Orleans Navigation Co v. Mayor of New-Orleans

2 Mart. 10

Opinion

Lewis J

They ought to be so. The case has been twice and very fully argued.

MARTIN, J.

It is not in my power to concur. The opinion, which has now become that of the court, was shewn to me after the depLirture of Judge Mathews, and I then declared my inability to join in it.

As the defendants' counsel are dissatisfied, arid have filed reasons for a new trial, it will naturally follow that one of the members of the court, who deemed it his duty to dissent from the o~i-nion of the majority, will readily incline to a rehearing and will reluctiiitly forego the opportunity of listening to an argument which m~iy elucidate the points upon which the judges huld different opinions. I am, therefore, avurse to over-ruie the motion. It docs not clearly appeal to me, the language of our rules, that the grounds on which the defendants have built their hope of a new trial are not "plausible or at least susceptible " of an useful and reasonable discussion."

As the parties have treated the case as one of considerable importance, and as, it having been my misfortune when it was first argued, to differ from the opinion of one of my brothers ai~d now with that of the other, it is likely that I labour under an error, I deem it proper to state the grounds on which, after the most mature deliberation and attention which I am able to give the subject, I have concluded that the defendants ought not to be prevented to use the canal Carondelet as a drain for the waters of the city, until the plaintifis shall have given them a drai-equally convenient.

To two propositions in the judgment of the court I am unable to give my assent. The first is that the claim of the defendants ought to be rejected, as it " belongs to that class called in " the common law incorporeal hereditaments, " which are saud to lie in grant" and " no grant " has been produced giving the right of service " contended for." The other is that the claim is likewise to be disallowed, as "on convention or " agreement has taken place, by which a right " has been vested in the city, because being a bo- " dy corporate it could only covenant or agree by " its heads or representatives, the Cabildo," which does not appear to have been done.

As the claim of the defead.irits ripened into a title long before the inhabitants of Louisiana, had any connexion with a people who recognize the common law of Great Britain as a rule of conduct, I am at a loss to discover how the discussion of tint claim may be aided by ascertaining its character, under the principles of the common law, and how we can declare it void, on account of the absence of a formality required only by the common law.

WrE should rather ascertain its character by the pnnciples of the civil law, which was the lex loci and. enquire only whether it was creattd or modified into its present shape, in the manner which that law prescribes.

I. The defendants claim the right of emptying the waters of the city into the canal Carondelet, and conveying them through it to the Bayou St. John: Ju~ cloacce mittencice.

THIS right is a SERVITUDE. Jus cloaccc mit~ tendc~ servitus est. Dig lib. 8. tit. 1. b. 7.

SERVITUDE S are established by conventions or stipulations, or by will. Si quis velit vicino aliquodjus constituere ,Oactionibus at qua stifula-tionibus id efficere debet. Potest etiam testamento qws heredeni suwn danznareut patiarur eurn (vicinuin) per fundwn ire, agere aquamve ex eo ducere. Inst. lib. 2. tit. 3. s. 4.

Permission and forbearance establish servi- tudes. Traditio plane et patientia servitutum in ducit officium praetoris. 1 Dig. lib. 8. tit. 3. b. 1. & 2. The commentates understands that per- mission alone estabishes a servitude, in the same manner as forbearance (note 18.) Aut ita legendum, aut hic sensus est! Patientia plane, ut traditione servitutem inducet officium pra- toris.

II. A right may vest in a person, natural or corporate, without any covenant or agreement of such a person. In the present case a convention or agreement between the government or the Ba- ron de Carondelet and certain inhabitants of the city and its neighbourhood may have vested the right of drain in the city. What

What concerns the interest of a third person may be the object of a contract, in conditione aut in modo. In modo, i. e. that although I can- not directly stipulate what concerns the interest of o~ a third person, yet I may alien what belongs to me, with a stipulation that the person to whom I alien it, shall doa thing which concerns the interest of a third person. 1 Pothier on Obligations, 64, n. 71. Thus the individuals, who paid money or furnished the labour of their slaves, might fairly stipulate with the Baron, that the city should have the use of the canal for a drain.

