
    Heirs of John David v. City of New Orleans.—Adolphe Livaudais et al. v. the same.
    T1)0 mlonlion to dedicate to public lue must be signified in a maimer not liable to doubt or misconstruction, by something more than symbols of uncertain import or fanciful adornments with which it has pleased a draughtsman to decorate a plan of property. JYenw facilepresnmilnr donar?.
    
    Words indicativo of an intention to give should be found on the plan in order to clotbc it with such an eíl'éct. The public should accept the dedication by using the ground for the purposes indicated.
    A market-house is not necessarily public property: it may be the-object of individual ownership.
    Appeal from the Third District Oom-t oí New Orleans, Bmiiyuaaud, J.
    
    P. SouU <£ J. Seghei's, for plaintiffs. J. J. Michel ¿B Villeré, for defendants and appellants.
   Buchanan, J.

In the year 1807 Livaudais and Robin, owners of two adjoining tracts of land above the city oí New- Orleans, fronting on the Mississippi river, laid out their land into squares of town lots, intersected by streets, under the. name of Faubourg of the Annunciation, and offered the lots for sale, according to a plan made by Lafon, a civil engineer, deposited in the office of a notary public, with an act of deposit signed by them. Tiie laud embraced in this plan now constitutes a portion of the First District oí tile city of New Orleans. The plaintiffs in these two consolidated suits are the heirs of the original proprietors of the Faubourg Annunciation, Livaudais and Robin, and bring their petitory actions against the city, claiming two portions of groin..! of one hundred and twenty feet square each, situated, tllg-one in square 93 and the other in square 94, of Lafon’,s plan of the Fahbourg, at the junction of Melpomene street and Dryades avenue, (Cours des Dryades.) Those portions of ground have been taken possession of by the city, which has erected a market house upon the same, from which it derivos a considerable revenue.

The defendant pleads in defence of the action, that the property claimed by plaintiffs is a public plací-, and part of a public highway; that the same was so designated in the original plan of the Faubourg; and. by the acts of those tinder whom the plaintiffs claim title, the same was dedicated to public use forever.

It was admitted on trial, that the capacity of petitioners and their titles ¡ire as recited in the petition. It was also admitted, that on the property in dispute,-there exists a public market; that said market was built- by Patrick Irwin, by agreement with the Second Municipality; that the agreement was, that Irwin was to enjoy the revenue of said market for eight years; at the expiration of which time, he should deliver the market to the corporation, upou receiving one half of his original expenditure for the construction of the market; that this term has expired; that the city paid Mr. Irwin eight thousand dollars, or thereabout; and that plaintiffs notified the Second Municipality, at the time the market was erected, of their claim to be proprietors of the property now in dispute.

Under these pleadings and admissions, it is seen that the question is purely and simply one of dedication to public use, as a highway or street. The evidence of such dedication is supposed, by defendant’s counsel, to-be found in certain dots or points, which, on Lafon’s plan, extend in two parallel rows along- the east side of Dryades avenue, until they reach, severally, a point in the squares 93 and 94, one hundred and twenty feet distant from Melpomene street; where the said row of dots diverge at right angles from the general line of Dryades avenue, to a distance of one hundred and twenty feet; and then, turning again at right angles, strike Melpomene street at the distance of one hundred and twenty l'eet from Dryades avenue. No words written upon the plan indicate the meaning of these recesses of one hundred and twenty feet square, in the adjacent corners of squares 93 and 94. Those recesses lie without the general line of the street upon which is written in the plan, “ (lours des Dryades,”

Two civil engineers have been offered, by defendants, as witnesses to explain the meaning of the plan of Lafon, in reference to the dedication alleged. Those witnesses differ in their interpretation of the plan. One of them, L. H. Pilié, the city surveyor, testifies, that “he considers the piece of ground on which the market is built as part of Dryades street, for the reason that on Dryades street there are points indicating trees, and that that line of trees continued all around this piece of ground.”

