# New Orleans v. De Armas

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United States Supreme Court
34 U.S. 224
New Orleans v. De Armas
IN error to the supreme court of Louisiana.
The defendants in error commenced a petitory action, by filing a petition in the first district court, in and for the first judicial district of the state of Louisiana, claiming to be the owners of a lot of ground in the city of New Orleans; eighty feet front, and close to the foot of the Old Levee, between St Philip's and Maria streets; and stating that the lot had formerly been built upon, and had been possessed by a certain Thomas Beltran, or Bertrand, with the knowledge, permission and authorization of the Spanish government, from March 1788 to 1803, and by his widow, who afterwards demolished the buildings, and removed to another part of the city. The widow, acting for herself and the minors, took all the legal steps to have the title confirmed by the United States; and the commissioners of the land office reported on the title, that 'it would be more an act of justice than of generosity, if the government should confirm it.' The commissioners under the act of congress of 11th May 1820, entitled 'an act supplementary to the several acts for the adjustment of land claims in the state of Louisiana,' confirmed the title against any claim of the United States; and a patent for the same was granted to the widow and heirs of Bertrand. After the death of the widow, the petitioners became the owners of the property by purchase from her heirs,-they being also the heirs of Bertrand.
The petition proceeds to state, that prior to the cession of Louisiana by France, the lot of ground belonged to the king of France; and by the laws of Spain, which were introduced into the colony of Louisiana after the said cession, the king of Spain by his officers had the full right of disposing of the same. By the retrocession of the colony to France by Spain, the right to the lot of ground became vested in France, if it was not the property of Bertrand; and the same right was not divested by any act done by the king of Spain, except in favour of Bertrand. That, by the treaty of cession of Louisiana to the United States by France, the United States clearly acquired every lot of ground, land, squares, (emplacemens terrains) buildings, fortifications, edifices therein, which were not private property; and that the grant made by the aforementioned letters patent, therefore, justly and lawfully vested the said widow of Bertrand with all the rights of ownership and possession, which all the different governments, who had possessed Louisiana, had or could have to the said lot of ground.
The petition alleges that the corporation of New Orleans, under the pretence that the lot claimed by the petitioners is a part of certain quays marked on a plan of the city, have enlarged the Levee in front of the city so as to include the same, and pretend that they have just title to this lot; and prays process, &c., and that it may be adjudged and decreed, that the petitioners are the only true and lawful owners and proprietors of the above described property; and that the said mayor, aldermen and inhabitants, have no right whatever in, to or upon the same.
The answer of the corporation of New Orleans denies that there had been an absolute grant of the lot in question by the Spanish government to Bertrand, but only a permission to build a temporary cabin thereon; and asserts that the patent of the United States cannot be a good title thereto. They insist that it had been determined in 1812, or 1813, in a suit brought by the corporation against the widow and heirs of Bertrand, that the latter had no title to the lot, and was compelled to take down the buildings thereon. The answer proceeds as follows.
'And the said defendants further say, that even supposing, which they do deny, that the Spanish government would have at any time made an absolute grant of the said parcel of land to the said Beltran or Bertrand; the said grant should be null and void, because the said parcel of land made a part of the quays of this city; that is, one of those public things which even the sovereign himself had no authority to dispose of to the prejudice of the public, without a flagrant abuse of his powers.
'And these defendants further say, that at the time of the foundation of the city of New Orleans, under the French government; said government left between the bank of the river Mississippi and the first row of houses fronting said river, a large space emptied and unoccupied, under the name of quays, and intended to serve and to be reserved as such for the use of the inhabitants of this city, as they exist in the several cities of France, and in her colonies; and as it is proved by the ancient plans of the city of New Orleans, which have been preserved in the office of the marine charts, maps and plans, which existed at Versailles, in France.'
After proceeding to take the evidence of witnesses, and on the exhibition of their testimony with the documentary evidence of the parties; the district court, on the 12th of March 1832, gave a judgment in favour of the petitioners in the following terms.
'The plaintiffs allege that the widow Gonzales, from whom they derive title, obtained a grant from the United States of the lot in question, and that the defendants have extended the Levee so as to embrace said lot, and conclude with the prayer, that they may be decreed to be the lawful owners, and the defendants enjoined from disturbing them in the free enjoyment of their rights as owners of said lot. The defendants oppose this claim upon several grounds; but the only one which can be relied upon with any hope of success is, that the space between the front buildings of the city and the river was, at the time the city was laid off, under the government of France, intended to be kept open for public use, designated as a quay, and which could not be the subject of a grant. If the facts, as stated in the answer, were true, the conclusion drawn from them would be undeniable. The sovereign could not cede what had been already granted, unless there be retrocession or forfeiture. The only evidence in support of the defendant's claim is a fac simile of a plan made by Charlevoix, and by him stated to be copied from a plan deposited in the marine office, made by N. B. Ing. de la M. 1744, and on which is marked on the space between the front of the city and the river, the word 'quay.' Names do not change the nature of things; a quay is an artificial work, and may belong to an individual as well as a corporation; but to belong to either, it must not only exist and have a defined extent, but must be shown to have been granted. It is self-evident to every one who has seen this space of ground, that it is not a quay. The defendants have shown no other title which can be validly opposed to the grant under which the plaintiffs claim; there is no material difference between this and the case of Metzinger and the defendants: that was a grant under the king of Spain; this a grant under the United States, who have succeeded to the same rights. Had the defendants sheltered themselves under their charter, and shown that the public safety required that the base of the Levee should be extended to prevent inundation, or that it was necessary for a public way, the case might have presented a different aspect.
