
    
      RENTHORP & AL. vs. BOURG & UX.
    
    East'n. District.
    
      Feb. 1816.
    Appeal from the second district.
    *** See a full statement of facts in the beginning of the opinion of the court.
    The soil of a highway is public property, and cannot be recovered in an action between individuals.
    
      Livingston for the plaintiffs.
    By the case, it appears that the legal title to the land, of which the premises are a part, was vested by grant of the crown, in those under whom the plaintiffs claim, and that their title was confirmed.
    There is no reservation (either of a part of the property for the king, nor any servitude on it) expressed in the grant: and none can be implied, because such implication would be contrary to the tenor of the grant, which gives the whole, and no verbal proof shall be admitted against the tenor of a deed: Civ. Code, 310, art. 242, a fortiori, no presumption. Civ. Code, 314. art. 254.
    
    If the public had neither an express or implied reservation of any part of the property, how did they acquire it?
    I. It is said by the use the inhabitants had of a road, before the grant. But this could at most amount to a servitude of a right of way. Even supposing it sufficiently ancient to produce this effect, which it was not, it could never amount to a presumption of the property for the public; and if it did the king might dispose of it, as he has done by an unreserved grant to us. 3 Cur. Ph. illust. 41, art. 89, Cœpola de servitutibus, 271, 22, where the objection that it cannot, be disposed of, because it is not in commerce is discussed, and it is shewn this restriction does not apply to the sovereign power of the state, but only to inferior corporations.
    II. It is said the right was acquired by the act of the territorial legislature, directing a road to be laid out, and the proceedings of the commissioners under them.
    Admitting the power of the legislature to deprive a citizen of his property, without compensation, have they done it?
    
    The laws contain no such provision; at most they create a right of way or servitude: and the commissioners fixed the extent of it to sixty-two feet.
    But they had no power to take away property. Civ. Code, 102, art. 2. 2 Laws U. S. 564. Constitution U. S. Amendments, art 7.
    III. It is said that this is a public road and that, ex vi termini, it vests the soil in the public. But this is, in none of the laws, called by that 
      name, except in that of 11th March, 1809, which says the borders of the canal shall be considered as a public highway, and that the proprietors of lands bordering on it shall be compelled to keep it in repair, according to the existing laws and regulations. This puts the borders of the canal on the same footing with the banks of the rivers. Now admitting, always for the sake of argument, the right of the legislature to make any change in private property without compensation, let us see what are the rights the public have on the banks of rivers: merely a servitude, a right of way, Part. 3, 28, 6. 3 Cur. Ph. illustrada, 56, 116, Inst. 2, 1, 4; but the soil remains the property of the owner of the adjoining soil. 4 Inst. de rer. div. § Riparum.
    The law shews the canal is a work of art and not a navigable stream; therefore, the right of the legislature to interfere with private property, by declaring the banks to be a public highway, may well be doubted.
    The law 2d, 43d book, 8th title of the Dig. cited page 529 of the Traite des servitudes, which is quoted to shew that a public road must always be on the ground of the public, is a mere play upon words.
    They say it is a public road, therefore, the ground must be public.
    
      I say the soil is private property, therefore though the public may have a right of way, the road, in your sense of the word, is not public.
    The law last quoted, taken in connexion with the two following sections, n. 749, 750, in the same book, being Dig. 43, 82, sect. 22, 23, shews that they had at Rome highways called pretorian or consular ways, such as the Flamina, Appian, &c. which were built at vast expence by the public, and for which, probably, the soil was purchased by the public. These were then called properly public ways: as to the others, where the public had a right of way over the lands of individuals, they were sometimes called public ways, but they were improperly so called, sect. 23, if they were repaired at the expence of the proprietors of the adjoining lands. If then we take this Roman law, as the test of the way in question, it is not a public way. But the truth is, there is not in America, nor I believe in any part of modern Europe, any thing similar to the consular way of ancient Rome.
    In England all highways are private property. Roll. ab. 392. 2. Strange 1004, 3 Bac. 492. In France, by a succession of edicts, proprietors of lands bordering on rivers are obliged to leave a space for a road over them. Ord. May 1520, August 1669. Bordeaux memorial. cited 5 Amer. Law journal, 169.
    
      In the United States, the same doctrine prevails. 6 Mass. Reports, 154. 1 Gould’s Espinas. N. P. 273. 2 Johnson, 359.
    In Louisiana, the instructions, for the granting of lands, denote that the proprietors shall make the road, repair it, &c.
    But what shews, in Louisiana, conclusively that the soil of the road is not public, is that the proprietor is obliged to furnish the way, even when the original road is wasted away, and the universal practice of changing the road whenever circumstances render it more convenient for him to do so: which he is always permitted to do, if the new way is equally proper for public use.
    The conclusion, on this head, is that the high way remains the property of the owner of the original soil, subject to the servitude of a way. Civ. Code, 128, art. 13.
    Admitting then this highway to be property leased out, the house situated thereon is our property. Civ. Code, 104, art. 10. We may bring an action for it.
    The definition of the right of way is the same in the English that it is in the civil law. Hub. 152. Civil Code, 128, art. 12, 13. Cooper's Justinian, 88. 2 Bl. Comm. 20.
    
      The law being the same, the decisions in either country, though not authority, will have great weight. 3 Bacon, 494. 6 Mass. Reports, 454. 2 Espinasse N. P. Gould’s edit. 2. 2 Johnson, 357. 6 East, 254. 2 Strange, 1004. 1 Burr. 143. All these cases shew clearly that the owner of adjoining land, as proprietor of the soil, has his action for any use that is made of the road, other than that of passage, and that this may be trespass or ejectment. The case last cited, 1 Burr. 143, is most strongly in point and bears also on another feature of the case. viz. the estoppel.
    The premises were hired by the defendants from the plaintiffs, by a lease for three years, now expired. They cannot gainsay our title.
    The defendants also claim the house as incident to the right of ferry.
    They say that when a servitude is granted, every thing necessary to its use is also granted.
    This is true, but it must be a strict necessity, and the incident must belong to the grantor of the servitude, or surely he cannot dispose of it.
    Here the house is convenient for the ferry, but the ferry can exist without it, and the incident (the house and the soil on which it stands) did not belong to the public, who granted the ferry; indeed it is very doubtful, whether, after giving the right of ferriage to the parish jury, by the first law, the legislature had any right to divest them of it, and give it to the defendants, by the second.
    If you say, that because the public have a right to grant a ferry, they have a right to take my land to build a ferry house, because a ferry house is necessary for a ferry, you may also carry it still farther and take my furniture and provisions, because furniture and provisions are as necessary to a ferry house, as a ferry house is to a ferry; you may also take my boat, because a boat is more necessary to a ferry: but the truth is, government can give nothing but that which it has: here it had only the right or exclusive privilege of carrying for hire across the navigable water, which was its property.
    A patentee of a patent drug might, by the same argument, force me to swallow and pay for his nostrum, because he has a patent to sell: and a purchaser is as absolutely necessary to be found, before he can enjoy his right, as a ferry-house is for a ferry.
    
      A. Porter jr. of Attakapas for the defendants.
    There are three objections to this action, each of which will be found fatal to the plaintiffs’ right of recovery.
    
      1. That the locus in quo is a highway, on which we are placed by legislative authority, to carry into effect a servitude which the public enjoy on it.
    
