The questions arising, being many and independent of each other, admitted 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. Notarial acts, and 5. Letters and reports of public functionaries filed in the office of the department of state.
PART III.
THE BATTURE AT NEW-ORLEANS.
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 | Title of the Jesuits.| 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,] | Fronting river.| '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. | Confiscation.| 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, | Gravier's title.| 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 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 | Fauxbourg.| 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 not known. |[6*]|*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. 4. 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.'
| Gravier's sale.| 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, | [7*]|*Wiltz.] Bertrand Gravier himself, on all 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 fleuve,' 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 a Don Nicholas Gravier cinquenta y ocha terrenos situados en esta dicha ciudad, extramuros de la puerta de Chapitulas, à saver, trece haciendo frente al rio, Missisipi, y lindando por el lado de abaxo, que es de esta dicha ciudad, con terreno de Don R. Jons, y por el de arriba con otros de Don J. B. Sarpy, &c. Y los quarenta y cinco terrenos restantes completa a los cinquenta y ocho, que quedan indicados, comenzan sobre el limite de la primera calle, formande una linea directa à empezar por el terreno que se halla detras del de Don J. Poydras, todo conforme al plano que, delineado por Don C. L. Trudeau, hé entregado al comprador para su inteligencia*|[8*]| y resguardo: però con la condicion de que me reservo el derecho de tomar la tierra que necessitaré para mi fabrica de ladrillos, extension de los nominados tres terrenos que hacen frente al dicho rio. | I Don Beltran Gravier sell to Don Nicholas Gravier 58 lots situated in this said city without the gate of Chapitulas, to wit, 13 fronting the river Missisipi, and bordering on the lower side, which is that of this said city, with the lot of Don R. Jones, and on the upper side with others of Don J. B. Sarpy, &c. And the 45 lots remaining, the complement of the 58 before mentioned, commence above [or beyond] the limit of the first street, forming a right line, beginning at the lot which is behind that of Don J. Poydras, in conformity with the plan which having been delineated by Don C. L. Trudeau, I have delivered to the purchaser for his information and ascertainment: Nevertheless, with the condition that I reserve to myself the right to take the earth which I shall need for my manufacture of bricks on the beach or batture which is in the extension of the said 13 lots which front the river. |
The first part of this description is of the 13 lots, to wit, that they front the river. The second part relates wholly to the remaining | Streets.| 45 lots, which begin beyond or above the first street in a straight line from the lot behind Poydras', and refers to the plan to show their position more particularly as back lots, behind the front range. It is to be noted that the public way in front of the fauxbourg is not a street: it is the same chemin royale, royal road, which has existed from early times, and has never been merged in the character of a street. Nothing can prove more clearly, that this reference to the plan was not to give a front line to the 13 lots, than that the same deed reserves the right of digging earth on the batture beyond that line. Now if nothing was meant to be conveyed beyond the front line marked in the plan, why reserve a right to dig earth on the batture, which is beyond that line? And that Nicholas Gravier, Escot, Girod and Wiltz did not consider this line as the limit of their rights, appears from their deeds conveying the batture expressly by that name, with the lots themselves. On the whole, we see here a curious specimen of tergiversation in reasoning. When urged that the grant to the Jesuits, and to Bertrand Gravier, though expressed to be 'face au fleuve,' must still have stopped at this line or edge of the royal road, it is answered that those terms convey to the water edge, and make it an 'ager arcifinius,' to which the right of alluvion appertains. But when Bertrand Gravier conveys to his purchasers 'face au fleuve,' they turn about and say that the same identical words 'face au fleuve,' convey now only to this same line or edge of the royal road, which they overleaped before, and make the grounds conveyed an 'ager limitatus,' to which the right of alluvion does not appertain. It is perfectly equal which of the meanings is ascribed to these words. Only give them the same in both instances, and say which. If these words make the road your boundary, you never had a right to the batture beyond it. If they extend to the river what was conveyed to you, they extend to the river also what was conveyed from you. Will it be pretended that, after establishing his town, Bertrand Gravier could then have sold the streets to others? and yet he might, a fortiori, having not included them in any deed. But does not common sense and common honesty |[9*]| *proclaim that the establishment of his town, and sale of the lots, implied a relinquishment to the inhabitants of the communications of streets and shores adjacent, as a common, which are the necessary and constant appendages of every town? The express conveyance then of his riparian rights, and the implication as to them and the streets, are believed to be conclusive to show that the plaintiff having had no right, can have sustained no wrong.
