By the court: (Slidell, J., recused himself.)
Eustis, C. ’J.
The plaintiffs allege that they are owners of certain lots around and fronting the public square, designated as “ Place de l’Annonciation,” on a certain plan under which the lots in that portion of the First District of the city were laid out and sold; that in the middle of this place is a square or islet bearing the number 34; that on said islet is depicted the ground plan of a building of vast dimensions, having a cupola in the centre and fronts on the respec[501]*501live sides, which building is marked on the plan as “ Eglise de l’Annonciation,” is in the form of a great cross, and occupies the whole of the area except the corners; that by this designation on said plan, the founders of the former suburbs Lacourse and Annunciation, in which this property is all situated, destined and appropriated this islet as the site of a church, and renounced the right of appropriating it to any other purpose. The petition sets forth the right to enforce this destination, by reason of their purchases under the plan, and the abandonment of the space on the part of the original owners; of the possession, by the proprietors of the lots around it for many years, or by the citizens and authorities of the city, with the sanction and approbation of the original owners, &e.
The heirs of Delogny and Livaudais being about to divide this islet and sell it out in lots, at auction, the plaintiffs instituted this action, in which they ask a decree that their rights of ownership and others, relating to this space, be adjudged to be prescriptive and paramount to any claimed or set up by the defendants; that the defendants be adjudged to have no right, interest or title to the same; or, if they have any, that it be adjudged to be subject to the obligation of erecting the church, or of causing or permitting one to be erected according to the plan. The petition sets forth the ground of the plaintiffs’ action with great fulness, and the prayer for relief is ample. The defendants were enjoined from selling the property, until the further order of the court.
The judgment of the district court held the defendents to be the absolute owners of the property, and the plaintiffs have appealed.
The plan under which the plaintiffs’ rights are asserted, was before the Supreme Court in the case of Livaudais v. Municipality No. Two, 16 L. R. 512. The plaintiffs in that suit recovered from the municipality a square of ground designated on the plan as Coliseo. The court determined that this designation did not amount to a dedication to public use, or vest the title in the corporation. In the case of Livaudais v. Municipality No. Two, 5 Ann. 8, the identical square concerning which the present suit is brought, was the subject of litigation, and the court considered it too clear for argument, that the title did not pass under the dedication described in that plan. We think it decided in both these cases, that no dedication to public uses can be inferred from the designation of places of public amusement or of public worship, on the plans of towns and suburbs, as with us they are invariably private property. In the latter case, the court considered that there was no evidence out of the plan to show any dedication to public use, or an acceptance or any prescriptive right acquired against the present defendants.
We find nothing in the evidence which changes the view we then took of the dedication to public use, either as resulting from the plan itself, the acts of the parties, or the prescriptive right asserted by the present plaintiffs.
If the property in this square was not divested from the original owners, and no dedication to public use has been effected, the inquiry is as to the nature of the right asserted by the present plaintiffs. Is it a right of servitude or a real right? We think neither can be assumed'as established in any legal sense. New Orleans and Carrollton Railroad Company v. Municipality No. Two, 19 L. R. 62, and French v. The New Orleans and Carrollton Railroad Company, 2 Ann. 80. The principles on which these cases were decided, we think, are conclusive against the existence of any real right in favor of the plaintiffs’ lots, adversely to that which is the subject of this litigation. The titles or tenures by [502]*502which real property is held with us are defined in the Code, as well as the real rights which can be established in relation to it, and no other’s can be recognized as attaching themselves forever upon it, without breaking down the distinctive barriers of property, and introducing inextricable confusion in the law regulating it, which, for the wisest purposes, is plain, inartificial and easy to be understood, and apt for every reasonable purpose of use.
