, and enumerates as included in the grant, public squares, vacant lands, &c., not private property. The general transfer would have been sufficient to invest the United States with the sovereignty of the country. But to show that no right to the property contained within the limits of the cession was retained, the enumeration of vacant lands, public squares, &c. is made. Now in this enumeration the grantor cannot be supposed to give more than he had: therefore if the premises are included in the description of public squares, can it be supposed that he intended to convey, or could convey to the United States that which they claim; not only the dominion (which supposing it to be the sovereignty only and which no one in his senses would deny), but also possession, and property in that which had been dedicated to public use? The term public square, by its very name proves that it is a place of that description, not a domain subject to be disposed of by the sovereign. But that there might be no room for doubt, no contradiction between this part of the treaty and that which secured the inhabitants in their rights and property; the restriction is added, that that only was conveyed which was not private property.

The terms of the treaty then gave no title to the premises; and to succeed, the plaintiffs must prove that they were vacant lands; but these terms are well understood, and by decisions of this court, have been adjudged not to mean property in a town: and by the admission in this case, the property in question is acknowledged to have been in the use and occupation of the inhabitants of the city, ever since its foundation.

Failing in the attempt to bring the case within the bounds of the treaty, the United States have recourse to a decision which it is thought secures it to be within its spirit. The decision of the supreme court of Louisiana is relied on as decisive, if not binding as authority, conclusive as authority, and convincing as argument. It will be examined in all these points of view, with the respect due to the learning of the judges who pronounced it; which is acknowledged to be great; but at the same time, with the freedom that duty to my clients requires.

It is not contended that we are concluded by this decision. It was not made between the same parties, and although for parcel of [p694] the lands now in dispute, was not given on the same evidence; and these circumstances derogate much from it, considered only as a precedent. There are others which when properly considered, weaken its force, even as argument.

This court has frequently expressed its respect for state decisions, and its disinclination to oppose them; but as their reasons are understood, they will give them effect under the following circumstances:

I. Where disturbing them would unsettle titles bona fide acquired.

Here no such effect would be produced; the few claims on this property having undergone legal investigation, and being settled by decisions that do not admit of reversal.

II. The second requisite is, that the state decisions have been uniform. In this the case of the United States is remarkably defective. Several decisions have taken place in the supreme court of the state prior to that of De Armas; in all of which, as I shall show, opinions have been given directly at variance with those established in that case. The first of these is The Corporation v. Gravier, 11 Martin's Rep. 625; of which these were the circumstances: Gravier had laid out his plantation into a suburb, and made a plan on which he had laid out a square, on which he attempted afterwards to build: he was opposed by the corporation; and the court decided, that the designation on the plan was a sufficient dedication to public use to prevent any exclusive appropriation being made of it by the former proprietors.

The next is found in 3 Martin 303. In that also we have the authority of Martin (one of the judges) for the fact that the judges fully recognised the doctrine, that places dedicated to public use could not be disposed of by the crown; and that if the corporation had then produced the plan of the city which is in evidence here, the judgment would have been different; and that if a grant had been made by the crown, it would have been declared void. (See Martin's opinion, and the printed case, Mayor, &c. v. De Armas, 46.)

In the case of Chabot v. Blanc, 5 Martin, the same question arose, and the same intimation given by the court, that if a plan of this had been produced showing the locus in quo to have been dedicated to public use, the grant of it by the king would have been declared void.

These two cases were decided before the corporation had discovered the maps, of which authenticated copies are now produced. In both the court formed their judgment in the absence of this proof; [p695] in both they deny the right of the crown to dispose of the property, if the dedication could have been proved by the production of the plan: in both the premises were part of the quays now in dispute: therefore, in both these cases, as well as in the one first cited (Gravier v. The Corporation), the principle involved in this case is fully established; and no decision of a contrary nature, before that of De Armas, having been produced, the state authorities, so far from being uniformly against us, are three to one in our favour; and all these three appear to have been the unanimous opinion of the court: whereas, this is decided by two judges against the opinion of one.

