Daublin v. Mayor of New-Orleans

1 Mart. 185

• Court: Supreme Court of Louisiana
• Decided: July 1, 1810
• Status: Published

Opinion

By the Court,

Martin J. alone.

There is no necessity to determine whether according to the laws of this territory a nuisance may be abated by any individual.

The ordinance of the corporation is not repugnant to the constitution of the U. S. nor to any of the laws of the Territory.

The Spanish Laws quoted by the plaintiff’s counsel relate only to lands belonging to the corporation, as their private property.

Streets are not the property of any one, they belong to the whole community. They are not the property of the corporation, for if they were the corporation could exclude the whole world from the use of them—on the contrary the use of them belongs to the whole world. They are hors de commerce, and cannot be the object of a contract of sale, Pothier Contract de Vente 13.

They have not seised the premises—they have only removed an obstruction—they have? taken no possession.

The 3d partida and the commentary of Greg. Lopez are authorities in point and accord with the Roman Law. Curcnt autem....Æddes....ut nullus effodiat vias—neque construat in viis alquid....si liber demonstretur adilibus. Ædiles autem mulctent eum secundum legem, and quod factum est dissolvant ; Dig. lib. 43, tit. 10.

Judgment for the Defendants.