Ursuline Nuns v. Fresch

Supreme Court of Louisiana

Ursuline Nuns v. Fresch

16 La. Ann. 359

DecidedJune 15, 1861

StatusPublished

This text of 16 La. Ann. 359 (Ursuline Nuns v. Fresch) is published on Counsel Stack Legal Research, covering Supreme Court of Louisiana primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Ursuline Nuns v. Fresch, 16 La. Ann. 359 (La. 1861).

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Opinion

Buchanan, J.

Defendant claims the right to break up flatboats opposite plaintiffs’ plantation, under the city ordinances. He contends that, inasmuch as the lessee of the sixth section of the port has given him permission to land his flatboats at this place- (as he was authorized to do by the last paragraph of the 30th section of the city ordinance, approved June 21st 1858,) he is therefore authorized to bréale up his flatboats there. But this does not seem to follow. The city ordinance of March 5th 1853, (Leovy’s Digest, p. 345,) prohibits, under a penalty, flatboats from being-broken up except within the space included between Sixth street and the upper limit of the city; and the same ordinance designates another portion of the levee as a landing for flatboats. The counsel of defendant argues that this ordinance of 1853 has been repealed by the ordinance of June 21st, 1858: for the latter ordinance appropriates the whole space between Sixth street and the upper line of the city as a landing for the shipping. But it does not follow, because the shipping wñl interfere with the breaking up of flatbeats in the space at the upper limit of the corporation appropriated by the ordinance of 1853 for that puipose, that therefore the prohibition to break up flatboats in any other part of the city has been taken off. That prohibition appears still to exist. And as the defendant relies entirely upon a supposed authorization from the city for the occupation of plaintiff’s property to break up flatboats, the absence of such authorization entitles plaintiff to have the injunction perpetuated.

We are thus dispensed with the decision of the questions raised by the [360]*360pleadings and argument of counsel, concerning the public use of the battuxe and levee, of which. the naked ownership is in the riparian proprietor.

It is therefore adjudged and decreed, that the judgment appealed from be affirmed, with costs.

Yoorhtes, J., absent.

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Buchanan, J.

Defendant claims the right to break up flatboats opposite plaintiffs’ plantation, under the city ordinances. He contends that, inasmuch as the lessee of the sixth section of the port has given him permission to land his flatboats at this place- (as he was authorized to do by the last paragraph of the 30th section of the city ordinance, approved June 21st 1858,) he is therefore authorized to bréale up his flatboats there. But this does not seem to follow. The city ordinance of March 5th 1853, (Leovy’s Digest, p. 345,) prohibits, under a penalty, flatboats from being-broken up except within the space included between Sixth street and the upper limit of the city; and the same ordinance designates another portion of the levee as a landing for flatboats. The counsel of defendant argues that this ordinance of 1853 has been repealed by the ordinance of June 21st, 1858: for the latter ordinance appropriates the whole space between Sixth street and the upper line of the city as a landing for the shipping. But it does not follow, because the shipping wñl interfere with the breaking up of flatbeats in the space at the upper limit of the corporation appropriated by the ordinance of 1853 for that puipose, that therefore the prohibition to break up flatboats in any other part of the city has been taken off. That prohibition appears still to exist. And as the defendant relies entirely upon a supposed authorization from the city for the occupation of plaintiff’s property to break up flatboats, the absence of such authorization entitles plaintiff to have the injunction perpetuated.

We are thus dispensed with the decision of the questions raised by the [360]*360pleadings and argument of counsel, concerning the public use of the battuxe and levee, of which. the naked ownership is in the riparian proprietor.

It is therefore adjudged and decreed, that the judgment appealed from be affirmed, with costs.

Yoorhtes, J., absent.

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Bluebook (online)

16 La. Ann. 359, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ursuline-nuns-v-fresch-la-1861.