Smyth v. New Orleans Canal & Banking Co.

• Decision Date: 14 March 1899
• Docket Number: 676.
• Citation: 93 F. 899
• Parties: SMYTH v. NEW ORLEANS CANAL & BANKING CO. et al.
• Court: U.S. Court of Appeals — Fifth Circuit

93 F. 899

SMYTH v. NEW ORLEANS CANAL & BANKING CO. et al.

No. 676.

United States Court of Appeals, Fifth Circuit.

March 14, 1899

J. R Beckwith, J. Ward Gurley, and D. C. Mellen, for plaintiff in error.

J. L Bradford and Branch K. Miller, for defendant in error New Orleans & Canal Banking Co.

J. P Blair and Geo. Denegre, for defendant in error New Orleans City & Lake Ry. Co.

Girault Farrar and Gustave Lemle, for defendants in error Illinois Cent. R. Co. and Yazoo & M.V.R. Co.

Before PARDEE, Circuit Judge, and BOARMAN and SWAYNE, District Judges.

SWAYNE District Judge.

The plaintiff in error, Andrew W. Smyth, who was the plaintiff below, brings this cause here upon a writ of error from the circuit court of the United States for the Eastern district of Louisiana, to recover certain real estate situate in said district.

The petition avers that said plaintiff is the lawful owner of lands in township 12 S., range 11 E., Southeastern land district of Louisiana, east of the Mississippi river, describing it as follows: Sections 8, 15 and 17; lots, 1, 2, 3, 4, 5, 6, 7, 8, 9, and 10, in section 20; sections 22, 25, and 28; lots 6, 7, 8, 9, 10, and 11, in section 29; and sections 30, 31, 32, and 33,--alleged to contain in the aggregate 2,295 acres; also lots 11 and 12, in section 20, and lots 1, 2, 3, and 4, in section 29, alleged to contain 19,659 acres more; the total amount being 2,357.87 acres. And the petition further avers that the New Orleans Canal & Banking Company (now the Canal Bank) claims to have had title to nearly all of said lands under pretended copies of alleged concessions made by French authority to Louis C. Le Breton on October 6, 1757, and on February 15, 1764, and has from time to time sold the certain designated portions to the other defendants named in the petition,-- the Metairie Cemetery Association, the New Orleans City & Lake Railroad Company, the Illinois Central Railroad Company, the Louisville, New Orleans & Texas Railroad Company, and George L. Bright, who are wrongfully in possession, and claiming the designated respective portions of said land under and by virtue of purchases made by them from the New Orleans Canal & Banking Company, which last-named company is wrongfully in possession of most, if not all, of the other portions of said land. And the petition proceeds to aver that these lands are within and a part of the province of the territory of Louisiana which passed to the United States of America under and by virtue of the treaty of Paris on the 30th day of April, 1803, between the French republic and the United States of America; that by the acts of congress approved March 2, 1849, and September 28, 1850, said lands were granted, selected, and duly listed to the state of Louisiana; that on the 22d day of June, 1872, an official survey of the said lands was approved by the surveyor general of the United States, and the said lands were subsequently listed as swamp lands, inuring to the state of Louisiana in accordance with the said acts of congress; that on the 11th day of July, 1873, the plaintiff acquired the said lands by purchase from the state of Louisiana, and subsequently, on the 5th day of January, 1882, plaintiff located, under acts of congress of May 20, 1826, indemnity school warrant No. 3,778, N.S.D., on lots 11 and 12 of section 20, and lots 1, 2, 3, and 4 of section 29, and received certificate of purchase No. 1,230, N.S.D., and patents Nos. 1,873, 1,889, and 1,890, issued by the state of Louisiana, and also state warrant and certificate of location, dated January 5, 1882, from the United States land office at New Orleans; that the patents so issued to the plaintiff covered 1,494.85 acres of said lands, and the patents for the remainder of said lands were withheld by decision of the land department of the United States on the 9th day of November, 1887, until the validity of said alleged French grants set up by the defendants should be determined. The petition then proceeds to aver that if the said pretended French grants ever existed, which is denied, they were incomplete, invalid, and of no force or effect under and by virtue of the treaties made between this and the French government, and that the defendants have no rights under said alleged grants, nor any title emanating therefrom. The instant suit, as set forth in the petition, is against the following defendants, and for the following lands; (1) The Canal Bank, for sections 8, 15, 17, and lots 1, 2, 3, 4, 5, 6, 7, 8, 9, and 10 of section 20; sections 22, 25, and 28, and lots 6, 7, 8, 9, 10, and 11 of section 29; sections 30, 31, 32, and 33; or for such portions thereof as were not alleged to be in the possession of the other defendants, viz.: (2) The Metairie Cemetery Association, for 'a portion of sections 20 and 29.' (3) The New Orleans City & Lake Railroad Company, for 'portions of sections 8, 17, and 20.' (4) The Illinois Central Railroad Company, for 'lot 2 of section 33, and portions of sections 29, 30, and 32.' (5) The Louisville, New Orleans & Texas Railroad Company, for 'portions of sections 31 and 32.' (6) George L. Bright, for 'portions of lots 1, 2, 3, and 4 of section 29. ' The petition further avers that the dispute between the plaintiff and defendants, relative to the validity of plaintiff's title to said land, arises under the constitution and laws of the United States and the French republic, and the interpretation of the laws of the United States and the treaties made under authority thereof, and the plaintiff's title to the said lands is necessarily involved in the determination of the issues in the case; that the defendants are without title to said lands, or any part thereof; that all claims set up thereto by them are illegal, null, and void, and operate as a cloud on petitioner's title, and cause him great damage, loss, and injury; and the plaintiff prays for a judgment, recognizing the validity of his title, and canceling all the alleged claims of defendants, and condemning them to deliver possession of the lands to the plaintiff.