De Armas's case then stands alone: the decision must be established or fall, by the comparative strength or weakness of the arguments; and to support it, we have them fortunately at full length. The court will compare those of the dissenting judge (Martin) with those of the two judges forming a majority of the court.

So much reliance is placed on this case that it must be closely examined. That part which investigates the validity of the confirmation made by the United States, does not apply here; and need not be examined. The presiding judge, as to the principal point, the property in the corporation, refers to the argument of his associates; with whom he agrees, and therefore touches very lightly upon it. He however takes for granted, a fact that is disproved by the admissions in this case; viz. that the greater part of the space denominated a quay on the plan, had never been used as such. p. 59. He then enters into an investigation of the true meaning of the word quay, which he concludes must be an artificial work; and as the space between the houses and the river was natural soil, it could not come within that description. In another part of my argument, I will show that this philological inquiry is quite useless in this case, and that the learned judge has fallen into an error, which shows that it is so. For, he says, "perhaps it may be required that some effect should be given to the word quay, inserted on the plan. This may be done, by allowing it in reference to that part of the space on which it is found; which was a quay, according to the meaning of the word, as generally received; i.e., the levee which existed on the bank of the river, and the shore between the exterior of the levee and the water." Now, if the place on which the word is written in all the plans is to be considered as they quay, then all the definitions which require that it should be an artificial work, are incorrect: for a glance at the plans will show, that wherever it is [p696] written, it is on the vacant space between the artificial levee and the houses.

Another ground on which the learned presiding judge rests his opinion, has, I confess to my no little surprise, been adopted by the attorney-general. It is, that the United States, because they have the right to establish ports of entry and regulate commerce, have that of regulating quays as an appendage to the ports, and take upon them the police of wharves in all the states of the union. The argument of the attorney-general does not, as I understand him, carry this right further than the port of New Orleans; but his doctrine does: for if the right be derived from the constitution, it must apply to all ports in the union; and the judge expressly goes this length. Of all the constructions of constitutional powers, given to the federal compact, this would be the most dangerous and mischievous in its exercise, and the least founded in the words or spirit of the federal compact. I shall refer to it again, in reviewing the arguments of the learned counsel opposed to me. But grant the right, and it is of no use, to establish the claim of the authority in the title of the land. Let them, if they can, find the authority in the constitution to make laws for regulating wharfage and drayage, and cleaning the slips and docks. Let them appoint scavengers, and exercise all the jurisdiction which this construction would give them. They are not advanced a step in their claim to the property of the soil, which they must establish before they can succeed in this suit.

The presiding judge having referred to the opinion of the associate, who concurred with him, for the argument, and that argument having been expressly adopted by the attorney-general, it must be respectfully examined.

It divides itself into two branches: to show, first, that the city had no title to the premises. Secondly, that the land was not set apart and dedicated to public purposes.

The first head is supported by the learned judge, under what I respectfully consider a mistaken view of the law of France. p. 64. He lays it down broadly, that by those laws "a city or town could not acquire right or title to the soil of immovables, or to the use of them without letters patent from the king." But the authority quoted in support of this, shows, I think, that by the very fact of establishing a town, the right to hold real property is acquired as a necessary consequence. That authority declares, that no one can establish communities but the king, and adds, "that it is a [p697] consequence of this right also, to permit them to hold real and personal property for themselves." And afterwards, "these communities cannot possess immovables, without the permission of the former." To this there are several answers, all equally conclusive. First, the authority does not require letters patent, or any letters whatever, from the king, for the establishment of a town; it requires his permission only; and that permission may be proved by any legal evidence whatever. In the present instance, the grant to the West India Company, by whose act the town was laid out, is sufficiently broad to cover such permission. It gives them the land in allodial tenure, with extensive powers to carry on trade, and make establishments, build forts, sell the lands, &c. And the government gave its sanction to the location and plan of the town, by the employment of its own officers and engineers: and even if thay work had been done solely by the act of the company, the plan was ratified by receiving it into the public archives, and afterwards more fully when, in 1832, it received the surrender of the charter, and continued the government of the city under the original plan. If, then, the city was laid out by permission of the king, according to the plan produced, or even if the only ratified such plan, and governed the city by his officers, according to the extent and order of such plan, no other permission was necessary to vest in the city the premises in question; for those premises are part of the city, not a distinct property, acquired by it; which, according to the authority, required letters d'amortissement, to enable them to hold it. And the want of this distinction causes the error in the learned judge's opinion. For can it be doubted, that after giving permission to lay out the plan of a great city, destined, according to the sanguine expectations of the times (expectations more than realized in our day) to be the emporium of extensive commerce, the capital city of an immense region; after designating on it a capacious harbour, commodious streets, public squares, sites for public buildings, and above all, that, without which, the whole would become useless, commodious quays securing to it a free access to the river and the necessary facilities for lading and unlading of merchandize; is it possible to suppose that a separate grant should be required of all these component and indispensable parts of a city, to enable the inhabitants to enjoy them? Whatever letters patent, then, might be necessary to enable communities to acquire are property, after they were created, none could, in the nature of things, be necessary to give them the [p698] enjoyment of those parts of the city itself, which were destined for public use; such as their quays, streets and squares. Are they not integral parts of it? and if so, does not the permission to create a city, by the king, and a fortiori, his creation of one himself, include this necessary grant?