“ His opinion is, that the piece of ground on which the market lies is part of the ‘ Cours des Dryades ’ and of Melpomene street:-”

The other engineer, Mr. Buisson, “being asked if, from the plan before him, he could consider the space on which is built the Dryades market as being included in the ‘ Cours des Dryades, ’ answered, there is no such designation on the plan.” “This piece of ground is not indicated on the plan as a public place, for want of tlie indications which the others have.’’ (The witness had previously stated that there are but two public squares marked on the plan — -the “ Place de VAnnunciation” and the “Place dn Marché.”)

“Being asked if, by examining the plan, he could not declare that that portion of ground on which the market is built, is not a portion of tlio (Jours des Dryades, he answered, there is no indication that it is.”

In this conflict of the opinions of professional draftsmen and surveyors, would, we think, be unsafe to infer an intention on the part of the authors of the plan of the Faubourg Annunciation to create a £;>ublic place at the junction of Melpomene and Dryades streets, composed of fractions of the adjacent squares Nos. 93 and 94, from the sole fact that a line of dots, xn-obably representing trees, is depicted on the plan, as retreating from the general course of Dryades street at this particular -point. The authorities upon the question of dedication of individual property to public use, seem to require something more definite and precise than the proof of dedication-offered by the defendant in this case.

In another case of a similar character to this, growing out of the same plan of Lafon, Judge Martin held that evidence was inadmissible to show the meaning attached by Livaudais to a word written upon this plan, '(1 ‘•ü'óliseé'’”)'. which- Kvfifi'blailiied‘ ás’ 'evidencfngí-'a'jaedicatioiairtorpntóic -uB.e.’K; ai iii'‘tlih:pfes’¿ñ't'Cíi6lélho wbrds--'ar'e'writteii'iqboirth'at'portionof thé-planfi-! wh'icii'repíefebhts 'tlie-laiidhow in dispute/ 5 That-land is.-certainly 'ou.tr.of the' general ‘lilies1 <Sf any- stl-eét. •1 It N hot- designated aS a public square," or place"; blit"wé ai/é called' upon to decl&L'eut terb'eteueli; upon-the strength-/-, of ah ornamental border of dots or p'oihts, -'which may, w -may not, ham' been intended to designate' trees; for this'is-eh'tirely''Conjectm.-al;.'there'-.' being lió evidence to show the meaning of the authdFof the- plan-.-e^eii supposing that stích bvidence couldlitive-beeií admitted uíidel-ttíe i-uling of Judge Mai-tin,' in the case .in 16th’ Louisiana, above- quoted-. •■/In the. same case,’' page 513, the court says’: '■'/■ . ■> . • i.

“There"is no evidence of the alleged dedication,'-oui of the plan ibthis - “ case;'and none in the iilan, out of the word- ‘Uolisiiim.’-'- In this same ¡ “ plan is marked a locus publicus, called ‘La j/luee de l’Annonciatioii ’ i'fiU “ the middle of ivliich is'a spot, designatédüs'á plab'efor'aóKúl-dh-:”-' '

The 'doctrine of the case quoted evidently is,’ that'the iiit'eiitioh to ■ dedicate to public úse must be signified' hi a manner hót-liablé io doubt or " misconstruction,'by son..' .hug- mbre''than symbÓl'á-' Of úhdertain import,'1 or fanciful adornments with whicli it has pleased "a‘draughtsman- to de — - oorate'á plan of'property.'" Nemo iri'bsnmitur clonare.' : .. ’’ ' '• A

