
    
      MAYOR &c. OF N.-ORLEANS vs. METZINGER.
    
    An¿vbitrary «•ant common Ssh' Governor k void and the it aside.
    The defendant, in the year 1795, had obtained from, the Baron de Carondelet, then Governor Louisiana, the grant of a lot of ground joining the levee, in front of the city of New-Orleans, on which he had built a house and which he had
    enclosed. The plaintiffs, considering this house and inclosure as a nuisance or obstruction to the highway, bn part which they contented they in-cróached, brought the present suit, in order to compel the defendant to remove his improvements and abandon the ground.
    It was proved that the premises made part of the space of ground which had been left vacant ½ the original plan of the city, between the river and'the first row of houses frontiiig it ; that the highway, all along andón both sides of the river, runs immediately by the levee ; that, ueiore . the Baron’s grant to the defendant, the space covered by it was used, as well as the whole ground between the river and the houses, as a part of the highway ; that the improvements of the defendant had much narrowed the space, and made an elbow in the highway. The defendant rested his title on his grant* the long possession under it, and the confirmation of his right, by the commissioners of the United States.
    East. District.
    May 1814.
    There was a judgment in his favour in the district court, from which ttye plaintiffs appealed.
    
      Moreau, for the plaintiffs.
    Highways and streets are in the class of things, which are common or public, 1 Ddmat, part 1, liv.prél. tit. 3, sect- I, Hv. 2, 3 Partida, tit. 28, ley 6 9. Public things are out of commerce, they cannot bp alienated, nor consequently acquired by pres, cription. Domat, loe. cit. 3 Partida, tit. 29, ley 7, 5 Partida, tit. 5, ley 15. It is forbidden to build on a highway or street, and if it be done, how ever ancient may be the structure, no prescription can avail, the edifice must be pulled down, unless the corporation of the place chooses to take it on its own account. 3 Partida, tit,, 22, ley 3 - is?23,
    
      Wi th regard to the grant of the Spanish Governor to the defendant, it affords no pretence to occupy any part of the highway or street. If ... ,. J r, „ J, , , public things be out or commerce and cannot be Qbject of a sale, they cannot be that of a gift or grant, or in any manner become the property of an individual. The sovereign, in a regular government, may regulate the use of, public things, but cannot dispose of them for any other object than that to which they are destined. Should he do so, he would be guilty of an abuse of his powers. Vattel, liv. 1, chap. 20,no. 146.
    The kings of Spain, were so conscious of their liability to be deceived, by persons who might obtain from them grants of public property, that a law was passed authorising resistance to their orders, in such cases. 3 Partida, tit. 18, ley 30. It provides that “should the king grant any “ letters, detrimental to the rights of the corpora- “ tioti of any town or place, such first letters shall “'not be obeyed: but those,, to .whom they may “ be directed shall supplicate the king to dispense “ them from obeying: but, if the king persists, t|ie “execution of his orders must follow.” The Cabildo of the city of New-Orleans, having in the year 1799, made, representations to the king of Spain, on the grants, made by the governor within the commons of the city, and neat the levee ; and his Majesty having given no’ order thereon, the grants of the governor ought to considered as null and void, in the same manner as letters of the king would have been.
    The king had, at last, annulled all grants which he might have made to the injury of the corporation of any city, and renounced to the right of making any, forbidding any to be made by the Cabildos. Ord. real. t. 7, tit. 3,1. 2 id 3 ; Reco-pilación de Cast. 1. 7, tit 7, l. 1.
    
      Ellery, for the defendant.
    The defendant’s original title must be either defective or complete.
    If defective, still it is sufficiently legal and valid, to give him a fair and honest possession, and to entitle him to the prescription of ten years.
    The requisites of the prescription of ten years are that the estate be fairly and honestly acquired and by virtue of a just title; Civil Code 486 488, article 67, vide also Cooper's Justinian, lib. 2, tit. 6, p. 95, 96 ; that claimants should have resided, in the country, that the possessor did not obtain possession by violence, has held it animo domini, Civil Code 482, article 38 ; that his possession has been continued, uninterrupted, peaceable, public, and unequivocal, arHujte 38 ; has not been suspended by any natural or legal interruption, nor impaired by any acknowledgment of the possessor. Civil Code 484, art. 21, 52.
    It is not contended, on the part of the plaintiffs but that all these legal requisitions have been complied with, except
    1st. That the defendant did not acquire the possession by a just title.
    
    2. That, even if he had so acquired it, the prescription has been legally interrupted by the application made by the Cabildo to the Inten-dant, in 1799, arid by him referred to the king of Spain.
    I. The defendant had such a title as is required .■fey law; a just title, is defined to be one, by virtue of which property may be transferred, though it may not, in reality, give a right to the estate possessed, Civil Code 488", art. 68, 1 Domat, 3 /. 7 tit. S. 4>,p. 490, translation, Cooper's Just. 472 note.
    