But suppose the grant necessary, and that the premises were not part of the city, is it not necessary to be presumed that such grant was made? It is a necessary presumption, when a thing that may be acquired by prescription, has been so long in the hands of the possessor, to give the title. Here, that proof is before the court. Therefore, it inevitably follows, that whether the laying out of the town is, as I suppose it, a sufficient grant, or whether the nature of the property required a separate grant to convey it, is immaterial. In the one case, the grant is proved; in the other, its existence is necessarily presumed.

There is on this head alone, an erroneous conclusion drawn from the law of Partidas quoted by the learned judge. That law (tit. 28, 3d partid.) defines what shall be the common property of the cities, for the use of all the citizens, in contradistinction to that which is held by the magistrates of the city for the common good, but of which the citizens have not the common use; and after enumerating some of them, as the banks of the rivers, the public fountains, the commons adjacent to the town, adds, "and other such like places as are established and granted for the common use." Evidently referring to the use to which the property is appropriated, not to the manner of acquiring it. The same judge also on this head adds, "that the plans produced in evidence, have never been delivered to the city as a muniment of title." This appears not quite certain. Considering the various changes of jurisdiction that the city and province have been subject to, the two successive conflagrations of the city, and the notorious loss and removal of public documents; the probability, I should think, would certainly be, that where lots were to be sold, buildings erected, and streets located on the ground, a map or plan must necessarily have been in the hands of some local public officer belonging to the community where these operations were to be performed; but wherever it lay hid, whenever its existence was discovered, it must have its legal operation. What that is to be, is more particularly examined in the second part of the learned judge's argument referred to, and adopted as his own by the attorney-general.

[p699] That argument concedes that a destination to public uses in a plan, is a sufficient conveyance of the property to that purpose. That this court has correctly placed the setting off of commons to cities, on the same grounds as that of streets and highways: but, he says, that "although this may be perfectly correct under the common law, yet the decision cannot apply to a case arising under the French or Spanish law." And he thinks that one example will show this. "The supreme court considers," he says, "that the fee may be in abeyance until a grantee exists who can accept it; and that then the grant is irrevocable." This doctrine, he thinks, irreconcilable with the rule of the French law, that no community can have a right to the use of immovable property, without letters patent from the king; or with the Spanish law, which recognises no place as common property for the use of the city, but that which it acquires by grant, purchase or prescription. But, are there any such rules in the French or Spanish laws? I trust, I have shown there are none: and it is worthy of remark, that on this branch of the argument, the rules are greatly extended beyond the authorities which are supposed to have established them. Thus, the text from Domat says, that the king can permit communities to possess property for their use, (pour leur usage), not the use of property, but the property itself for their use. Two very distinct things; one, a right to purchase real property to make their own use of it, the other, to purchase a use or servitude, in the property of another. But the answer to these supposed rules, and to their application, has already been anticipated.