      2. That the soil of the road, on which the ferry-house is built, belongs to the public.
    3. That the plaintiffs (the appellants here) if they have a right, have mistaken their remedy, and cannot recover in their present action.
    I. We are placed by the legislature for the purpose of keeping a public ferry on the great highway, from the Mississippi to the Attakapas, at the point where it is interrupted by the lakes, which divide the eastern and western sections of this state. The road was laid out twenty-six years ago—it is proved to be of vast importance to the intercourse of the inhabitauts of these two sections of country. Ever since it was originally traced and opened, it has been used as a public highway; it runs along the banks of an outlet, or bayou, partly natural, partly artificial, called the canal of La Fourche—through which the waters of the Mississippi, in the spring floods, empty into lake Verret. At that season, the bayou is navigable.
    These facts are all established, by the statement, sent up by the judge below, and prove sufficiently the existence of the highway. In addition, however, the court is referred to the American Law Journal, vol. 5. p. 15—190, that all lands in Louisiana were granted, subject to the condition of a highway being laid out. No particular exemption has been shewn by the plaintiffs here, which takes them out of the general rule. On the contrary, there is an act of the late territorial legislature, 1809, chap. 13, sect. 2, expressly declaring the road to be a public highway.
    The plaintiffs, however, complain that too much of their soil has been taken for a road: this objection is easily removed. It is proved that the highway here runs along the banks of the canal—that this canal is navigable. By law, the public have a right to a towing path along the banks of navigable waters. Domat; vol. 2, liv. 2, tit. 8, sect. 2, art. 9. Act of the legislature, entitled, “An act for defining the organization of police juries”, passed 25th March, 1813, set. 5. This towing path was laid out here: the road then must commence at the edge of it, and not at the bank of the canal. But, if there was any error in laying out the road, the appellants should have opposed its opening, or appealed from the decision of the commissioners: their decree on the subject, like that of courts who have jurisdiction, is conclusive until set aside. 4 Term Rep. 258. 1 Day, 142—170. 1 Johnson’s cases, 492. Peake’s evidence, 93. ib. appendix. Doe on demise Powell vs. Harcourt, p. 76. 4 Cranch, 241—512. 1 Hall’s American Law Journal, 148. 1 Binney, 299. 7 T. R. 525. 8 ibid 268. 6 Johnson, 84. On this public highway, the existence of which is incontestibly proved, we have been placed by the legislative authority, for the purpose of keeping a ferry. “Acts of the territorial legislature, 1811, chap. 3 & 11.” The right of the sovereign authority to place us there, is as clear as the existence of the highway. “Ferries, says Domat, vol. 2. liv. 1. tit. 6. sect. 1. art. 8. ibid. tit. 8. art. 12 & 1, belong to the public.” Since the first taking possession of this country, a variety of acts have been passed by our legislature, considering them as such. “Acts of the legislative council,” 1805, chap. 34. “Acts of territorial legislature,” 1807, chap. 18, p. 132. ib. 1811, chap. 13. “Acts of State legislature,” 1813, act to define the powers of police juries, passed 25th March, § 5. Every individual who solicited and obtained land from the Spanish government, took it subject to this condition or servitude, if the sovereign authority should hereafter find it necessary for public utility to erect one. But this case is still stronger against the appellants: when they solicited this land from the Spanish government, they knew that this ferry already existed there—knew that it belonged to the public—knew that the erection of a house was indispensable to the exercise of the public right. Soliciting the land then as a gift—obtaining it as such—taking it subject to this servitude, they took it under an implied consent, not only not to oppose it, but under an obligation to yield every thing necessary to give it full effect: and cannot now be permitted to resist the erection of a house, without which the public right would be useless and of no effect. Domat, vol. 1, liv. 3, tit. 12, sect. 5, art. 2.—Digest, liv. 8, tit. 1, l. 10.—ibid. liv. 8. tit. 3. l. 3. § 3.—Ibid. liv. 8, tit. 4, l. 11. § 1. Civil Code, page 14, art. 59. 60. 8 Term Rep. 50. Co. Litt. vol. 1, sect. 68. lib. 56.
    If the appellants, by express grant, had yielded to the public the servitude of a ferry, the authorities above quoted, prove beyond doubt, that if a house was necessary to the exercise of that servitude, they could not oppose the erection of one. Where then is the difference when they receive a tract of land from the government subject to that burthen—and must not the rules of law that govern in the one case, equally apply in the other.
    
      II. The soil of the road belongs to the public. Considering the ferry as a servitude, and the highway merely as a right of passage, it has been shown the appellants cannot recover. It will be proved, that the soil of a public highway, belongs to the public; and consequently they may erect any buildings on it they please. The truth of this position will be established beyond doubt, by the authorities by which the question must be decided; and will enable this court to see how often crude and undigested ideas on this subject, as in many others, are hastily taken up—how little supported they are by those laws on which they pretend to rely—and how dangerous it is for this court, to suffer the fleeting influence of popular opinion, to have any weight on legal subjects.
    There are four kinds of roads known and recognized by the Roman and Spanish law; these are, the iter, actus, via & via publica. The three first are merely servitudes: they are classed as such under that head in the Institutes—the Digest. Institutes, lib. 2, tit. 3. Digest, lib. 8, tit. 3, l. 1, 7, 12. They were private rights, acquired by title and prescription, and lost by non usage; Digest, lib. 7, tit. 1, l. 5. Ibid. lib. 8, tit. 1, l. 5. Domat, vol. 1. liv. 12, tit. 12, sect. 6, art. 13.
    
      The public highway is never mentioned among that class of rights—the authors who professedly treat of every kind of servitude, never mention it as such—and the rules of law which apply to it, will be shown necessarily to exclude all idea of its being one. In the enumeration of things public, and hors de commerce, the Spanish writers state public roads as one of them. 3 Partida, ley 9. tit. 28. ibid. ley 23, tit. 32. 5 Partida, tit. 5. ley 15. They cannot be acquired by prescription, 3 Partida, ley 7. tit. 29. Services could be alienated, and were acquired and lost by prescription—public roads, we see cannot. There exists then no resemblance between the one and the other.
    But we have still stronger authority to the point: Traite des servitudes 648, 649. It is there laid down in the most express terms, that the soil of the road belongs to the public.—Again in the Digest, liv. 48, tit. 8, law 2, § 21, it is said, “We call a public road that of which the soil belongs to the public. For the private differs from a public road in this, that in the private road, the soil is the property of the individual, and we have but the right of passage; but the soil of the public highway belongs to the public.” This leaves our adversaries no other resource, but to show that the road on which we are placed, is not a public highway. But we presume it will be in vain for them to endeavor to bring this court to a conclusion, that the great road which connects the eastern and western sections of state, is not a public highway—if it is not, then there has never existed one in Louisiana.
    III. But again—the party has mistaken his remedy. If the public highway is obstructed, recourse should have been had to the police jury, who exercise here the same jurisdiction which the ediles did at Rome, who by law could permit the erection of any buildings they chose, on public places, or demolish them as they though fit. Domat, vol. 2, liv. 1, tit. 8, § 2, art. 1 & 15. Digest, liv. 43, tit. 8, law 2nd. § 17 & 25. ibid law 3, § 7. ibid 39. tit. 2. law 24. 3 Partida, ley 29. tit. 22. Martin’s Orleans Term Reports, vol. 1. p. 186. The appellants have not shewn that they made any application to them, who have the jurisdiction of the police of roads; nor have they produced any law which proves a right in a private individual to bring trespass or ejectment for the highway.
    The opposite counsel have read cases from the English books, and from the American reporters, to shew that the public have but a right of passage, and that the adjoining proprietor can maintain ejectment for any appropriation of the soil. Such is undoubtedly the common law; but it is not the law of this country. Originally there were but four public highways in England. 3 Bac. Ab. Amer. edit. 494. 4 Jacob's Law Dict. verbo Highway. And all the other roads have been laid out by a writ ad quod damnum, where the public paid for a right of passage alone. Servitudes acquired in this way, have no resemblance to property acquired from the Spanish government, as a gift, when the sovereign in every instance annexed to it as a condition, that a public road should be laid out, or the grant be void. No subject can shew more strikingly the difference between the two systems, than the one now under consideration. The public do not even enjoy the right of a towing path, on the banks of a navigable river in England. 3 Term Reports, 253. In that case, the institutes of Justinian were quoted, to prove that the banks of rivers belonged alike to all mankind. The court said, civil law doctrines had no weight there on that question—under that declaration, what influence can be given to common law decisions, in the case now before the court.
    It is said the principle of erecting houses on another man’s land, without compensation, is unconstitutional. But this argument assumes for its support, a base which is denied, and which the authorities quoted prove to be incorrect. The appellants have never had a right to the soil of the highway—it was laid out ten years before the date of their title. Do they, or can they shew, that when the sovereign grants a tract of waste land on which a public highway exists, that the grant of the land, carries with it the highway? Until they do, they have no right to say their soil is taken from them. Grants of things public are never presumed. Vattel’s Law of Nations, liv. 2. chap. 14, § 217. 6 Johnson, 134. 2 Black. 346. Domat, vol. 1. liv. 1. tit. 1. § 2, art. 17. The legislature seem to have been of opinion, that the highway was not acquired by the appellants, from the privilege they have ceded us, and this court must be fully satisfied that that act is unconstitutional, before they will declare it so. The power of declaring acts of the legislature void on this ground, is one to be exercised with great caution. The unconstitutionality must be evident: must be manifest: must be such that doubt does not exist on it. When it is not thus clear, decent respect for the other branch of the government, and a regard for the interests of society, will deter the court, as it has forbid others, from exercising this its highest privilege. 6 Cranch, 128. 2 American Law Journal, 96. ibid. 255. 3 Dall. 399. 9 Johnson, 564.
    This claim of the appellants, to wrest from the public their jurisdiction of regulating ferries, is unsupported by law—contrary to the uniform usage of Louisiana since its original settlement—totally opposed to public convenience, and the good order which ought to prevail in every well regulated society.
    The decree of the court below ought to be confirmed.
    