| Beach or Batture.| In 1797, Bertrand Gravier died intestate; and at this epoch we must introduce what constitutes the sole object of the existing contest. Opposite to the habitation or plantation of B. Gravier, now the Fauxbourg Ste. Marie, the beach of the river, called in that country Batture, of ordinary breadth within memory, has sensibly increased, by deposits of earth, during the annual floods of the river, [Derb. xix.] till in the year 1806, it was found to extend in breadth, at low tide, from 122 to 247 yards of our measure, from the water edge into the river: and from about 7 f. height, where it abuts against the bank, declining to the water edge. See Pelletier's plan annexed. Thiery xvii. While uncovered, which is from August to January inclusive, it has served as a Quai for lading and unlading goods, stowing away lumber and firewood, and has furnished all the earth for building the city, and raising its streets and courts, essential in that oozy soil. Derb. ii. While covered, which is during the other six months of the year, from February to July inclusive, [Liv. 58. Poydras 20. 21. 23.] it is the port for all the small craft of the river, and especially for the boats of the upper country, which, in the season of high water, can land or lie no where else in the neighborhood of the city. During this period, they anchor on its bottom, or moor to its bank. It is then, like every other beach, the bed of the river one half the year, and a Quai the other half, distinguished from those of tide waters, by being subject to an annual, instead of a semidiurnal ebb and flood. In this beach or shoal, with the bank to which it is adjacent, if Bertrand Gravier claimed any right, as riparian proprietor of the habitation, he had certainly meant to convey that right to the purchasers of the front lots, by the term 'frente al rio,' 'fronting the river,' reserving expressly, as we have seen, from one purchaser of 58 lots, a right to take earth, from the beach, for his brickkilns. As he died without children, the inheritance belonged to John Gravier, and other brothers and sisters whom he had left in France, or their representatives, as co-heirs.
| Purchase by Inventory.
[10*]| By the civil law, if an heir accepts the inheritance, he is considered, not merely as the representative, but as continuing the person of the ancestor himself, is answerable for all his debts, and out of all his property, as well his own, as* what he had newly acquired by the inheritance. Time, therefore, was allowed him to inform himself of the condition of the estate and debts, during which it was considered as an hæreditas jacens, vested in nobody. If he declined taking the inheritance simply as heir, he was allowed to take it as purchaser, or in their language, as heir with the benefit of inventory: whereupon an inventory and appraisement of it took place, and he had the preëmption at the appraised value. He was then liable to no more debts than the amount of the appraisement; and if there was a surplus of the appraised value over and above the debts it was his, if a single heir, or partitioned among the co-heirs, as parceners, if there were more than one. Brown. civ. law, I. 218. 302. Kaim's law tracts, 389. Gibbon's c. 44. 153. Bertrand Gravier is understood to have left France indebted and insolvent: and John Gravier, therefore, either knowing, or ignorant of the amount of the debts, chose on behalf, or perhaps in defraud, of the co-heirs, to decline the inheritance, and to take the estate as a purchaser by inventory and appraisement. It was inventoried and appraised. In the inventory is placed a single article of lands, in these words, 'are placed in the inventory the lands of this habitation, whose extent cannot be calculated immediately, on account of his having sold many lots; but Mr. N. Gravier informs us that its bounds go to the forks of the bayou, according to the titles.' And in the appraisement also there is but this same single article of lands, thus described, 'about thirteen arpents of land, of which the habitation is estimated, including the garden, of which the most useful part is taken off in front, the residue consisting of the lowest part, [to wit, that descending back to the bayou,] the side being sold to Navarro, one Percy, and the negro Zambo, a portion of which, &c. estimated at 190 D. the front acre, with all the depth, which makes 2470 D.' Then follows the adjudication, which adjudges to John Gravier 'the effects, real estate, moveables and slaves which have been inventoried as belonging to the estate of his deceased brother Bertrand Gravier, &c. Report 9. 