New Orleans Republican. [volume] (New Orleans, La) 1867-1878, 1871-06-23

to the responsibility of keeping the cana
1evees in repair. The opinion of the Cit
Attorney follows. 1t will be presented a
the next meeting of the City Council:
OFFICE OF THE CRY ATTORNEY,
.s.lss s.s.vessz--.-,s- Room No. 10, City Hail.
| New Orleans, June ~ 1871.
| Hon. B. +. Flanders Mayor:
DEAR SIR-The facts connected with the
lease of the New canal to Richard Taylor
Esq, and the break in one of the levees OPP
| posite Hagan avenue, have not been laid
| before me with that detailed minuteness
| which l would have desired. However
enough of the case has been disclosed tc
enable me to express an opinion in the pre-
| misses.
BY an act of the Legislature of this State
| approved February 10, 1866, authorizing the
lease of the New canal, and the notarial in.
strument executed by and between the
| State of Louisiana and Richard Taylor, les
see, bearing date March 6, 1866, it is pre-
vided that the aforesaid lessee shall keep
| the canal in good order.
The word "canal," as here used, has an
enlarged Specification, embracing not only
the artificial passage for water, but every
thing necessarily connected Herewith; par
ticularly the levees or entertainments placed
upon the margi in of the water to prevent
inundatlOn.
1t can not be supposed that it was the in
tention of the Legislature to hold the lessee
to liability merely to keep the water
passage in good order and well conditioned;
with the right reserved to him of SO con
structing the levees or of refusing to erect
or care Tor the same, that the city of New
Orleans might at any time be subjected to
an overflow Wingate, in his legal maxims,
says: Law cOnstrueth things according to
common possibility or intendment," and
applying the rule thus enunciated to the
case before me, l can not conclude other
of the lease, was bound, while enjoying and
using the New canal, to construct and main
tain such levees as were required to pre-
vent an overflow.
Again, in the year 1867, the General AS
sembly of Louisiana authorized the widen
ing and enlarging of the New canal and
basin. That act may have imposed duty
upon the lessee, or covertly granted him a
privilege; but, in either case, he was there
by subjected to the liability of constructing
an embankment along the line of the New
basin, with the natural and legal sequence
of keeping such new levees in good order
and condition during the existence of the
lease. By the enlarged dimensions given
to the water capacity of the thing leased.
the lessee has greatly added to his present
and prospective profits; and he can not be
permitted tuuS 10 enr1cn hlmSetf at the eX-
pense of an over1owed community.
Moreover, the liability of the lessee to
and maintain levees on the mar
gin of the New canal may well be inferred
from that just and equitable principle dis |
closed in the Roman law, and now recog-
nized by the judiciary of all countries as a
legal maxim: SIC enim debere gteD, n,eliorem
qgrum suum facere, ne riciai deteriorem
fdciat Every one ought so to improve his |
land as not to injure his neighbors
1t is said that the security of the people is |
the supreme law. lie salut du peuple, est la |
supreme toi. And how, l would ask, can |
that aphorism find satisfactory applica-
ton to the present case, except in making
the interests of the lessee subordinate to |
those of the people, and securing the latter
from inundation, by means Of a large
responsibility resting upon the former to
construct and maintain necessary levees
along the margin of the New canall
Other reasons might be urged in support
If my opinion; but, surely. enough has been
'aid to satisfy the municipal authorities that
he obligation repudiated by the lessee in
lis communication to Administrator Cock
em, under date of the seventeenth instant,
las legal and equitable existence, and
Mould be enforced by the city.
GEORGE S. LACEY,
City Attorney.