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or not to use, according to the dictates of their better judgment. If used, it would be with the benefit of being delivered in a form better suited to the public ear. I passed over the question of jurisdiction, because that was one of ordinary occurrence, and its limitations well ascer. tained. On this, in event, the case was dismissed; the court being of opinion they could not decide a question of title to lands not within their district. My wish had rather been for a full investigation of the merits at the bar, that the public might learn, in that way, that their servants had done nothing but what the laws had authorised and required them to do. Precluded now from this mode of justification, I adopt that of publishing what was meant originally for the private eye of counsel. The apology for its general complexion, more formal than popular, must be found as well in the character of the question, as in the views with which its discussion had been prepared. The necessity, indeed, of continuing the elaborate quotations, is strengthened in the case of ordinary readers, who are supposed to have still less opportunity of turning to the authorities from which these are taken.
The questions arising, being many and independent of each other, ad. mitted not a methodical and luminous arrangement. Proceeding, therefore, in a course of narrative, I have met and discussed the points of law in the order in which events presented them; thus securing, as we go along, the ground we pass over, and leaving nothing adversary or doubtful behind. Hence the mixture of fact and law which will be observed through the whole.
Vouchers for the facts are regularly referred to. These are principally, 1. Affidavits taken and published on the part of the plaintiff, and of the city of New-Orleans, very deeply interested in this question. 2. Printed statements, by the counsel on each side, uncontradicted by the other, of facts under their joint observation and knowledge. 3. Records. 4. No tarial acts, and 5. Letters and reports of public functionaries filed in the office of the department of state.
Feb. 25, 1812.
THE BATTURE AT NEW ORLEANS.
Title of the
Not long after the establishment of the city of New Orleans, and while the religious society of Jesuits retained their standing in France, they obtained from Louis XIV. a grant of lands adjacent to the city, bearing date the 11th of April, 1726. The original of this grant having been destroyed in the fire which consumed a great part of the city in 1794, and no copy of it as yet produced, the extent and character of the grant is known from no authentic document. Its other limits are unimportant, but that next the river and above the city is understood to have been of 20 arpents, or acres, [of 180 French feet, or 64 yards of our measure each,] “face au fleuve,' the ambiguity of which expression is preserved by translating it, 'fronting the river.' Whether this authorized them to go to the water line of the river, or only to the road and levee, is a question of some difficulty, and not of importance enough to arrest our present attention. To these they had added 12 arpents more by purchase from individuals. In 1763 the order of Jesuits was suppressed in France, and their property confiscated. The 32 arpents, before mentioned, were divided into 6 parcels, described each as 'faisant face au fleuve,' and the one next to the city of 7 arpents in breadth, and 50 in depth, was sold to Pradel; but how these 7 arpents, like Falstaff's men in buckram, became 12 in the sale of the widow Pradel to Renard, [Report 7.] 13 in Gravier's inventory, and nearly 17, as is said Derb. viii. ix. in the
extent of his fauxbourg, the plaintiff is called on to show, and
to deduce titles from the crown, regularly down to Fauxbourg.
himself. In 1788, Gravier, in right of his wife the
widow of Renard, laid off the whole extent of his front on the river, whatever it was, into 4 ranges of lots, and in '96 he added 3 ranges more, establishing them as a Fauxbourg, or Suburb to the city. That this could not be done without permission from the government may be true; and no formal and written permission has been produced. Whether such an
one was given and lost in the fire, or was only verbal, is *6 not known. *But that permission was given must be
believed, 1. From Gravier's declaration to Charles Trudeau the surveyor, which must operate as an Estoppel [Report 45.] against all contrary pretensions in those claiming under him. 2. From Carondelet's order to Trudeau, first to deposit a copy of the plan in the public archives, and afterwards an order for a second one to be delivered to himself, which implied necessarily that he had consented to the establishment; but more especially when B. Gravier relying on this establishment as freeing him from the repairs of the bank, the Governor declared it was true and that Gravier was right.' 3. From the records of the Cabildo, or town council, with whom the Governor sat in person, showing that at their sessions on the 1st day of January annually, for regulating the police of the city, a Commissary of police for the new quarter was regularly appointed from the year 1796, till the United States took possession. The actual settlement of the ranges next the river, and the addition of the new ranges, now probably rendered that necessary. From the conviction expressed by the Surveyor that, from his knowledge of the laws and customs of the Spanish colonies, no one would have dared to establish a city, bourg, village or fauxbourg without authorization, verbal at least, from the Governor. 5. From the act of the local legislature incorporating the city of New Orleans. [Thierry 32.] That no formal written act of authorization can be produced is not singular, as that is known to be the condition of a great proportion of their titles from the
government: and the extraordinary negligence in these titles was what rendered it necessary for Congress to establish, in the several territories of Orleans, Mississippi, Louisiana, Indiana and Michigan, boards of Commissioners, to ascertain and commit them to record. To this we may add that the principle which shall take from the inhabitants of the Suburb St. Mary the validity of their establishment, will annul a great portion of the land rights of those several territories. Finally, whatever act of the government may be considered as amounting to evidence of its ratification of the establishment of the fauxbourg, is retrospective, and will amount to an original authorization under the maxim, omnis ratihabitio retrotrahitur, et mandato æquiparatur.'
