The Court,
in my humble opinion, erred in considering the servitude as created. by the act of man. One party cannot raise a dam to stop the water, nor the other any work by which the bur-then of the inferior estate may be encreased. The work of man does not refer to a canal dug, since the owner may do it at his expence.
Mathews, J.
The canal was made by him by whose authority it was dug: the king of Spain, not the city.
Moreau,. continuing. The Court also erred in determining this case on a principle of the common law of England, not applicable to us, in contradiction to the lex loci.
Mathews, J. It was at least on a principle consonant to reason. The right, having no corporal [224]*224existence, could not be transferred by delivery, it must therefore pass by grant.
Moreau, continuing. The civil law knows not this distinction between corporal and incorporal rights. Both pass by delivery. No grant was necessary.
Neither was the Court correct in saying the city cannot take advantage of a contract, in which it did not intervene as a party. It does not represent, but has succeeded to the rights of, those by whose aid the king was enabled to dig the canaL
If the sovereign cannot vest ahy property or right in a city without a grant, that of New-Orleans may be deprived of every part of its property: for it has no gr4nt. The ground on which this hail stands, that on which the church was built the jail, the hospital, all have passed without a grant.
Mathews, J. No person to accept.
Moreau, continuing. The three hundred toises arOund the fortifications, were not kcepted by the cabildo, yet congress have recognised the right of the city, and confirmed their title.
Mathews, J. The sovereign can revoke his gift. The United States have done so, by granting to the present plaintiffs a right incompatible with that claimed by the city. The city cannot [225]*225complain, for congress gave it property of much greater value.
Moreau, continuing. The cabildo represented the city, and draining its streets being an object of public concern, might claim from the king the pri-viledge of emptying the waters of the city, over the king's land, into the bayou. The city council, having succeeded to that body, may lawfully claim a continuance of a right which the cabildo might insist upon.
The defendants have a wrong claim on the score of equity. The king said his situation, on account of the war, compelled him to set bounds to his munificence. He was unable to dig the canal without the help of the inhabitants of the city. He solicited that. Negroes, cash, were supplied by the wealthy; actual personal labour by the poor. This is surely a valuable consideration.
Mathews, J. This consideration has been repaid. The use, which the city has had till now, was more than an equivalent.
Moreau, continuing. The consideration a party gives, whatever it may be, entitIes him, not toan equivalent, but to every thing that is promised every thing in thee expectatioa of which the consideration is furnished.
The Baron de Carondelet, in his last commu[226]*226nication, acknowledges the proposed advantages were to be perpetually enioyed. " A service of " little moment which, however, will rid them "totally of the stagnating waters, and conse- " quently of the sickness so common in the fall" Ante 12.
The incompatibility of the use of the canal for the purpose of navigation, and that of a drain, does not destroy the contract. For the incompatibility of these two uses does not exist in regard to impossibility, but in regard to difficulty and ex-pence.
The Baron told Metzinger "the canal was " dug for the conveyance of the waters of the city, "as well as for the purpose of navigation, and " must answer both the intended objects." Ante 13. The Baron intended to increase the canal to double its width, and to have a marie salope, to keep it clean. Persons of the art have declared that, with these improvements, the canal might well serve for both the intended purposes. See Tanesse and Castanedo's testimqny. Ante 15.
THE impossibility which avoids the obligation of a contract, must be an absolute one. Great difficulty, trouble and expence, do not.
Originally the servitude existed over the whole land; by the consent, nay, the act of both parties, and for their mutual interest and conveni. çnce, it ba~ been altered. If now the private in- [227]*227terest or convenience of either party, requires another change, let the alter~tion be made at the cx-pence of the party to be benefited thereby.
THE counsel for the plaintiffs declined replying.
Cur. adv. vutt.
THE Court, a few days after, delivered their opinion:
Mathews, J.
The defendant's counsel, and the learned judge in opposition, having abandoned all pretensions to an absolute title to the disputed property itself, and reduced their whole claim to that of a servitude, this alone we are bound to notice or examine.