According to the principles of the old Roman law, a third person, who had not been a party to the contract derived no right of action therefrom. But according to the constitutions of the Emperors, a third person, in whose favour a donor adds a charge to the gift, has an action to compel the donee to fulfill the intention of the donor. God. lib. 8 tit. 55, l. 3, note 18, speciale est in donationibus, con tractibus, ut alteri per alterum quaeratur ac-tio. The action of the third party was called actio utilis, the name Roman lawyers gave to actions, which had no other foundation than equity. Quce contra subtilitatem juris, utilitate exigente ex sola aequitate concedebantur, 2 Pothier on Obligations, 50 no. 72.

Thus could a right be vested in the corporation of the city, without any covenant or agreement made by its head or representative, the Ca~ bildo.

Neither is it clear that a person, who was not one of the parties toacontract, cannot, in countries where the common law prevails, acquire a right of action under it. In many cases the courts of Great-Britain have allowed such a right.

A promise was made to the after husband's flither to pay him L. 10 and the husband brought the action-held to lie: for the party to whom the benefit accrues may bring the action. Provender vs. Wood. Hett. 30.

Where a man promised to another to make satisfaction for all the debts which he owed to another, who was absent, the creditor brought an action and held to lie. Het. 177, cites 43 and 44, Eliz. Rixon vs. Horton.

A. promised B. that in consideration B. will make unto A. a lease of certain lands, A. will assign them to B's servant-the servant shall have the action and not B. Arg. 2 Le. 205, pl. 225, cites it as 25 El. Crew's case.

An action may be maintained by a daughter on a promise to her father for her benefit on a consideration moving from the father. Dutton vs. Poole. 1 Ventris 318, 332; T. Jones 103. In Martin vs. Hind, Douglas, 146, lord Mansfield said it was difficult to conceive how a doubt could be entertained on this point.

In Marchington vs. Kernon, 1 Bos. & Pull, 101, Buller J. said that if a person make a promise to another for the benefit of a thirds the latter may maintain an action upon it.

Candor induces me to acknowledge that. the authorities on the other side of the question are the most numerous and perhaps the most conclusive. See 1 Viner 333-37, 2 Evans' Pothier 32; 3 Bog. & Pul. 149, n. 1, Ventris 6. 1. Str 592.

In my view of the case, the defendants had by nature the right of emptying part of the waters~ of the city, on the spot on which the ea-nat has been dug, and they have acquired that of of conveying the whole thro' the canal by a convention or agreement.

It is in evidence that all the lands immediately behind the city lie lower and naturally receive the waters of it-that behind Fort Ferdinand, which stands close to the former ramparts and opposite to the middle of the city, the land is higher than on each side and gradually slopes towards the middle of the square between St. Philip and Maine streets, on one side, and towards the very spot on which the canal is dug, on the other; that spot being lower than both the sides of it. So that naturally part of the waters of the city flowed on it; and although the lateral slope has very little steepness, yet, in high water, the thread of the stream was plamly perceivable in the present line of the canal.

The city has therefore a right of draining its water as a natural servitude on the land behind it. si tamen lex non sit agro dicta, agri naturam esse servandam & semper inferiorem, superiori servire, Dig. 31, lib. 39, tit, 3, s. 23, and this right exists on every part of the land behind the city. Quaecungue servitus fundo debitur, omnibus ejus partibus debitur, Dig. lib. 8, tit. 3, l. 21, s. 3. The right is on the whole and each part. Jus servitutis totum est in toto et qualibet ejus parte, civiliter tantum. Bart. vid. l. 1, s. 16 de aqua quotia.

