New Orleans Republican. [volume] (New Orleans, La) 1867-1878, 1870-09-04
THE COURTS.
Eighth District Court-The Pontchartrnin
Kailr0ad Case.

In this case yesterday, Judge Emmerson,
| sitting in the absence Of Judge Dibble, de-
| livcred decision substantially as follows:
Bernard Marigny conveyed to plaintiffs,
ON the twenty third Of February, 1880, a
| tract of land at the centre of Elysian Fields
street, fifty feet in width, and running from
| the levee to or near Force street. The bal
| ance of Elysian Fields he had reserved and
dedicated to the city as a street or public
highway. vacancy was established on
each side of the central ground, being a
strip on either side Of the tract granted to
the plaintiffs, twelve feet wide, as walking
avenue or banquette.
The fifty feet above mentioned became
the property Of the plaintiffs, and the re-
manning portion or portions of the street
locus publiens or public highway, including
the sidewalks.
On the twentieth of January, 1880, the
plaintiffs were incorporated with perpetual
succession, and were authorized to con-
struct their road from every point in the
city to the lake. and through such streets as
the Council might designate.
On the fifteenth of March. 1880, the Coun-
Gil, by resolution, granted to plaintiffs the
right ''during the whole period of the ex-
istence of their charter" to use twelve feet
in width of the street, Or walking avenue on
either side of the tract conveyed to them,
upon which to construct their road, and
they have unintereuptedly enjoyed the
same from the time their road was COM
pleted until recently, when the strip on the
lower side of the central portion was Occu-
pied by the Chattanooga Railroad Company.
The above grant, made by the Council,
was authorized by the plaintiffs act Of in
corporation.
On the twenty-sixth of July last, the Ad-
ministratOrs of the city revoked the said
grant and replaced the ordinance by which
it was established; whereupOn the plaintiffs
sued ont an injunction against the city,
claiming the said grant of March IS, 1880.
to be Il franchise. asserting their exclusive
right III perpetuity to the use of the two
strips of twelve feet in width restraining
the city from enforcing in any manner the
ordinance of July 90, 1870. prohibiting it
from disturbing them in the nse of said
strips, and from removing the depot build
ings and constructions erected thereon by
them and from selling or granting to any
person or corporation the use or possession
of said strips.
After lengthy opinion, in which Judge
EmmerSOn gave an exhaustive view of the
law. he concludes as follows:
Under these circumstances | can grant no
order, except so far as it will relate to the
two strips in dispute. To the free use of
them the public has right, and from them
the Council has right to remove the OD
structions.
Let the motion to bond be granted, and
let the injunction herein issued be dissolved,
SO far as it restricts the defendants, the
Administrators of the city of New Orleans,
in their legislative power. to control and
regulate the two strips of land of twelve
feet in width in question, and so far as it
restrains the said defendants from removing.
or causing to be removed, the distractions
upon said strips. This decree is to be 80
-.
ence with the railroad tracks now in use By
the plaintiffs.