Carrere v. City of New Orleans

• Citation: 162 La. 981,111 So. 393
• Decision Date: 05 October 1926
• Docket Number: 27592
• Court: Supreme Court of Louisiana
• Parties: CARRERE v. CITY OF NEW ORLEANS

111 So. 393

162 La. 981

CARRERE v. CITY OF NEW ORLEANS

No. 27592

Supreme Court of Louisiana

October 5, 1926

Rehearing Denied January 3, 1927

T Semmes Walmsley and B. I. Cohn, City Attys., Francis P Burns, Asst. City Atty., all of New Orleans (W. Catesby Jones, of New Orleans, of counsel), for appellant.

McCloskey & Benedict, of New Orleans, for appellee.

ST. PAUL, J., dissents.

OPINION

O'NIELL, C. J.

This is a petitory action to recover two squares of ground in New Orleans. The civil district court gave judgment for the plaintiff. The defendant, city of New Orleans, took this appeal.

The squares are designated as No. 490 and 491 on the official maps of the city. They are bounded on their north side by White street and south by Broad street, and are separated by Thalia street; square No. 490 being bounded on its west side by Melpomene street and east by Thalia, and square No. 491 being bounded on its west side by Thalia and east by Erato street. The land was, until recently, in a swamp, in the rear of the city, and is not very valuable, but, as the attorneys for the city say in the opening sentence in their brief, the questions to be decided are of 'tremendous importance,' because the decision in this case will affect the title to other property of great value. This other property, referred to, the title to which is beclouded by the city's claim, is and has been for many years claimed by numerous individuals as private property, and is in part occupied by several mills and important manufacturing establishments.

The city claims a triangular tract of land, under a bequest to the city of New Orleans and the city of Baltimore, jointly, by the will of John McDonogh, who died in October, 1850, and whose claim was confirmed to his executors by an act of Congress on the 7th of June, 1858. U. S. Stat. at Large, vol. 11, c. 119, p. 545.

The city claims title also by the prescription of 10 and 30 years; but, aside from these pleas of prescription, which will be considered hereafter in this opinion, the city has no claim or pretension for more than a fourth interest in the land, because the city conveyed to one John L. Daniel, by notarial act, of date the 6th of June, 1859, a half of the city's claim to a half interest in the land, in consideration for services rendered by Daniel in procuring from Congress the act of confirmation; all of which was admitted by the city of New Orleans and decreed by this court in a suit brought by the city of Baltimore against the city of New Orleans and the heirs of Daniel for a partition of the triangular tract containing 177 1/3 arpents, in 1867. See City of Baltimore v. City of New Orleans, 45 La.Ann. 526, 12 So. 878. Thereafter, in a petitory action brought by the city of New Orleans and the city of Baltimore and the transferees of John L. Daniel, against the Salmen Brick & Lumber Company, to recover six other squares of ground in this triangle, the plaintiffs claimed joint ownership in these proportions, viz.: City of New Orleans, 1/4; City of Baltimore, 1/2; the widow and heirs of Jules Denis, 7/96; Mrs. Emily Daniel Seixas, 1/32; the succession of Juhn Buckingham, represented by C. P. Cordill, administrator, 1/24; the succession of L. W. Desharoon, represented by C. P. Cordill, administrator, 1/24; and Mrs. Virginia Steele Hamilton, 1/16. In that suit, we sustained a plea of prescription of ten years set up by the defendant against the claims of the two cities and the coplaintiffs for the six squares of ground. City of New Orleans et al. v. Salmen Brick & Lumber Co., 135 La. 828, 66 So. 237.

There is no dispute about the location of this triangular tract which McConogh laid claim to, and which he bequeathed to the cities of New Orleans and Baltimore. The base of the triangle rests exactly on the north line of Broad street, and extends from the west side of Washington avenue to Melpomene street, and continues straight eastward to a point and near the center of Erato street. The base of the triangle, according to the surveys, appears to be 1,492 feet 11 inches in length, measured from the northwest corner of the intersection of Washington avenue and Broad street, eastward, to the southeast corner of the triangle; the point being in and near the center of Erato Street. The apex of the triangle is about 49 1/3 arpents northward from its base, and at a point 50 feet southeastward from the southeast corner of the intersection of Monroe street and Pear street. The triangle has a sharp point as its apex, the angle being only 5deg. 56' 11''. It is formed by continuing northward, entirely across a tract known as the Macarty grant, the converging side lines of the Livaudais tract, lying immediately south of and adjoining the Macarty grant, until the continuations of these converging side lines northward meet.