So that the owner of the inferior land cannot free any part of it from the servitude. In deepening this lower spot into a canal, the right of the owner of the superior land, to convey the water which before flowed on it, could not be affected, without affording him elsewhere a conveyance equally convenient.

This natural right of servitude was in the year 1794 modified by a convention or agreement.

The parties have laid before us several papers which are admitted to be official.

The first announces the intended digging of the canal Carondelet : It is spoken of as a canal which (emptying the waters of the city and " its environs, into one of the branches of the " bayou) will rid it of the stagnating waters " which contribute peculiarly to its insalubrity “ and the myruads of musquittoes which render “ it so unpleasant an abode, during summer.”

It state that “ the expences of the war preclud- “ ing the hope that the royal treasury would con- “ tribute to the expence of a considerable canal “ of navigation, government had only solicited “ the king to allow the convicts (which were a- “ bout to be transported to Pensacola) to remain “ in New-Orleans, engaging with their aid and “ that of several inhabitant, zealous for the pub- “ lic good, to dig a canal d'egoutement, (a canal “ for draining,) which will be changed in succes- “ sive years into a canal of navigation for schoon- “ ers.”

A NOT I-I ER paper announces the completion of the canal of the city as far as the bayou, with a width of fifteen feet, and the intention of the governor to have it dug one foot deeper, from the high land of the Lepers to the city, so as to en~ able the schooners to reach its gates. It concludes " The work could be completed in eight “ days, if the planters and inhabitants of the city “ would aid it with one negro each, during three “ days-an object of little moment which never- “ theless will rid them totally (les delivrera “ totalement) of the stagnating water and con- “ sequently of the sickness so common in the “ fall.”

It is in evidence that the inhabitants and neigh. bouring planters very cheerfully complied with the Baron's requisition-those among the former who had no slaves, working personally on the canal, or furnishing an equivalent in money. in. deed a gentleman who surveyed the works under the Baron's order, has deposed that in his belief the convicts did not effect one third of the work.

We are further apprised that the Baron's intention was to extend the canal to a width of thirty feet in course of time, and that he caused gargoullies, (large wooden gutters,) to be placed, at a reasonable distance from each other, on each side of the canal, the issues of which were stop- ped in time of rain, the water suffered to settle and deposit the earth it brought down, and when perfectly clear allowed to find its way thro' the canal to the bayou. A keeper was appointed for this service.

Lastly, a royal schedule of the 10th of May, 1801, six years after the completion of the canal, directs the commons of the city to be drained by trenches into the canal, so as to put an end to the putrid fevers occasioned by stagnating waters, and yet attended with great mortality.

From all this testimony the impression which any mind receives is that the defendants have satisfactorily Proved the right of the city to a drain through the canal-a right which naturally existed over this particular spot, in a more eminent degree than over any other part of the commons, except on another between Maine and St. Phillip streets, and has been altered into its present form by a convention or agreement, between the King or the Baron of Carondelet, as his representa tive, and a number of inhabitants of the city and planters of the neighbourhood.

An agreement or a pact is the assent of two or more personson the same object. Duorum vel plurium in idem placitum consensus. Dig. de Pactis. l. 1. s. 1. Domat p. 1. b. 1. t. 1.

Now, in the present case, the proposition of the Baron, that the persons to whom it was made should afford the aid he wanted for digging a canal, emptying the waters of the city and its commons into one of the branches of the bayou was accepted, the aid furnished, and the Baron undertook to apply it to the object for which it was yielded. Here is then a complete pact or agreement. It has been faithfully carried into ef-fet: the parties to it must reap the promised advantage-their right thereto is perfect.

The inhabitants of the city and planters, who furnished the consideration, have the right of claiming it back, if the promised advantages are withheld. The civil law gives them an action cal-lcd condictio ob causam dati, causa non secuta. I fhte advantages were intended for a third person, natural of corporate, who was not a party to the agreement, there results for him the actio utilis, qwc contra subtilitatem juris, utilitate ita exi-gente, ex sola aequitate concedebatur. 1 Pothier on Obligations, 50, n. 72.