The following part of the opinion is not applicable to the present suit, for it consists solely in an endeavour to establish a right in the king of France, by virtue of his sovereignty and his superintendence of the police of cities, to dispose of the property dedicated to the public use of the citizens; a right which he thinks devolved on the king of Spain, who, as was contended in that case, had made a grant of the land in dispute, part of this quay, to one of the parties in that suit. Now although I should contest every part of this argument, yet supposing that the kings of France and Spain (by virtue of some regal power, which I contend they never had) could dispose of property which they themselves had made part of the public property of the citizens; yet they have not exercised it with respect to the premises now in question: they were handed down to the corporation of New Orleans in regular succession; and if the sovereignty of the [p700] country came in the same manner to the United States, it came to them unaccompanied by the right of supervision over the police of cities, which the argument supposes the king to have possessed. It came to them limited by the powers delegated in the constitution, and we shall certainly look in vain into that instrument, for a power to interfere with, much less to claim the property which had once been dedicated to public use.

This part of the argument also errs, in stating that the supreme court decided, that merely having a space vacant in the plan of a town, was sufficient dedication of it to public purposes: all the blocks in the plans we have produced, lying in the back part of the city, are left vacant; they are not subdivided into lots; yet there is no pretence that they were intended for the use of the city; they were left so until purchasers offered for the lots. Something more is required, if I understand the decisions of the court. The space, from its situation, must appear to be necessary for the accommodation of the inhavitants (such as that of the land in question), or there must be some evidence of such dedication by written, or even verbal proof; both of which (situation and written designation), be it remarked, concur in the present case.

A material circumstance, however, has entirely escaped attention in the argument, which renders of no avail all that part of it which is drawn from the prerogative of the king to resume his grant or curtail any servitude he may have created. The land on which the town of New Orleans was laid out, was private property, not the domain of the crown. It is forgotten, that the province of Louisiana was, after the surrender of the grant to Crozat, granted to the West India Company, to hold in allodial tenure, independent of any feudal rights that might attach to the crown: that they founded the city with the assent of the crown, on their own lands; and when, in the year 1732, they surrendered their grant, the king took only what they had not disposed of. But they could not, it is conceded, alter the plan, so as to deprive the citizens of any advantage it gave them; therefore the king, who received only their rights, could not. A word or two on the supposed right of the king. It is founded on this reasoning. There is no doubt, it supposes, that the corporate power may, with the assent of the soverign, change the destination of places originally intended for public use, but which, an alteration of circumstances has rendered improper for that use. But the king united both these powers; therefore, his will was sufficient to change [p701] the destination. This reasoning appears to me to be built on an incorrect view of the nature of the French laws, relating to the communities or municipalities of towns or communes. No act of incorporation was necessary to create them. The permission of the king, as we have seen, by the quotation from Domat, was sufficient. Once created, they had their rights independent of the crown; rights of property, and franchises, which he could no more legally invade, than he could the property of an individual. In France, most of the towns held their franchises and property by long usage, which, in general, supposed a royal permission. In their colonies all the towns were created by the same means which were pursued in the present case; the survey under royal authority, or that which it had delegated, and the subsequent government by municipal officers, appointed by the crown or permitted to be chosen by the people. The argument seems to admit in one part, that after an incorporation this union of royal and corporate powers ceased. If then, the survey and plan by royal authority were equivalent under the French to an incorporation under the common law, the argument totally fails. How far it applied to the Spanish law, (more immediately the subject of controversy in that suit), may be judged of by the 1st law, title 16th, of the 7th book of the Novissima Recopilacion; which enacts that all royal grants made or to be made, of the rights or property of any cities, towns or places, shall be declared void.