      Moreau on the same side.
    The original action of the appellants is a possessory action. The plaintiff in such an action must not necessarily be owner, but he must be possessor, in the sense of the law. Pothier, Possession, n. 114.
    Here the appellants are neither owners nor possessors, in that sense.
    
    They are not owners of the ground on which the house of the appellees stand, because that soil is public property.
    The counsel of the appellants contends, that they have not ceased to be owners of that soil.
    1. Because it is the bank of a navigable stream, of which the public had the use indeed, but the property of which remained in the owner of the adjacent land.
    
      2. Because a highway is a servitude only, and the soil on which it is due, remains the property of the owner of the land, burdened with the servitude.
    3. Because the appellants could only be deprived of the property in the soil, even in case of public utility, by just and previous compensation.
    4. Because the appellees are estopped from resisting the appellants’ claim, having received the possession of the premises from the appellants under a lease, now expired.
    1. The premises, it is said, are not only a highway, but the bank of a navigable stream. It is true the banks of navigable rivers are considered as the property of the riparian owners, although the public have the use of them for certain purposes. Institutes, 2, 1. Cooper, 97,
    
      5 Pandectes Francaises, 8, n. 8. Partida, 3, 28, 6, where it is said, “although, the limits of rivers belong, as to the property, to the owners of contiguous or adjacent estates, yet any one may use them, &c.”
    And we have a like provision. Code Civil, 97, art. 8.
    
      Thus, even if the premises were not a highway, but only the bank of a navigable stream, the appellants would not have any action to claim the house, which the appellees have built on it.
    
      Dominguez,
    
    cited by the appellants, 3 Cur. Phil. ill. 57, n. 116, does not say that the riparian owner, can occupy a house, or other edifice, erected by a third party on the banks of a river, contiguous to his estate, but only abate it himself, or cause himself to be authorised to do so by the judge.
    Indeed no one can build, on the banks of a navigable river. Partida, 3, 28, 8. This prohibition extends itself to the riparian owner, as well as to any other individual. He cannot occupy any building erected there, neither can the person who erected it claim it as his own. It is to be abated: so says the law last cited.
    It is incorrect to say, that the passage, which the people of the Attakapas have enjoyed over the soil, was only one of those uses, which the public has over the banks of navigable rivers.
    As to these uses, see Inst. 2, 1, 4. Cooper, 68. Partida, 3, 28, 6. Code Civil, 97, art. 8.
    
    Here besides the towing path, eight feet wide, along the water, there remain fifty-two feet for the passage or way used by travellers. It is in evidence, that for twenty-five or twenty-six years ago, consequently prior to the grant to O’Bryan, under whom the appellants claim, there existed in this place, a highway, which had been often repaired by the people of the Attakapas, and was so in 1811, under the directions of the legislature. It is notorious that the kings of France and Spain always imposed on the grantees of vacant land in Louisiana the obligation of furnishing a highway, chemin royal, camino real.
    
    It is then as a highway, not as the bank of a navigable river, that the inhabitants of the Attakapas have made use of the soil, on which the appellees’ house stands.
    It is a public way,—a public, not a private one.
    It is a highway from its nature.
    
    Three kinds of ways, says Guyot, were distinguished among the Romans. Public ways, which the Greeks called royal, basilicon; and the Romans pretorian, consular or military. These ways led to the sea, a river, a city or another military way. 2 Encyc. Jurisp. 579, verbo chemin. A part, of what is said by this author, as to this distinction, is found in ff. 43, 8, 2. § 21. Delalaure on servitudes, 529, n. 640.
    
      Here it is in proof, that the way in question is the only one, leading from the Attakapas to the Mississippi, and consequently to New-Orleans. It is then from its nature a highway, or public way.
    Let it not be said that it is a private way, for it has none of its characteristics.
    Private ways, privatœ viœ, says Guyot, among the Romans, which were also called agrariœ, were those which led to certain estates. Finally, the ways, which they called vicinales, were also public ways, and led only from a village to another. 2 Encyc. Jurisp. 579, 580. verbo chemin.
    
    This distinction is made more plain in ff. 43, 8, 2. § 23. Delalaure on servitudes, 589, n. 650. It will suffice to observe, transeundo, that, according to this description, the right of way which our statute speaks of, and classes among legal servitudes, must be understood, in regard to a private way, and not to a public or highway. Code Civil, 137. § 5.
    The way, under consideration, is a public way, by its destination.
    
    When the Spanish king granted the land, as part of which this is now claimed, it had been used as a highway for several years. If the king, who was the owner of the soil, permitted a highway to be made on it, the appellants, his grantees, must fail in their claim to the land over which it passes.
    A private way, says Domat, becomes public by the mere possession of the public; and when once it has been made a public way, it is no longer the subject of prescription: this is settled by several texts of law, 1 Collect. Jurisp. 355, verbo chemin.
    
    The intention of the father of the family is equal to a title, with regard to perpetual and apparent services. Civil Code, 138, art. 55.
    Will it be said, that the king, by granting the land, without speaking of the highway, has transferred the property of its soil, with that of the adjacent land, or that his silence has destroyed the effect of the destination which had been given to soil? The argument would not have plausibility.
    As soon as a thing becomes public, it becomes inalienable, and out of commerce. It can no longer be the object of individual property, 1 Domat, part. 1, liv. prel. tit. 3. § 1, l. 2 & § 2, l. 1. ibid. liv. 1 ,tit. 1, § 5, l. 1. Partida, 5, 5, 15. 13 Pand. Franc. 6, n. 6. Inst. 3, 24, § 5. Code Civil, 265, art. 28, 349, art. 16.
    For this reason every agreement about things out of commerce, is null. 1 Domat. part. 1, 
      liv. 1, tit. 1, § 5, l. 11. Partida, 5, 11, 20 & 22. Code Civil, 265, art. 28. Such things cannot be acquired by prescription. Partida, 3, 29, 7.
    Much reliance is placed on the silence of the king of Spain or the governor of Louisiana, as to this way, in O’Bryan’s grant. It is to be remarked, that this man had only an order of survey for his land. This evidence of an inchoate title, acompanied with possession and cultivation, enabled him to obtain a confirmation of his title, from the land commissioners of the United States. No doubt, if that title had ripened into a complete definitive grant, under the Spanish government, the grant would have contained the usual clause, that the grantee should furnish the road.
    When an estate is sold, (and doubtless the principle is the same in the case of a donation) all the rights and charges of the estate, attend it in the hands of the vendee. If any charge has been passed over in silence, the right of the creditor of it cannot be thereby affected. This silence has no other effect than to give an action for a compensation in damages to the vendee, against the vendor. The warranty in this case results from the contract of sale. Pothier, contrat de vente, 193, 201. Such would be the case if a vendor had omitted to apprise his vendee of a mortgage, or a servitude, with which the estate might be burdened. His silence could not affect the rights of the mortgagee, nor of the creditor of the servitude.
    If the proprietor of two estates, between which there exists an apparent sign of servitude, sell one of those estates, and if the deed of sale be silent respecting the service, the same shall continue to exist actively and passively, in favor of, or upon the estate which has been sold. Code Civil, 140, art. 57.
    In whatever manner the property of a house, &c. or any other estate, burdened with a servitude towards another estate, may be sold, it will remain burdened therewith towards the estate, or to the person to whom it was due. Partida, 3, 31, 8.
    When the servitude is apparent, the vendor is not bound to declare it, and the vendee remains without any warranty, because he cannot be presumed to have been ignorant of it. 1 Pothier, contrat de vente, n. 199. Therefore, the appellants, or the grantee, under whom they claim, could not be ignorant of the existence of the highway: and the governor, had he issued a formal grant, would not have been bound to mention the road in it.
    
      Farther, had not the road existed, the appellants could not complain of its being afterwards opened: as it is a matter of public notoriety, that all the grants in Louisiana were made under the reservation of a highway or royal road. 2 Amer. Law Journal, 301. 4 id. 533. If then, all the grants were made with this condition or reservation, it cannot properly be said that the property of the soil reserved for the highway passed to the grantee. The silence of the grantor, as to the particular spot on which the highway was to be placed, the faculty left to the grantee to fix it where he saw fit, did not alter the principle. For, if I sell you a tract of land, saving ten acres which I reserve to myself, I cannot be said to have transferred to you the property of the whole tract. I transfer it only, saving the ten acres: and although the part of the tract, on which these ten acres are to be taken, be not indicated in the grant, and I leave the spot to your choice, as soon as that choice is made, the ten acres are mine. I need no sale from you, because I am presumed never to have divested myself from the property of these ten acres reserved in the grant, although the part of the tract on which they are to be taken was not designated therein. When I sell you the half of an undivided tract of land, it is by the partition alone, that the particular half which is to belong to you is known. So, when a grant is made, with the reservation of a highway, the property of the premises is held to be transferred, saving the reserved highway, which remains in the grantor: and as soon as the grantee has yielded the highway, he ceases to have any kind of right or title thereto.
    II. The proposition that, admitting the premises to be a highway, the public is without any property in the soil it covers, but is only the creditor of a servitude, a right of way over it, and that the owner of the land through which it passes continues to be owner of the soil and is only the debtor of the servitude: in other words, that highways do not belong to the sovereign or the public, who have the use of them only, is a proposition which messrs. Livingston and Duponceau have advanced in the affair of the Batture. 2 Amer. Law Journal, 416. 4 id. 533 & seq.
    
