The Mayor, Aldermen and Inhabitants of New Orleans, Appellants v. the United States

• Decision Date: 01 January 1836
• Citation: 10 Pet. 662,35 U.S. 662,9 L.Ed. 573
• Parties: THE MAYOR, ALDERMEN AND INHABITANTS OF NEW ORLEANS, APPELLANTS. v. THE UNITED STATES
• Court: U.S. Supreme Court

35 U.S. 662

10 Pet. 662

9 L.Ed. 573

THE MAYOR, ALDERMEN AND INHABITANTS OF NEW

ORLEANS, APPELLANTS.

v. THE UNITED STATES.

January Term, 1836

APPEAL from the district court of the United States for east Louisiana.

On the 3rd day of March 1825, the attorney of the United States for the eastern district of Louisiana, filed a petition in the district court, stating that the mayor of the city of New Orleans, in pursuance of an ordinance of the city council thereof to that effect, had advertised for sale in lots, the vacant land included between Ursuline, Levee and Garrison streets, and the public road in the city of New Orleans; and also the vacant land included between the customhouse, Levee and Bienville streets, and the public road in the same city.

That by the treaty of cession of the late province of Louisiana to the United States, they succeeded to all the antecedent rights of France and Spain, as they then were in and over the province, the dominion and possession thereof, including all lands which were not private property; and that the dominion and possession of the vacant lands endeavoured to be sold by the city council had, ever since the discovery and occupation of the province by France, remained vested in the sovereign, and had not, at any time prior to the date of the treaty, been granted to the city of New Orleans.

'Wherefore, inasmuch as the said attempt of the said city council to sell the lands as private property, is an invasion of the rightful dominion and possession of the United States in the premises,' the petition prays that the mayor, aldermen and inhabitants of New Orleans may be summoned to appear and answer the petition; and in the meanwhile that they may be inhibited by injunction from proceeding further in the said attempt or from doing any act to invade the rightful dominion and possession of the United States in the said land; and that after due proceeding the injunction be made perpetual; and also for all other suitable and needful relief.

The district judge ordered an injunction, according to the prayer of the petition. In December 1827, the corporation of New Orleans filed an answer to the petition of the United States, which, after the usual reservations, denied all the material facts and allegations in the petition; and positively denied that the dominion and possession of the pretended vacant land, which the respondents had offered to sell, by an ordinance of the city council, 'was, or did (at the time of the treaty of cession to the United States) remain, vested in either the king of Spain or the sovereign of France, either as vacant land, or under any other denomination, and that the same passed as such to the United States.'

The answer prayed that the petition should be dismissed, and the injunction dissolved.

In December 1829, the corporation of New Orleans filed a supplemental answer to the petition of the district attorney of the United States; in which they ask leave to add the following pleas to those contained in their original answer. They say that the inhabitants of the city of New Orleans are the true and lawful proprietors of the property.

1. Because all the space of ground which exists between the front line of the houses of the city and the river Mississippi, was left by the king of France, under the name of quays, for the use and benefit of the said inhabitants; as appears by authentic copies of the original plans of the foundation of the city.

2. Because if since the foundation of the city of New Orleans the space became wider than was necessary for public use, and for the quays of the city; it was in consequence of an increase formed by alluvion in the greatest part of the front of the city, and the works which were successively made, from time immemorial, by the inhabitants of the city at their expense, to the levee in front thereof, to advance it nearer to the river than it was formerly.

3. Because, by the laws of Spain which were in force at the time the alluvions were formed, and said works were made, alluvions formed by rivers in front of cities belonged to the inhabitants thereof; who may dispose of the same as they think convenient, on their leaving what is necessary for the public use.

Further they say, the vacant lots claimed in the petition are worth the sum of at least sixty thousand dollars, of the property and disposal of which the respondents cannot be deprived, unless they were previously indemnified therefor by the government of the United States.

The United States, in December 1830, filed a replication to these pleas, denying all the allegations contained in the answer, and the supplemental answer to the petition.