The same want of attention to the distinction between lands to be granted to a city, as its propios, that is to say, lands not for common use but for supporting the charges of the city, and there designated as a component part of the city in its first formation, pervades the argument (p. 73); where the viceroys who had the power to assign such propios to new cities, were directed to send to the king an account of what they have thus designated, that he may confirm them, is brought to prove that designation alone is not sufficient, there must be an after grant. But this law speaks of one thing; our case, and the case before the court in Louisiana of another. A mere designation of part of the royal domain out of the city for the purpose of supporting the city charges, may require a regular grant; while a mere designation of a part of the city for the common use of the inhabitants may be, and is sufficient without a grant. The distinction between the three kinds of common property that may be held by a municipality, is clearly drawn in the [p702] Spanish law (3 Partidas, laws 7, 8, 9, tit. 28): one that is common to all the world, such as the port, the shores, &c.; another for the common use of the citizens; a third for the expenses of the community, but which last are not subject to the use of the citizens individually, as the others are. These last are called propios, and by confounding the laws relating to these three, we run into inextricable error. The whole of this opinion of the truly learned judge of the supreme court of Louisiana is, however, based on the idea that the dedication to a public use in the plan, cannot operate as a grant, according to the laws of France or Spain; although he admits that they would, according to the laws which govern the other states. For in the conclusion he admits, that if they had been granted to the city, they would not have passed by the treaty to the United States.

Before I finish my examination of this able opinion, which the attorney-general has converted into a part of his argument, I cannot but make but one general remark on the power which it assumes to be vested in the kings of France and Spain, to resume and dispose of those parts of a city which they had designated for public use in the plans they had made of it; a power insisted on with respect to a quay, to all the land lying between the city and the river, shutting it up completely from the only means of carrying or its commerce, and which yet it is acknowledged they did not possess with respect to the streets. But supposing, contrary to the fact, this town to have been laid out on land belonging to the king, he gave the streets in no other way than he gave the space in question; if the one binds him, so does the other. The law by which the city holds is not the mere common law, it is the law of eternal justice, pervading every system, common to every country, and from which every departure is an injustice, and an anomaly. What is given cannot be resumed without wrong, any more than that can be taken which is derived from any other source. King, republic, or individual, who gives a right over a property, can no more resume it than he can seize on that which he never possessed. The designation in the plan meant the same thing in Louisiana under the French law, that it did in America under the common law; in both it was meant to give a right; in both that right is sacred.

I have now examined the title set up by the appellees. I have shown that it cannot be supported by the words or the spirit of the treaty under which they claim.

[p703] That the state decisions which are supposed to strengthen it are more numerous in favour of the defendant. I hope I do not flatter myself in thinking that the only one in favour of the appellees ought not to be considered as authority; because in some points the cause is different; in others the reasoning on which it is founded is unsound; and because the court giving the decree was divided.

Although in showing the weakness of the plaintiff's title, I have necessarily anticipated many topics which enter into the establishment of ours; yet I must pray the indulgence of the court while I spread it before them in a connected point of view.

The topographical position of the lands in dispute has been so frequently described, and is so accurately laid down on the plans which are before the court, that no further description is necessary.

The following historical facts are material parts of the case; and are proved by works admitted as authority by the parties.

That the colony of Louisiana having been previously granted to Crozat, he, in the year 1717, surrendered it to the crown; and that a new grant was, in the same year, made to the West India Company, conceding to them all the lands in allodial tenure; with extensive powers of making establishments of commerce.

That the position of the chief town was designated to be at a place where New Orleans now is, about the year 1720; but that the seat of government was not removed from where it had been first established, until 1724: when a plan was made, of which we have a copy signed by De Panger, who is proved to have been royal engineer, bearing date the 29th of May 1724; and designating by different colours the buildings made before September in the preceding year, and those made since. That altogether some hundreds of houses then appear to have been already built on the streets as delineated on the plan.

That on the 15th of May 1728 another plan was made by Broutin, also a royal engineer, conformable, in the designation of the streets and public plans, to that of De Panger; with the addition of a great number of public and private buildings marked on it, all situated on the streets as designated in both plans.

That in 1744 another plan was engraved and published in Charlevoix's History of Louisiana, conformable in all respect, expect in the addition of other improvements, but without any alteration of the streets, wharves and public places, to the plans before mentioned. [p704] That this work has been admitted as authentic by the parties.

That in all these plans the word quay is written opposite to the front row of houses, and on the space between them and the river; which space constitutes the premises in question.

That on the first and third of these plans the ditch and fortifications inclosing the town plot are delineated; and that they are carried round three sides; and terminate at the river on each side, enclosing with the river the premises in question.