It is a little surprising, that one brother judge should seem to turn, with apparent disgust, from any expressions drawn from thecommon law, to ascertain the character, or name, of the right claim[228]*228ed by the defendants, as the character and name thus deduced, is not only that of the common law, but of common sense, and also of the Roman law, from which he insists on drawing all authority, for the decision of the present cause; and we are surprised that in quoting the institutes, lib. 2, s. 3, he did not observe, in the title immediately preceding, and on the same page, de rebus corpo-ralibus et incorporalibus, in which it is said, ss. 2, incorporales sunt quae tanginon. possunt, eodem-que numero sust jura praediorum urbanorum et rusticorum, quae etiam servitutes vocantur. That a servitude is properly termed an hereditament, or that which may be inherited or succeeded to, we believe will not be denied on any hand ; and here it may be observed that, in our view, it is very immaterial whetherwe named things by the common or civil law, if the names are proper according to the rules of common sense and common parlance; and it is quite unnecessary, being the same in both systems of laws, to enquire whether they have been established by the dictum of a Roman pretor, the edict of an emperor, or denominated by a learned English law-writer.
The first position, laid down by the judge dissenting, is, jus cloaca mittendoe servitus est; true, and a very dirty one it is, as it relates, to those persons bound to submit to it; and being so burthensome, those claiming such servitude, [229]*229ought very clearly to establish their right, before it should be allowed to them.
HE next goes on to shew how servitudes are established, and for this purpose cites the Institutes as above stated, wherein it is said "si quis " velit vicino aliquod jus constituere pactionibus " atque stipulationibus,id efficere debet;" also that a testator may, to the prejudice of his heir burther his farm with a servitude. The latter clause of this authority, having no bearing whatever on the case before us, we pass in silence. The first sentence comes completely in aid of the opinion of the Court, for we have not been able to discover any pact, or stipulation, by which the defendants have established their right to the servitude claimed: still believing that, to all contracts, agreements and stipulations, two parties are necessary in some shape or other.
It is said and insisted on, "that permission and forbearance establish servitudes," and in support of this. position, is cited the digest, b. 8, s. 3, where it is stated traditio plane et patientia servi-tutum inducet officium practoris; and here it might be observed, that the judge is a little urifor-tunate, after having thrown aside the common law, as affording no legitim~te aid to the determination of this cause, to ave fallen on a sentence in the Roman law, which it is almost impossible to understand, except by the assistauce of a commett. [230]*230tator, who has been obliged to give it a totally new structure, in order to make it intelligible ; and says that it ought to be thus read, patienta plane, ut traditione, servitutem inducet officium praetoris; which, we suppose, may be thus construed, "by "long and open forbearance, as by being trans- " mitted from one to another, it is the duty of the "praetor to consider it a servitude ;" this,right must partake of the nature of prescription, and to end all discussion on this point, it is sufficient to observe that, against the sovereign, prescription cannot run.
Without determining on the correctness or incorrectness of the judge's second proposition, in which he states that "a right may vest in a person, " natural or corporate, without any covenant or "agreement of such a person," it will suffice to shew, that the authorities brought in support of it are not applicable to the present cause. To effect a proper application of the citation from Pothier to this suit, it is necessary to shew that the Baron Carondelet had a right to burthen the royal do main with servitude, or to alter and modify those which existed by nature. It is notcontended that be had such a power, arising from his office as governor, nor does it appear ti.t he had any special authority to convey, or give in any manner, the right now claimed by the city; such a power can only be dubiously implied from one of the [231]*231official papers laid before the Court, which states that "the expences of the war, precluding the "hope that the royal treasury would contribute "to the expence of a considerable canal of navi"gation, government had only solicited the king "to allow the convicts (that were about to be "transported to Pensacola) to remain in New "Orleans, engaging with their aid, and that of "several inhabitants zealous for the public good, "to dig a canal for draining, which will be "changed in successive years into a canal of navi"gation for schooners."
