
    City Council of Lafayette v. Holland & Al.
    Tho plea of res judicata in a petitory action cannot be sustained by the proceedings of a possessory one. A judgment in a possessory action is no bar to an action in revendication, although it be between tho same parties, and for the same object
    No particular form or ceremony is necessary in the dedication of land to public use. Lord Ellcnborough decided, that when the “ owner throws open a passage, and neither marks by any visible distinction, that he means to preserve all his rights over it, nor excludes nor prohibits persons from passing through it, he shall be presumed to have dedicated it to the public.”
    So, where the plan of a faubourg exhibits a front street, called Levee-street, running parallel with tho levee, but leaving a space between, on which no specific number offset are marked, and without any particular designation on the plan, it will be presumed to be dedicated to the public use, and required to bo kept open and free for this purpose.
    Appeal from the court of the first judicial district.
    This is an action by the city council of Lafayette, to compel J. H. Holland, G. Depassau, and J. Gleize, to relinquish all claim to a strip of ground in [287] front of their lots in the city of Lafayette, lying between Levee-street, on which their lots front, and the levee. The city council claims the administration of this space as a public place, for the use of the public, and requires that it he kept open and used as such.
    The defendants pleaded the exception of res judicata, founded on two suits, in which these parties had obtained judgments against the corporation in two possessory aotions, putting them in possession of this same strip or space of ground. On the merits, they pleaded the general issue.
    Upon these pleadings and issues the case was tried.
    The original plan, when the nuns laid off their plantation into a faubourg and town lots, in 1810, together with the deeds or acts of sale from the superior nuns to Monsieur J. Deville Degoutin Bellechasse, and to Pierre Derbigny, under whom the defendants claim, were produced in evidence.
    The principal question to he decided, was, whether this open space, which appeared on the original plan, outside of Levee-street, and hetween it and the levee, was public, by dedication on said plan to and for the public use ? The defendants claimed it as riparian owners of the lots fronting on Levee-street, opposite to the space.
    The district judge decided, that the presumption of an intended dedication was negatived.
    1. By the width of the high road or Levee-street, marked on the plan, which is 60 feet wide, French measure.
    2. By the express declaration of the nuns in their deeds of sale to the defendants’ vendors, that the purchasers of front lots should he seized of the property as riparian proprietors.
    3. By the clause in said deeds, reserving to the purchasers of hack lots the right of taking earth from the batture.
    There was judgment in favor of the defendants, without prejudice to the legal control of the plaintiffs, under their act of incorporation, over the streets, levees, hattures and wharves.
    The plaintiffs appealed.
    
      
      McKinney, Preston and Pkistis for the plaintiffs and appellees.
    
      BPrcmbridge for the defendants. • [288]
   Garland, J.

delivered the opinion of the court.

The plaintiffs allege, that by law they have been, charged with the care, regulation, control and possession, for the public use, of the streets of the city of Lafayette, and the levee and landing in front thereof. That the lower part of that city was formerly a plantation owned by the Ursuline nuns, who, on the 18th September, 1810, made a plan of the same, divided into squares and streets, which squares they sold in conformity therewith. By the plan, the public road or front street, called Levee-street, is stated to he sixty feet, French measure, in width, and the levee and landing extending from said street to the river. The petition further states, that the space between the front street and the water’s edge was destined for a levee and landing, and has not been increased by alluvion. The whole of the space was then necessary for those purposes, and absolutely indispensable at this time. It is further stated, that all the space between the street and the river constitutes the hank of the same, and is by law subject to public use, and the corporation are the administrators of that use, and hound to protect and preserve it. It is also stated, that the defendants have taken possession of the space between the street and the river, claim it as their private property, deny the right of the public, and appropriate the ground to their private use, and the petitioners are unable,- by their officers, to keep said space open, and free for persons to pass, for the landing of produce and merchandise, and reshipping the same, without great inconvenience. They pray, that the use of all the ground between the street and the river be adjudged to he public and common to all persons. That the plaintiffs have the charge and regulation of said use, and that no private and exclusive use thereof is vested in the defendants. And it is further asked, that the latter be for ever enjoined from such private use, and from obstructing and impeding the petitioners in the regulation and control of said space, for the purpose of keeping it free and common for a [289] levee and public landing.

The defendants, for answer, say, that all the matters in controversy have been adjudged in previous suits, in which judgments are to be found in T La. Kep. 1; 9 Id. 149. They further deny all the matters alleged, and say they, and those under whom they claim, have been in peaceable possession of the premises more than thirty years.

The plea of res judicata is easily decided. The actions mentioned were possessory in their form and nature, and do not in any manner affect the rights of either party, though the defendants insist on some of the reasons assigned by the court, for the judgments rendered, as sustaining them in their claims. It is well settled, that a judgment in a possessory action is no bar to ah action in revendication, although it relates to the same object.

