The King of Spain, like the King of France, had the power to give permission to construct buildings on grounds dedicated to public use without injury to the public rights, but this does not show that either sovereign had the power to alien such lands. In the 3d Partida, law 3, tit. And the comment of Rodriguez, 15 and 16, is that the building must be so constructed that no one should be injured in his right thereby, because the privileges granted by princes are understood to be granted without prejudice to third persons.
On 22 February, , O'Reilly, Governor of Louisiana, published an ordinance in conformity to law "to designate city properties and rents belonging to the City of New Orleans," and among other regulations,. As power was given to the King of Spain by law to grant permission to build on public places, it would seem to follow that such places were not only withdrawn from commerce, but that the King could not alien them.
For if he had the power to do this in as unlimited a manner as over the Crown lands, it would include the exercise of every minor authority over them. If he could sell and. But as it appears from the evidence in the case that permission was not only given to construct buildings on this common, but that a part of it was granted in fee, it is contended that this is evidence of the King's power not only to regulate the use of this common, but to convey it in fee.
And the leading case of Arredondo, 6 Pet. In that case, this Court did hold, and the same principle has been sanctioned in numerous cases since, that a grant should be considered as prima facie evidence that it was rightfully issued, but that it might be impeached by anyone who set up an adverse claim. We will examine the grants made, under Spanish authority, to any part of this common and other acts of jurisdiction over it exercised by the government of Spain which have been proved by the evidence. And on 10 August, , another grant was made of a lot in the common to Mentzinger by the same governor.
In , Arnaud Magnon, a master carpenter, represented by petition to the governor and intendant general that he had built a barge for the public, and as a compensation therefor he asked eighteen or nineteen feet on one side of his house to enlarge it, the same being very small, and that the same was granted to him, but that he had no instrument of writing as evidence of the same, and which he solicits.
This petition was submitted to the attorney general, who reported that it appeared to him "it would be an act of injustice to refuse the petitioner the corresponding titles of property that he solicits," for. This leave was given, and he and those claiming under him occupied the ground for many years, but no grant was ever obtained from the Spanish governor for the lot. But no grant was ever issued by the Spanish authority for this lot.
These permissions to build were given by the governor and intendant under the law, which has been cited, that authorized the sovereign to grant permission to construct buildings on the public grounds. This was not considered inconsistent with the public use, as the power was not to be exercised to the prejudice of third parties. The three lots for which grants were issued, it must be admitted under the circumstances, is such a final disposition of the property as it wholly incompatible with the public right.
For the fee of these lots was not only granted, but also the use.
This transfer of the fee, it is contended, affords conclusive evidence that the title to the common remained in the King, and having, in addition to this, the power to regulate its use, he could alien it at pleasure. If this power was possessed by the King, why was the authority given, in the law which has been stated, to grant permission to construct buildings on public grounds? This power, as appears from. In the case New Orleans v.
Bermudez, decided by the Supreme Court of Louisiana, 3 Martin , the court said,. Yet the sovereign having never thought fit to exercise any further right over these commons, and the claim of the city to them having been recognized and confirmed by the successor of that sovereign, the inhabitants of New Orleans must be considered as having never ceased to be the rightful possessors of that land,". Nor is there any doubt that if, by a stretch of arbitrary power, the preceding government had given away such places to individuals, such grants might be declared void.
On this important question of fact, the evidence, produced by the appellant is 'by no means satisfactory. But could there be no derogation from that usage?
Was that usage observed within the City of New Orleans? Does not the convenience of placing markets and other public places as near the water as possible, as it is recommended by the law of the Indies, make it necessary to deviate from such usages in cities?
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No plan of the city has been exhibited, to show that the lot of the appellee is located upon a place which had been reserved for public use; no testimony has been adduced to prove that this spot is part of the ground laid out for the. We are called upon to declare this grant void merely because the general usage of the country is to place the road next the levee. From this opinion it would seem that if there had been satisfactory proof before the court that the ground in controversy had been appropriated to public use, the decision, instead of being favorable to the grantee, would have been against him.
There can be no difference in principle between ground dedicated as a quay to public use and the streets and alleys of a town, and as to the streets, it may be asked, whether the King could rightfully have granted them. This will not be pretended by anyone. And it is believed that the public right to a common is equally beyond the power of the sovereign to grant unless he dispose of it under the power to appropriate property to the national use, and then compensation must be paid.
The grant to Liotaud was also contested by the city authorities; but it was decided against them on a ground which did not embrace the merits of the claim, on the part of the city, as now presented. In speaking of this case, Mr. Justice Martin, in his able and learned opinion in the case of De Armas v.
