The Mayor, Aldermen and Inhabitants of the City of New Orleans, Plaintiffs In Error v. Christoval De Armas, and Manuel Simon Cucullu

• Decision Date: 01 January 1835
• Citation: 9 L.Ed. 109,9 Pet. 224,34 U.S. 224
• Parties: THE MAYOR, ALDERMEN, AND INHABITANTS OF THE CITY OF NEW ORLEANS, PLAINTIFFS IN ERROR v. CHRISTOVAL G. DE ARMAS, AND MANUEL SIMON CUCULLU
• Court: U.S. Supreme Court

34 U.S. 224

9 Pet. 224

9 L.Ed. 109

THE MAYOR, ALDERMEN, AND INHABITANTS OF THE CITY OF NEW

ORLEANS, PLAINTIFFS IN ERROR

v. CHRISTOVAL G. DE ARMAS, AND MANUEL SIMON CUCULLU.

January Term, 1835

Page 255

IN error to the supreme court of Louisiana.

The defendants in error commenced a petitory action, by filing a petition in the first district court, in and for the first judicial district of the state of Louisiana, claiming to be the owners of a lot of ground in the city of New Orleans; eighty feet front, and close to the foot of the Old Levee, between St Philip's and Maria streets; and stating that the lot had formerly been built upon, and had been possessed by a certain Thomas Beltran, or Bertrand, with the knowledge, permission and authorization of the Spanish government, from March 1788 to 1803, and by his widow, who afterwards demolished the buildings, and removed to another part of the city. The widow, acting for herself and the minors, took all the legal steps to have the title confirmed by the United States; and the commissioners of the land office reported on the title, that 'it would be more an act of justice than of generosity, if the government should confirm it.' The commissioners under the act of congress of 11th May 1820, entitled 'an act supplementary to the several acts for the adjustment of land claims in the state of Louisiana,' confirmed the title against any claim of the United States; and a patent for the same was granted to the widow and heirs of Bertrand. After the death of the widow, the petitioners became the owners of the property by purchase from her heirs,—they being also the heirs of Bertrand.

The petition proceeds to state, that prior to the cession of Louisiana by France, the lot of ground belonged to the king of France; and by the laws of Spain, which were introduced into the colony of Louisiana after the said cession, the king of Spain by his officers had the full right of disposing of the same. By the retrocession of the colony to France by Spain, the right to the lot of ground became vested in France, if it was not the property of Bertrand; and the same right was not divested by any act done by the king of Spain, except in favour of Bertrand. That, by the treaty of cession of Louisiana to the United States by France, the United States clearly acquired every lot of ground, land, squares, (emplacemens terrains) buildings, fortifications, edifices therein, which were not private property; and that the grant made by the aforementioned letters patent, therefore, justly and lawfully vested the said widow of Bertrand with all the rights of ownership and possession, which all the different governments, who had possessed Louisiana, had or could have to the said lot of ground.

The petition alleges that the corporation of New Orleans, under the pretence that the lot claimed by the petitioners is a part of certain quays marked on a plan of the city, have enlarged the Levee in front of the city so as to include the same, and pretend that they have just title to this lot; and prays process, &c., and that it may be adjudged and decreed, that the petitioners are the only true and lawful owners and proprietors of the above described property; and that the said mayor, aldermen and inhabitants, have no right whatever in, to or upon the same.

The answer of the corporation of New Orleans denies that there had been an absolute grant of the lot in question by the Spanish government to Bertrand, but only a permission to build a temporary cabin thereon; and asserts that the patent of the United States cannot be a good title thereto. They insist that it had been determined in 1812, or 1813, in a suit brought by the corporation against the widow and heirs of Bertrand, that the latter had no title to the lot, and was compelled to take down the buildings thereon. The answer proceeds as follows.

'And the said defendants further say, that even supposing, which they do deny, that the Spanish government would have at any time made an absolute grant of the said parcel of land to the said Beltran or Bertrand; the said grant should be null and void, because the said parcel of land made a part of the quays of this city; that is, one of those public things which even the sovereign himself had no authority to dispose of to the prejudice of the public, without a flagrant abuse of his powers.