    It is surprising that these gentlemen should have maintained that highways are not public property. The Roman, French and Spanish laws are in perfect concordance on this point.
    
      Public things belong to the public. In this they differ from common things, which are for the use of all, but belong to nobody. 5 Pand. 
      
      Franc. 7, n. 8 & 9, ff. 41, 1, 14 & 42, 12, 1, § 2, 3 & 4. 1 Brown’s Civil Law, 169, 171. 2 Febrero, contratos, ch. 7, § 2, n. 80. Code Civil, 95, art. 3 & 6.
    Among public things, highways belong to the public. The soil of public ways belong to the public, ff. 43, 8, 2, § 21. Delalaure des servitudes, 529, n. 648.
    Rivers, ports, highways, belong in common to all men, los rios, los puertos e los caminos publicos pertenecen a todos los hombres communalmente. Partida 3, 28, 6.
    Duponceau, in his memorial, 2 Amer. Law Journal, 416, cites a passage from the French ordinance of 1669, in order to shew that, in France, the riparian owner, who furnishes a way, does not lose the property of the soil, and becomes debtor of the servitude only.
    The ordinance says: owners of estates, bordering on navigable rivers, ought to leave along the banks a space at least twenty four feet wide, for a royal road and towing path, without being allowed to plant trees, hedges or fences, nearer than thirty feet, on the side of which boats are drawn, and ten feet on the other, under the penalty of a fine of 5000 livres and the confiscation of the trees.”
    
    The riparian owners, says he, preserve their property in the soil of the road, since they may plant trees, at a certain distance from the banks of a navigable river, and the confiscation of them is pronounced in certain cases. The induction is not a clear one. The ordinance requires a road of twenty-four feet to be given, and forbids the planting of trees within a strip six feet wide, immediately binding on the road, on the side of which boats are drawn up, and on the opposite one, trees are forbidden to be planted within ten feet. This is not to say that the owner may plant trees in the road itself, but only that the road is to be ten feet wide on the side on which boats are not to be drawn, or that there is to be one road only, and that on the side on which they are drawn.
    This construction is the more reasonable, that it is beyond a doubt, that in France highways belong to the king. 1 Denisart, 354, verbo chemin, art. 5.
    
    A difference is attempted to be established between highways, that existed originally, and those that are to be furnished by individuals. These, it is pretended are a servitude only. It is not so: one of the particular characteristics of a servitude is, that it is due from an estate to an estate and not to a person. Civil Code, 127, 
      art. 1, 189, art. 49. Partida 3, 31, l. 1, 8 & 13. 2 Febrero, contratos, ch. 7, § 2. n. 91.
    Servitudes being due to estates, and not to persons, it is easy conceived, why a way is classed among them. Code Civil, 137, art. 46. Partida 3, 31, 83. The reason is that a passage given to an estate, entirely encircled by others, is a right in favor of him who is the owner of it and those who succeed to the ownership. This cannot be said of a public way, which is due to the public or to a community. For this reason the property of the highway passes to the public, while that of the private way remains in him from whom the way is due. Dig. 43, 8, 2, § 21. Delalaure des servitudes, 589, n. 648.
    The conversion of a private soil into a highway, deprives the owner of his property so far, that if he had sold it before, he would be ipso facto discharged from his obligation to deliver it.
    When since the contract, says Pothier, the thing has ceased to be in commerce without the act or fault of the vendor, as when, by public authority, the field, which had been sold to me has been taken for a highway, the obligation of delivering the thing has ceased and is extinguished, and the vendor is only bound to subrogate the vendee to his right to receive from the king the indemnity, if he see fit to grant one. 2 Pothier, Obligations, n. 614. id. Vente, n. 59.
    
    If the property of a highway does not pass to the public, how is it that it becomes imprescriptible?
    
    There are several examples in the civil law of a private thing becoming public, in consequence of its having undergone some change, as where a river changes its course. Inst. 2, 1, § 23. Cooper, 75. Partida 3, 28, 31.
    III. It is said the appellants cannot have lost the property of the soil of the highway, as they have not yet been indemnified therefor.
    It is true that when the King of Spain took a thing, on the score of public utility, the law required that the owner of it should be indemnified. Partida, 3, 18, 31. But the principle was not applicable to the lands granted by him in Louisiana, which were never granted except under a condition that the grantee should furnish the soil necessary for a highway.
    Donations are either absolute or conditional. The donee is bound to fulfil the charges and conditions imposed by the donor. 1 Domat, part 1, liv. 1, tit. 10, sect. 1, l.10. Even, when these charges may be appreciated in money, the donee cannot claim any indemnification. 2 Pothier, Vente, n. 612—614.
    
      IV. The plaintiffs say that the defendants with ill grace resist their claim, because the latter hold the premises, under a lease from the former, and in consequence of the possession taken under that lease, have built the house now in dispute.
    The plaintiffs never have afforded to the defendants the possession of the soil on which the house stands: they had it not and could not have it.
    The possession of public things cannot be acquired, because they are not susceptible of being possessed. Pothier, Possession, n. 37.
    Then the possession of such things can in no way be transferred to an individual; therefore, even if the lease had mentioned the highway, it would not have passed under it, because conventions, by which things out of commerce are put in commerce, are void. 1 Domat. part 1, liv. 1, sect. 5, l. 11.
    The inclusion of the highway in the lease would not authorise the plaintiffs to claim the house and farms, as tenants are not bound to leave the edifices which they have erected on the leased ground, but may carry them away, provided it may be done without injury to the soil. Domat, supp. lois civ. ch. 3, § 2, l. 5. They are then without the right of instituting a possessory action, and can only have that which the law gives to an individual who complains and shews that the highway is obstructed, in order to obtain the removal of the obstruction. Dig. 43, 7, 1. Delalaure, servitudes, 527, n. 636.
   Martin, J.

delivered the opinion of the court. The plaintiffs’ demand to be put in possession of a tract of land, by them leased to the defendants, the lease having expired. Neither the plaintiffs’ title, the lease or the expiration of it are denied, and the judge a quo has given judgment in their favor, excepting therefrom, “the public road of sixty-two feet in breadth along the left bank of the bayou or canal of La fourche, and a way of twelve feet on the right, which ought to remain open as a highway.”

Of this judgment they complain, contending 1, That the soil excepted is not a public road or highway. 2, That still, as it passes over their land, they are yet owners of the soil and owe to the public a servitude or right of way only.

The statement of facts shews that the canal is navigable in high water, much used for the purpose of transportation in boats from the Mississippi, the sea-shore, &c. to the county of Attakapas; that for facilitating the navigation, a road or way for towing boats was ordered by the police jury, on the 24th of July 1811, of twelve feet in breadth on each side of the canal, and that about twenty-five or twenty-six years ago, a road for passing to and from lake Verret had been opened by the inhabitants of the parish, and in the year following was greatly improved by those of the Attakapas and Opelousas; since which it has been constantly used as a public road for travellers, and for driving cattle from these two counties to the Mississippi and New-Orleans.

By the act of 1809, ch. 13, it is provided, that the borders of said canal shall be considered as a public highway, and that the proprietors of the land on the borders of the canal shall be compelled to make said road and to keep it in repair, according to the provisions of the existing laws and regulations.

In 1813, ch. 13, the legislature made an appropriation and appointed commissioners to improve this road, and the defendant, Bourg, was authorised to keep a ferry, at the mouth of the canal, where he erected a house, which stands on the part of the land excepted by the judgment, viz. in the road, which the commissioners thus appointed had traced out, giving it a breadth of sixty-two feet.

On these facts, the plaintiffs’ counsel contends, 1, that the premises, excepted from the judgment are not a highway or public road, as the legislature could not take away the right of the plaintiffs to any part of their land, without compensation; 2, that admitting the premises to be a highway, the soil is still the property of the plaintiffs, and the public has only a servitude a right of way over it.

I. It is contended that the legislature could not establish this road, without first compensating the owner for the loss of the ground which it occupies.

On this point, we are referred to the seventh article of the amendments to the constitution of the United States, proposed by congress in 1789, the second article of the compacts, in the ordinance of congress in 1787, and the Civil Code, 102, art. 2.