The plaintiffs' counsel has however contended that the canal was intended for two objects, which cannot exist together, navigation and a drain-that the first was the main one, the other merely incidental, during a short period, and necessarily intended to give way to the principal one.

The evidence of this fact is sought in the first paragraph of the Moniteur, read in evidence. The canal is there called a canal of drain which will be changed in successive years into a canal of navigation for schooners.

Tn E word changed is represented as a sacra- mental word, which must be construed strictly -and thus necessarily precludes the idea of the canal remaining after the change, what it was before.

WORDS are not always to be understood in their strict grammatical sense-the intention of the party who utters them is to be considered. Now in the case before us, the canal is presented `to our view in its original plan, and in two improved ones. It is mentioned as a canal for a drain, a canal of navigation for schooners, with a width of fifteen feet, lastly, as a considerable canal of navigation of double that width, as one witness, Gastdnedo, has sworn, and as the paragraph in the Moniteur describes as one, the expenses of the war precluding the hope that the royal treasury would contribute to.

Now that the objects of a drain and of a canal of navigation for schooners could be simultaneous, in the contemplation of the Baron, clearly appears. For when he announces, in the third paragraph, that with the help of a certain number of llegroes during three days, the work will be completed as a canal of navigation for schooners, these vessels being enabled to come up to the very gate of the city, he assures the persons from whom he solicits this last aid, that by yielding it, they will be totally rid of the insalubrity of the city: an, advantage which is presented as a prominent object, and that of the approach of the schooners as far as the gates as the secondary one. A mode of expression which repels the idea, that the two objects were not to be simultaneous -or that the canal, being navigable for schooners, had undergone such a change, as to render it necessary that the people should be at the trouble and expense o~ a new canal, to serve as a drain to the waters of the city-while they were promised that they would be totally rid of them.

THE intention of the Baron, if it was not suf ficiently expressed by his words, is manifested by the fixing of the gargouilles, or wooden trenches, through which the stagnating waters, on the back p1 the city, were to be conveyed to the canal, and the establishment of a keeper to attend to them, after the canal had become fit for the navigation of schooners: and six years after the plan of the Baron, in this respect, incidentally received the sanction of the king, by the schedule of 1801.

The canal was to undergo its change from a drain to a canal of navigation for schooners and afterwards a considerable canal of navigation, of the width of thirty feet, and still continue to answer its primitive and posterior destination and serve as a drain and a canal of navigation for schooners, in the same manner as an individual passes through the stages of childhood; adolescence and virility. without ceasing to be the same person.

The change was to be effected in succcssivc years. If it was to have taken place, by the canal ceasing to be used as a drain, successive years would not have been required for this purpose. It would only have taken one day to throw a darn ~cross the spot on which the waters of the city entered the canal. If, on the contrary, the change was `to happen by gradual deepening and widen~ 1ng, then the words successive years are proper~ ly used. They are senseless, if the change is to be a sudden one, as the plaintiffs' counsel irna~ glues.

But, the last paragraph, ante 11-12, puts the matter beyond the po~sibiiity of a doubt.Read it, in connection with the other two, and it &arly repels the idea, that the word changed in the first, is to be taken in any other sense, than as synonimous with the word improved. Read it without a connection with the others, it creates a new contract. If the planters and citizens, says the Baron, will send one negro eachforthree day, they will be rid totally of the stagnating waters and consequently of the sickness common in the fail. Can the court understand that his meaning was, that in order to get rid of these stagnating waters, the people would be called upon to dig another canal? He assures them they will get rid of them totally.