It seems tous, from this paper, that the inten. tion of the governor, and his master the king, had been to make a considerable canal of navigation; but the deficiency in the public funds, rendering it impossible at that time to execute so expensive a project, they were content that the city of New-Orleans might aid in making, for the present, a canal for draining-permitting them to use it for that purpose, until it should be convenient to render it fit for the first great end intended-a canal of navigation. Now if the Baron had no right to give, grant or sell a servitude, the doctrine of the " actio utilis" cannot be made to touch the present cause, for the donor basing no power to give, the donation itself fails, and every correlative must fall with it, and the party for whose benefit it was intended, can claim nothing by the [232]*232gift. But admit that the governor had a right to give, grant, or stipulate relative servitudes on the public domain, is there stronger evidence that he stipulated with those individuals who gave the service of the negroes, that the canal should forever remain a sewer for the city, than that it should be made a canal of navigation? If we recollect the testimony correctly, it appears to have been intended more for the latter purpose than for the former; indeed it appears, that the primary object and ultimate end of all concerned in it, was to make it a canal of navigation. We are of opinion that it cannot answer the two-fold use of a common sewer to the city, and of a navigable canal; and that the community must lose all the advantages which might be derived from its navigation, or the city must desist from using it as has been heretofore done, and as there is no contract or stipulation, vesting in the corporation the right which they claim, they hive no legal pretensions to the servitude as arising from grant or contract.
But it is said they have a right ex natura loci, because the canal is on land lower than that on which the city stands, and that by the civil law the lower ground owes a natural servitude to the higher, to receive its waters, and that the judgment of the Court is erroneous in requiring evidence of a grant of this right, which arises from the nature of the place. It is true that the owner of the tower [233]*233ground is. bound to receive the water running from that of the superior landholder; but it must be received as it flows by the course of nature, and connot be altered or modified except by compact or agreement betwixt the parties interested, and it would be proper to require the same power to change and modify a right, as to grant it originally. It is equally true that we have it in evidence, that all the lands immediately behind the city are lower, and naturally receive the water of it; they receive it as an inclined plane, each space receiving the water immediately descending on it, there stagnating, and not flowing in any particular stream or direction, except inevery high water; and it is said, that because quacunque servi-tus Fundo debitur, omnibus ejus partibus debitur, therefore, the owner of the inferior land cannot free any part of it from the servitude. True, the canal must bear its proportion of the natural servitude, and we suppose that the plaintiffs would never have complained, were it not for the attempt to make them submit to the whole drainings of the city from one end to the other, whereas by nature they are only bound to receive such portion of the water as would occupy an exent on the upper ground, equal to the width of the canal on the lower.
We are not able to feel the force of the objection made by the dissenting judge, to favouring [234]*234the pretensions of the plaintiffs, because; their are mere donees or volunteers. The donee certainly SUCCeedS to all the rights of the donor, as well as to the burthens on the thing given. Suppose the United States still held their right to the canal, and granted tothe city, as they have done all the balance of the land in its rear to the distance of 600 yards, with what just or equitable pretensions could the defendants insist on the exercise of a servitude on the part retained, which was only due by the whole commons, and that to the utter destruction of the part retained, for the purposes intended by its retention, or with what face could they demand of the general government to give them another canal,when they have granted to them the very land through which it must pass? and to the value of perhaps more than ten times the cost of the canal: and as the plaintiffs have succeeded to all the rights and privileges of the United States, they are not bound by law, or in equity and good faith, to do more than the gov. ernrnent would have been obliged to perform had they retained the canal. The servitude claimed being a natural one, due by the whole extent of land in the rear of thecity, must be apportioned according to the extent of the grant to the plaintiffs and defendants, as it is said in the digest, book the 8th, tit. law 25th-" Si partern fundi mei certam tibi vendidero, aquaeductus jus etiamsi al- [235]*235terius parties causa plerumque ducatur te quoque sequetur: neque ibi aut benignitatis agri, aut usus ejus aquae ratio habenda est: ita, ut eam solam partem fundi, quae pretiosissima sit, aut maxime usum ejus aquae desideret, jus ejus ducendae se-quatur: sed pro modo agri detenti, aut alienati fiat ejus aquae. This is when the aquae-duct is beneficial, and if a benefit is to be divided, by analogy, so ought a burthen.
The defendants ought to take nothing by the motion.
