The judgment of the court was pronounced by
Rost, J.*
This case has been already before the Supreme Court. The facts it discloses and the questions it presents, are fully stated in the opinion of the court. See 19 La. p. 533. It was remanded for the admission of evidence rejected on the first trial. That evidence is now in the record, and the case is before us, on an appeal taken by the defendants from a judgment rendered against them on the second trial. The first ground on which they aBk a reversal of the judgment is, that the Marquis de Casa Calvo was not governor of Louisiana at the time he made to Thomas Thompson the grant under which the plaintiff claims, and that, if he had been, he had not the power to make such a grant.
Casa Calvo was a brigadier general in the Spanish armies, and when the colony was delivered to France, he acted as commissioner with Salcedo, the then governor. It does not appear that he ever had a commission from the King of Spain as governor; but it is proved that, Gayoso having died in 1799, he was sent here by the captain general of the island of Cuba, whose jurisdiction extended over the province of Louisiana, to act as governor ad interim, until the arrival of the person who should receive a commission from the King, and that he did act in that capacity, from the beginning of October, 1799, till June or July, 1801, at which time governor Salcedo arrived. Among the witnesses is an officer who served under him during that time, and a merchant who was enabled by his assistance to introduce a cargo of merchandize from New Orleans into Vera Cruz. The evidence is uncontradicted and bears upon its face the character of truth. As it is well known that military officers of high rank were often entrusted by the Spanish government with important civil offices in the colonies, we consider it proved that Casa Calvo was governor, de facto, on the 19th of February, 1801, at which time the grant bears date.
The question whether he had power to make the grant cannot be determined in this controversy. The defendants cannot question his authority. Unless a prohibition to make such grants is shown, we will presume the authority from the fact of its being exercised. Neither he, nor the intendant, considered that [295] the prohibition to grant lands, extended to the granting of privileges to keep ferries; and we will not, without sufficient cause, disregard the construction they both put upon their respective jurisdictions. The grant of the land on which the ferry is established was made by the intendant; that of the ferry by the governor. The presumption is that both acted within the sphere of their powers. Devall v. Choppin et al. 15 La. 566, and the cases there cited. See, also, The United States v. Arredondo et al. 6 Peters, 691.
The effect of the treaty of San Ildefonso upon the grants made by the Spanish government subsequent to its date, is a question not open to our enquiry. We are not called upon to pass upon the sovereign rights and powers of the United States, or of the State of Louisiana. Whatever these maybe, the police jury of the parish of Concordia has no wawant for their exercise, and is bound by the acts of a former government so long as the present government suffers those acts to remain undisturbed. It is proper to state, however, that the validity of the grants of land made by the Spanish government after the date of that treaty, is recognised by the fourth section of the act of Congress, passed in 1805, for the adjustment of land claims in Louisiana. 1 Martins’ Dig., 244.
Upon the second ground taken by the defendants that, the conditions of the grant had not been complied with, a great deal of evidence has been introduced on both sides, It shows that Thompson did make a road; and several witnesses testify that it was sufficient for the line of travel of those days. It is well known that at that period, and long after, inland roads in Louisiana were nothing but traces. The Spaniards carefully avoided the labor of cutting down trees; they found it easier to make a mark upon them, and use them as guides through the wilderness. When the cane and underwood were cut away and the trees blazed, the road was considered as made. The roads on the banks of navigable streams were the only exception. These were royal roads, and the timber upon them was to be cut down and removed, by an express condition in the grants of the land fronting upon them. Walker, one of the witnesses, states that the road passed partly through cane-brakes and partly through the open woods; that the cane and some of the small trees and cypress knees were cut away, and the trees blazed. Other witnesses state that it was occasionally travelled by carts and wagons. It is true that other witnesses testify that the road, when they saw it, was not thirty feet wide. In that part of it which lay through the open woods, it must have been exceedingly difficult to tell whether it was, or was not, of the proper width. Where, on the other hand, the cane had been cut down, it must have grown up again immediately afterwards, so as to leave open only the trace which travellers followed. Thompson was not required by his grant to keep the road in repair. We think that, at this distance of time, there is sufficient evidence to corroborate the certificate of the commandant, under whose inspection the road was to be made, that the conditions of the grant had been substantially complied with.
The defendants further allege that, if the grantis otherwise valid, it has been lost by non-user, because the ferry, instead of being kept in front of the Thonvp-son tract of land, has been kept all the time on land of the same proprietor from a quarter to half a mile higher up the river. The defendants forget that the ferry has been all the time under the absolute control of their police regulations. If the landing has not been kept in the proper place, it is their act and their fault, and they cannot make this a cause of complaint against the plaintiff. If the ferry has, in fact, been kept at the most convenient place, they cannot now [296] allege against him, that he went out of his way with their consent, and for the public accommodation.