1. The provisions of the constitution of the United States apply, with a few exceptions, to the federal government only. They do not bind state governments, except in cases in which they are referred to. The amendments cited were proposed by congress as a bill of rights guarding against encroachments from the federal government, “a number of states having, “at the time of their adopting the constitution, “expressed a desire, in order to prevent misconstruction or abuses of its powers that further “declaratory and restrictive clauses should be “added;” the avowed inducement of the proposers of the amendments was that extending the “grounds of confidence in it (the constitution) “would best secure the beneficial ends of its in “stitution.” Preamble to the Resolutions, 1 Graydon, xvi.

This amendment provides that “private property shall not be taken for public use, without “just compensation.” We must understand it to mean property taken by the United States, or under some power claimed under their constitution; for it was against the misconstruction of that instrument and the abuses of its powers that Congress intended to guard. See a decision on this subject, Territory vs. Hattick, 2 Martin 87. The court there decided that the second section of the third article of the constitution of the United States, which requires that the trial of all crimes, should be by jury, and the 6th article of the amendments, which demands the intervention of a jury also, related only to the exercise of the judicial powers of the United States. Congress appear to have entertained the same idea, when they required that there should be, in the constitution of this state, a clause securing to the citizens the trial by jury in all criminal cases. For, if the corresponding clause in the constitution of the United States extended to cases under state government, the precaution would have been useless.

This court is of opinion that the amendment of the constitution of the United States alluded to, does not prevent a state from taking the land necessary for her roads, without making a compensation therefor.

2. The ordinance of 1787 declares that, in a territorial government should public exigencies make it necessary to the common preservation to take any person’s property or to demand his particular services, full compensation shall be made therefor.” The words common preservation imply, that congress had then in view those extraordinary cases, in time of war or danger, when the property or services of an individual become accidentally necessary to the preservation of the country, and the phraseology differs from the constitution of the United States, so as to repel the idea that instant or previous satisfaction should be made in every case. They impose on territorial governments, as is apprehended, the obligation of making, and invest the sufferer with the right of demanding, compensation. It is far from being clear that this article would prevent the legislature from requiring the services of a citizen as a juror without previous compensation, or demand that, in every case, a previous compensation should precede the laying out of a road. In many cases, this must be particularly inconvenient. Till the road be actually laid out, the persons entitled to compensation nor the proportion in which it is due cannot be ascertained.

If the amendment to the constitution of the United States and the article of the ordinance opposed to the act of the legislature, avail the plaintiffs, it must be on the ground that the latter is unconstitutional and null. Now, this court will never declare an act of the legislature unconstitutional, unless the unconstitutionality be clear and apparent. In doubtful cases they will support the act.

It is clear the act does riot violate the amendment, and it is very doubtful indeed, that it is in the least repugnant to the ordinance. We rather think it is not.

3. Lastly, the Civil Code, 102, art. 2, is presented to us as striking with nullity the act of 1789, which declares the premises to be a public road.

“No one”, says the code, can be compelled to part with his property, unless by reason of public utility, and in consideration of an equitable and previous compensation.”

This appears to this court as a rule of conduct to the officers of this state, not as derogating from or restraining the powers of subsequent legislatures. The general assembly of 1808, which enacted the civil code, was not a superior power to the general assembly of 1809; it was the same body: the code was passed during their first, the act during their second session. The act was posterior to the code. If, therefore, there be any thing contradictory in these instruments, the latter must so far abrogate the former.

Admitting that the clause in the first had the force of a constitutional injunction, it does not appear that it would have been violated. Twenty-five years ago, a road was opened by the inhabitants of the neighbourhood; the following year the people of the adjoining counties improve it; eighteen years after, in 1809, the legislature declare it shall be considered as a public road; in 1811, the police jury acts on it; in 1811, the legislature of the state make an appropriation for its improvements; its commissioners enlarge it. During all this time, the owners of the land submitted to all this. Can we now say that they have been compelled to part with their property, without compensation, while they never expressed a belief that they were entitled to any?

They have no grant. One, from circumtances is presumed: but it must also be presumed to be such a one, as those which were generally given when their ownership began. The French and Spanish governments granted their land gratuitously, but a reservation was generally made for roads, often for fortifications, Sigur vs. St. Maxent’s Syndics, 1 Martin, 231. During these two governments, there is no instance of any payment for land taken for public roads.

II. On the second point, the plaintiffs have introduced a number of authorities from the English jurists. 3 Bac. Abr. 494. 2 Esp. N, P. Gould’s ed. 2. 6 East. 254, 2 Strange, 1004. 1 Burrows, 143. They have also cited American cases, 6 Mass. T. R. 454. Johnson. 357.

From these, it seems that in Great Britain, the owner of a tract of land, on which the highway passes, retains the property of the soil. But neither the common law, nor the statutes of Great Britain can afford us much light in this respect.

Let us therefore examine the question, according to the Roman, the French and the Spanish law, which must regulate the effect of a grant of land in Louisiana before possession was taken of the country by the Americans.

Viam publicam eam dicimus, cujus etiam solum publicum est. Non enim sicuti in privatâ viâ, ita est in publicâ, accipimus. Viœ privatœ solum alienum est: jus tantum eundi et agendi nobis competit: viœ autem publicœ solum publicum est. ff. 43, 8, 2. § 21.

Literally translated, we call a public road that of which even the soil is public. We do not take it to be in a public road as in a private one, the soil of which belongs to another, while we have only the right of walking or driving over it: the soil of a public road is public.

The contradistinction between a public and a private way, as to the ownership of the soil, is here apparent. Here the idea of the right of the public being only incorporeal, a mere right of way, is repelled, as well as the corresponding one of the soil being private property: which is said to be the case in private ways. And the distinction between these and public roads is made to consist in this, that in the latter the right of passing over the surface and the ownership of the soil reside in the public.

In France, it is believed, a highway cannot be the subject of a sale or the possession of an individual. It is hors de commerce.

We cannot sell, says Pothier, things which from their nature are out of commerce, as a church, a church-yard, a public square. Traité de Vente, n. 10. Among corporeal things, there are some which are not susceptible of possession, as those which are divini aut publici juris, as a public square. Traité de possession, n. 37. Of the nature of a public square is a street or a highway, which is a street of the country. The highway and street are as much publici juris as the square.

Royal roads are those leading from a city to another. Public roads are those leading from a village to another. Although public roads be not called royal, yet they belong to the king. Quoique les chemins publics ne soient pes appelés royaux, ils appartiennement cependant au roi. Denisart, verbo chemin.

The ordinance of Louis XIV, in 1669, is relied on to shew that the soil of a highway, chemin royal, belongs to the owner of the soil over which it passes: this ordinance providing that owners of estates on navigable rivers are to leave a royal road, on each bank, at least twenty-four feet wide, without any tree, fence or hedge nearer than thirty feet, on the side of which boats are drawn, and ten feet on the other, under the penalty of a fine and the confiscation of the trees. Hence, it is considered that the sovereign could not consider the soil of the road as public property, as in such a case, it would have been absurd to denounce the confiscation of trees, which growing in the soil of the public were already public property. The clear part of the road was to be twenty-four feet on one side and ten on the other: between this space and that on which trees could be planted, without incurring confiscation, was on one side of the stream, a strip of ground six feet, on the other, a strip fourteen feet wide: and it is to trees, fences and hedges on these strips, that the confiscation spoken of extends.

We conclude that the part of the Roman law, which declares the soil of a highway to be public property appears to us to be in force in France, and was so in Louisiana, when the country passed under the dominion of Spain.

The laws of that monarchy do not appear to have wrought any change in this respect.

Los rios e los puertos e los caminos publicos pertenecen a todos los hombres communalmente, Partida 3, 28, 6. The rivers, ports and public roads belong to all men in common. After this declaration the legislator speaks of the banks of rivers. These, we are informed, are the property of the owners of riparian estates. Las riberas de los rios son, quanto al senorio, de aquellos, cuyos son las heredades a que son ayuntudas. He speaks of the use which all men may make of these banks. All men may use the banks of rivers. Todo hombre puede usar de ellas, &c. The property of the public on the road is here assimilated to that which it has on the river, not to that on the banks.

In the case of Metzinger vs. the Mayor &c. of New-Orleans, this court held that roads and streets cannot be appropriated to private use.” 3 Martin, 303. Civil Code, 94, art. 6.

The judgment of the district court, which excepts from the lands decreed to the plaintiffs so much of the premises as was declared to be a public road and highway, is in conformity to law, and it is therefore ordered, adjudged and decreed, that it be affirmed at the costs of the plaintiffs and appellants.

Livingston

on a motion for a rehearing. The two points, decided by the court and presented as the basis of their judgment, were not much discussed on the hearing and are of such vital importance to the country, that it is, confidently hoped they will be submitted to a closer examination, with the new lights that subsequent research may throw on the subject.

