
    No. 2529.
    John Arrowsmith v. The City of New Orleans. Suits Nos. 19,768 and 107 consolidated.
    This suit is brought by the plaintiff to recover from the city of New Orleans certain parcels of ground which it is alleged the city has taken possession of for the use of public street s and highways. The evidence offered on the trial shows that for more than thirty-two years prior to the institution of this suit the plaintiff has enjoyed the lands owned by-him by a regular chain of title, and that during that long period of time he has never set up any claim or ownership to the parcels taken and occupied by the city for the public use, but on the contrary has been content with the limits to which the occupancy of the city had restricted him. That he has sold many of the lots and portions of groun owned with reference to the boundaries and measurement of the streets taken by the city.
    Held — That the plaintiff having adopted the plan of the city for the boundaries and measurement of the lots, and having acquiesced therein for a period of thirty-two years, with a full knowledge of all the facts, he is hound thereby, and from his selling lots with reference to the plan of the city his purpose to dedicate is fairly inferred.
    Held further — That plaintiff can not now recover on the ground that a formal dedication i g not shown.
    from the Sixth District Court, parish of Orleans. Gooley, J.
    
      tT. O. Walker and Semmes clt Mott, for plaintiff and appellant. JET.. D. Ogden and Geo. 8. Laeey, City Attorney, for appellee.
   Taliaferro, J.

The plaintiff complains that the city of New Orleans, acting through its Mayor and Common Council, has in violation of his rights taken possession of aud appropriated to the public use for the purpose of public streets and highways large amounts of his land, the various parcels of which, to the number of seventeen, ho proceeds to designate by the names of the streets, specifying the extent of ground in each street so taken and appropriated, and alleging the value thereof to be one hundred and fifty-five thousand dollars.. This suit was filed in the Sixth District Court on the eighteenth of April, 1867. Subsequently, on the thirteenth of October, 1868, the same plaintiff filed another suit against the same defendant, to recover other-portions of ground alleged to have been illegally taken from him by the defendant and appropriated to public use for the purpose of streets and highways, which he proceeds in like manner to designate to the number of thirty-two parcels of ground, specifying the sections or parts of the various streets in which they lie. The value of the-various lots sued for in the second suit he alleges to be two hundred and sixty thousand four hundred dollars. The two suits were consolidated and tried together in the lower court. The answer denies all and singular the allegations of the plaintiff. The defendant avers-that most of the streets mentioned in the plaintiff’s petition are part of the property formerly belonging to Mrs. de Pontalba and the heirs-of Madame Chalón, who caused plans of the same to be made, dividing it into lots and squares, and laying out the streets mentioned in tlieplaintiff’s petition, thereby dedicating them to public use. The defendant specially denies that the plaintiff acquired title to any part of this-land by the deed to him from Ferdinand D’Hóbócourt, as alleged by plaintiff. There was judgment in the court below in favor of the defendant upon, the whole claim set up by the plaintiff, except the claim in Bienville street and that in Carrollton avenue, and as to those there was judgment of nonsuit. The plaintiff has appealed.

Two bills ot exceptions are found in the record, but it is not necessary in tho decision of this case that wo should consider them.

The controversy in this case arises chiefly from the setting up of title by the plaintiff to the land laid off into squares and lots and sold by Madame Pontalba and the heirs of Madame Chalón. He sets up this claim alleging that the land so disposed of by them makes part of the tract purchased by him from Ferdinand D’Hébécourt in 1833.