This brings us to the last question in the case : What are the extent and limits of the grant? The question of its duration we dismissfrom our consideration. Whatever may be the power of the State to limit the duration of such grants, there is not, to our knowledge, any solemn expression of legislative will fixing the time beyond which they will cease to have effect; and, so long as the State abstains from interfering, the grant must endure.
1st. The plaintiff contends that the grant, under which he claims, originated in a contract, by which the exclusive privilege of keeping a ferry in front of his plantation was given to Thomas Thompson, as a consideration for making a road, which he did make.
2d. That the words con exclusion in the grant mean that, the'sovereign or his agents shall not establish another ferry within a reasonable distance of his own.
3d. That the ferry attempted to be established at Vidalia by the defendants is on the same line of travel, and in the immediate vicinity of his grant; and that, if it goes into operation, the obligation of the contract under which he holds will be impaired, and his profits greatly diminished, contrary to the true intent and meaning of the grant.
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The judgment of the court was pronounced by
Rost, J.*
This case has been already before the Supreme Court. The facts it discloses and the questions it presents, are fully stated in the opinion of the court. See 19 La. p. 533. It was remanded for the admission of evidence rejected on the first trial. That evidence is now in the record, and the case is before us, on an appeal taken by the defendants from a judgment rendered against them on the second trial. The first ground on which they aBk a reversal of the judgment is, that the Marquis de Casa Calvo was not governor of Louisiana at the time he made to Thomas Thompson the grant under which the plaintiff claims, and that, if he had been, he had not the power to make such a grant.
Casa Calvo was a brigadier general in the Spanish armies, and when the colony was delivered to France, he acted as commissioner with Salcedo, the then governor. It does not appear that he ever had a commission from the King of Spain as governor; but it is proved that, Gayoso having died in 1799, he was sent here by the captain general of the island of Cuba, whose jurisdiction extended over the province of Louisiana, to act as governor ad interim, until the arrival of the person who should receive a commission from the King, and that he did act in that capacity, from the beginning of October, 1799, till June or July, 1801, at which time governor Salcedo arrived. Among the witnesses is an officer who served under him during that time, and a merchant who was enabled by his assistance to introduce a cargo of merchandize from New Orleans into Vera Cruz. The evidence is uncontradicted and bears upon its face the character of truth. As it is well known that military officers of high rank were often entrusted by the Spanish government with important civil offices in the colonies, we consider it proved that Casa Calvo was governor, de facto, on the 19th of February, 1801, at which time the grant bears date.
The question whether he had power to make the grant cannot be determined in this controversy. The defendants cannot question his authority. Unless a prohibition to make such grants is shown, we will presume the authority from the fact of its being exercised. Neither he, nor the intendant, considered that [295] the prohibition to grant lands, extended to the granting of privileges to keep ferries; and we will not, without sufficient cause, disregard the construction they both put upon their respective jurisdictions. The grant of the land on which the ferry is established was made by the intendant; that of the ferry by the governor. The presumption is that both acted within the sphere of their powers. Devall v. Choppin et al. 15 La. 566, and the cases there cited. See, also, The United States v. Arredondo et al. 6 Peters, 691.
The effect of the treaty of San Ildefonso upon the grants made by the Spanish government subsequent to its date, is a question not open to our enquiry. We are not called upon to pass upon the sovereign rights and powers of the United States, or of the State of Louisiana. Whatever these maybe, the police jury of the parish of Concordia has no wawant for their exercise, and is bound by the acts of a former government so long as the present government suffers those acts to remain undisturbed. It is proper to state, however, that the validity of the grants of land made by the Spanish government after the date of that treaty, is recognised by the fourth section of the act of Congress, passed in 1805, for the adjustment of land claims in Louisiana. 1 Martins’ Dig., 244.
Upon the second ground taken by the defendants that, the conditions of the grant had not been complied with, a great deal of evidence has been introduced on both sides, It shows that Thompson did make a road; and several witnesses testify that it was sufficient for the line of travel of those days. It is well known that at that period, and long after, inland roads in Louisiana were nothing but traces. The Spaniards carefully avoided the labor of cutting down trees; they found it easier to make a mark upon them, and use them as guides through the wilderness. When the cane and underwood were cut away and the trees blazed, the road was considered as made. The roads on the banks of navigable streams were the only exception. These were royal roads, and the timber upon them was to be cut down and removed, by an express condition in the grants of the land fronting upon them. Walker, one of the witnesses, states that the road passed partly through cane-brakes and partly through the open woods; that the cane and some of the small trees and cypress knees were cut away, and the trees blazed. Other witnesses state that it was occasionally travelled by carts and wagons. It is true that other witnesses testify that the road, when they saw it, was not thirty feet wide. In that part of it which lay through the open woods, it must have been exceedingly difficult to tell whether it was, or was not, of the proper width. Where, on the other hand, the cane had been cut down, it must have grown up again immediately afterwards, so as to leave open only the trace which travellers followed. Thompson was not required by his grant to keep the road in repair. We think that, at this distance of time, there is sufficient evidence to corroborate the certificate of the commandant, under whose inspection the road was to be made, that the conditions of the grant had been substantially complied with.
