New Orleans Republican. [volume] (New Orleans, La) 1867-1878, 1871-12-10

to the plaintiff OF the right to lay its track
!. along the levee in front Of the old city Q
New Orleans, from Canal to Elysiap Field
street. The decision of the Supreme COur
of the United States no Peters,, and tn
admissions in the second lp. 81 determin
beyond question that this batture is a locu
p"blie"s in every sense. The site wa
granted by the King Of France to tn
Western Company" in iii. When tn
city was laid out, in 1724. the quay il
question was formally dedicated to public
use by the maps and surveys. 1t has re
manned locus pab|icus from that time I,
this. though by authority OF the Legislator,
the streets have been advanced nearer thu
river
This batture being public place. its uss
and regulation is under the paramount
control Of the State.
3. The third and last issue in this case
is between the Pontctartrain Railroad
Company aud the plaintiff in relation t.
the grant OF the right to construct the road
upon and along two central banquettes OF
walks in Elvsian Fields street. fSec. l, act
No. 81 1870 The following is the language
of the act:
That the said company be and is hereby
| authorized and empowered to locate, con
struct, maintain and use for the passage OF
It's engines and cars. the tracks Of its rail
| roads with the requisite curves to and
from the same from the levee to the line
designated III the said ordinances Of the city
OF New Orleans for the extension of Clai-
borne street. along and upon the portions of
Elysian Fields street. aud intervening
streets, originally designated tor the two
| central banquettes or walks in Elysian
Fields street. the said banquettes being
| two strips of ground twelve feet in width
one upon each side of and adjoining the
land said to be owned by the Pontchartrain
/ Railroad Company in the central portion of
said street.
The act further presumes to strike with
nullity any ordinance OF the city or any act
OF any person or Judge calculated to prevent
! the occupancy of these strips of land.
In the supplemental petition of the plain
tiff Rec, y. ~. it is alleged that the Pont-
chartrain company have no title to the cen
trail portion o. El.sian Fields street occu-
pied bv it read. OF to the banuuettes upon
either side
In the answer o. the Pontchartrain COM
pany Rec. y. l2h. that corporation sets
up its charter, granted January 90. 1880. au-
thOrzns the construction of the road to
Lake PontchartraiI,, and its extension to
any point in the city OF New Orleans. after
obtaining the consent of the municipality.
The said defendant also sets up an Ord-
nance. passed by the city Of New Orleans.
March l., 1880, by which tho company was
granted the right to construct its road upon
the two strips of land described This de-
PENDANT then insists that the grants of the
right OF way and use of ground as aforesaid
by the State ard city are contracts
within the meaning of the constitution of the
United States, and that all their rights.
franchises and privileges liz the premises are
lnviolable by State authority.
The evidence in the record shows that
in the centre of what is now Elvsian
Fields street. there was formerly canal,
Il h H
of Bernard Marigny, who owned
plantation through which the canal.
or rather proposed canal was to run. In
April. lsOJ. Mr.. Marigny was aut llorized by
the municipality TO constitute his plantation
into "a taubourg, which was done. In 1906
notaral act was made between the city
and Marigny, in which he donated certain
lands to the city for streets and squares.
and especially fifty feet upon each side Of
the canal for streets and banquettes, resery-
ing fifty feet for the canal. His canal was
to extend from the river back to Florida
avenue. thence by an elbow to Bayou ST
John. Subsequently, he. Marigny. released
to the city the right 70 construct a levce and
public road III front of the reservation of
fifty feet.
In 1880. February 30 the Pontcilartrain
company bought from Marigny this prop
erty for valuable consideration 1t is now
ANY attempt of the Legislature to authorize
the plaintiff to enter upon this property. I'M
less after appropriation. would be clearly in |
valid.
But the defendant places most stress |
upon the lnvalitiity of the act authOrizin. |
the plaintiff to occupy the strips of land OF
Danuuettes herelnbetUre described.
An examination of the authorities and
a consideration of the principles herein
before ascertained, Il ads to the conclusion
tina; it was within.the legislative power to
authorize the railroad company. plaintiff
to occupy the public places in question
without violating the constitutional rights
OF the other company. 1t is a settled
doctrine that the State can not completely
divest itse!t OF any of its sovereign powers.
Anon. these powers is that of police.
which includes the authority to re- ulate
the u>es OF the public places. Ii the State
can not barter away its paramount control
over such uses. certainly a municipal cor
exercising those powers in a local
and subordinate manner, can not. l Red
heid. 2o9: Cooley on constitutional lilnita-
lions 2S}. note |, and authorities.
The ordinance Of March Is. 1880. was
innulied by the provisions of the act No.
81 of 1870. This exercise Of legislative
is not subject to the imputation
IF being an act impairing the obligations
)t a contract or diyesting vested rights.
II any contract resulted between the city
If New Orleans and the Pontchartrain
Company by the ordinance of
$50 there was an implied condition that
he grant was at all times subject to the
superior control of the Legislature
The city of New Orleans recognized this
authority of the State. After the passage
II the law aforesaid. February 81. 1870. the
lily Council adopted an ordinance, July
., 1870. withdrawing the permission to the
'ontchartrain Company to occupy the ban
uettes in dispute.
But the maps and plans in evidence, and
he testimony OF several witnesses, estab-
sh that the plaintiff. in constructing its
Dad by a curved line from the levee into
-lysian Fields street. has laid it's tracks
cross a portion OF the private property of
he Portchartrain Railroad Company. This
ct should render the plaintiff liable for
The track must be removed I'M
'ss the property is appropriated and paid
The plaintiff pray, for damages against
ne city of New Orleans and the other de-
,ndants. No evidence has been offered to |
lbstantate the claim
1t is not necessary to sum up in inclusion.
Judgment will be entered tor plaintiff, the
ew Orleans Mobile and Chattanooga Rail
'ad Company. perpetuatins the injunctiOns
sued upon the original and supplemental
The plaintiffs CLAIM for damages will be
smissed, as in case of non suit
A reservation will be made to the Pont-
lartrain Railroad Company to proceed
,alnst the plaintiff by action for damages
: otherwise for the invasion by plaintiff of
c private property of the said defendant
the junction OF the levee and Elysian ..
lelds street.
The unconventional demand on+,;uo,l -, | 7