Again, in íhe'greát case of Municipality No. Two v. The Orleans Cotton-press Company, 18th Louisiana Repórte; pa'ge 244, tlie! organ- -of filie majority of the’court,'in the 'decision iehcléretí,' laid dowh a'blear and'1 precise riile'for'testing'a dedication tó públic úse; -to‘be'iinferred-from-a plan; '• ‘ 'Thé: ’Cdiirt held ■ 'that - words dlidióativé-1 'of1 -an - -intention- do • igive ■ shoúl'dbe found' oivthd'plan, 'in'-' order to clothe -it -Withi such-an- effect;. andj mbiéover, that tlie’public should have-a'ccceptéd 'the--dedication, byi úslúg'fihe gróúúd'foi* the purposes indicated/;,The:-cóiirtla¡ssTimed that-/ Words of dedication niúst have been used ill the plan-'which was the subió je'ót'of the deciSióú oí tlie'Súpi-eme' Court-of-the-’United--States,;-in- -the; city of Cincinnati v. White’s lessee, 6th Peters, 432, and-.quoted -with api,-probation thé fdllOwitígideDÍsion-in¡that oaseth.-i.v; / .d .:<¡ .;••

■uff No particular fonm/ór.cSreíndny.ls.neceSsaryiinthp.dedication, of lane]., to publicusei bAllfihhitis¡required is-the.ass.eiitepffilie oypier.of tbplancj,-) a»d,ytjip:ifaqt,,of,,Its..:beipg,, ú$pd.,f,,thqip.p^-pintended,.by thp ap-mBtifim-nsi -hi .... -'.ibi--:-; mi j ¡/..,,, ...Jlj^vipgie^pmihed alj-'pii'dy^hg.forqi.qf th,e inferential grant or dedicar ti!q^.j.fll,.t|ii?1(}^v|.^i-vis p.ext, enquire,yvlqit are the f^icjs .plisclosed by jtlie lppO^fllinp-fl^oj^tp ,t]i<5, t-ycj essenti^lSj^uqcier the high authorities/just’ q-ijilqtp.(;lj;jl^t,.tlie a^pnt.qf thpopner of .the land; 2d; the accepta^cp and use by tj^ppubljp^pcQr.qiing|p the purposes 0f tlip dedication. Uppn’th’e firstpoint jtjis.^^itiipldiof^-e^o^d^ that simultanepiisly \vi,th the first move on’the part qijlq^p^auth.orities t^wajeejs taldng possession of the land in controversy,' they were warned by the plaintiffs that filie latter claimed.the lanaas'tí¡eÍi- - - - * i was done m filié ^ 'th’áít* filib1! pliiin-iti/h-jj ’U> ii.-dif tiffs, or the authors of tlieir title, bad sold lots bonndéd -by'tihfee' prem- • ises as a public place. ' " ■ w-<. ■- ' -.

Upon tbe second point there is no evidence that defendants ever 'used the premises in contest as. a public highway, the purpose to which their answer alleges that they were dedicated^ On the contrary, the first use made of ’this land was, to lease it to an individual for the purpose of building a market-house, of which the emoluments were received by the lessee during the term of the lease, and subsequently by the corporation as a branch of its revenues. A dedication to public use as a highway was surely not fulfilled by converting this land into a site for a market.

In two cases, David and Livaudais v. Municipality No. Two decided in December, 1853, and not reported, and in The Heirs of Guillotte v. The City of New Orleans, decided in November, 1856, also not reported, it was expressly held that a market-house is not necessarily public property, but maybe the object of individual ownership. It is a place to which the public have free admission for the purpose of purchasing provisions. But the right of selling them is not free to the public, at'large. That right is usually reserved to a limited number, for a rent, paid..

So far from beiiig a -public placo, a market may. be one'.,of the most profitable investments for capital, if we may judge from the market erected on this very land — a market which cost the city, as tire evidence shows, eight thousand dollars,- and is now farmed out by. the city at twelve thousand five hundred dollars a year. ■: ¡.