The defendants further allege that, if the grantis otherwise valid, it has been lost by non-user, because the ferry, instead of being kept in front of the Thonvp-son tract of land, has been kept all the time on land of the same proprietor from a quarter to half a mile higher up the river. The defendants forget that the ferry has been all the time under the absolute control of their police regulations. If the landing has not been kept in the proper place, it is their act and their fault, and they cannot make this a cause of complaint against the plaintiff. If the ferry has, in fact, been kept at the most convenient place, they cannot now [296] allege against him, that he went out of his way with their consent, and for the public accommodation.
This brings us to the last question in the case : What are the extent and limits of the grant? The question of its duration we dismissfrom our consideration. Whatever may be the power of the State to limit the duration of such grants, there is not, to our knowledge, any solemn expression of legislative will fixing the time beyond which they will cease to have effect; and, so long as the State abstains from interfering, the grant must endure.
1st. The plaintiff contends that the grant, under which he claims, originated in a contract, by which the exclusive privilege of keeping a ferry in front of his plantation was given to Thomas Thompson, as a consideration for making a road, which he did make.
2d. That the words con exclusion in the grant mean that, the'sovereign or his agents shall not establish another ferry within a reasonable distance of his own.
3d. That the ferry attempted to be established at Vidalia by the defendants is on the same line of travel, and in the immediate vicinity of his grant; and that, if it goes into operation, the obligation of the contract under which he holds will be impaired, and his profits greatly diminished, contrary to the true intent and meaning of the grant.
We consider it our duty in all cases to pay great deference to the decisions of the Supreme Court of the United States, and not to differ from them but for grave reasons. In cases over which that tribunal has appellate jurisdiction, as it has in this, wp consider their decisions as the true exposition of the law. The questions under consideration have all, in our opinion, been determined in The Charles River Bridge v. The Warren Bridge and others, 11 Peters, 420. According to the doctrine laid down in that decision, when an individual, or a corporation, alleges that the State has surrendered forever its power of public accommodation on an important line of travel, the community have a right to insist “ that its abandonment ought not to be presumed, in a case in which the deliberate purpose of the State to abandon it does not appear.” The court further say that, in order to entitle themselves to relief, the parties must show that the legislature contracted not to do the act of which they complain. The charter, say the court, contains no such stipulation; there is no exclusive privilege given over the waters of Charles river, above or below the bridge; no engagement from the State that another shall not be erected, and no undertaking not to sanction competition, nor to make improvements that may diminish the amount of its income.
The words con exclusion, found in the grant of the plaintiff in this case, do not make up for the want of all those stipulations. Under the rule laid down by the Supreme Court, if any other meaning can be given to a grant besides that which would surrender forever a franchise and a part of the sovereign power, that meaning must be preferred. The words con exclusion have another obvious meaning — it is that of the prohibition in the act of 1813. 1 Moreau’s Dig., 475. That prohibition does not mean that police juries may not establish ferries nearer than two leagues from each other, on the same stream. Its meaning is that, when the police jury have established a ferry and leased it, no person, not licensed, shall have the right to cross men and horses, for money, at the distance of a league up and down the river from the landing places of the licensed ferry. Police juries may establish as many ferries as they please.
We consider that in this case, all persons living within a reasonable distance [297] of the ferry were inhibited by the grant from interfering with it, so as to reduce its profits; but we perceive no engagement on the part of the grantor that another ferry shall not be established in the vicinity, when the increased population of the country may make it necessaiy. The grant contains no undertaking not to sanction competition, nor to make improvements that may diminish the income of the grantee. The Thompson tract of land, to which the ferry is annexed, is from a quarter to a half mile below the town of Vidalia. Suppose that a similar grant had been made half a mile below the city of New Orleans, could it be seriously contended that no other ferry could be established within the three miles above that point, which the city of New Orleans occupies. The mere statement of the case shows that the surrender of the power, if it can at all be made, is at least not to be presumed. The difference of population between New Orleans and Vidalia, does not affect the rule by which the case is to be decided.
The legislature has given to police juries full power to establish ferries, when they deem it necessary or expedient. Whether the establishment of a ferry at Vidalia by the defendants, be a proper exercise of the discretion vested in them, is a question which we are not competent to decide.
For the reasons assigned, it is ordered that the injuction be dissolved, and that there be judgment in favor of the defendants, with costs in both courts. It is further ordered that the rights of the defendants to recover from the plaintiff, such damages as they may have sustained by the suing out and continuance of the injunction be reserved.