10. We see, then, that no lands were inventoried but the thirteen arpents in front, composing the inhabitation. And it is impossible that that term should be meant to include the beach of the river, cut off from it by the intervention of the whole Fauxbourg of seven ranges of squares; or that they should not have used a more obvious expression, if the idea of the beach had been in their minds. Nobody could consider these two parcels, distant and disjointed as they were, as being one parcel only, one habitation. No man having two farms, or two tracts of land, separated by the lands of others, would expect that by devising or conveying one, the other would |[11*]|*pass also. In fact, at that time, neither John Gravier nor any one else, considered the beach as any part of Bertrand Gravier's estate: and in the appraisement, they estimate the front arpents, (that is, fronting on the fauxbourg,) with all their depth to the bayou, at 190 dollars, the front arpent; contemplating clearly only what was between the fauxbourg and bayou. Accordingly Fernandez, acting for the Depositor General, the legal officer in those cases, swears that he took charge and possession of all the estate according to the inventory which had been made from the 28th of June to the 4th of July, 1797; that, in that inventory, the batture never was mentioned, or heard of, as property of Gravier, nor in charge of the Depositor, and that, on delivering the estate to John Gravier, the batture never was spoken of. It is equally certain that had there been an idea that they were smuggling the batture away, through these proceedings, the citizens of New-Orleans would not have been so silent, nor the Governor, the Cabildo and other Spanish authorities so passive, when so active on all former occasions respecting the batture: and that had the batture been under the view of the appraisers, instead of estimating it at 2470 dollars, conjointly with other thirteen arpents, a very different sum must have been named. The batture alone is now estimated at half a million of dollars. But the truth is, that neither John Gravier, nor any one else, at that day, considered it but as public property. And for six years ensuing, he never manifested one symptom of ownership; until Mr. | Livingston's arrival.| Livingston's arrival there from New-York, with the wharves and slips of that place fresh in his recollection. The flesh-pots of Egypt could not suddenly be forgotten, even in this new land of Canaan. Then John Gravier received his inspiration that the beach was his; and is tempted, by one kind of bargain after another, to try his fortune with it. It was only to lend his name, and receive a round sum if anything could be made of it. To get over the palpable omission of it in the inventory and appraisement, they | Parisien.| find a man whose recollection is exactly à propos; a Henry Parisien, a comedian by profession, and a joiner by trade. He had been one of the appraisers, 10 years before, and recollected, and so swore that he had 'walked on the batture, before the closing of the appraisement to ascertain its extent, and be the better able to judge of its value, and that it was through forgetfulness that it had not been taken into the estimate.' Piecès Prob. 33. It happens that nature bears witness against him. From the 20th of June to the 4th of July is within the period of high waters; and it is proved that, at the very time of the appraisement, the river was still overflowing, and the batture covered with water: |[12*]| *the journals of the sawmills further attest that they did not cease to work till the 25th of August of that year; and when the waters of the river are sufficiently low to stop the mills, all the battures are still covered with water. P. Pr. 34. However even this Henry Parisien swears, 'that the batture was not in the estimate, and that it was through forgetfulness that it was not.' Examin 19. Rep. 21. Pi. Prob. 33. No matter through what cause, it is enough that it was not in the inventory or estimate, and of course not sold to J. Gravier. This corroborates the testimony of the Depositor, that he neither had it in his charge, nor included it in the estate sold and delivered. J. Gravier must therefore, as to this part of his brother's estate, if his it were, recommence his work, by having a new inventory, appraisement and adjudication. But to repel the present proceeding, it suffices that having made his election to take, not as heir, but purchaser, this beach is not yet his; it is still an hæreditas jacens, and before he can convey it to Mr. Livingston, he must get it by a new process, and make a third bargain.