The original ownership of the land' being established and admitted to have been in the plaintiffs, it was incumbent on defendant to slipw, that such-ownership had been divested. This he has failed to do. ¡ ,T-hp,proof does not makeout either an original grant, or any .act of plaintiffs,-, or of their authors equivalent to a grant, of the locus in quo, for a public highway; neither is the assent of the owner of the land proved, nor. the acceptance and-use by the city for the purposes of the -dedication pleaded by them. - We therefore conclude, - that the evidence is insufficient to show the dedication; and were this otherwise, the city forfeited the same by misuser. - ' ' . ..

Jrrdgment affirmed with costs.

Mebeiok, C. J.,

dissenting.- In the rear .of Faubourg Annunciation,

- 'as laid out by Robin and Livaudais, and forming .the rear, boundary of the six-squares numbered from 91 to 96 .inclusive,, was-a long-avenue '-'marked-on the plan “Cours-des Dryades¿” parallel with-and-not quite -sb'wide as-the avenue'-marked "on the same plan' “Cours des Náyades.” '--These two avenues are tlie'prés'ént Dryad and-Naiad-streets..-.. -,. .

“The'“Coitrs déS'Dryádes” was marked on- the plan' as o'nesingle ''■public place'; that is, it was entirely inclosed by black -lines'' (éxcépt-where '“'ihtersected' by streets)' arid tows of-dbts within'thé'hríés, dóiihtléss'.to indicate trees; *-*'' ' , . , m..irr.iiqrfi-.

At the point where.it crossed Melpomene street it jutted out at right angles so as to have,an additional width of 120 feet the hues and rows of trees still continuing around the offset.

It had substantially this shape:

Four other streets besides Melpomene street, terminatedm tlie “Oours des Dryades” and bounding' the sides of the six squares above named.

Livaudais owned all one side of the centre of Melpomene street, and Robin the other side; and they laid out this avenue as well as the whole faubourg in concert. From an inspection of the plan it seems to mo quite evident that the “ Oours des Dryades ” was one entire thing- embracing everything' enclosed within the lines and rows of dots. The fact that no part of it has been indicated in any other manner nor separated from the rest by any lines or marks of division whatever, and the whole being in the rear where the property was the least valuable, and two squares of ground which were intended for sale being disfigured in order to give les Oours des Dryades its present shape, connected with the fact that the sales were made with reference to this plan, is conclusive proof to my mind that Livaudais and Robin intended all the ground embraced in the figure surrounded by lines and trees or dots to become a loons purlieus, & place common to all the inhabitants.

This faubourg was laid out in 1807. I therefore attach no importance to the claim made by the heirs of the original owners to this portion of “ Oours des Dryades” upwards of forty years after it was laid out.

The property had doubtless all been sold long previous, and they had no further interest in maintaining the integrity of the plan. But when the property was owned by their ancestors the case was different. Their property could not have been sold to advantage without judiciously laying it out into streets, squares, public places, Ac. And by laying out, public places, they rendered the property more valuable in its vicinity. It being' then the interest of the parties to dedicato portions thereof to public uses, and it being impossible for them to sell their lots for buildings and the purposes of a city, without streets, there is no room for the application of the maxim “ Nemo facile presmnitur d07iare.”

It does not appear to me to be just to allow parties wbo have derived all the advantage possible by sales under their plans, to gainsay the same when it is quite evident, that every purchaser in the neighborhood oí this street must have supposed the “ Cours des Dryades ” was precisely what it purported to be on the plan; and those purchasing in the two irregular squares must have supposed they had fronts according to the same.

If the portion now in controversy does not belong to, the public, then no part of Dryad street in this faubourg which has been used more than fifty years belongs to the city, but it is still the properly of the plaintiffs. The argument which proves their right to one hundred and twenty feet proves their right to the whole. Neither is it of any consequence on what part of the entire figure its name was written. It is natural that it should bo mitten where most convenient.