The plaintiff traces his title to the Macarty grant. The city of New Orleans traces her title to the Livaudais grant. The two grants were confirmed by the same act of Congress, the Act of February 28, 1823 (U. S. Stat. at L. vol. 3, c. 15, p. 727). The Livaudais grant was for a tract of land fronting on the Mississippi river and extending northward between converging lines, supposed to be 80 arpents in depth, but in fact extending back only to the dividing line between it and the Macarty grant. According to all of the many official surveys and resurveys, made by the United States deputy surveyors and by the city engineers, both before and after the Macarty and Livaudais grants were confirmed, the dividing line between them was what it now the north line of Broad street, which is the south boundary of the two squares in contest. In other words, the two squares are on the north side, and therefore on the Macarty side, of what was the dividing line between the Macarty grant and the Livaudais grant. That statement ought to decide the case in favor of the plaintiff, because he traces his title to the Macarty grant, and the city traces her title to the Livaudais grant.

The attorneys for the city advance two separate and distinct theories in support of the city's claim. Their first contention is that the converging side lines of the Livaudais grant should have been extended northward entirely across the Macarty grant, so as to include in the Livaudais grant the triangle now in dispute, which was not confirmed to Livaudais by the act of Congress of February 28, 1823. The second or alternative theory of the attorneys for the city is that the dividing line between the Macarty grant and the Livaudais grant should have been located about five squares further back, northward, from the river. They contend that the United States deputy surveyors should have placed the dividing line between the Macarty grant and the Livaudais grant exactly 80 arpents back from the river, and parallel with the front line of the Livaudais tract. According to all of the government surveys and maps, the dividing line between the Macarty grant and the Livaudais grant was originally established less than 80 arpents back from the river. There was no reason for placing the line exactly 80 arpents from the river. The southern boundary line of the Macarty tract extended very far, eastward and westward, beyond the side lines of the Livaudais tract, and was the rear or northern boundary of several other land grants or sections, fronting on the river and extending northward between converging side lines to the Macarty grant. All of the land grants fronting on the Mississippi river in that locality had their side lines converging as they extended northward -- the reason being that New Orleans is the Crescent City -- and none of these grants had a depth of 80 arpents. There are eleven such grants, adjoining each other, of which one is the Livaudais grant, all fronting on the river, as shown on the government survey made by George Dougherty, deputy surveyor, under contract of March 7 and May 1, 1836, and approved by the surveyor general on the 4th of June, 1836; and the converging side lines of all of these grants extended northward only to the Macarty grant, less than 80 arpents from the river. According to that survey, which conforms with all other government surveys, the eastern side line of the Livaudais grant was 200.64 chains, or about 68 arpents, and the western side line was 191.56 chains, or about 66 arpents, in length, measured from the first street along the river bank, northward to the Macarty grant. As we have said, the rear boundary line of the Livaudais tract, as thus located, one end of which line was 200.64 chains and the other end of which was 191.56 chains from the river, is now the north line of Broad street, which is the south boundary of the two squares in contest.

The fact that the location of this dividing line between the Macarty grant and the Livaudais grant coincides exactly with the north line of Broad street might seem to be an astonishing coincidence, but it is easily explained. Mrs. J F. E. Livaudais sold the Livaudais tract, on the 24th of February, 1832, to four speculators, namely, Morgan, Peters, Pierce and Chase, and they laid off the tract in a suburb of city squares and streets, calling the front portion, extending from the river back to Howard street, 'Faubourg Livaudais'; and, naturally, the last street in the rear of the subdivision, which is now Broad street, had for its northern boundary the northern boundary line of the Livaudais tract. Having sold all of the lots in the Faubourg Livaudais, between Howard street and the river, Messrs. Morgan, Peters, Pierce and Chase sold the remaining lots in the Livaudais tract, extending from Howard street back to Broad street, to John McDonogh, on the 10th of February, 1836, and the cities of New Orleans and Baltimore sold off all of these lots...