Bertrand Gravier proceeded to sell the lots of his new Fauxbourg, and particularly he sold the whole range next the river. Such deeds for these lots as have been produced, describe them as “haciendo frente al rio,' ' fronting the river.' And it is affirmed, [Examen 13. Poydras 7. and 18. Thierry 39.] that almost all, if not all the deeds, used the same expression. (See notarial copies of the deeds of B. Gravier to Nicholas Gravier, and of Nicholas Gravier to Escot, Girod, *Wiltz.] Bertrand Gravier himself, on all *7 occasions, [Pieces Probantes 9. 21. 28. 30. Livingston 59. Monile's deposition, MS.] declared that he had sold his lots • faisant face au fleuve,' and had passed to the purchasers his right to the devanture, meaning every thing in front of his lots. Whatever extent then towards the river, passed to the Jesuits by the term 'face au flueve,' or from the king to the purchasers of the Jesuit's property, under whom B. Gravier claimed, the same extent was, by the same expression, ‘face au fleuve,' or • frente al rio,' passed by Bertrand Gravier to the purchasers of the front lots. If the words face au fleuve,' gave him only to the road and levee, he by the same words gave them no farther ; if to the water edge, then he sold to the water edge also, and having parted with all his right as riparian possessor, could transmit none to those claiming under him by subsequent title,
as the plaintiff does. In a note added to the end of the printed Report of this case, whether by the reporter or the plaintiff does not appear, it is said that this objection was answered by showing, from the deeds, that each lot had a clear front boundary, by referring to the 'plan which in no instance crossed the road.' And that this brings it within the rule of law which says, in agris limitatis jus alluvionis locum non habere constat.' Dig. 41. 1. 16. This process of deduction, if not clear, is compendious at least, and better placed in a note, than in the text, where explanation would have been expected. Let us spread it open and examine it. What says the deed to Nicholas Gravier for 58 lots ?
Yo Don Beltran Gravier vendo I Don Beltran Gravier sell to a Don Nicholas Gravier cinquenta Don Nicholas Gravier 58 lots situy ocha terrenos situados en esta ated in this said city without the dicha ciudad, extramuros de la gate of Chapitulas, to wit, 13 frontpuerta de Chapitulas, à saver, ing the river Missisipi, and bordertrece haciendo frente al rio, Mis- ing on the lower side, which is that sisipi, y lindando por el lado de of this said city, with the lot of abaxo, que es de esta dicha ciudad, Don R. Jones, and on the upper con terreno de Don R. Jons, y por side with others of Don J. B. el de arriba con otros de Don J. B. Sarpy, &c.
And the 45 lots reSarpy, &c. Y los quarenta y cinco maining, the complement of the 58 terrenos restantes completa a los before mentioned, commence above cinquenta y ocho, que quedan indi- [or beyond] the limit of the first cados, comenzan sobre el limite de street, forming a right line, beginla primera calle, formande una linea ning at the lot which is behind that directa à empezar por el terreno of Don J. Poydras, in conformity que se halla detras del de Don J. with the plan which having been Poydras, todo conforme al plano delineated by Don C. L. Trudeau, que, delineado por Don C. L. Tru- I have delivered to the purchaser
deau, hé entregado al com for his information and ascertainprador para su inteligencia* ment: Nevertheless, with the con
y resguardo : però con la dition that I reserve to myself the condicion de que me reservo el de- right to take the earth which I shall recho de tomar la tierra que neces need for my manufacture of bricks sitaré para mi fabrica de ladrillos, on the beach or batture which is in