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New Orleans, says:. The governor, deeming the builder's residence near it necessary to the public service, allotted him a space of ground to live on near the yard, but on the opposite side of the levee. The question arising out of this grant was not litigated, the city agreeing to compensate Magnon for the relinquishment of his claim. This lot, however, though a part of the ground alleged to have been dedicated to public use, is not within the common or quay contested in this case. And it appears from the above opinion that to prevent any other titles' being made for any part of the common, certain proceedings.
From a careful examination of the jurisdiction exercised over this common by the governments of France and Spain, and the laws which regulated this description of property in both countries, the conclusion seems not to be authorized that it was considered as a part of the public domain or Crown lands, which the King could sell and convey.
This power was not exercised by the King of France, and the exercise of the power by the Spanish governor in the instances stated was in violation of the laws of Spain, and equally against its usages.
The land, having been dedicated to public use, was withdrawn from commerce, and so long as it continued to be thus used, could not become the property of any individual. So careful was the King of Spain to guard against the alienation of property which had been dedicated to public use that in a law cited, all such conveyances are declared to be void.
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It would be a dangerous doctrine to consider the issuing of a grant as conclusive evidence of right in the power which issued it. On its face, it is conclusive and cannot be controverted, but if the thing granted was not in the grantor, no right passes to the grantee. A grant has been frequently issued by the United States for land which had been previously granted, and the second grant has been held to be inoperative.
And in a case recently decided by this Court, where the government had granted land in the State of Ohio as land belonging to the United States which was found to be within the Virginia reservation in that state to satisfy certain military claims, it was held that the title did not pass under the grant.
If, then, the common in question had been dedicated to public use so as to withdraw it from commerce and so vest the title in the public as to preserve it from alienation by the King, the grants issued for the lots stated cannot affect the right of the public, at least beyond the limits of those grants. That both the Kings of France and Spain could exercise a certain jurisdiction over this common and other places similarly situated has been stated, but this was a police regulation, and was rightfully exercised in such a manner as not to encroach upon the public use.
This seems to be the result to which a careful examination of the laws and usages of both countries must lead us. We come now to examine, under the third head, the interest of the United States in the property claimed by the city, and their jurisdiction over it. Ildefonso the 1st October , between the first consul of the French Republic and His Catholic Majesty, it was agreed as follows: His Catholic Majesty promises and engages, on his part, to retrocede to the French Republic, six months after the full and entire execution of the conditions and stipulations herein relative to his royal highness the Duke of Parma, the Colony or Province of Louisiana, with the same extent that it now has in the hands of Spain, and that it had when France possessed it, and such as it should be after the treaties subsequently entered into between Spain and other states.
Under this treaty, Louisiana was ceded to the United States in full sovereignty, and in every respect, with all its rights and appurtenances, as it was held by the Republic of France, and as it was received by that republic from Spain. And it is insisted that the same rights of jurisdiction and property which appertained to the sovereign of Spain, under its laws and regulations, were by the treaty transferred to the United States, and that whether this right extends to the fee of the property in contest or the regulation of its use, it is contended that this Court must take jurisdiction of the case and restrain the city authorities from selling any part of it.
To show that the federal government has considered this common as a part of the public domain under the treaty, various laws of Congress have been referred to and official proceedings by the agents of the government in reference to it, and also it is shown that the action of the government has been solicited by the city authorities, who, by these acts, it is insisted, have acknowledged the right of property to be in the United States, as asserted in their behalf by the district attorney of Louisiana.
We will refer more particularly to those acts. On 26 March, , Congress passed an act "erecting Louisiana into two territories and providing for the government thereof," in the fourteenth section of which it was provided that all grants for land within the territories ceded by France the title of which was, at the date of the Treaty of St. An act entitled "an act for ascertaining and adjusting the titles and claims to land within the Territory of Orleans and the District of Louisiana" was passed on 2 March, And by an act of 3 March, , it was provided.
Other acts were passed in relation to land claims in the district which it cannot be necessary to notice. Nor does this appear to come within any of the provisions of the laws of the United States, although there have been ten consecutive years' possession, the land has not been inhabited or cultivated.
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This part of the claim we do not feel ourselves authorized to decide on, but are of opinion that in justice, the claim ought to be confirmed. A similar report was made on the claim of Catherine Gonzales and Peter Urtubuise. Their claims were for lots of ground within the common, and they have been confirmed by acts of Congress, and patents have been issued to the claimants. The claim of the city to the commons was presented by P.
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