The tract bought by the plaintiff from Ferdinand D’Hóbéeourt on the seventh of September, 1833, by act before De Armas, notary, by plan A, is described as having twenty-three arpents, fourteen toises and three feet front on the Metairie road, and running back fourteen arpents. Tho side lines run at right angles to the base line and in a southwardly direction, terminating, as it seems, in a swamp. A rear line, connecting the ends of tho side lines, appears and is designated1 “ ligno nouvellement déterminóe sur les lieux par l’arpenteur gónóral,” and tho land adjacent to and south of this line is marked on the plan “ propriétó ci devant Macarty.” This is the land which was laid off into squares and lots by Madame Pontalba by the plan presented by William Dunbar on the twelfth of December, 1848. The space of ground by that plan extends from the rear line of the land running fourteen arpents in depth from the Metairie road to Common street, and is the same marked on plan A as propriété ci devant Macarty.” The relative location of the land bought by plaintiff from Ferdinand D’Hébócourt and that laid off into squares and lots by Madame Pontalba by Dunbar’s plan is displayed on the map D. Now, southwardly from the rear line of the D’Hóbécourt tract, and at the distance, it would seem, of near a mile and a half, is the line of the Macarty plantation. The position assumed by the plaintiff, as we understand his petition, is that the sale to him by Ferdinand D’Hébécourt was a sale per aversionem and entitled him to all the land that would be inclosed by extending the side lines of the D’Hóbócourt tract from their termination at the depth of fourteen arpents from the Metairie road to the line of the Macarty plantation, thus asserting title to the land appropriated for streets by Madame Pontalba in the plan by which her property was sold by squares and lots. As this claim of the plaintiff constitutes, with a trivial exception, the whole case, it will be necessary to trace, to a considerable extent, the titles to these two parcels of land and note the developments that may arise. We learn from the record then'that the land purchased by the plaintiff from D’Hóbécourt is part of a body of Luid acquired by Joseph Desruisseaux in part, by grant from the French Government on the tenth of August, 1750, and partly by purchase from Joseph Girardey and Mrs. Jeanne Henry on the first of September', 1750. At tlio death of Joseph Desruisseaux the land passed by inheritance to his daughter Elizabeth, wife of Chalón. At her decease, her heirs sold that portion . of this body of land, that tho plaintiff subsequently purchased, to Francois D’Hébécourt by deed before Pedesclaux, notary, on the twenty fourth of July, 1820. Tlio heirs of Fraugois D’Hóbécourt sold to Ferdinand D’Hébécourt on the seventh of September, 1803, and on the same dajr he sold the property to the plaintiff. On tlio other hand, the title to the Pontalba tract commences from the concession by the French Government on the tenth of May, 1758. The land conceded is described as the portion of vacant land between the boundary line of Desruisseaux and that of the Reverend Jesuit Fathers.” Tho Des‘ruisseaux acquired this land in the year 3774 by purchase from Magdelaine Brazelier. It is clear that this tract is entirely a different property from that sold to Arrowsmith, derived from a different grant hnd never sold or transferred as making any portion of the laud purchased by Arrowsmith from Ferdinand D’Hóbécourt. A claim was'set up to the Pontalba tract by several claimants under a title derived from Mrs. Elenore Macarty in 1831, who purchased from Barthelemy Macarty in 182G. The land seems to have been held under this title iu portions by the Canal Bank, Copeland and John Slidell.

Mrs. Pontalba, as heir of her lather M. L. Ahnonaster, sot up title to this tract through the Desruisseaux, and the heirs of Desruisseaux also claimed it. Between them and Madame Pontalba a compromise was effected, and combining, they made common cause in attacking the title set up under tho Macarty’s. In this contest filioy were successful. That suit established the location of the “ ci dovant Macarty property.” It established clearly that Arrowsmith’s title refers only to the concession by the Marquis do Yaudreuil and the piirchase from the Girardey in 1750.

Tho plaintiff introduced iu evidence several sales of property in support of his claim to the great extent he contends for. In the sale to Jason the extent from Metairie is fourteen arponts in depth. In this sale, as well as in those to Miro, Zamora and Fouvcrgne, the lands are described as bounded south “by Macarty.” This clearly refers to the propriétó ci devant Macarty, and the sale from Macarty to Macarty, it is clear, is the same property which is displayed on map D as Madame Pontalba’s. The mortgage of Madame Desruisseaux, also introduced in. evidence by the plaintiff, is against liis pretensions. The property mortgaged is “a plantation situate on the Bayou St. John, measuring fourteen arponts front and thirty arponts in depth, bounded on one side by tho Metairie road and on tho other by the lands of J. B. Macarty.

Wo find that tho prior sales of the land Arrow-smith purchased from Ferdinand D’Hobecourb were all made with the same specification of extent, to wit: Twenty-three arpents fourteen toiscs and three feet front on the Metairie road, with fourteen arpents in depth. Each successive iransfor of the property from that of July 24, 1820, by the heirs of Elizabeth Desruisseaux to Francois D’ílébécourt down to that made to plaintiff in 1883 contains the same expression of extent.

