
    No. 1132.
    Richard Taylor v. P. G. Mohan, Comptroller, and M. F. Pratt, Deputy Comptroller.
    Where property leased is encumbered with a servitude, or privilege of a date anterior to the lease, the lessee takes the property subject to the encumbrances; and he cannot maintain an action to prohibit the use of the former privileges granted on the property.
    A PPEAL from the Fourth District Court of New Orleans, Théard, J.
    
      Hays, Adams & Morse, for plaintiff and appellant.
    
      H. JD. Ogden, for defendants and appellees.
    
      Brief of H. J). Ogden, for defendants and appellees.
    —On 24th March, 1863, the legislature passed an act in these words : “That the city corporation of New Orleans be and are hereby authorized to build a good and substantial foot bridge on the New Basin Canal, at the intersection of Liberty street. ” “That said bridge be so constructed as not to prevent the free egress and ingress of vessels. ”
    The Common Council of New Orleans, in conformity with the above permission, passed resolution No. 148, N. S., (annexed to plaintiff’s petition) authorized the comptroller to sell “ the building of a foot bridge across the New Canal Basin, at the foot of Liberty street,” according to the plans and specifications on file in the Surveyor’s office.
    The comptroller advertised for sale a bridge “ across the New Canal, at the foot of Liberty street.”
    Voluminous testimony has been offered to show the extraordinary damage which would accrue to the lessee from the building of a bridge, constructed in any manner or way. By the evidence, no plan could be adopted to prevent the loss. It is even estimated, that the damage would amount to at least one hundred thousand dollars for each bridge. The whole testimony, however, is irrelevant; the only question is, had the lessee vested rights, which -would be impaired by the construction of the bridge. It is not alleged, that the bridge to be constructed would prevent such free egress and ingress of vessels as was intended to be understood by the words of tlie act. * * * * *
    We respectfully submit, that when the plaintiff obtained the lease of his canal and tlie lands adjoining, it was with all the encumbrances and servitudes attached, as well as the rights and privileges appertaining thereto. The act of 24th March, 1865, imposed a servitude in favor of the city. It was a public act, and the plaintiff was bound to know it. It was a right given and vested in the city at the time that plaintiff acquired liis rights. The State being the owner of the adjacent lands, and giving the right so to construct a bridge, necessarily gave with it all such grants and permissions as may be necessary for the exercise and enjoyment of the right. This must be implied. The act of 1865 bestowed a servitude on both—the canal and land.
   Howelxi, J.

On the 24th April, 1865, the Legislature of the State passed an act authorizing the city of New Orleans to construct a foot bridge across the New Basin Canal, at the intersection of Liberty street. On 10th July, 1866, the Common Council authorized the comptroller to sell the building of a bridge at said point, and, said officer advertised the sale thereof; whereupon the plaintiff, who had on 6th March, 1866, leased the said canal, with its property, rights and privileges from the State, enjoined the said comptroller from proceeding with said sale, on the ground that the construction of said bridge would injure his rights under Ms said lease.

Judgment was rendered in favor of defendants, dissolving the injunction, from which plaintiff appealed.

The right to construct the bridge in question, had been accorded to the city corporation by the State, prior to the lease of said canal to plaintiff, which passed to Mm with the encumbrances and servitudes established, and not excepted by the State, his lessor. The lessee cannot contest the title of Ms lessor; but it is not pretended that the State had not the right to grant the privilege of building tbe bridge.

Judgment affirmed.  