The case was afterwards submitted to a jury; but on the jury not being able to agree, they were discharged by the court, with the consent of the parties. Afterwards, the trial by jury being waived by consent, the case was submitted to the court upon statements of facts prepared by the parties; and on the 18th day of June 1831, the district court made a decree in favour of the United States, being of 'opinion that the defendants had not exhibited sufficient evidence to support their title to the premises in dispute;' and decreed, that the injunction of the United States be made perpetual.

The corporation of New Orleans prosecuted an appeal to this court.

The statement of facts exhibited, as proved by the United States, contained:

1. A reference to proceedings before the commissioners of the United States, under the acts of congress relating to the adjusting of land claims in Louisiana, relative to certain claims of lands within the property asserted to belong to the corporation of New Orleans; which claims had afterwards been confirmed by congress.

2. A grant for a part of the land to Francisco Loiteau. The particulars of the claims, referred to in No. 1, and of the grant to Loiteau, are stated in the opinion of the court.

3. Evidence that on the ground the United States, in 1819, erected a building for a customhouse, in which the courts of the United States are held: that previous to 1793, the Spanish government had erected on part of the ground two buildings; one used as a customhouse, at the time of the cession; the other as a tobacco warehouse: that a portion of a brick house still existed on the lot granted to Francisco Loiteau: that the corporation had erected water-works on part of the ground, which are rented to individuals: barracks for the accommodation of the garrison of New Orleans were placed on the ground by the French government in 1757, which existed and were occupied at the time of the cession.

4. An act of congress of 1812, granting to the city of New Orleans a lot of ground in the city: an act of 3d March 1822, entitled 'an act supplemental to an act entitled an act authorizing the disposal of certain lots of ground in the city of New Orleans and town of Mobile,' which was alleged to have been passed at the instance of the corporation of New Orleans.

5. A copy of proceedings before the commissioners of the United States on certain claims of the corporation of New Orleans relative to part of the ground.

6. An ordinance of Don Alexander O'Reilly, dated the 22d February 1770. This decree designates the city properties 'of the city of New Orleans,' but does not include in the same the property in controversy.

7. The mayor, aldermen and inhabitants derive a large revenue from duties imposed on vessels and boats moored at the Levee, in front of the city of New Orleans. It amounted, during the year 1830, to 30,000 dollars. And a duty has always been collected by the municipal authorities of New Orleans, on vessels moored at the Levee, since the promulgation of the ordinance of O'Reilly, above referred to.

On the part of the corporation of New Orleans, the following statement of facts, and also the documents annexed to the same, were filed in the cause:

1. From time immemorial, both before and subsequently to the cession of Louisiana to Spain, there has existed, for the convenience of commerce, both in the towns of France and in those of the French colonies, situated on navigable streams or on the sea-shore, a vacant space between the first row of buildings and the water's edge; which vacant space is generally termed a quay, and is destined for the reception of goods and merchandize imported or to be exported. These quays are of various dimensions, regulated in seaports by commercial operations and convenience, and in those situated on rivers, both by the above considerations and by that of the encroachments which the rivers may make on their banks.

2. Nevertheless, the government, or municipal authorities of those places, frequently permit buildings, intended for purposes of public or private convenience, such as market-houses, fountains, baths, coffee-houses, &c., &c., to be erected on part of those quays.

3. Towns in the French colonies have never been incorporated, like those of the United States; they are founded in virtue of orders emanating from the government, or from the minister of the marine, and transmitted to the governors of the colonies; and their administration was confided to intendants, who had authority to enact the necessary police regulations.

4. The governors of colonies, on receiving these instructions, issued their orders to the chief engineer of the colony, or, in default of such officers, to a surveyor, to draft a plan of the projected town. This engineer, or surveyor, drafted the plan and signed it, with mention of the place and day, month and year, when it was completed. This plan, thus signed and dated, was delivered over to the governor and lots and squares were granted or sold out to individuals, with reference to it.

59 The chief engineer was an officer of the royal corps of engineers, and performed the duties both of military and civil engineer.

6. For a number of years before the revolution, there has existed in France, an office attached to the navy...