1. The first of these points is, that an act of the legislature of the late territory, taking private property for public use, without compensation, is valid and is not contrary to the ordinance nor the constitution of the United States.

2. That the soil as well as the use of the highway, in this state, belongs to the public.

I. The origin, object and avowed end of every government, is the preservation of the persons of its people and their property from violence. Without any express constitutional provision, therefore, every act that counteracts these objects must be unlawful. A partial surrender of personal liberty and of private property is, however, necessary to secure the residue, but the right to abridge either is only commensurate with necessity. Where this does not exist, the encroachment either on liberty or property is tyrannical: for example, the property of any citizen may be occupied in time of war, when necessary for public defence, and his personal services may be required for the same cause, and that, without any previous compensation, because the exigency of the moment will not permit the delay necessary for selling and paying it. But in time of peace, when private property is required only as convenient for the public, it can never be justly taken without the owner’s consent. When necessary, as in the case of public highways, it may be taken without such consent, but not without compensation; because, though a necessity may exist for the road, there can be no such necessity for denying compensation, previous if possible, but at any rate compensation; the social compact admitting of no temporary infringement of private right, farther than is absolutely necessary for its permanent preservation; the supreme power of a state cannot, therefore, destroy those rights it was stipulated to preserve.—It is true that in ill-organised governments, where the judicial power is blended with, or dependent on, the legislative, there is no remedy for acts contravening these principles: but if a state have a judiciary independent of legislative power, it would be the duty of such a judiciary to declare a law void which should direct private property unnecessarily and without compensation, to be taken for public use and that too, whether there was a writ ten constitution or not: because no written constitution can have greater force than those immutable principles on which all political society is founded.

If our constitution therefore, contained no other feature than the separation of the judicial from the law-making power, it would be the duty of the former to keep the latter within its proper bounds, by declaring every act of unnecessary violation of private rights, to be void.—I acknowledge that in such a case, the violation must be open and apparent, to justify the interference: because the legislative may be better judges of the existence of the necessity than the judiciary; but, the difficulty of discriminating in doubtful cases can be no objection to the exercise of power under circumstances where no such doubt exists.

Thus the case would stand, if tested by the dictates of natural law: let us now examine the constitutional provision.

The law laying out this road, or rather only directing it to be laid out, passed in the year 1809, this country was then governed by the ordinance of 1787, as its constitution, with such changes and amendments as the present constitution of the United States, and the laws under it had produced.

This ordinance contains several articles of compact, between the original states and the people of the territory, which were to remain forever unalterable except by common consent. These articles generally go to secure the inhabitants in the enjoyment of their civil and political rights. Among them, we find the memorable provision that has been handed down to us unaltered for six centuries, and has been transferred by the descendants of Englishmen from Runnymede to the banks of the Mississippi; from the great charter of England to all the constitutions of her former colonies, the United States; “that no man shall be deprived of his liberties or property, but by the judgment of his peers or the law of the land.” I need not inform this honourable court that these are technical as well as sacred words, and that the “Law of the Land” as used in these instruments does not mean the acts of ordinary legislation, because the provision would rather sanction than forbid acts of legislative oppression, but that it means a course of judicial proceeding according to the established forms of law. Immediately after this important clause (relating to the exceptions which might be created by public necessity) the compact goes on to provide for that case also, by declaring “that in case the public exigencies should make it necessary for the common preservation to take any person’s property, or to demand his particular services, full compensation should be made for the same.” Here then is every case specially provided for, according to the principles of natural law, which have been already laid down—You shall take no man’s property unless it be forfeited according to law, except in case of urgent necessity, and then only on making compensation. Surely nothing can be more apparent than the bounds which are here set to the legislative power, to remove them in the slightest degree, to admit by a judicial decision that the legislature may take private property for public use or convenience, would surely be subversive not only of the constitutional compact, but of the great principles which it was meant to sanction and enforce. To suppose that the words for the “common preservation,” which are used in this clause, meant to limit the obligation to compensation strictly to cases, in which there was an urgent necessity for taking the property or services, would, I most respectfully suggest, by saying that the ordinance intended to force the legislature to make compensation when they were justified by necessity in taking; but to leave them at liberty to compensate or not, where there was no necessity—that when they took my property, because it was essential to the safety of the state, they should pay me its value, but when they chose to take it to suit their convenience, to indulge their caprice, to gratify their rapacity, they are under no such obligation. This would surely be a woeful sacrifice of the spirit of the constitution, to a very narrow construction of its letter, and that too in a point where of all others it ought to receive the most liberal interpretation, for the protection of liberty and property.

The 7th article of the amendments to the constitution of the United States, which provides, “that private property shall not be taken for public use, without just compensation”, is supposed not to apply to the present case, because it could only mean property “taken for the United States, or in pursuance of some power derived from the constitution of the United States.”—admitting this construction, which is probably the true one, the case in question comes within it. The legislature of the territory of Orleans, derived all its authority from the United States. The governor and one branch of the legislature were appointed by the president: all laws were subject to the revision of congress and the whole government, if we except one branch of the legislature, exhibited the perfect model of a subordinate body, under the complete control of congress. If the amendment, therefore, was intended to apply to powers “derived from the constitution of the United States,” this case comes within it: nor, will it be any answer to this argument to say, that the ordinance of 1787 was made by the congress under the confederation, because, by the 4th article thereof, it is declared that the territories “shall remain a part of the confederation, subject to the articles of confederation and to such alterations therein as shall be constitutionally made: and in point of fact the territory of Orleans was attached to the Union, under the constitution, by virtue of the ordinance passed by the congress under the confederation.

Therefore the principles of natural law, the provisions of the ordinance, and the constitution of the United States, all equally forbid the taking of private property for public use, without compensation. If then the laws of the territory purport to deprive the plaintiff of his property without compensation, they must be unconstitutional and void: if they do not deprive him of it then it is his still, and he ought to recover. I agree perfectly to the maxims laid down by the court, that the unconstitutionality of an act, must be clear and apparent before they can declare it void. This is in fact, saying no more than that they must be convinced that it is unconstitutional: No matter how that conviction is produced, whether it flashes on the mind intuitively on the first view of the law, or whether it is the result of patient investigation and long research, the moment that conclusion is formed by the understanding, then duty points out the path to the judge; while he doubts, it is certain he cannot decide, and no case can conscientiously he determined, until all doubts on the one side or the other are removed.

The quotation from the civil code was made, not to rely on it as a constitutional provision, but to enforce the principle of natural law, that has been referred to, by the authority of the legislature, and also as a law, which enforced the constitutional provision, by declaring that the compensation which it provided shall be made previous to the taking the property. On the time of making compensation the ordinance was silent, the law, therefore, had a right to supply the defect; and though a subsequent legislature might unquestionably have repealed this general provision, yet, undoubtedly, until it be expressly repealed, every particular case must be governed by it, unless the will of the legislature be specially declared that it shall not. For instance, if, in the case before the court, the legislature in appropriating the individual's property to the public use, had declared that it should be paid for a year after it was laid open, it might be forcibly inferred that the legislature intended to repeal in this instance the general provisions of the code—or, again if there were no constitutional objections and the legislature had declared in the law, that the property should be taken without compensation whatever, then the same inference might be drawn: but as there is nothing like either of these provisions, it may fairly be concluded that those contained in the code on this subject were not intended to be dispensed with. “Leges posteriores priores contrarias abrogant." This is undoubtedly true as a general rule; but, Blackstone tells us “this “is to be understood only when the latter statute is couched in negative terms, or where its matter is so clearly repugnant that it necessarily implies a negative;" of which he gives several examples, 1 Black. 89. It is an established rule that all statutes in pari materiâ are to be taken together as if they were one law, Dougl. 30; and it is also held that if any thing contained in a subsequent statute be within the reason of a former statute it shall be taken to be within the meaning of that statute. Ld. Raym. 1018, 4 Rep. 4, Vernon’s case. Now apply these principles to the case. The first act declares (Code) that no private property shall be taken for public use, without a previous payment of its value; the subsequent act declares that the property shall be appropriated to public use, without saying any thing of the payment. Does this repeal the provision in the first act which requires previous payment? I think not:

1. Because there are no negative words.

2. Because the two statutes, being in pari materiâ and compatible with each other, must be taken together.

3. Because the latter case is completely in the reason and equity of the first: and

4. Because a statute shall not without express words be so construed as to carry with it consequences manifestly contrary to natural law. 1 Black. Com. 91.

Therefore, I conclude that if there were no constitutional bars, the two acts of the legislature (the code and the statute) must be taken together, and that the property could not vest in the public, without previous compensation to the owner. This last branch of my argument will be strengthened by the observation made by the court, but which had escaped me, that it was the same legislature which passed the code, that at the next session enacted the statute: and they could not respectfully be supposed so soon to have forgotten their own principles. A perusal of the several statutes on the subject will, I think, shew that none of them purport to deprive the party of his property.