The counsel for the plaintiffs have finally pressed upon the court, as conclusive evidence, that the Baron never intended, that the waters of the city ~houid pass through the canal, the two walks bord~ied with trees, which are mentioned as af-cording a delightful promenade. These walks do not appear to have been intended to be made, till the canal had reached its utmost width, the double of the present. At the cession of this c oun-try, eight years after the completion of the work in its second stage, as a canal of navigation for schooners, the walks were not begun-and they could not be-since the intended margins of the canal were not yet fixed upon. When the canal had obtained a width of 30 feet, with a pro~ portionate depth, the mass of water would he too considerable, to be affected with the portion of the filth of the city, which might reach it.

Admitting that the agreement or conven.. tion was not evidenced, by any words or communications, it would be the duty of the court to imply it, from what has been done. If a canal be made to convey the waters of two estates, by the proprietors, or a person have the right of conveying the water of his field through the neighbouring one, when once a canal is dug for this purpose, it cannot afterwards be altered. This is the opinion of Sabinus. Sabino quoque videbatur qui argumento rivi utebatur: quem pri-ma qualibet ducere liquisset, posteaquam ductus esse, transferre non liceret. Dig. 1. 8. tit. 1. 6. 9. The canal having been dug by mutual consent, no one has a right to change its direction.

I conclude that the Baron does not appear, in any of his communications or proceedings, to have ever expressed or entertained the idea that there would be occasiou of digging any other ca- nal: on the contrary, he clearly expressed and manifested a contrary idea.

Bur the counsel for the plaintilTs say, that, whatever may have been the intention of the parties, as the cana' was avowedly dug for two purposes -the draining of the city and navigation, it now clearly appears both purposes cannot be answered and therefore the less important must be abandoned.

The fact is far from being established. An en-ginecr (Tanesse) has deposed that were the ca nal carried to its intended width, a drag, or marie salope, might clear it of the earth, the waters of the city would carry with them.

But admitting the fact. Congress or the Legislature, in sanctioning the improvement of the canal by the plaintiffs, do not appear to have intended, if they possessed the power, to have de. stroyed the right of the defendants. If the exercise of this right be incompatible with the intended improvement, the civil code has provided the means, by which the interests of both parties may be reconciled.

• IT authorises the plaintiffs to free themselves from the inconvenience of receiving the waters of the city, thro' the canal, by affording to the defendants a drain, equally convenient elsewhere. " Yet, if this primitive assignation has become " more burthensome to the proprietor of the es- " tate, which owes the service, or if he is there- " by prevented from making on his estate some " advantageous repairs, she may offer to the pro- " prietor of the other estate, a place equally con- " convenient for the exercise of his right, and " the owner of the estate, to which the service is " due, cannot refuse it." Civil Code 140, art. 64.

In cases of doubt the court will ever lean in favor of the party, qui certat de damno vitanclo. The other, qui certat de lucro cap tando, is not to be favored.

The plaintiffs in this case are mere donees or volunteers-They have paid no consideration. The defendants, on the contrary, if the judgment of the court be against them, lose the whole la-bour and expence of digging the canal. I say the whole, because three fourths of the canal were dug by the personal labour of some of the inhabitants of the city and neighbouring planters, the la-bour of their negroes, and with the money of others-and the other fourth by the labour of the convicts which the Sovereign bestowed as a fa-vour (grace.) So says the Baron. Now the right of the city, in this last fourth, is as strong as in the other three. Surely, the sovereigns having bestowed this gift, favour or grace, could not fairly recall it. Altho' the city did not make any advances, from the corporate chest, yet her rights are the same: for the canal was dug to avoid an expence, the city would ha~é been corn-pellcd to undergo, if her administrators respected the health and lives of her inhabitants. The very persons, who furnished the aid directly, would have been necessarily called upon to enable the corporate chest to perform the work. If a drain is now to be dug by the city, such of those persons who are still living, and the descendants of the others, must put their hands into their pockets, to do that otice more which has already been done at their cost.

The act of 1811, c. 6, directing a new trial in all cases in which the court are divided: the motion was set down for argument, at the next term.