The New Orleans daily Democrat. [volume] (New Orleans, La.) 1877-1880, 1877-12-14
UNITED STATES CIRCUIT COUNT,


UNITED STATES CIRCUIT COURT,
The Razar Market Case-Judge Billings
Again Refuses the Ctty's Injunction.
Thursday morning Judge Billings rendered his
deoisiCn on the city's application for Tehearipg
and supplemental bill filed in this case. u will
be remembered that this is the case in which the
seizure and sale OF the 81. Mary Bazaar Market.
under execution 10 satisfy judgment against
the city in favor Of NORRIS was sought to be en-
joined Some days since Judge Billings refused
the injunction, and the city applied for q new
trial and hearing on supplemental BILL The
injunction was again refused and the property
declared subject to seizure. We give the decision
in FULL
United States Circuit Court District of Lou.
isiana.-The city OF New Orleans Va. John A.
Morris. Billings, j.
This case is before me upon amended bill
for an injunction to restrain the levyng of an
execution issued upon judgment on the law
side OF the court. The grounds urged for the
Injunction in the original bill have already been
passed upon. In delivering my opinion on re-
fusing the injunction on the first hearing, l
stated that the character of the title of the city
TO the land was not disclosed. Sueh disclosure
is made by the amended bill The two additional
grounds set up in the amended bill will now be
considered
L. That the land upon which the Bazsr Mar
ket Ia built is locus publicus, an is, therefore,
lnalenRble and exempt from seizure.
ment against the city OF New Orleans rendered
in the Circuit Court OF the United States sitting
in This district.
As to the first ground that the land upon which
the Bazaar Market is built is locus pubticus,
seizure:
The bill alleges that this land s q part of the
battnrs or public evee belonging to the city of
New Orleans and dedicated to the public use.
According to the allegations Of the amended bill
therefore, the fee is in the city of New Orleans
subject to the serviude or use, for the public
Three things then are determined so far as this
case is concerned with reference to this land :;
thst the fee is in the city that it is q public
place, and that it is part of the batture.
Judge Martin, in the case OF Morgan against
Livingston, 6 Martin, page ZIG, thus defines bat
ture
TN its grammatical sense as technical word,
and we believe Ia common parlancs, ii is then an
elevation of the bed OF the river under the sur
face Of the water, since it is rising towards it, 1t
is, however sometimes used to denote the eleva-
ton OF the bank when 1t has risen above the sur
face OF the water, or s az high ss the land on the
outside OF the bank"
In this latter sense it is synonymous with allu
Wan, which is defined to be an inaensbs iucrs-
ment brought by the water. 1t means, in COM
mon law language, land formed by aocrstion.
There is no doubt OF the correctness of the
general proposition that public place is inalien-
able except by the sovereign, but q public place
which ia portion of the batture, according to
the well settled jurisprudence of this State. has
distinctive duality impressed upon it, and may
be Withdrawn from the use OF the public by the
city. This qualification is seen to be public
necessity when we consider that by the action of
the vast stream which hslf enciroles the city,
the leyees may be 90 widened 10 that unless q
portion OF them was used for buildings, and the
inhabited city extended over them the city itself
would possibly be left at an iuconvenient dis
lance from the river. Accordingly we find, both
in the decisions of the highest tribunal of the
State. and in the act of the Legislature, clear
recognition OF the authority Of the city TO with
draw from public use any portion of the bstture
which it deems no longer necessary to be held
for that purpose.
In the cage of Remy against Municipality No.
2, 18th OF Annual. page 5u2 the court say:
1.-THE administrative control which the City
Council has over the alluvisl deposit was settled
in the case Of Municipality No. against the Or
leans Cotton Press Company"
And In Pully against the municipality No. Q, in
the 18th Ls.:
The corporation had the exclusive right to
determine when and to what extent the riparian
proprietor may take possession of the battnre.
Until the act Of April 30, 1858, the riparian pro-
the corporation, aud was not allowed to take the
Initiative in limiting or terminating the public
occupation OF the batture"
In the case OF Remy against the city OF New
Orleans, 18th Annual. page 657, the court says
" 1t is recognized by many decisions that the oty
has by law the administration OF the batture, and
until the act Of April, 1863 the exclusive right in
determining when and to what extent the ripa-
rian proprietor might occupy the batture or allu-
Wan within the limits of the corporation"
The Legislature has spoken with equal clear
ness upon this subject. The act No. 1873 pro-
vides, OF the acts of 1858: "That whenever any
riparian owner OF property in the incorporated
towns and cities in this State ia entitled to the
in front of the said owners land more than is
necessary for the public use, which said inoorpo-
ration withholds from the owner, he shall have
the right to institute suit against said corpora
ton for so much of said b8tture as may not be
necessary for the use OF commerce and naviga-
ton, and for the necessary public highways and
other public uses. And If it be determined by
the court that any portion of said batture be not
necessary for the public uses above mentioned,
the court shall decree that the said owner ia en-
titled to said property, and compel said corpora
ton to permit him to enjoy the use and full own
ership OF such portion of said batture."
1t is to be observed that the terms of this act |
do not directly apply to CASE where, as here,
the city is the riparian owner. It provides that
the riparian owner shall have the right to bring |
suit and have it determined whether and to what |
extent the batture is not necessary for the public
use, and to such an extent he shall be entitled to
the use and full ownership of it.
This act applies to cases where the s'said cor |
poration withbolds from the owner" Now, if |
upon demand being made by the owner, the city |
should assent to his taking the portion claimed, it
ls clear that the Legislature designed that he |
should take it, For they could not have intended J!
that party should be placed In worse position,
where the city assented to his taking what he |
claimed, than would be that of person from !
whom the city withheld it. If the Legislature in
tended, as they clearly did, to give the city the |
right to withdraw from public use any portion of |
The batture where they themselves were not the
riparian proprietors can 1t be doubted that thew
believed the city to have that right where she her
self was the riparian proprietor
The case OF the New Orleans, Mobile and Texas
railroad against the city of New Orleans, 26th
Annual, 47s, has an important bearing upon
he question here. True it is that the case was
With reference to portion OF the batture above
Janal street, where the city obtained its title by
grant under compromise. But the city could |
lave no more under these circumstances than
he fee, which. under the pieadings it has here
At page 484 the court says: "If it be urged that
he third section Of said act OF 1850 required the
portion not then laid off into streets to be kept
'pen forever for commerce, the answer is that
.ct No. 1888. OF 1858, authorized the withdrawal
TFG 1Inh