But some weight is placed upon the testimony of Mr. Buisson, the surveyor. This testimony is opposed by that of Mr. Pilié, the surveyor of the city, who says, that previous “to the building of the market the “ space on which it now lies was open free to use. There was no line of “ separation on the plan of Lafon between Dryades street and the space “ occupied by the market” — that “he considered the piece of ground on ‘ ‘ which the market is built as part of Dryades street, and gives as his “ reason that on Dryades street there are points indicating this and the “ line of trees continued all around the piece of ground.” “His opinion “ is that the piece of ground on which the market lies is part of the “ Cours des Dryades and of Melpomene street.”

But if the testimony of Mr. Buisson were not opposed by that of Mr. Pilié, it could not overthrow the original plan which we have before us. Where we have equal means of judging with others, and it is a question of construction, we cannot be controlled by the opinions of surveyors in any question arising under our laws. 16 L. R. 512. Opposed to this opinion of Mr. Buisson, as just observed, is the plan itself: the streets are marked as terminating in this avenue and one Melpomene at a point where the “Cours des Dryades” has its greatest width and that part which the judgment of this Court has given to the plaintiffs.

To each of the acts of deposit made by Robin and Livaudais of their surveys before the notary, is annexed written specifications or conditions called a “prospectus ” to govern the respective rights of vendors and the purchasers. These acts refer to the Levee street and “Cours des Dry-ades,” as I think, (and I use the term on the plan because it means more than street,) as boundaries of the faubourg.

Art. No. 5 in Robin’s act after designating the prices of the front lots says: “those which follow to the ‘Cours des Dryades’ having the same “ superficial quantity (as the preceding, viz, 7200 superficial feet,) should “ be sold at the rate of one hundred dollars each.” Now, here is an express recognition, that squares Nos. 91, 92, 93, 94, 95 and 96, as laid out, were bounded upon this Cours or avenue. Then, in another part of the same act he concedes for several years to the purchasers a common of pasture, and wood upón tlie unoccupied piece of ground “ which is found comprised from le Cours des Dryades to the limits Jean Baptiste Macar ty.”

Livaudais in his “prospectus ” annexed to his act offers for sale all the lots from the “Road which shall be established immediately behind the levee on the bank of the river Mississippi to the place known as the “Cours des Dryades,” either by separate building lots or by squares, the whole according to the plan drawn by Mr. J. Bte. Lafon, engineer, which plan will be deposited with Mr. Pedeselaux ” (the notary).

He also concedes the space from the rear of Dryades street to the Ma-carty plantation for a common, as Robin had done.

Now, what value can be attached to an opinion formed by a surveyor from an inspection of a mail as opposed to the actual recognition by the parties of their dedication to public uses ?

But it is supposed that the designation upon the plan is not sufficient to show that it was intended as a dedication to the public, and certain authorities have been cited to show that such dedication cannot be presumed. The answer to this objection is this: Dryad Street is designated in precisely the same manner as Naiad Street, the name of which instead of being placed in the centre of the street, is mitten entirely on one side, and they are both recognized in the plans as the boundaries of squares, and as wide and important streets or parks, and both are marked with dots no doubt to indicate rows of trees.

The authorities cited so far from sustaining the pretentions of the plaintiff, in my opinion, show clearly that a designation such as has here been made in the plan of this faubourg is a dedication to the public use.

The case of Livaudais v. the Second Municipality has been cited.

In that case Judge Martin said that “there is no evidence of the alleged dedication out of the plan and none in the plan except the word “Coliseum.” In the present case it has been shown that there is evidence both in and out of the plan of a dedication to public use. In the plan, because the squares on Dryad Street would not be squares, and the rear lots would not have any outlet, without the “ Cours des Dryades. ” Out of the plan, because, in the acts of deposit the squares are shown to be bounded by the same, and were so offered for sale, and in the same manner the temporary common was bounded. According then to the authority of the Livaudais case, what was wanting in that case to prove the dedication to public uses, has been established in this.