The plaintiff caused a plan of the property to be made in 1834, by which he proposed to sell lots. This plan, of which tho map B is a copy, represents tho land as having a depth of fourteen arpents. It is in proof that by this plan lie sold a .number of lots beiore Louis Ferrand, notary. It is further shown that in January, 1835, he deposited in the office of Cuvollior, notary, another plan made by J. N. De Fouilly, dividing tho ground into squares and lots with the streets marked, and which is known as Faubourg Jackson.” This plan also retains the same description, twenty-three arpents fourteen toises and three feet front on the Metairie road by fourteen arpents of depth. The plaintiff caused ihe greater part of tho lots displayed by this plan to bo sold on tho twelfth of January, 1835, by Fernandez and Whitney, auctioneers. This plan of Pouilly proved to be incorrect, in not having the baso lino along the Metairie road properly run. From this cause it seems the streets in their extension could not be made to conform to their original course in continuous straight lines, a condition required by the City Council as precedent to an acceptance on its part of plans for extension of tho city by the laying off of building- lots and the dedication of public streets. This error was afterward corrected, as shown by map or plan E, which it seems tho plaintiff caused to he made in November, 1853, and deposited in the office of A. Ducatel, notary public. It is shown that this plan was made to correspond with the boundaries fixed by tho judgment rendered in the suit between Madame Font-alba and the heirs of Desruisseaux, plaintiff, against Copeland and others to which wo have referred. In this plan tho same extent of fourteen aipents from the Metairie ridge is given, showing that to be tho recognized extent of tho plaintiff’s laud acquired from Ferdinand D’ílébóbourfc, aud that that tract, at tho extent of fourteen arpents from tho ridge, joined what was known as the Copeland, line or the tract called after tho termination of tho lawsuit by which those holding- under tho Macarty title lost their claims, “ propriety ci devant Macarty.” In his sale to ilisington tho plaintiff described a lot of ground as bounded to the extent of two bunded feet by the line which separates it from Copeland’s property. It is shown that tho plaintiff caused to be sold at public auction by Beard & May, auctioneers, on tlie twenty-fourth of November, 1853, a large number of lots according to the plan last named, made by Hadden & Skarbourn, surveyors, and deposited in tlie office of the notary Ducatel.

The sale by D’Ilébécourt to the plaintiff is clearly not a sale por aversionein. It does not by specified but unmeasured boundaries indicate a certain area or extent of land without reference to quantity; but, by measured lines it indicates a specific quantity, and the purchaser gets neither more nor less than that quantity. The pretensions of the plaintiff to. a greater quantity of land than is contained within the measured lines of his survey have no foundation. It is made clear that prior to the institution of this suit in 1867 he has never claimed more than fourteen arpents from the Metairie ridge. For the period of thirty-two years before instituting this suit he has been content with those limits, and to them he must be restricted. The plaintiff holds that as his plan, made by Pouilly, was rejected by the City Council, the dedication proposed by him of ground for streets and public highways never took effect through failure of the city to accept it. The plan of the “Faubourg Jackson” was by resolution of tlie City Council of twenty"-seventh December 1834, approved, “ provided the streets therein designated be in exact continuation of the streets of the city.” This plan, as we understand it, was amended so as to conform to the condition expressed in the resolution, and that the lots sold in 1835 and ever since by that plan have been located in conformity with it. The plaintiff, however, contends that, as the alteration of the Pouilly plan changed the exact location of the streets as proposed by him, the portions of ground occupied by streets are not the identical portions which he intended to dedicate, and that his offer to dedicate should have been positively accepted, and in accordance with the terms in which it was made.

It is manifest from the evidence in the record that the plaintiff sold the greater part of his lots in 1835, and Ms acts of sale refer to the plan, and have been located according to the conditions imposed by the City Council. The purchasers have accepted the location, and the plaintiff has never objected. He has acquiesced in this respect for thirty-two years with full knowledge of the facts, and by adopting the changed location by the act of selling' lots in accordance with it. We think the purpose to dedicate may in this case be fairly inferred.

We deem ib unnecessary to pass on the plea of prescription made by the defendant. The judge a quo dismissed as of nonsuit the claim of plaintiff, based upon the widening of Bienville street and Carrollton avenue. We find no satisfactory evidence in support of this special claim, but we confirm the judgment in its entirety.

It is therefore ordered, adjudged and decreed that the judgment of the district court be.affirmed with costs.  