'It is ordered and decreed, that the defendants be enjoined not to disturb the plaintiffs in the possession and free exercise of their rights, in and to the lot mentioned and described in their petition, and that the defendants pay costs.'
From this decision the corporation of New Orleans appealed to the supreme court of the state of Louisiana. In February 1833, the supreme court affirmed the judgment of the inferior court, and the case was finally disposed of, by a judgment, in favour of the original petitioners, a rehearing having been refused, on the 27th of March, in the same year.
The mayor, aldermen and inhabitants prosecuted this writ of error; and the following errors in the judgment of the supreme court of Louisiana, were assigned by the plaintiffs in error, and came up with the record.
'The judgment of the supreme court of the eastern district of the state of Louisiana, affirming the judgment of the court of the first district of said state, is erroneous, and ought to be reversed, and judgment ought to be rendered in favour of the plaintiffs in error, with costs; for the following reasons, and such others as may appear on the record.
'1. The spot of ground in controversy makes part of an open space in front of the city of New Orleans called a quay, which by the ancient plans of the city was constituted a quay, or public place, and dedicated to public use as well by its designation on said plans, as by the sovereign authority, and by its use and occupation for public purposes.
'2. The right of the former sovereigns of Louisiana over this place was a matter of prerogative, varying according to the institutions of the different governments which have held Louisiana, but always inseparable from the sovereignty.
'3. The right of use of this place by the public is a vested right; is a species of property in which the inhabitants of Louisiana are protected under the third article of the treaty of cession.
'4. By the treaty of cession, Louisiana was ceded in full sovereignty to the United States.
'5. The United States held this sovereign power during the time they held the sovereignty of Louisiana; but by the admission of Louisiana into the union, this branch of sovereignty was vested in the state of Louisiana, and under the constitution could not exist in the United States.
'6. The power of regulating the use or appropriating or changing the destination of public places belongs to the sovereign power alone.
'7. Since the admission of Louisiana into the union on a footing with the original states; the United States had no power to interfere with the property or use of any public place in Louisiana.
'8. The plaintiffs in error, who are, under the laws of Louisiana, the proper parties to vindicate the public rights, held the place in controversy by permission of, and by the authority of the state of Louisiana, as will appear by the charter of the city of New Orleans and the laws of the state, and claimed the undisturbed use thereof by virtue of the treaty of cession, and under the act of congress, passed on the 8th of April 1812, for the admission of Louisiana into the union; and the decision of the supreme court of the castern district of Louisiana is against the title, rights, and privileges thus claimed by the plaintiffs in error, and in this is contrary to the provisions of the treaty and law of the United States; and ought therefore to be reversed.'Mr Clay and Mr Porter, for the defendants in error, moved to dismiss the writ of error for want of jurisdiction.
The jurisdiction will be attempted to be sustained on the allegation that the questions in the cause depend on the treaty by which Louisiana was ceded to the United States. It was understood that in some cases the court had permitted a cause to be argued on the merits, before the question of jurisdiction was decided; but this was when the whole of the matters in the cause were so intermixed as not to permit the point of jurisdiction to be separately examined. Such is not the fact in this case. The question of jurisdiction stood forth from the merits.
If the jurisdiction can be supported, it will rest on the first, second and third articles of the Louisiana treaty, and principally on the third article, which declares that Louisiana shall be incorporated into the union, and in the meantime that the inhabitants should be protected in their property. The execution of the provision of the treaty to incorporate Louisiana, as a state of the union, was looked to in thus securing the property of the inhabitants. It was not necessary to provide for the rights of property afterwards. From the time of the incorporation, property in the state was held under the guarantee of the constitution of the United States, as the property of the citizens of other states is held. After the admission of Louisiana into the union, as a state, the treaty ceased to operate. From that time the rights of property depend upon, and are to be decided by the laws and by the courts of the state.
But if these are not the effects of the admission of Louisiana into the federal family, this is not a case arising under the treaty. The purpose of the twenty-fifth section of the judiciary law, under which the jurisdiction in this case is claimed to exist; is to enable this court to carry the constitution, treaties and laws of the United States into execution. Owings v. Norwood's Lessee, 5 Cranch 344, 2 Cond. Rep. 275. The case must arise out of-spring out of, a treaty; be created by the treaty, or the right claimed be given by the treaty, and which requires the courts of the United States to give force to the treaty.