The plaintiffs claim, as being the administrators of a place or space, set apart by the nuns, when they laid out their land into streets and squares, for public use; or as being subject to a legal servitude, constituting the hank of the river and public road, and liable to he taken to construct a levee on. The defendants claim as owners by direct conveyances from tbe Ursuline nuns, through Bellechasse and Pierre Derbigny.

On the 15th of September, in the year 1810, the Ursuline nuns' caused their land, then a rural estate, to be laid out into large lots, of irregular forms, with streets (or chemins, as they are called in the sales) separating them, which are stated, in the deeds of sale, as being sixty and forty feet, French measure, in width. On the plan which was made, the streets are represented and named. In front of the two lots Nos. 5 and 11, and between them and the' levee, is laid out a broad street, the width of which is not stated on the plan, but both plaintiffs and defendants say, it is sixty feet wide, French measure. Lot No. 11 was sold to Derbigny, under whom Holland claims, and is described as having two hundred and seventy-six feet “ face a la grande route,” which means the street in front; and is further [290] described by other distances and streets as hounding it. The lot No. 5, sold to Bellechasse, under whom Dupassau and Gleize hold, is described as being “ sur la rive gauche du fleuve,” containing three hundred and ninety-five feet '•'■face A la levee.,” and is further described by a depth of seventeen hunched and fifty-four feet, bounded by various streets. These large lots have since been subdivided into smaller portions, and are now held by different persons, though the lots fronting on the street belong principally to the defendants.

In each of"the sales to Bellechasse and Derbigny, is the following clause: “Les dames venderesses établissent pour clauses et conventions genérales et expresses des ventes partielles qu’elles font, tout présentement, de leur habitation, que les acquéreurs des trois prémiers lots en profondeur á partir du fleuve, seront charge de l’entretien de la levée et du grand chemin, et jouiront en commun des droits des propriétaires riverains; qu’ils seront néanmoins tenus de laisser prendre sur la batture la terre dont les proprii taires des lots plus éloignés du fleuve pourront avoir besoin pour remblayer leurs terrains, ou pour y batir; que les chemins qui séparent les lots, seront entretenus par les propriétaires des terrains devant lesquels ils sont situés.” Under these sales the defendants claim to be riparian proprietors, and set up claim to all the ground between their fronts on the street and the edge of the water, except sixty feet, French measure, for the street, and forty feet for the levee, and say, there is more than sixty French feet between the line of their lots on the street and the levee, which leaves a space between the street and the levee, which belongs to them exclusively; they have it in possession, have had it for a number of years, with occasional interruptions, and have been confirmed in their possession by the two judgments of this court, which they presented to sustain their plea of res judicata.

The plaintiffs, by their act of incorporation, and other acts of the legislature, are charged with the control of the streets, levees, battures, wharves, and other public places, or places subject to public use, and can exercise such [291] authority in relation to them, as has been conferred. Acts of 1833, p. 145, sects. T, 8, 9, 10, 12; Acts of 1830, pp. 114,115.

But as the defendants are in possession, it is incumbent on the plaintiffs, to show a dedication to public use of all the ground between the line of the Street most distant from the river and the levee. They cannot hold or claim it in any other manner, as it is not pretended they have a deed of sale. It is well settled, that no particular form or ceremony is necessary in the dedication of land to public use. Municipality No. 2 v. The Orleans Cotton Press Company, Ante, 122 ; 6 Peters, 440.