Upon these facts and documents, together with the admissions on record that towns in the French colonies were not created by act of incorporation, but by plans made by the royal engineers, and deposited in the bureau of the marine, from whence they have been drawn, in addition to the corroborating facts of possession, and other circumstances hereafter alluded to; the appellants rest their claim of title to the premises in question as a part of the town.

The cases of Cincinnati and Pittsburgh contain all the law necessary to be cited in order to establish a title under this evidence; unless,

1. A body of law should be found to govern this case different from that under which these decisions were given.

2. Some evidence should be found in the case to counteract the force of that relied on by the appellants.

1. The cases are perfectly parallel, except that the fact of destination, which was proved by inference and circumstantial evidence in the one of the cases decided by this court, and by parol testimony in the other, is here shown by written evidence on the face of the plan itself. That here the ditch in the first plan, and afterwards the fortifications, which formed the boundaries of the town, are designated on the plan, showing the premises to be as much an integral part of the town as the streets or squares; it is therefore not a parcel of land claimed to have been given to the city, but one of the public places of the city itself within its designated boundaries, that is claimed in this suit by the United States as their property, to be disposed of as they may think fit.

In this case, as in thos decided by this court, the lands in dispute are such as are absolutely necessary to the wants of a commercial city, more particularly as applicable to those of a great commercial seaport. The cases then only differing in points which make this stronger than those decided, they must be considered as authorities [p705] in point, unless it can be shown that they are not governed by the same law; but this inquiry has already been made in discussing the opinion of the court in the case of De Armas. And I cannot but think that it has been sufficiently shown, that the principles which must govern the cases are essentially the same in both systems of law. I cannot, however, avoid drawing the attention of the court to the very learned and able opinion delivered by the dissenting judge (Martin) on this point. p. 48. He says: "I have looked in vain in the opinion of the court for any reference or allusion to any principle peculiar to the common law of England. It has appeared to me, that the case was determined on the just, broad and general principles of law in the corpus juris civilis: honeste vivere, to act honestly: polliciti servare fidem, when we have made a promise to keep it; and the necessary corollary, turpe est fidem fallere, it is shameful to disappoint expectations we have authorized."

2. If the laws are the same, and there is no difference in the prima facie case we have made, the only circumstance which can prevent a similar decree would be the production of some evidence to counteract that on which we rely. This has been attempted. With what success we shall next inquire.

1. It has been contended, that although this space may have been designated for public use as a quay, yet being given by the king he might resume his grant; that the United States succeeding to his rights may, when they think proper, make the like resumption; and that the king of Spain actually did exercise it, by making grants within the contested limits, with the acquiescence of the city authorities.

The two first points have been already examined; and it has been shown that no such right of resumption did exist, or could exist, either in France or Spain; that in the latter kingdom it was forbidden by positive statute; and in the former, and indeed every where, by the first principles of justice.

The exercise by the Spanish authority remains to be examined. The plaintiff produced six grants or permissions to build on the space in question. Of these,

The first is that of Magnon, who petitions for a grant of a parcel of land near the levee, for the purpose of pursuing his business as a ship carpenter, which he states to be essential to the service of the king. This petition is referred to the law officer of the crown, (the assessor) who gives it as his opinion, that "although the council of [p706] the city might have some objection on account of the lot being situated within its precincts," yet he advises the grant from the necessity of having a ship yard. But no grant was made, although the opinion was delivered in August 1799, and the transfer of the province did not take place until December 1803.

This fact then corroborates instead of impairing our title. The law officer declares that the city had good objections, that the land lay within the limits; and notwithstanding the alleged necessity no grant was made.

2. The next is a similar application from Chessé, a calker, for permission to build a shed. But this is addressed not to the government but the city authorities, and permission is given to build and hold the shed at their will. Another evidence not of royal but of municipal authority.

3. The third grant is to Bertrand, but it is merely a permission to build a shed, immediately after a distressing conflagration; which was so far from conveying any property, that the petitioner could not repair the shed without asking a new permission.

4. Urtubuise asserts to the commissioners of the United States (as they report), that he had permission to build from the governor, but produces no authority.