'And these defendants further say, that at the time of the foundation of the city of New Orleans, under the French government; said government left between the bank of the river Mississippi and the first row of houses fronting said river, a large space emptied and unoccupied, under the name of quays, and intended to serve and to be reserved as such for the use of the inhabitants of this city, as they exist in the several cities of France, and in her colonies; and as it is proved by the ancient plans of the city of New Orleans, which have been preserved in the office of the marine charts, maps and plans, which existed at Versailles, in France.'

After proceeding to take the evidence of witnesses, and on the exhibition of their testimony with the documentary evidence of the parties; the district court, on the 12th of March 1832, gave a judgment in favour of the petitioners in the following terms.

'The plaintiffs allege that the widow Gonzales, from whom they derive title, obtained a grant from the United States of the lot in question, and that the defendants have extended the Levee so as to embrace said lot, and conclude with the prayer, that they may be decreed to be the lawful owners, and the defendants enjoined from disturbing them in the free enjoyment of their rights as owners of said lot. The defendants oppose this claim upon several grounds; but the only one which can be relied upon with any hope of success is, that the space between the front buildings of the city and the river was, at the time the city was laid off, under the government of France, intended to be kept open for public use, designated as a quay, and which could not be the subject of a grant. If the facts, as stated in the answer, were true, the conclusion drawn from them would be undeniable. The sovereign could not cede what had been already granted, unless there be retrocession or forfeiture. The only evidence in support of the defendant's claim is a fac simile of a plan made by Charlevoix, and by him stated to be copied from a plan deposited in the marine office, made by N. B. Ing. de la M. 1744, and on which is marked on the space between the front of the city and the river, the word 'quay.' Names do not change the nature of things; a quay is an artificial work, and may belong to an individual as well as a corporation; but to belong to either, it must not only exist and have a defined extent, but must be shown to have been granted. It is self-evident to every one who has seen this space of ground, that it is not a quay. The defendants have shown no other title which can be validly opposed to the grant under which the plaintiffs claim; there is no material difference between this and the case of Metzinger and the defendants: that was a grant under the king of Spain; this a grant under the United States, who have succeeded to the same rights. Had the defendants sheltered themselves under their charter, and shown that the public safety required that the base of the Levee should be extended to prevent inundation, or that it was necessary for a public way, the case might have presented a different aspect.

'It is ordered and decreed, that the defendants be enjoined not to disturb the plaintiffs in the possession and free exercise of their rights, in and to the lot mentioned and described in their petition, and that the defendants pay costs.'

From this decision the corporation of New Orleans appealed to the supreme court of the state of Louisiana. In February 1833, the supreme court affirmed the judgment of the inferior court, and the case was finally disposed of, by a judgment, in favour of the original petitioners, a rehearing having been refused, on the 27th of March, in the same year.

The mayor, aldermen and inhabitants prosecuted this writ of error; and the following errors in the judgment of the supreme court of Louisiana, were assigned by the plaintiffs in error, and came up with the record.

'The judgment of the supreme court of the eastern district of the state of Louisiana, affirming the judgment of the court of the first district of said state, is erroneous, and ought to be reversed, and judgment ought to be rendered in favour of the plaintiffs in error, with costs; for the following reasons, and such others as may appear on the record.

'1. The spot of ground in controversy makes part of an open space in front of the city of New Orleans called a quay, which by the ancient plans of the city was constituted a quay, or public place, and dedicated to public use as well by its designation on said plans, as by the sovereign authority, and by its use and occupation for public purposes.

'2. The right of the former sovereigns of Louisiana over this place was a matter of prerogative, varying according to the institutions of the different governments which have held Louisiana, but always inseparable from the sovereignty.

'3. The right of use of this place by the public is a vested right; is a species of property in which the inhabitants of Louisiana are protected under the third article of the treaty of cession.

'4. By the treaty of cession, Louisiana was ceded in full sovereignty to the United States.

'5. The United States held this sovereign power during the time they held the sovereignty of Louisiana; but by the admission of Louisiana into the union, this branch of sovereignty was vested in the state of Louisiana, and under the constitution could not exist in the United States.

'6. The power of regulating the use or appropriating or changing the destination of public places belongs to the sovereign power alone.

'7. Since the admission...