In the Orleans Cotton Press case, 18 L. R. 122, 244, what was said was in relation to a batture in front of the Faubourg Delord, which Madame Delord retained in her possession, and portions of which she was constantly selling. What was so said must be understood in relation to the subject before the court. Surely that court did not mean to say that a plan in which streets were laid out and named and marked as such and such streets, would be an insufficient dedication to the public use because no explicit words of dedication had been used by the grantor !

The case of McDonough v. Calloway et al. seems to me to be jn'ecisely in point. In that ease tlie Court said: “ The dedication made by theplan, and subsequently reeogniged in sales, is conel/uswe, and must be binding upon the former owner of the ground, the title to a part of which is derived from him by plaintiff, who, in our 'opinion, is clearly entitled to the’ use and enjoyment of the alley or passage now claimed by the defendants as their property. ” 8 Rob. 92.

In the De Armas case, 5 L. R. 519, the Judges delivered opinions seri-atim, and all that is said by Judge Matthews is, that “ Squares or other spaces of land appearing to be left vacant in the- plan of a town or city, are not (in my opinion) in consequence of tMs fact alone, to be considered as public places, and irrevocably dedicated to the use of the whole world. The plan ought to contain something on its face to show their destination and appropriation to such use, in order to imply a promise on the part of the original owner of the soil and founder of the city that they should always remain open for the use of the citizens and the public in general. ” 5 L. R. 219. If Livaudais and Robin did not intend this for the public use, why did they designate it as the Gouts des Dryades in the same manner as they did the Cours des Náyades; and why were lines and continuous rows of trees marked around the entire figure, just as they were on the borders of all the wide streets upon the plan?

In the case of City of Lafayette v. Holland, this Court said: “ It is well settled that no particular form or ceremony is necessary in the dedication to public use.”

This Court thfen cites the case of Rex v. Lloyd, wherein Lord Ellenbor-ough 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 by positive inhibition, he shall be presumed to have dedicated it to the public. 1 Camp. 262. The Court then remarks: “This maybe considered 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 Levee street is exhibited running parallel with the levee, and according to defendant’s statements, but a few feet from it. No specific feet are marked on the plan, as exhibiting its width. On each side, dose to the front of the lots and to the levee, lines are drawn which, seem to represent sidewallcs, 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. ”

The Court concluded by holding all the space between the street and the levee as public. Here full effect was given to the plan, as in the McDonough case.

The doctrine of the Supreme Court of the United States is similar, and not less liberal than our own. In the case of The City of Cincinnati v. White, 6 Peters, 435, that court, distinguishing this class of cases from private grants, where there must be a grantor and grantee, said: “ But that js not the light in which this court has considered such dedications for public use. The law applies to them rules adapted to the nature and circumstances of the case, and to carry into execution the intention and object of the grantor; and to secure Che public Che benefit held out and expected to be derived from and enjoyed by Che dedication.”

In another case, Barclay v. Howell’s Lessee, 6 Peters, 499, it was held, in reference to the plan of the town of Pittsburg, that although Water street was not marked upon the plan as the other streets, yet, as the surveyor had declared that it did extend to the river, and as property was bought and sold in reference to it, and as there were no lines marked on the plan in conflict with it, and 'the public had used it for thirty years, there was sufficient evidence of dedication to the public. See also New Orleans v. The United States, 10 Peters, 662.

In cases like the present, there is still a stronger argument which may be rendered available, and which is shadowed out in the extract from the Cincinnati case, viz., that the parties who have sold by reference to plans are estopped by their conduct, which has induced others to buy upon the faith of their representations, from controverting the same. Wide streets and avenues and open spaces, as already observed, enhance greatly the urban property in their vicinity. It is unjust, then, to permit parties who have by means of such plans, obtained the highest price for their property, and who have for a full value delivered it into other hands, to attempt to defeat the rights of the grantees by \iithbolding from their use that which was known to be an important inducement" to purchase. See Marsh v. Smith, 5 Rob. 523. In such cases, what is taken for streets, markets and public places, is more than paid for iñ the enhanced price of that remaining.