The first law passed on the subject of the premises in question is of the 7th June, 1806. It gives to the inhabitants of the county of Attakapas, the exclusive right to make improvement to the canal. It directs a judge and jury to determine what improvements are necessary, and to fix a toll to be paid in proportion to the size of the boats. This law is silent as to the road, or even the banks of the canal, but it clearly shews it to be the work of industry, not a natural water course, and that therefore, neither the soil it covered, nor the banks which contained it could be public either as to use or property.

The second law passed 11th March, 1809; its first section takes away the toll that had been granted or rather suspends the right of exacting it, until the canal shall be finished.

But the second section declares that the borders of the said canal shall be “considered as public highways,” and directs that the proprietors of land lying on its borders shall be compelled to keep it in repair according to the provisions of the existing laws and regulations.—No width is assigned to the roads thus created on the borders of the canal; it is left to the existing laws and regulations, and was fixed as appears by the statement of facts, on the 24th July, 1811, at twelve feet on each side.

The third act is passed the 2d April, 1811, entitled “an act to open and improve certain roads.” On the subject of the road in question it appropriates 500 dollars to improve the road of the canal of La Fourche to lake Verret. And the judge of the parish and two other persons are appointed commissioners “to superintend the works of the said road.” As to other roads mentioned in this act, such as

1. From Concordia to Alexandria.

2. From the mouth of Red river to Avoyelles.

3. From Baton-Rouge to Opeloussas.

4. Across the point of Plaquemine.

5. From Plaquemine to point La Hache.

In all these cases the appropriation is to open and establish a road. While in this case, and in that of the road across Manchae point, it is for the purpose solely of “IMPROVING” the road already existing.

The second section directs the commissioners to cause the roads “to be traced out and open ed, and to report to the legislature the progress they shall have made.”

These are all the laws on the subject in question: under the last act, the commissioners laid out a road of sixty-two feet wide on each side of the canal, comprehending every foot of arable land in the plaintiff’s tract. Whether pursuant to the directions of the act, they made report to the legislature does not appear, and therefore cannot be presumed, but most certain it is, that the legislature did never pass any act approving what the commissioners had done.

Let us now review these acts with the view of discovering whether any of these evince a legislator’s will, that the owner shall be deprived of the property in question.

The first (7th June, 1806) only disposes of the canal, so far as to give to certain persons the right of taking a toll: but it certainly excludes the idea of the canal, being a public watercourse, and of course of its banks being subject to a public servitude or right of way.

The second (11th March, 1809) suspends the right of toll; until the canal shall be rendered navigable, and declares, that its borders shall be considered as a highway, which the neighbouring proprietors shall keep in repair: the police jury fix the extent of this public high way to twelve feet. As far then, as the legislative will is shewn, it is only the borders of the canal, which I suppose means its banks, that are at all converted into a highway. And let it be observed that they do not refer to the “existing laws and regulations” for the extent which the paths are to have, but to the keeping them in repair, which it is declared must be according to the provisions of such laws and regulations.” Under this act then, it may well be doubted whether the police jury had a right to extend the width of the road to twelve feet. But what is clear, is that on no construction can it under this law be extended further.

The third act is the one most relied on, but there is not a syllable in it that either looks like a design in the legislature to deprive the plaintiff of his property, or to authorise the commissioners to enlarge the road; its phraseology is particular: In the places where a new road was to be laid out, as in the five instances cited, the appropriation is to open and establish a road—In the two cases, one of which is ours, where it already existed, it is to “improve” only. By what process of reasoning an appropriation of $500, to improve a road of twelve feet wide, can be changed into an act for taking away from the proprietor all the rest of his estate, I am at a loss to conceive. Even as to the other cases, mentioned in the act, where new roads were to be erected, nothing final is determined; the commissioners are to trace out the roads and then report to the legislature—For what purpose? Plainly that the legislature might act justly and constitutionally, that they might make further appropriations, if any were necessary, to indemnify the individual whose property was used—no such report was made, no further act was passed, therefore, even if the legislature intended to take the property (of which there is not the slightest evidence) the act is yet inchoate, and the individuals still enjoy their rights, admitting the legal power of the legislature to deprive them of it.

The use, that was made of this road twenty-five years ago by the inhabitants of the Attakapas, has been also relied on: but, surely no lawyer will say that such use took away the right of soil: at most, if it be a presumptive title at all, it is only a title to a servitude of way, and such a title is not at all incompatible with our action.—As little can the acquiescence of the parties be objected to shew as an argument that they were not “compelled” to part with their property; because they never did acquiesce. On the contrary, the plaintiffs leased the premises in question four years ago, and received rent for them all that time, recovered it by suit as one of the judges may recollect, during the continuance of the lease, and as soon as the lease expired brought the present suit.

II. The second point to be considered is whether, supposing the premises to be situated in a highway legally laid out, the owner of the soil, through which it is laid out, cannot maintain this suit—in other words, whether the state owns the soil or only the use of the highway in this state?

This is a most interesting question for every proprietor in this state: should it be determined in the way the court at present incline to decide it, the most vexatious and oppressive consequences would follow.

The Roman law has been cited by the defendant, and seems to have had some influence with the court in deciding this question. Before we enter into the investigation, it may be proper to remark that the consular or pretorian or public highways of ancient Rome were constructed with such solidity as to remain, after the lapse of 2000 years, monuments which attest the grandeur of those masters of the world, and at an expence to which the feeble efforts of modern times on this subject bear no comparison. Such fabrications would naturally be placed on lands previously secured to the public by purchase or conquest, and when the Roman laws define a public way to be “that of which the soil is public,” they mean no more than to say that all their public ways were constructed on public ground; but, surely this cannot lead us to the conclusion that a way made on private ground becomes ex vi termini public property, both as to soil and the use.

Let us now examine the law; the text relied on is D. 53, 8, 3, sect. 24, viam publicam eam dicimus cujus etiam solum publicum est, et non enim sicuti in privata via, ita est in publica accipimus, viæ privatæ solum alienum est; jus tantum eundi et agendi nobis competit. Viæ autum publicæ solum publicum est.” Here the quotation ends, but the text proceeds in the same sentence to say “relictum ad directum certis finibus latitudinis ab eo qui jus publicandi habuit, ut ea publicè iretur commearetur.” This latter member of the sentence is important, not only because the sense is incomplete without it, but because it shews, what I contend for, that in constituting a public way at Rome, the property of the soil was transferred to the public by him who had the right: “ab eo qui jus publicandi habuit.”

We accordingly find that when a public highway was carried away by a flood, the neighbouring land might be appropriated for this purpose, but only when paid for by the public.—“Cum via publica, vel fluminis in pet vel ruinâ, amissa est, vicinus proximus viam prestare debet." D. 8, 6, § 14, and Godfrey in his note on the passage says, sed impensâ publicâ. This is more expressly laid down in the following authority, "Via vicinalis dicitur publica quando solum viæ vicinalis emitur a publico.” Dayoz Ind. juris civil, verbo via.

These authorities shew that among the Romans, that was a public road, of which the soil was bought by the public and which was made at their expence: the following shews the converse of the proposition, that all roads laid out over private property, and made and repaired at the expence of individuals are private roads, by whatever name they may be called, that is to say, that the soil is private property though the use be public.” "Viae vicinales, quœ ex agris privatorum collatis facta sunt, quarum memoria non extat, viarum publicarum numero sunt; sed si extat, memoria quod sint factæ ex collatione vicinorum, sunt viæ vicinales privatae. Dayoz ut supra. This is a striking authority, to shew the nature of the Roman public ways: if a road should have been made over private property, but it has continued so long that there is no memory of the fact, then it shall be deemed public. But if there is any remembrance of the time at which it was laid out, by the contribution of individuals, it is not then a public, but a vicinal way and the soil of course private property.

The same doctrine is most distinctly, more strongly laid down in the two articles immediately following in the same book.

The present law contains the same distinction. 5 Pand. Franc. 108, speaking of roads says, “Touts ceux qui sont entretenus par le tresor public font partie du domaine. Les autres appartiennent á ceux qui sont chargés de les entretenir.”

From a book of great authority and an adjudged case, which it cites, we have the point as far as depends on the French laws fully decided. 5 Repertoire jurisprudence, p. 367. title Chemin, says, Lors qu’un chemin a ete abandonné et qu’il n’est plus d’aucun usage, le seigneur haut justicier (the lord of the manor) peut en disposer dans sa seigneurie. La table de marbre l'a ainsi decidé par un jugement en dernier ressort, dâté 2 Aout 1715, rendu en faveur du seigneur de Belleval en Champagne contre les habitants de cette terre; ce jugement a maintenu ce seigneur dans la proprieté et possession d’un chemin qui pour n’a voir pas ete frequenté s’étoit convert de broussailles."