In the case of Livaudais v. The Second Municipality, which related to the Coliseum Square, an expression fell from the court which appears to embody the views of the plaintiffs in the present case. In Livaudais'' case the court observes: “ There is no evidence of the alleged dedication out of the plan in this case, and none in the plan out of the word Coliseum. In the same plan is marked a locus publicus called La Place de l’Annonciation, in the middle of which is a spot designated as a place for a church. If the plaintiff did not, by this designation, contract the obligation of building a church, he certainly renounced the right of appropriating it to any other object.” In the latter part of the opinion, we think this expression is somewhat qualified. The court says : “ As we have said with regard to the spot designated for a church, the obligation which the plaintiff has contracted, by the use of the word Coliseum, might certainly be discharged by the erection of such an edifice. In the meanwhile he may have lost the right of using the square for any other purpose. As to the erection of the edifice, who has put him in mord ? If the building is not necessarily to be erected by him, who has offered to erect it? Who has ¡accepted the donation which results from this dedication?” &c.
We do not think, that as a matter of argument, this obiter dictum aids the plaintiffs.
The difficulty of stating the distinct legal right claimed by the plaintiffs, is apparent in the written argument of their counsel. Hence, the equity of their case is strongly pressed, and the impression on the part of the plaintiffs, and of those interested, is undoubtedly in favor of the right asserted. This impression seems to be, that if the plan does not require that a church should be erected, it involves an obligation on the part of the original owners, that no other building should be erected on the site designated, which should remain open, to be used by all the purchasers of the lots in common, until reclaimed for its original purpose by proper authority; that this was its destination in reference to the surrounding property, and was one of the inducements held out to purchasers. That the original owners, by this designation, undertook to build-the church, is not pretended. The whole amount of the sales of the property would not have paid one-fourth of the expense. They might, as such, have been expected to have built an amphitheatre on the place designated for a coliseum.
The law not considering this spot as a locus publicus,
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By the court: (Slidell, J., recused himself.)
Eustis, C. ’J.
The plaintiffs allege that they are owners of certain lots around and fronting the public square, designated as “ Place de l’Annonciation,” on a certain plan under which the lots in that portion of the First District of the city were laid out and sold; that in the middle of this place is a square or islet bearing the number 34; that on said islet is depicted the ground plan of a building of vast dimensions, having a cupola in the centre and fronts on the respec[501]*501live sides, which building is marked on the plan as “ Eglise de l’Annonciation,” is in the form of a great cross, and occupies the whole of the area except the corners; that by this designation on said plan, the founders of the former suburbs Lacourse and Annunciation, in which this property is all situated, destined and appropriated this islet as the site of a church, and renounced the right of appropriating it to any other purpose. The petition sets forth the right to enforce this destination, by reason of their purchases under the plan, and the abandonment of the space on the part of the original owners; of the possession, by the proprietors of the lots around it for many years, or by the citizens and authorities of the city, with the sanction and approbation of the original owners, &e.
The heirs of Delogny and Livaudais being about to divide this islet and sell it out in lots, at auction, the plaintiffs instituted this action, in which they ask a decree that their rights of ownership and others, relating to this space, be adjudged to be prescriptive and paramount to any claimed or set up by the defendants; that the defendants be adjudged to have no right, interest or title to the same; or, if they have any, that it be adjudged to be subject to the obligation of erecting the church, or of causing or permitting one to be erected according to the plan. The petition sets forth the ground of the plaintiffs’ action with great fulness, and the prayer for relief is ample. The defendants were enjoined from selling the property, until the further order of the court.
The judgment of the district court held the defendents to be the absolute owners of the property, and the plaintiffs have appealed.
The plan under which the plaintiffs’ rights are asserted, was before the Supreme Court in the case of Livaudais v. Municipality No. Two, 16 L. R. 512. The plaintiffs in that suit recovered from the municipality a square of ground designated on the plan as Coliseo. The court determined that this designation did not amount to a dedication to public use, or vest the title in the corporation. In the case of Livaudais v. Municipality No. Two, 5 Ann. 8, the identical square concerning which the present suit is brought, was the subject of litigation, and the court considered it too clear for argument, that the title did not pass under the dedication described in that plan. We think it decided in both these cases, that no dedication to public uses can be inferred from the designation of places of public amusement or of public worship, on the plans of towns and suburbs, as with us they are invariably private property. In the latter case, the court considered that there was no evidence out of the plan to show any dedication to public use, or an acceptance or any prescriptive right acquired against the present defendants.