Having thus, as I think, shown that Dryad street was dedicated to the public use, and that the plaintiffs, who sold and offered their property for sale with reference to it, are estopped by their acts from withdrawing any part from the public, I will now consider, in a few words, whether there is any ground for dismembering the “ Cours des Dryades ” as laid out in the plan, or any reason to add to squares 93 and 94 what was purposely excluded by the original grantors.

The term “le cours” is not strictly an appropriate designation for a street. It is quite as appropriate for a place having the shape marked upon the plan as the “ Cours des Dryades ” as it is for a street. Cours is defined to be a “promenade; a ring; a pl:u-('where persons of quality re-, sort to take an airing in their coaches, such as Hyde Park. ” By the Dictionary of the Academy, “An agreeable place, destined or chosen ordinarily near great cities to take airings in carriages.”

It is, then, quite apparent that when this designation was given this place, it was intended it should be surrounded by trees, as shown by the plan and implied by the names “Cours” and “Dryades;” and as the park was narrower than the “ Cours des Náyades,” it was important that it should be enlarged at some points for the convenience of the public.

Again, the plaintiffs recognize in their petition, both Dryad and Melpomene streets. Then it is thus conceded, that Robin and Livaudais dedicated to the public use all that portion marked Cours des Dryades, except the offset near the Melpomene street. We have seen what importance is attached to the lines upon the plans in the Pittsburg case and the McDonough case. Now, Melpomone street by the plan is made to terminate at the Cours des Dryades, ” and if the one hundred and twenty feet claimed, were intended to be private property, then it ought to have been crossed by Melpomene street. But if dedicated to the public use, then it was sufficient to terminate the street where it did terminate.

Again, the offset in the Cours des Dryades left squares 93 and 94, which were also entirely closed by black lines, irregular in shape, yet they were so offered for sale, and sales were, shortly after the plan was executed, made under the same.

Here, then, we have the plan, -which clearly incloses the locus in quo.as apart of (Jours des Dryades; we have the recognition of this public place, a promenade or park, in the acts of deposit or dedication; the squcures are made to conform, to it; streets terminate at its limits, connecting with it; property is sold by it; it has always, as well as the street itself, been open for the public irse, and it was, forty-two years after its dedication to the public use, before any adverse pretentions were made by the original grantors or their descendants, and now, when this property, and property in its vicinity, has become valuable by establishing a market, and more than half a century has elapsed since the original dedication was made, this present action has been instituted.

Again, it is said that the city (if the dedication be conceded) has forfeited its right to’ this portion of the Cours des Dryades by misuser.

The reply to this conclusion is, that this issue is not raised by the pleadings or the proof. The plaintiffs claim in their petition the property as owners who have never parted with it. The defendant, in his answer, alleges that the locus in quo is part of a highway, and a public place, and was so designated in the original plan, and was dedicated to the public use forever. With this issue before us, I am at a loss to understand how the question can be raised as to a forfeiture by misuser. That would require an admission on the part of the plaintiffs that their authors had parted with the ownership, and dedicated the “Cours des Dryades” to public use, which they now deny. Moreover, as the plaintiffs have doubtless long since divested themselves of the ownership of these lots upon Dryad street, they have but little interest in the question as to the mode in which this public place is used.

It is the duty of the city to prevent obstructions to the public streets, but I am not aware of any law which declares the forfeiture of a locus publicus because a market has been erected upon it. The very fact that it is a locus publicus, gives any one interested, as well as the city, the right to cause obstructions to be removed, See Shepherd v. Municipality No. 3, 6 Rob. 349.

Same Case, — On a Re-iiearing.

Buchanan, J.

Per the reasons given in tlie opinion of the Court heretofore read, it is ordered, adjudged and decreed, that the judgment herein pronounced on the 26th March, 1860, remain undisturbed.

Merrick, C. J. I adhere to my former opinion.  