The title of the defendants in error originated during the existence of the right of the Spanish crown to Louisiana; and was afterwards confirmed by patent from the United States. The plaintiffs in error claim the lot in controversy as a part of a quay which belonged to the inhabitants of New Orleans, and so designated in a map; it having, as they allege, been appropriated for public use before the cession of the territory. Thus both of the parties claim under the Spanish crown, and assert their rights as having existed prior to the treaty; and neither claims under the treaty. The treaty has nothing to do with the title of either; and in the state courts nothing was said of it. The property was granted before the treaty, to Bertrand; and is now in the grantees of his heirs, under the Spanish grant: or, at the time of the cession, it was vacant, and has since been granted by a patent, and is held under that patent.
Again. It is not a case arising under the treaty, in which the decision has been against the treaty. The decision is in favour of the treaty. Both the corporation of New Orleans, and the defendants in error, were intended to be secured by the treaty. The decision of the supreme court of Louisiana is in favour of a right under the treaty, and under a patent granted by a law of the United States. There is, thus, a perfect neutrality in the parties as to the treaty.
It is now contended, that the plaintiffs in error claim under the act of congress of 1812, by which Louisiana was admitted into the union, as a state. It has not been before asserted that the city of New Orleans claimed under that law. The question in the courts of Louisiana was, whether the king of Spain had granted, and whether he had authority to grant, the lot in controversy; it having been previously dedicated to public uses. The city of New Orleans claimed under a dedication in 1788. The act of 1812 did not interfere with or affect either of these asserted rights. It did not authorize the state of Louisiana, thus made a sovereign state, to interfere with the rights of the city of New Orleans. The property never belonged to the state of Louisiana. If, at the time of the admission of the state into the union, this property passed to or belonged to the state, the state might interfere in the question between the parties to this case, which has not yet taken place. But if such right existed, or does exist, it may yet be presented, as it could not be affected by the decision in this case. Louisiana, as a state, has no other right to come into this court, than have the other states of the union.
Mr Webster against the motion.
It has not been the practice of the court to discuss questions of jurisdiction, when so intimately blended with the facts and merits of the case, as are these in the cause now before them. If they find the question so connected, they postpone a decision until the whole argument is heard; and this is desired by the plaintiffs in error.
It early became a question, in what manner the questions in a case, which had been before a state court, should be made to appear, so that jurisdiction of them could be taken in this court. It became afterwards settled, that if, in the whole proceeding, it was manifest that a party set up, under a law or treaty, or the constitution, a right, and a decision was against that right, this court could intervene and exercise its revising power over the case. The only question in this case is, therefore, whether a right of this kind was claimed by either of the parties now before the court.
The question of jurisdiction is identical with the main question between the parties. The claim of the plaintiffs below was founded on a patent from the United States; and the state court held it valid. Thus their whole title depends upon the validity of the patent. The claims of the city of New Orleans are under the treaty, by which the property of those claiming under the governments which had held Louisiana, was assured to them. The corporation of New Orleans claim under the treaty, asserting that the property was dedicated to public uses and belonged to the city of New Orleans. The principles on which their right rests, were settled in this court, in the Cincinnati, and Pittsburgh cases. Lessee of Howell v. Barclay, 6 Peters 498; Lessee of White v. The City of Cincinnati, 6 Peters 431.
If the property in dispute was in the inhabitants of New Orleans at the time of the treaty; it was out of the power of the United States to grant it to those under whom the defendants in error claim. The decision was against the treaty, which secured the property to the plaintiffs in error; and in favour of a patent which was given in violation of the treaty.
The question is, whether the act of 1812 operates in the case. The treaty is part of the title which was completed by that act. The creation of Louisiana into a state, made this state the guardian and trustee of all the property which had before that event become vested in the inhabitants of that part of the territory of Louisiana. The rights thus guarantied by the creation of the state of Louisiana by the act of 1812, have been disregarded by the supreme court in their decision in favour of a patent issued after that act.
The assignment of errors shows that the protection of the treaty was claimed by the plaintiffs in error in the state court; and the opinion of judge Martin, one of the judges of the supreme court of Louisiana, is also evidence of this position. The application of the act of 1812 to the case, was in that court overruled; and the plaintiffs in error say, that in so doing, the court misconstrued the act.
The plaintiffs in error contend that the lot in question was appropriated land in 1788; and, by the act of 1812, it passed as such into the jurisdiction of the state of Louisiana, as the other property of citizens or inhabitants of the state, and could not afterwards be interfered with or granted by the United States. The effect of the act of 1812 was to transfer the property to the state for the use of the inhabitants.
There are many rights which are in the state, which, if violated, may be brought before this court. Thus rivers and highways, if interfered with, are such rights. Could not Louisiana, in cases of this kind, come into this court, under the act of 1812?
Mr Chief Justice MARSHALL delivered the opinion of the Court.

## Notes

This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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