We find nothing in the evidence which changes the view we then took of the dedication to public use, either as resulting from the plan itself, the acts of the parties, or the prescriptive right asserted by the present plaintiffs.
If the property in this square was not divested from the original owners, and no dedication to public use has been effected, the inquiry is as to the nature of the right asserted by the present plaintiffs. Is it a right of servitude or a real right? We think neither can be assumed'as established in any legal sense. New Orleans and Carrollton Railroad Company v. Municipality No. Two, 19 L. R. 62, and French v. The New Orleans and Carrollton Railroad Company, 2 Ann. 80. The principles on which these cases were decided, we think, are conclusive against the existence of any real right in favor of the plaintiffs’ lots, adversely to that which is the subject of this litigation. The titles or tenures by [502]*502which real property is held with us are defined in the Code, as well as the real rights which can be established in relation to it, and no other’s can be recognized as attaching themselves forever upon it, without breaking down the distinctive barriers of property, and introducing inextricable confusion in the law regulating it, which, for the wisest purposes, is plain, inartificial and easy to be understood, and apt for every reasonable purpose of use.
In the case of Livaudais v. The Second Municipality, which related to the Coliseum Square, an expression fell from the court which appears to embody the views of the plaintiffs in the present case. In Livaudais'' case the court observes: “ There is no evidence of the alleged dedication out of the plan in this case, and none in the plan out of the word Coliseum. In the same plan is marked a locus publicus called La Place de l’Annonciation, in the middle of which is a spot designated as a place for a church. If the plaintiff did not, by this designation, contract the obligation of building a church, he certainly renounced the right of appropriating it to any other object.” In the latter part of the opinion, we think this expression is somewhat qualified. The court says : “ As we have said with regard to the spot designated for a church, the obligation which the plaintiff has contracted, by the use of the word Coliseum, might certainly be discharged by the erection of such an edifice. In the meanwhile he may have lost the right of using the square for any other purpose. As to the erection of the edifice, who has put him in mord ? If the building is not necessarily to be erected by him, who has offered to erect it? Who has ¡accepted the donation which results from this dedication?” &c.
We do not think, that as a matter of argument, this obiter dictum aids the plaintiffs.
The difficulty of stating the distinct legal right claimed by the plaintiffs, is apparent in the written argument of their counsel. Hence, the equity of their case is strongly pressed, and the impression on the part of the plaintiffs, and of those interested, is undoubtedly in favor of the right asserted. This impression seems to be, that if the plan does not require that a church should be erected, it involves an obligation on the part of the original owners, that no other building should be erected on the site designated, which should remain open, to be used by all the purchasers of the lots in common, until reclaimed for its original purpose by proper authority; that this was its destination in reference to the surrounding property, and was one of the inducements held out to purchasers. That the original owners, by this designation, undertook to build-the church, is not pretended. The whole amount of the sales of the property would not have paid one-fourth of the expense. They might, as such, have been expected to have built an amphitheatre on the place designated for a coliseum.
The law not considering this spot as a locus publicus, under the designation in the plan, and the plan indicating an object exclusively within the dominion of private property, and there being no obligation on the part of the owners to erect the church, full effect is given to this designation, by considering it as a donation for the written purpose, in favor of any individuals or congregation which might accept it for that object. This seems to be the only mode contemplated at the time, in which the erection of the church could be secured eventually, and thus the object of the dedication attained. But this has never been attempted, or offered to be done, nor is it now proposed to be done, after the lapse of half a century. And we think any such right on the part of the purchasers must be held to be barred by lapse of time, by the prescription of thirty years. The [503]*503plaintiffs are not in a situation before the court, in which the right, if any existed, could inure to their benefit. It is difficult to perceive, under this view of the subject, how a right can be inferred in this state of things, to keep this place open, for the common use of the purchasers of the property.