    II. It is only a legal interruption, when the party possessor has been cited to appear before a court of justice, on account of the property or possession, Civil Code 489, art. 52.
    The burden of proof is Valso thrown by law upon the claimant, as the possessor is always supposed, by law, to have possessed fairly. Civil Code 488, art.- 71. Again from 1799 when the application Was made by the Cabildo, more than 10 years have elapsed since the defendalnt has been in possession of his Jot. But, the defendant’s title is complete
    
      1. Negatively: as no title is produced, his possession puts 'the plaintiff to the necessity of producing his title. Where is his Title-deed ? Or ' . plan of the city, where this lot is marked, as belonging to the city ? If the record'and titles of the city are lost or removed, three points’ are necessary to be proven, 1st. their prior existence, 2. their loss or removal,' 3. what they contained :' none Of these points are proven or appear on the •record.
    2. Positively: from the production of the deed of concession from Baron de Carondelet in /1795, with the figurative plan and certificate of the -surveyor, the signature of the Baron, the certificate of record and of confirmation of the land 'commissioners. ~ .
    But, it is objected, 1. that the king of Spain could not alienate the commons .of the city, and that this lot was included in the commons.
    2. That general usage requires a right of way, next to the levee.
    3. T h at public convenience equally requires it.
    I. From 3 part. 18 tit. 30/. it appears,-that the king of Spain possessed the right of alienating even the commons, though, to complete the grants, he must signify his pleasure a second time. But in the inteirim, until his pleasure was known, was cot the grantee always in possession? But this *ot néver belonged to the city; never has been so proven ; on the contrary, their «wn witness saysf it belonged to the king. ** **
    jj General usage to the right of way is not proven : if so slight a presumption furnishes a legal title, what property is safe ? This right of way comes under the class of servitudes or services ; and they are acquired 1. by nature, 2. by grant, 3. by prescription ; Civil Code 127, art. 3, also 2 Martin 10, 214, Navigation Company:Vs. Mayor &⅛. ; 1. if by nature, must be by absolute necessity. 1 Domatjiv. 1, tit 12, s. 1 .p. 207, translation. Tire levee is an artificial road, and does not create a natural necessity, 2. if by grant: the grant must be produced, 3. if by prescription : the prescription must be proven ; a servitude by prescription ought to have existed from time immemorial, which is construed to be, at least, 100 years, 3 part. liv. 15, p. 415. This servitude also ought to have been specially pleaded; it is likewise at variance with their own title, upon which they rely.
    III. P ü b l i c convenience can never justify individual injury. Their act of incorporation fyis provided a remedy', if this lot was necessary or convenient to them. 1 vol. Orl. laws p. 68, 69, ⅜ 16. Public convenience, like state necessity, may justify any usurpation. -
   By the Court.

In the year 1795, the Baron de Carondelet, then governor of Louisiana for the king of Spain, granted to Henry Metzinger, the appellee, a lot of ground, situated in the city of New-Orleans close to the levee. The grant is a complete one and has been recognised on the part of the United States by their commissioners.

But the appellants contend that the spot on which it is located is part of the public highway, arid, therefore, could not have been lawfully grant, ed for private use, even by the king himself.

That public places, such as roads and streets, cannot be appropriated to private use, is one of those principles of public law, which required not the support of much argument. Nor is there any doubt that if, by a stretch of arbitrary power, the preceding government had given away such places to individuals, such grants might be declared void.

But is this grant located in a street or on the public road ? On this important question of fact, the evidence, produced by the appellant, is by no means satisfactory. They show that, according to general usage in this country, the public road in front of the river is close to the levee. But could there be no derogation from that usage ? Was that usage observed within the city of 3S|ew. Orleans ? Does not the convenience of placing markets and other public places, as near the tfater as possible, as it is recommended by a law of the Indies (the 5th of the 7th title of the 4th book, vol. 2d.) make it necessary to deviate from such usages in cities ? -,

General usage, however, is the only ground on which the appellants rest their pretension. No plan of the city has been exhibited to show that the lot of the appellee is located upon a place which had been reserved for public use : no testimony has Ireen adduced to prove that this spot is part of the ground laid out for,the public road. We are called upon to declare this grant, void, merely because the general usage of. the country is to place the road next to the levee.

W e do think, however, that to oust the grantee and possessor of this lot something more precise thap this vague and uncertain evidence is necessary; and we do accordingly adjudge and decree that the judgment of the district court be affirmed with costs.  