Lord Ellenborough, in the case of Rex v. Lloyd, held, that if the owner of the soil throws open a passage, and neither marks by any visible distinction, that he means to preserve all his rights over it, nor excludes persons from passing through it by positive prohibition, he shall be presumed to have dedicated it to the public. 1 Campbell, 262. This may be considered by many as going very far, but the facts in this case create a stronger presumption than in that, and we think, make it certain. The nuns exhibit a plan of their property, upon which a street, called Lexee^street, is exhibited, running parallel with the levee, and according to the defendants’ statements, but a few feet from it. No specific number of feet are marked on the plan, as exhibiting its width. On each side, close to the front of the lots and to the levee, lines are drawn, which seem to represent side-walks, and the same lines are drawn on all the other streets on the plan. The object of the nuns, in subdividing their property, was to convert it into town lots, with a view to its becoming an addition to the city of New Orleans, to which it was finally annexed under the name of one of the unincorporated faubourgs. All the batture outside the levee was made, by deeds, a common property, and every owner of property in the three original lots or squares in depth was a joint riparian proprietor, and even the owners of lots more distant have a right to take earth from the batture, to fill up their lots, and for other purposes. A difference is made as to the persons bound to keep up the levee and street, parallel with it, [292] from those bound to keep up the other streets. Thero cannot he a doubt, it was the intention of the nuns, that the batture should he common, if not to the public, to the citizens of the faubourg; the levee was by law public, the street was by dedication and law also public; and it is difficult ■ to believe, it could have been or was the intention of those, granting all these uses and rights, to leave a slip of ground, between the street or public highway and the levee and batture beyond it, which would greatly embarrass, if not entirely deprive both the public and the citizens of the faubourg, of the enjoyment of the benefits intended to be conferred. As a general rule, the public highways are parallel to or run alongside the levees, adjoining them, and the action of the legislature is based on that assumption, and in most of our legislative enactments, roads and levees are treated as being in close connection. 1 Moreau’s Dig. 650, 655; Acts, 1829, p. 76 et seq. sect. 9, &c., Martin’s Dig. vol. 2, p. 598. We are aware there are exceptions to the rule, and when they are shown, we shall pay a proper regard to the cases, and regulate our judgments by the circumstances. We have no doubt, there was a full and complete dedication by the nuns for public use, of all the space in front of the lots or squares Nós. 5 and 11, to the levee, and that the defendants have no title or right, to claim any portion of it, and further, that they are only riparian proprietors in common with the owners of property in the three original lots or squares in depth, as represented on the plan, under which they hold. The plan and the sales to Bellechasse and Derbigny, both passed within a week after the plan was made, show, the whole space was dedicated, notwithstanding the general declaration, of the streets being forty and sixty feet in width. That they were not exactly so, the plan itself shows. St. Mary-street, which runs perpendicular to the levee, is represented as forty-five feet wide, and St. Andrew-street, next above it, is stated to be forty-three feet in width.

[293] But, say the defendants, this court has decided that the locus in quo is not apart of the high road or street, neither does it cover the levee or towpath ; consequently it may be the subject of private ownership. 7 La. Rep. 6 ; 9 Id. 153. It is true this court has said so, in two suits between these parties, but in actions essentially different in form and substance; and had this not been said, this case would have been too clear to need much argument to sustain it.

It therefore becomes necessary to examine the circumstances under which these declarations were made. Each of the present defendants, several years past, instituted actions against an officer of the present plaintiffs for dispossessing them of the space now in dispute. They proved by different individuals, nearly all their tenants or agents, that after allowing sixty feet, French measure, for a street, that a space about twenty feet would remain between it and the levee, of which the present defendants had had possession for more than a year. The present plaintiffs (then defendants) offered in evidence the plan of the Nuns’ Faubourg, now before us, and the sale from them to Bellechasse, to show that the property in question was not private property, “ but street and levee.” To the reception of this evidence, the plaintiffs (now defendants) objected on the ground that their actions were possessory, and titles could not be inquired into. The district judge, who tried those cases, admitted the evidence, and the plaintiffs (now defendants) took their bills of exception. Tho evidence was admitted in the district oourt to show the place was public and that such a possession as would maintain the action could not be had of it. In this court, the opinion of the district judge was overruled and the evidence rejected. Judge Mathews in giving the opinion of the court, says the action “ is simply possessory,” and the questions whether the defendants (then plaintiffs) be real owners or not, whether the place in dispute be public or appropriated to public use, are questions that depend on an investigation of titles and cannot be permitted in a possessory action. 7 La. Rep. 6.

[294] One of the present judges, in giving the opinion of the court in the case of Gleisse & al v. Winter, &c., says, “the question whether it be in fact the property of the plaintiffs, or whether it has been devoted to public use, is in our opinion essentially one of title, and the Code of Practice, art. 53, declares that in possessory actions no testimony shall he admitted except as to the fact of the possession or as to the disturbance, and all testimony relative to property shall be rejected.” It was under these circumstances, this court declared the locus in quo to be susceptible of private ownership; but it is believed such a declaration would not have been made, if the court had not felt compelled to confine its judgment to the simple question oí possession, and disturbance. With all the evidence then before the court, now before us, together with the plan and sales, we have no hesitation in declaring that all the space in controversy forms a portion of the public road or street and that the defendants have no such title as justifies their appropriating any portion of it to their exchisive use. In addition to the evidence before us, a majority of the members of the court have visited and inspected the premises, which confirms them in the correctness of the conclusions drawn from the evidence.

The judgment of the district court is therefore annulled, avoided and reversed ; and this court proceeding to give such judgment as, in their opinion, ought to have been given in the court below, do order, adjudge and decree, that the plaintiffs recover of and have judgment against the defendants for the space or piece of ground in contest between them, to he held and possessed by the plaintiffs and administered for the public use as a public highway and levee, subject to the laws and regulations relative to public place or places subject to public use. The claim of the defendants to the exclusive use and right to the premises is rejected with costs in both courts  