The answer of the New Orleans Canal & Banking Company, after pleading the general issue, set up the validity of the two grants of the French government attacked by the plaintiff. In detail it set out the history of its title. It declared that in the year 1732, one De La Freniere petitioned Bienville and Salmon, then respective governor and commissary director of the province of Louisiana, and the proper authorities of the king of France in the colony, for the grant of a 'vacherie,' or large extent of land along Bayou De La Metairie, having about 53 or 54 arpents thereon, and extending in depth about 50 arpents to the shore of Lake Pontchartrain; that this petition was granted on or about October 25, 1738, on condition that part of the land petitioned for, being that towards the west, having 12 arpents front on the bayou, should belong to the succession of one Beaulieu; that the applicant, De La Freniere, then owned a plantation on the Mississippi river of the usual depth of 40 arpents, and that the object of his application was manifestly to obtain land in its rear for the purpose of pasturing; that it originally had acquired and held in good faith nearly all the land in controversy, under two complete, valid France grants, made to Louis C. Le Breton, one October 6, 1757, the other February 15, 1764; that the grant of 1764 was a confirmation of a grant of the same land, made in 1738, to one De La Freniere, of the Vacherie tract proper, having 53 or 54 arpents in width east and west, and 60 arpents in depth north and south, extending to Lake Pontchartrain; that the grant of 1764 was also a regrant or confirmation of the grant of 1757, which included the triangular tract in the rear of the plantations on the river, and extending in depth to the southern limits of the Vacherie tract; that these were public, notorious grants, duly severed from the domain of France and Spain, respected by the public colonial authorities of both those governments, and made the bases of many sales and transfers by or before some of them, the chief of which sales, etc., constituting the chain of title in the bank, are minutely set forth; that the survey of such lands by Sulakowski as public lands of the United States was 'utterly erroneous and illegal ab initio,' and had been, in appropriate proceedings, taken contradictorily with the state of Louisiana and plaintiff, so held by the interior department of the United States, and said survey annulled and set aside, and said grants by said authority duly surveyed and located; that said lands were not swamp and overflowed, but chiefly high and fit for cultivation; that canals, shell roads, racetracks, cemeteries, riding parks, etc., covered much of them; that said lands were not lands of the United States, swamp or high, when the swamp-land grants to the state were made in 1849 and 1850, and hence did not pass to the state under said grants; that if they did so pass, or any part thereof, the alleged sales to plaintiff of the same as tidal overflow lands, at 25 cents per acre, were null and void; that the selection of said lands as swamp land, inuring to the state under said grants of 1849 and 1850, had all been canceled and annulled by the secretary of the interior; that as to lots 11 and 12 of section 20, and lots 1, 2, 3, and 4 of section 29 (the Metairie race course and cemetery tract, containing 196.59 acres), the pretended location thereon of a school warrant was void, and had been so declared by the secretary on valid grounds, etc. Finally, the answer pleaded the prescriptions of 10 and 30 years, supported by 150 years' peaceable possession under just titles, etc., by the bank and its authors and vendees.

The bank, by first...