We have considered the acts of the parties concerning the use and possession of this land, in relation to the prescriptive right of the plaintiffs. Previous to the enclosure by a fence, by one of the proprietors of lots fronting on it, some fifteen years since, we do not find the rights of either party affected by anything which transpired in relation to it. It was vacant — that is, not occupied or enclosed, and left in the condition of suburban property laid out in lots, which owners do not feel disposed to incur the expense of enclosing. The non-payment of taxes by the defendants, we think, does not of itself impair their rights: it is not proved that any taxes were assessed on the property.
The district judge has prepared a very elaborate opinion on the case, in which we mainly concur. From the best examination we can give to the subject, we have no doubt whatever as to the effect of the designation on the plan, as not constituting, under our jurisprudence, a dedication to the use of the public, or a servitude in favor of the front proprietors.
In relation to the appeal made to the exercise of the equitable powers of this court in behalf of the plaintiffs, we would observe, that they can only be called forth for the enforcement of clear and well-defined lights. We have very strong doubts whether, in faro consdeniice, the case is in their favor. It seems to us clear, that it does not present a claim which a court of justice can legally enforce. Pothier on Obligations, Nos. 1 and 197. Hubgh v. Carrollton R. R. Co. 6 Ann. 511.
The date of the plan carries it back to a period when' the Spanish law was in force, and previous to the abolition of the distinction relating to sacred and religious things, and of their inalienability, by the corporations to which the law recognized them as belonging. Code, 447. Code of 1808, book 2, tit. 1, chapter 1, art. 9.
By the Spanish law, things established for the service of God were held sacred, and the dominion thereof was not in .any person, and could not be counted as property. The laws on that subject were borrowed from paganism; but nevertheless, since the solemn consecration of churches and cemeteries was established, immediately on things being consecrated, religion was considered as occupying them, and being irrevocably inseparable from them. The consequences of this principle were regulated by the common law institutes of the law of Spain, book 2, tit. 1, p. 73.
As the Catholic religion was the dominant religion in the city and State at the time of this alleged dedication, the name of the place, and of the church, its form and dimensions, leave no doubt in the mind, that the church for which the spot was designated, was to be of the Catholic faith exclusively. It is not pretended, that any offer has been made to accept this donation, if so it may be called, on the part of any Catholic congregation, or any other. Nor do the plaintiffs even intimate any intention or purpose of appropriating the land to such an use.
I am not aware, that there is anything in this case, which calls for any modification of the general doctrine of the dedication of property to public uses, and as expounded in the decisions of our predecessors, and recognized afterwards by this court. The fullest recent case on this subject, is reported in 8th Ben. Monroe’s Reports, p. 233, in which the principles of the doctrine are expounded [504]*504and explained with great ability, by the Court of Appeals of Kentucky. To this doctrine I assent. But the doubt in my mind is, whether this case comes within it, the destination of the land being for a Catholic church; an object which, by an express article of our code, is within the dominion of private property, and not inalienable.
I must add, that the general doctrine laid down in common law courts, has been admitted by our courts, with some modification, resulting from our different system of laws. In Louisiana, all titles to land were, and remain allodial, and not feudal. The feudal law, and its usages, never had a place in this region, under the Spanish government, and the jurisprudence of real property, under the common law, cannot be applicable to land titles in this State.
I should be gratified to be able to defer my humble opinion to any long existing general opinion, in favor of a public right; but the right of a citizen to his property, which the law gives him, is the highest of all public rights, which all men have the deepest interest in vindicating and maintaining.
According to my impressions, the use of this square for the purpose claimed by the defendants, defeats the destination made by the founders of the suburb, instead of giving it effect.
Judgment affirmed, with costs.