Lewis, J. concurred.
Motion overruled.
The opinion of the Court, was delivered immediately after its opening, and before Martin, J. took his seat. He had prepared the following:
Unable to concur with my brothers, in some of the points on which the judgment of the Court is founded, and particularly a principal, one, upon which one, of them has insisted, during, the last argument, ante, 223 & 224, I have again given to this case all the attention of which I am capable, and I have to lament my utter inability to recog-nise some of the principles upon which it has been determined.
I admit that, according to a well known rule of the common law of England, the right which [236]*236the defendants claim, “having no corporal exis- “ tence, could not pass by delivery, it must there- “ for pass by grant:” Neither am I willing to contest whether this rule be grounded on reason? But I have said the common law of England was not the rule of conduct which the parties recog-nised. On the contrary, the rule of the civil law, the law of the land, in this respect, differs toto caelo from that which it has pleased the Court to establish.
Res incorporales, says Bracton, tradition-em non patiuntur, l. 2, c. 18.
Traditio servitutum, says the Digest, indu-cet officium praetorus, l. 8, tit. 3, l. 1, s. 2.
In the institutes incorporeal things are defined: those which cannot be touched. Incorporales du-tern sunt que tangi non passunt, l. 2, tit. 2, s. 1, and a note is introduced in the margin, by Gothe-fred, whether they are susceptible of delivery? An tradi possunt? For the solution we are referred to the digest. Here the query is answered in the negative. Incorporales res tradition em non recipere manifestum est. l. 46, tit. 1, l. 43, s. 1. But, adds the commentator, they are susceptible of a fictitious delivery. Nisi fictam scil. alias mero jure, but are considered as delivered when we are permitted to enjoy them. Tra-ditae censuntur cum alius patitur nos iis uti. We are referred to the 6th book of the digest. It [237]*237is there said that if a servitude be delivered the right of the person thus acquiring it, shall be protected. Si de usufructo agatur tradito, publici-ana actio datur, itemque servitutibus urbano-rum praediorum, per traditionem constitutis, vel per partientum. Forte si per domum quis suam pas-sus est acquaeductum traduci: item, rusticorum praediorum: nam et hic traditionem et patien-tium quendam constat. l. 11, s. 1
THE annotator adds that ~ncorpora1 things are susceptible of a quasi-delivery. Proprie, scil, Quasi-traditionem recipiunt.
After this, it is difficult to misunderstand, or find any ambiguity or obscurity in the position that servitudes pass by delivery. Traditio plane et patientia servitutum inducet officium praetoris. Dig. lib. 8, tit. 3, l. 1, s. 2. Delivery certainly, and forbearance of servitudes, give rise to the interference of the praetor. Neither is the note less plain. Aut ita legendum est, ut tra-ditione servitutum inducet officium. praetoris. Neque interea displicet quod a Baldo traditur, servitutes tradi patiendo seu patientia: deberi officio judicis.
From these different texts, I have inferred that a servitude, although an incorporal thing, may pass by delivery, according to the principles of the civil law. Though not susceptible of a corporal delivery or delivery de facto, it is sus- [238]*238ceptible of a delivery de jure, and will therefore pass without a grant. For example: If I purchase a right of view over my neighbour's estate, and he does actually pull down, for the purpose, as much of his wall, or of his house, as before obstructed my windows, the act of pulling down will be a delivery of the right of view. Tradi-tio quae inducet officium praetoris. If I demolish myself the part of the wall or house, in consequence of an agreement between him and me, his forbearance will perhaps be an equal evidence of my right. Patentia quae inducet officium prae-toris.
The French law writers recognise this principle of the civil law. "A third ijianner of acquir "ing property" says Pothier, "is delivery, by "which the property of a thing, passes from one "person to another. Doctors call it, modus ac-"quirendi dominii derivativus. This manner of " acquiring proferty is derived from natural law." Traité de la proprieté, 192, n. 193.
hae quoque res, quae traditione nostrae fi-unt, jure gentium nobis acquiruntur. Nihil enim est tam conveniens naturali aequitate, quam vo-luntatem domini rem suam in alium transferre ratam haberi. l. 9, s. 3, ff. de acq. rer. dom.