Thus far, then, nothing is proved to impair, but something to strengthen, the case of the appellants. Their claim acknowledged by the law officer of the crown in one instance. The actual exercise of dominion over it in another. In the third, nothing but a permission dictated by charity, in a time of great calamity, when strict scrutiny of the powers of different officers would not be made; and in the fourth, nothing but the allegation of a party produced.

The two remaining grants to Mentzinger and Liotaud, are, it must be confessed, acts which directly asserted the right of the king of Spain to dispose of the property in question; but they were the acts of a subordinate officer, and were so far from being acquiesced in by the city, that an appeal and remonstrance were made to the king; on which, according to the usual dilatory proceedings of that monarchy, no decision was made prior to the transfer. This fact is stated in Martin's opinion (p. 47). No other grants however were made; and the attorney-general might have added to these arbitrary acts of disturbance, one of a more striking kind: where a Spanish governor sacrificed four of the principal inhabitants, and placed the tyrant's mark of blood on the very ground now in question. My learned friend's humanity would not permit him to avail himself of [p707] this act of possession, but it is quite as good as another that has been relied on, the parading of the troops on a part of the premises. After this arbitrary sacrifice of the lives of its citizens by the first governor, his successors might reasonably think themselves authorized to use little ceremony in disposing of the property of the city; and if it had been acquiesced in, a better reason might have been alleged than an acknowledgement of the king's title.

The corporation, it is said, have by various acts acknowledged the right of the United States. They have petitioned for, and accepted grants of part of the land; but this was done before they had discovered the evidence of their title. And even if done with a full knowledge of it, could never divest them of the property.

No act of interference with the rights of the city having been found under the French government, one of our strong pieces of testimony has been ingeniously made to supply this deficiency. We produced nineteen ancient grants of lots in the front row of the city, all of which called for the quay as their front boundary; these were produced to corroborate the evidence resulting from the inscription of that word on the plans. Now one of these, instead of using the expression bounded by the quay, says situated on the quay, sur le quai: just as we say a farm situated on such a river, a lot in such a street. But to take away all doubt on the subject, we have the lot in question located on the map, with the name inscribed and shown to be one of the front lots bounded by the quay. These are the only evidences of interference by either of the governments: none by France from the laying out of the city in 1720 to the transfer, forty-nine years; and such as have been described, that of Spain, since.

An argument has been used which requires some notice. It is said, that although the inhabitants of the city, individually, might have a right to the use of this ground; yet, the corporate body, now representing them, can have no title; because, during the French and Spanish dominion, there was no corporation. The king, if I understand the argument, had the power of the corporate body, and held the ground for the use of the citizens; that the fee was in him, subject to the servitude, for the benefit of the citizens; that this right was vested in the United States, by the transfer, and that they now held it in the same manner that the king did.

The first objection to this argument, is the radical one, that every community, under the French, as well as the Spanish government, has its officers to represent them; and although, by the statement [p708] of facts, it is considered, that what we call an act of incorporation was not passed, yet all its effects were produced, by the erection of the town. Under both governments, every town had its municipal officers, who took charge of its property and asserted its interests, very frequently, against the encroachments of the king himself; an instance has been already mentioned in the remonstrance of the cabildo, against the governor's grants. Again, if there was no corporate body, nothing to represent the city, but the kingly power; how, and to whom, did the king make the grant of the commons, and the lots fronting the public square, for the propios of the city, as has been proved in this cause. Not to himself, surely. No! he made it to the cabildo, for the use of the city. The ground designated for streets, squares, and quays, by the plan, vested in the municipality of the town, for the common use of the citizens; under the French government, passed to the cabildo, under that of Spain, was exercised by a temporary municipality, appointed by the French prefect, who received the transfer from Spain, in order to deliver it to the United States. They held it until the United States entered into possession, when another provisional municipality was appointed, and remained in office until their powers, by a regular act of incorporation, were vested in the present defendants. By that act, "all the estates, whether real or personal, the rights, dues, debts, claims, or property whatever, which heretofore belonged to the city of New Orleans, or had been held for its use, by the cabildo, under the Spanish government; the municipality, after the transfer, in the year 1803, to France; or the municipality now existing, shall be vested in the mayor, aldermen and inhabitants, to be enjoyed by them and their successors for ever."

