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they were originally written, that they might judge for themselves whether I had misinterpreted them. These materials and topics, expressed in the technical style of the law, familiar to them, they were of course to use or not to use, according to the dictates of their own better judgment. If used, it would be with the benefit of being delivered in a form better suited to the public ear. I passed over the question of jurisdiction, because that was one of ordinary occurrence, and it’s limitations well ascertained. On this, in event, the case was dismissed; the court being of opinion they could not decide a question of title to lands not within their district. My wish had rather been for a full investigation of the merits at the bar, that the public might learn, in that way, that their servants had done nothing but what the laws had authorized and required them to do. Precluded now from this mode of justification, 'I adopt that of publishing what was meant originally for the private eye of counsel. The apology for it’s general complexion, more formal than popular, must be found as well in the character of the question, as in the views with which it's discussion had been prepared. The necessity, indeed, of continuing the elaborate quotations is strengthened in the case of ordinary readers, who are supposed to have still less opportunity of turning to the authorities from which these are taken.
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. Feb. 25, 1812.
Not long after the establishment of the city Title of the of New-Orleans, and while the religious society of Jesuits. Jesuits retained their standing in France, they obtained from Louis XIV a grant of lands adjacent to the city, bearing date . the 11th 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. It's 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,) “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. 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, 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 No. XVII. A.
extent of his fauxbourg, the plaintiff is called on to show, and to deduce titles from the crown, regularly down to Fauxbourg. 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 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 gives and lost in the fire, or was only verbal, *6 is not known. *But that permission was given must be -" believed, 1. From Gravier's declaration to Charles Tru. . deat the surveyor, which must operate as an Estoppel [Report o, 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, Missisipi, Louisiana, Indiana and Michigan, boards of Commissioners, to ascertain and commit
them to record. To this we may add that the principle which
of the Jesuits’ 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 com
pendious 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 Gra
vier for 58 lots?
Yo Don Beltran Gravier vendo a Don Nicholas Gravier cinquentay ocho terrenos situados en esta dicha ciudad, extramuros de la puerta de Chapitulas, a 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 à los cinquenta y ocho, que quedan indicados, comenzan sobre el limite de la primeracalle, formando 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, hē entregado al comprador parasu inteligencia” y resguardo: però con la condicion de que me reservo el derecho di tomar la tierra que necessitaré para mi fabrica de ladrillos, en Ia playa Ö Battura que hay en la extension de los nominados trece terrenos que hacen frente al dicho rio.
I Don Bertrand 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 45 lots, which begin beyond or above the first street in a straight line from the lot behind Poydras's, 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