
    
      SEGUR vs. SYNDICS OF ST. MAXENT.
    
    Spring 1811.
    First District.
    Gayoso’s line, pear New Orleans recognised.
    The plaintiff claimed a deduction from the price of a plantation, part of which had been taken by the Spanish government.
    It appeared in evidence that in October 1776. Madam de Mauleon, had sold to Gilbert de St. Maxent, a plantation of seven arpents and eighteen toises, front on the river, bounded on one of the sides by a pallissadoe, which enclosed the city of New-Orleans.
    That in August 1789, St. Maxent sold the premises to the plaintiff for S 72,000.
    That in 1794, the Spanish governor surrounded the city with new fortifications, which in some parts, took in ground which was not covered by the original fortifications, under the French government, while in others, they left out ground, which the old fortifications had occupied.
    That the plaintiff having laid his claim for an indemnification, the Spanish governor, on the 4th of November 1797, had rejected it on the ground, that “ neither the plaintiff nor the persons from whom he held, could have acquired " any right on the ground within the lines of “ the old fortifications, altho’ thro’ error, inat- “ tention, or indulgence they might have been “ suffered to possess it : that, with regard to the “ angles of fort St. Charles, which might ex- “ ceed the old fortifications, the plaintiff could “ not have a better title to an indemnity from “ government : because, in all concessions made “ under the French government, the king had al- “ ways reserved the right of taking out of the lands granted, the ground necessary, for ex-" tending the fortifications of the city : a right " to which the king of Spain had succeeded.”
    That St. Maxent having died in the meanwhile, the plaintiff, in the year 1798, brought a suit against his estate, in order to obtain a decree authorising the plaintiff, to retain out of the part of the purchase money, which still remained due, a sum sufficient to indemnify him, for the ground he had lost.
    That in June, 1800, the Spanish tribunal, ordered a valuation of the land sold by St. Maxent, beyond that sold him by Madam de Mauleon, “ which” says the decree, “did not belong to him, “ and for the possession of which he had no “ title ” No eran suyas, careciendo de titulo que autorisase la detencion en que se hallaba.
    
    That after the valuation, the Spanish tribunal granted to the plaintiff, in February, 1801, as indemnity of S 25,557, the reported value at the time of, sale, of 21 square arpents, covered by the old fortifications.
    That before the final determination of the suit, the officers of the king of Spain discovered a declaration of Villars Dubreuil, made on the 17th of November, 1758, while the premises were selling, at public auction, whereby Dubreuil acknowledged that, “ out of the seven. “ arpents and eighteen toises, which the planta- “ tion was said to contain, there were two ar- “ pents and twelve toises, which belonged to “the king, and that it was only, out of consi- “ deration for Mons. Dubreuil, that the king, “ had consented that he should occupy them, and erect buildings thereon, and that the same were “ selling, and as such would be, in the hands of “ the purchaser, liable to be resumed by the “ king, at the will of his representative, who “ would allow the removal of any building or “ improvement.”
    The following extract of the proces verbal of the sale and adjudication, was read, “ where. “ as the greatest part of the buildings of the “ plantation are erected on a piece of ground, “ which belongs to the king, and which H. M. " has reserved for his use, and is not compre- “ hended, in the said seven arpents and eighteen “ toises, on the river, we have caused it to be “ loudly proclaimed, that it should be lawful, for 
      “ the king, to resume the said ground, belongs “ ing to H. M whenever he may see fit : the " purchaser remaining at liberty to remove every “ building or improvement thereon.”
    That consequence of this declaration, Don Gayoso de Lemos, governor of the province, in the month of November, 1798, resumed this ground, causing a line to be drawn, at the distance of two arpents and twelve toises, in length, from the angle- of the barracks and parallel to the last squares of the city, whereby the plaintiff lost a portion of his land, besides that for which he was indemnified by the decree of the 25th of February, 1801 ; wherefore he brought his claim before the Spanish tribunal, on the 3d of January, 1802, with a view to obtain an indemnification for the land thus taken from him, and which lies between Gayoso’s line, and that of the French fortifications, which is the object of the present suit.
    
      Brown for the defendant.
    The piece of ground, mentioned in Dubreuil’s declaration and the proces-verbal, was only of the extent of two arpents and twelve toises, in superficies ; not of front on tire river, according to Gayoso’s reckoning.
    
    
      Derbigny for the plaintiff.
    In the settlement of this country, lands were reckoned by the extent of their front on the river, with the usual depth of forty acres. Concessions were uniformly granted in that manner.
    The declaration of Dubreuil, under whom, the defendant’s title accrues, “ that out of the “ seven arpents and eighteen toises, which the “ plantation was said to contain, there were two “ arpents and twelve toises, which belonged to. the king,” is conclusive evidence. For Dubreuil makes no distinction, speaks of arpents absolutely, when he describes the extent of the plantation and that of the king’s ground. Verba fortius accipiuntur contra proferentem.
    
    The question, if any doubt was entertained, must have been considered by Gayoso. His decision was not complained of : it cannot be considered as an unauthorised stretch of authority.
   By the Court,

Martin, J. alone.

The land Was bought by St. Muxent, with the reservation of the king's right, to a certain part of it. According to the laws of the country, no suit was necessary to ascertain the royal portion. It was laid off according to the known rule and usage, and the governor’s construction is warranted by the cotemporaneous exposition of the word arpents, in grants and concessions of those days ; if superficial arpents were meant, it would have been necessary to have described the particular spot, with .more accuracy, than by saying, the ground on which the buildings stood. The decision does not appear incorrect, and it was made by the only legitimate authority at the time, tho’ doubtless it was liable to the revision of the sovereign. The parties seem to have been satisfied therewith; and the plaintiff, having lost part of the purchased land, by a legal determination, is entitled to compensation.

Judgment for the Plaintiff.  