This act passed during the first stage of territorial government, when all laws were submitted to congress for their revision. Consequently, they are estopped from saying that they have any interest in property which at any time was held by the municipality or the cabildo; but it has been indisputably shown, that for more than forty-nine years, from the year 1720 to 1769, under the French government, and from that time to the transfer, in 1803, under the Spanish, there has been such possession of the premises. Therefore, if every other title were wanting, this alone would be sufficient to establish our right.

An equally strong objection to this argument, arises from the constitutional power of congress. If the kings of France and Spain [p709] could be trustees for the inhabitants of cities, and exercise either mediately or immediately, all the municipal powers necessary for the protection of such rights, how is congress to interfere? even if the same rights had been transmitted to them by the terms of the treaty.

There is a want of distinction, some confusion of ideas in this branch of the argument. An acknowledged power and duty of sovereignty is confounded with one, with which it is not invested, and which it could not exercise if it were. The sovereign power has no right to exercise the duties which, by its grant, it has devolved upon the authorities of a city or town; it does not hold the property which is dedicated to the public use of the citizens of that town; but it always retains the power of obliging their municipal officers to observe the terms of the grant, to preserve the property for the use for which it was given. Thus, immediately after the transfer of the country to the United States, before the local territorial government had been established; if the municipal officers of New Orleans had attempted to change the streets, to dispose of the public square, or in any other illegal way to injure the rights of the citizens: the United States, as the sovereign of the country, by its proper officers, might have taken cognizance of the case and prevented or redressed the injury. Then, they might have sustained a suit in their name, as the sovereign of the country, for an injunction to prevent an illegal sale of common property; but not even then, one like the present, to recover the possession of it. But after a local government had been established under the territorial grade, with its legislative council, its judicial and executive officers, and all the other attributions of supreme power, restricted only by the powers vested in the general government; when, afterwards, in pursuance of the terms of the treaty, Louisiana was admitted into the union, on equal terms with the other states: in both these cases, that superintendence over the municipality, which bears the attribute of local sovereignty, was transferred to the territorial, first, and afterwards to the state government; and can never be exercised by the United States, unless, indeed, the construction of the constitution should be adopted, which has for the first time, that I am aware of, been contended for in this cause. But even then, if the power given to congress to regulate commerce, should be found to mean the grant of a jurisdiction over wharves and ports, some thing more would be necessary before that power could be exercised; a code of the police of ports, the creation of officers, hitherto unknown to our government, and some [p710] mode of settling the clashing interests of the cities, the states, and the United States, in all the ports of the union. For, I repeat, if the power exists on the wharves of New Orleans, it must exist in those of all the states; for the argument derives it from the constitution, which must operate upon all. That so great an extension of the powers of the general government has never before been thought of, is a strong proof against its adoption; and I quit the argument without any fear that the court, by sanction, will make an inroad on state rights; which the learned counsel for the United States would be the first to deplore.

I may hope from this view that I have shown that the United States can claim no property in the soil.

That they cannot recover in this suit ever if they had a title, because they have not shown such a possession as would sustain a suit for a perpetual injunction.

That the decision of the state court forms no authority to guide that of this court.

That the lands in question were dedicated to public use and vested in the city by evidence that cannot be controverted.

And, that the rights of the city, under the French and Spanish government, have been regularly transmitted to the defendants, forming a chain of title that has vested the property in them subject to laws, for the due observance of which they are amenable to the state authorities, not to those of the United States.

But if there should be a failure in any of these points, there is one on which we cannot be mistaken:

The title derived from prescription by a possession of more than a hundred years. Law 1, tit. 7, lib. 5, Recop.; and law 1, tit. 15, lib. 4, Recop. To rebut this, an authority has been introduced from Domat to show that things destined for public use cannot be acquired by prescription; an authority showing clearly that property of that description cannot be acquired by an intruder on the common property of a city, but most clearly not forbidding the acquisition of them by the city under that title; a law made for the protection of public property, not to prevent the application of a law in their favour which comes in aid of lost titles.