"Incorporeal things," continues Pothier, "not "being susceptible of possession, since posses"sion consists in the corporal detention of a things [239]*239“ it follows as a consequence, that they are not “ more susceptible of delivery: delivery being “ only a transfer of the possession. Yet, as for “ want of a possession, strictly speaking, we re- " cognise a quasi-possession of incorporeal things, “ which consists in the use which is made of them, “ there ought to be also a kind of delivery of in- “ corporeal things.”
“ This delivery, with regard to real rights, “ or the rights of servitude, is done patientia et “ usu, that is to say, when he, in the sight of “ whom the right is used, suffers it to be used. “ For example: If I bound myself to give you a “ right of way over my land, I am holden to make “ you a delivery of it, when you begin to pass “ over it and I suffer it. If I bound myself to “ give you a right of view over my house, when “ you will make windows and the mean wall, and “ I suffer it.” Traite de la propriete, 208, n. 214.
We must be careful not to confound two different means of acquiring property, delivery and prescription.
The former is derived, as we have seen, jure gentium: the other from the municipaI law. Delivery is a means of acquiring property by the act of the owner. Prescription, is a means of acquiring it, without any act of his, even without his consent or knowledge.
[240]*240“ Lastly,” says the author just cited, “ we “ lose, without our consent, and even our know- “ ledge, the property of a thing, belonging to us, “ when he who possesses it, acquires it by pre- “ scription. As soon as the prossessor has, by “ himself or those from whom he holds, accom- “ plished the time required to allow the prescrip- “ tion, the law, which establishes prescription, de- “ prives us, ipso facto, of the property we had in “ the thing, and transfers it to the possessor.” Traite de la propriete, 272, n. 276.
In order that the delivery may vest the pro-pert?, it is necessary it should be made by a person having power to alien it. Now the land, on which the canal was dug, if the plaintiffs have any right on it, was, at the time the canal was dug, the property of the king, vacant, unappropriated land, terras realinguas. The power of the governors of Louisiana,to grant the king of Spain's vacant land, is not at this time to be doubted. Few of the planters have any other title to their land, but what proceeds mediately or immediately from a governor's grant or concession. If he could alien the soil, surely he could burthen it with a servitude. Omne majus includit in se minus. In this particular instance, the governor acted with his master's knowledge and consent. Before the canal was begun, the king consents that the galley slaves be employed to dig it: after it is completed [241]*241he directs that it may be used in draining the lands around the city.
Thinking that the right, which the defen. dants claim, night pass to theni without a grant, I must conclude with their counsel, that there was no necessity for a formal, literal acceptance. If it be admitted that the right was acquired traditione or patientia & usu, it must follow that it was accepted; although there be no written evidence of the acceptance.
I cannot assent to the position of one of my brothers, ante, 224, 225 that as a sovereign can revoke his gift, the United States may have done so, that is, destroyed the title of the defendants, by granting to the present plaintiffs a right incompatible with that claimed by the city: nor that the city cannot complain, for congress gave it pro~ perty of much greater value.
First. It is very doubtful whether, after the United States have made an absolute donation, they can recall it. But the right claimed by the city, if it exist at all, was acquired for a valuable consideration; labour and money spent in digging the canal.
Secondly. The congress has not given a foot of land to the city. The confirmation of "the "claim of the corporation to the commons adja- [242]*242" cent the the city, within six hundred yards of the "fortifications of the same," was not gratuitous, but made, in consideration of their relinquishing their claim to the rest of the said commons, and of their conveying part of the land within the six hundred yards, to the present plaintiffs. 8 Laws U. S. 304.
IN the opinion I delivered last term, ~`ante 32, I stated the grounds on which I think that the city might claim a right, accruing under the a~eement or convention between the Baron de Carondelet and some of its inhabitants, although the city was not a party thereto.
I conclude that the principles, upon which the judgment of the Court rests, appearing to me untenable, I think it ought to be reconsidered.
Judge Mathews had the politeness to favour the reporter, with the manuscript, from which his opinion is printed.