The New Orleans daily Democrat. [volume] (New Orleans, La.) 1877-1880, 1877-10-31

Marigny, signed ana adopted BY Mr., Marigny.
and his oession Of June II, 1906, formed the con.
tract between the city and him, the purchasers OF
lots snd che public.
The divisions and dispositions Of this plan,
when once accepted and acted upon, became, as
legal consequence, fixed and unslterable. 40
cording to this plan D. Marigny had established
q tract of 15G feet wide for public promenade,
subject TO . servitude in his favor Of . canal in
the centre, which he projected. This formed
dedication. II would not have been in his power
to alter or divert the uses Of this space to any
other purpose The plan fixed the destination OF
things. ALI those who acquired from b. Marigny
under that plan, the city, the purchasers OF lots,
the inhabian OF the faubourg, acquired = vested
right to the divisions and dispositions OF the plan
Of which they could not be Invested.
This principle has become the settled jurispru-
denoe OF the land
The destination made by the owner is equiva-
lent to title. O. q. 767.
When large portions OF ground within city
are laid off into squares and streets. and sold In
lots with reference to plan, the plan forms part
of the title @. q. 1869; A. $50; Ia A. GAL: ID.
$685. A. 443; IL A. 10S: IS A. $780,
When plan referred to in an act of sale repre-.
SCENTS alley, 1t forms destination in favor OF
adjoining lots. Ia A. $50.
The case of Burke We. Wall, 80 A. 80, was de-
cided by our present Supreme Court. 1t appears
that 1t. Patrick's Church had drawn plan OF
was divided into blocks. interseoted by avenues.
Plaintiff purchased lot according TO the plan
exhibited to him. After all the lots had been dis
posed Of, the church attempted to cell to DEFEND
ant Wall portion OF one OF the avenues FOR
tomb. Held "It is evident to our minds that
the avenues in the cemetery we're, when the plan
thereof was made and the plaintiffs lot was pur-
chased, dedicated TO the use OF those who pur-
chased lots therein, aud that no distractions can
be put upon them which would render that use
,fkh f,ppih ifpn ha
the cemetery can block up one avenue, they can
block up another, and 30 on from avenue to
avenue, until all the tombs therein will be mac
oessible The rights of the owners Of lots pur-
chased when the right OF way existed cannot be
thus destroyed"
Again, in same case, on rehearing: "The plan,
the open entrance place. and their long continued
and habitusl use OF the avenue, at least by the
general public, ss well as by the lot owners,
would come very near constituting dedication
Of them to public use, and would certainly do 40
to the use Of the lots and those holding them,
whether their titles be absolute or qualified, or
right TO the soil or In and over 1t.
Under the facts OF this case the church itself
could not close these avenues or render their use
more inoonvenient, II objected to, so long as the
ground is used az cemetery: and the defendants
are in no better position. to say the least OF it,
o. q. TIT.
settled principles OF law, it follows that Bernard
Marigny could have exercised no other rights
over the said strip OF fifty feet than the rights re-
served by him on his plan and his oession Of
June II, 1906 that is, the rights to have and keep
open canal.
Besides special legislation had fixed the un-
altsrable condition Of things under the plan. The
act OF the General Assembly Of April 10. 1905,
which liz the cornerstone OF this faubou'g, had
enacted that "so soon az any lot of land shall be
sold bounding on any q the streets or squares so
laid out and traced on the said map or plan, then
and from the date of the conveyance OF the said
lots, the phoie Of such street square, which
he same may be bounded, shall be gested in the
corporation Of The city Of Ne,o Orleans for public
use to be forever thereafter kept open az pubic
ray" All the lots sold by d. Marigny were col /
on the faith Of bis plan fronting on Eys,an
Fields street. To admit for one moment tbst the
whole OF the $50 feet did not constitute Elysian
FIELDS street, IL to admit that each street on
either side Of the canal was separate or distinct
str Get; which would be q contradiction OF the
plan and of the facts established above. By 40
oepting the benefits Of the act of the Legislature,
Marigny bound himself to submit TO its oondi-
tions. The whole OF Elysian Fields street was,
therefore. vested in the city Of New Orleans for
public uae, to DO forever thereafter kept open as
public way.
Thus We nave shown that the right Of having
and enjoying the whole Of Blvsian Fields street
ss public promenade, 150 feet wide, kept open
and unobstruoted save by canal, Was vested in
the city Of New Orleans, in the front proprietors,
aud in the public. by the acts and declarations Of
the owner, Bernard Marigny. These acts con.
sttuted dedication. 1t Ia well settled that no
particular form 10 necessary to dedication. ALI
that is required is the assent of the owner, and
the fact Of i.s being used for the purpose intend
ed. Is A., $50.
The plan Of Mr.. Msrigny, his actions and sol.
emn declarations in relation to this avenue, the
act OF the Legislature, the resolutions OF the
Council the fact that this avenue has been used
as public common for over half century, with
out claims OF adverse ownership from any one,
are circumstances which leave no doubt in our
mind.
We shall consider now the rights of the Point.
chartrein Railroad Company under it's act Of pur.
chase OF Feb. %. 1880.
The act reads: ''The said Mr.. Margny declares
that he cedes and transfers by these presents
and wi hout any warranty whatever, except that
be has not disposed in any manner OF the rights
which are the object OF the present cession and
transfer, all his rights titles and pretensions 10
a portion Of ground known as Ma1fgny canal
having fifty feet French measure) ia width,
more or less, and extending from the high road
of the levee, with the same width, down to the
| limit OF Judge Martins plantation, which
| is that Of Marigny's former plantation
but the portion of said canal which forms the
| basin, which is at the head of the new Fsubourg
Marigny, measures ak feet wide by $50 feet long
and from the limit Of Judge Martins plantation
the said portion Of ground, known "a Ndrignl
| canal, measures seventy-two feet wide more OF
less, composing the canal and the road on each
| size OF sdd CdhH, forming part tnereof up II
Bayou st. John. The said Mr. Marigny declares
also ceding unto said company, the right which
he has to extend said canal to the river on
width of fifty feet, which portion of ground
known by the name Of Ma,fgny canal, 10 repre-
sented for the greater portion on plan Of Eau
| bom'g Mdrigny, deposited In the drcl,ipes Of til.
| Council Of the city Of Ne,o Orleans, and ddtet
Mdy2l. 1906; and also for the greater portion OF
another plan comprising the old and new Eau
bourg Marigny dated september IA, 1909, drawn
| Ito md kAA To- IN 80 A.,
undersigned notary; which plans are signet
by the said Mr.. Marigny and to which thu
parties hereto refer, said canal being
transferred coWormaoly to sad plans
and the said MIR, Durable declares, well knowing
said portion of land known as Canal Mdrtgny apt
taking it such ne 1t purports to BIZ. The sale
Marigny declares that from the year 1905 ant
| since he has passed divers acts with the corpora
ton Of New Orleans in which the question OF th
| canal Is brought up; that said City Coun
Gil has passed divers ordinances and resolution
concerning said canal, of which acts, ordinances
and resolutions the said Mr.. Marigny declares Il
have had fuJl knowledge and TO ,phirh he has sal,