It appears from the same book that frequent discussions took place in France to determine whether the tree, the fruit, &c. growing in the public highways belong to the lord of the manor or the inhabitants.

And these ended in decisions which are reported page 303, in favor of the lord of the manor; (probably because the farms were laid out after the road and were bounded by it,) whatever might have been the reason for deciding the property in favor of the lord of the manor, they clearly shew that the property of the soil was not in the king. Six or seven separate decisions on this point are cited in this book, all equally strong to this point and all relating to public ways.

Let us now approach nearer to the question, and having seen what was the nature of public roads in France, from whence this country was peopled, and by the Roman law, the foundation of that which now governs us; let us enquire whether the French settlers brought with them any particular law on this point, and what change was introduced by the cession to Spain.

The French grants, it is said, reserved a road which was called royal road. Many of them, subsequent to the year 1757, did so; for the four years prior to that period none of them contained the reservation, and beyond that we have lost the public records, but suppose them all to contain it. The reservation is first, of the timber for the royal navy, and the land necessary for fortifications and royal roads; does this reservation take the things excepted out of the grant, or, does it only allow the king to use them when he shall deem it necessary? I think clearly the latter—the wood, the land for the fortifications and for the road are all contained in the same clause, and therefore must all be tested by the same rule—if then this reserves the property of the things reserved, no individual would be allowed to cut a stick of timber, without infringing on the king’s rights, because all proper for the navy was reserved—he could use no part of his land for fear of trespassing on that which the king reserves for his fortifications: if it be the king’s exclusive property, by virtue of the reservation, he can have no right to use it in any manner; and therefore, until the king locates his fortifications, which perhaps he may never do, and his road, the grantee has no right to possess any part of it and his grant is defeated—whereas by looking to the spirit of the instrument we may adopt a construction that will give both parties the full enjoyment of their respective rights without violating any principle. The reservations are clearly those of three distinct servitudes in the land granted—a right of cutting timber—of using the part necessary for fortifications and of way; on this construction, the grantee has the property of the whole, and may enjoy it in any way not incompatible with the servitudes; and the grantor may, at any interval, claim the use which he has reserved for the different purposes stated in the grant. If this reasoning be correct, let us try it by legal principles; at the moment of the grant, there is no doubt that all the land within the boundaries assigned becomes vested in the grantee, that is to say he has as much right to any one portion of it, as he has to any other. It is not like an undivided portion of the whole, because it has no determinate quantity and it does not grow into existence (particularly in the case of fortification,) until the necessity for it arises; where then, I say, during the interval, is the king’s right, in what part of the premises? In what undivided proportion of them? But can any exclusive ownership in the soil exist, which can neither be located nor described either by a positive quantity or a relative proportion? I think not. Will it be said the estate vests by the mere location and appropriation? This cannot be, if the whole of the tract was before vested in the grantee, because if it were it would require his assent to divest the property he had acquired; if we suppose the reservation to be, as it really is, of a servitude, an incorporeal hereditament, all these difficulties cease, because neither the property nor the possession of the grantee is any bar either to its existence or its exercise. Again, if the exclusive property of the soil vests in the king when the road is once opened or traced, two consequences follow: 1. That he has got all that he reserved,—2. That it must be his until he regrant it.—Now, though the breach of a law is certainly no proof that it does not exist, yet, universal and continued practice has always been admitted, especially in doubtful cases, as an argument to shew what the law is. Even further, when that practice is known to be originally erroneous, yet it acquires respectability from time, and communis error facit jus has been received as a maxim when the error has been slight and of long standing. Now, in this country, both the consequences, that must be drawn from supposing the soil of the road in the public, have been without a single exception violated in practice from the first settlement of the country.—Uniformly, when the soil of the road first located has been washed away, which it frequently is, the proprietor furnishes a new way without compensation, which I have shewn he would not be obliged to do, if the soil were the king’s, but, which he would be obliged to do, if it be as I suppose his own subject to a servitude. Uniformly when the first road has become inconvenient or useless, the proprietor, on opening a new one, appropriates the soil of the first to his own use, which he would not be permitted to do, if the soil belonged to the king, but which he would have a right to do, on the construction for which I contend. The consequences at this day of declaring all the soil that has been at different periods occupied as public roads, by the changes in the bed of the river, it appears to me, are sufficiently serious to be taken into the account.—Hundreds of houses, gardens and other improvements, on this construction, are now placed on land that belongs to the public, and, as they are not bound by any prescription, the occupants are always liable to be disturbed in their most valuable possessions.

Hitherto, we have considered the question as depending on French grants, and governed by French laws; this was done more to meet the general law on the subject laid down in the opinion of the court, than from any necessity in the present case, which arises on an inchoate Spanish grant, confirmed by the United States. None of the Spanish grants (at least none that I have seen) contain the reservation mentioned in the French. They refer to the ordinances that have been made on this subject by the king. The first is dated 15th Oct. 1754. The second by O'Ryley the 18th Feb. 1770. The third by Gayoso the 1st of Jan. 1708, and the last by the Intendant Moralles on the 7th July, 1799. The three first I have not been able to procure, but as our grant, or rather permission must have been under the authority of the last, and this last declares that it is only to enforce the former ones,

there is the less necessity for referring to them. All relating to the subject are found in the following article:

Third Article.

After declaring that those who obtain concessions on the river, shall be held to make a levee the first year, it proceeds thus: “They shall be held moreover to make and preserve in repair the royal road, which must be at least thirty feet in width.” Here certainly are no words of reservation at all, or if there are, they apply equally to the levee which has never been pretended. On the contrary, by shewing that the road is not only required to be made, but to be repaired at private expence, they bring it within the definitions we have quoted of a private road.

In the 5th article, the levee, the road, the canal and bridges are all spoken of, in terms to shew that they equally belonged to the grantee, sa levee, son chemin, ses canaux, ses ponts.

The 5th article expressly acknowledges that the king renounces the possession of the ceded lands, in these terms: Quoique le roi renonce a la possession des terres qui se vendent, distribuent ou concedent en son nom, les acquereurs doivent etre prévenus que sa majesté se réserve le droit de tirer des forets les bois qui pourront convenir pour l’usage de sa marine &c. not a word here of the reservation of any part of the soil, but an acknowledgment that he renounced the possession of the whole, and only retained the right of servitude.

So far then as depends on the terms of the Spanish grant, under which the property is held, there is nothing to ground any argument on a reservation of the soil for the road, in favor of the crown. But on the contrary a duty created of furnishing the land and repairing the road, which duty is only compatible with the idea of a servitude in favor of the public, not of a right of soil.

But this case is stronger, because all the provisions I have stated, apply only to grants on the river, and this is a grant not on any water naturally navigable, which is an important distinctive feature in the case. Our grant also was imperfect before the cession of the country: no conditions were inserted in it and it is confirmed without any, so that the whole cause must rest on these two questions.

Has the legislature of the late territory taken the premises from the plaintiffs?

If they have, had they a constitutional right so to do?

These questions have already been discussed, and I will conclude this argument by some observations solely applicable to this case.

1. If the extention of sixty-two feet, be legally given to the public road, without compensation, the whole of the plaintiff’s property is taken from him, for there is not another foot capable of cultivation on the tract, and he would be therefore not only obliged to give up the only valuable part of his land for a road, but to be at the expence of keeping that road in repair.

2. That as the defendants hired this property from us, they never can, consistent with any rule of law, set up any title adverse to us, they must restore us the possession: then if we encumber the public highway we are answerable on an indictment.

3. That, even if this be a highway, we are the persons who are obliged by law to repair and keep it in order; the residence of the defendant prevents us from performing this duty, therefore we, in our private name, have a right to bring this action, vide Dig. 43, tit. 8, and we have prayed for general relief.

4. That the house in question stands beyond the extent, laid out by the parish jury for the road, and the commissioners were not authorised to give it a greater extent, and if they were, their report has never been confirmed nor even made.

The English cases and those from the different parts of the United States, seem to be rejected by the court as totally inapplicable, but, if the right of the public to the road should have been proved to be a servitude only (as it is respectfully believed has been done) then those cases are extremely important, because they shew, that in a country, in which the police of public roads has been carried to a point of perfection, proverbial among modern nations, no inconvenience has resulted from the soil being considered as private property—that our sister States have suffered the same principle to remain unaltered: and finally, that if the law of the property be the same, the same consequences as to the action ought to follow. The case cited from Burrows is one in all its features like the present, and if the law has been established, as I suppose, cannot but be extremely persuasive, although here it wants the force of authority.

REHEARING REFUSED.  