Daily Kennebec journal. [microfilm reel] (Augusta, Me.) 1870-1975, 1917-01-11


posit called in French "Batture.
Graveer at times had dealt with Bat
ture as the owner. and fenced in part
| of it. At the same time. however, the
citizens of New Orleans had used 1t
as a common and had drawn sand ana
dirt from it to build levees. Livingston
examined the title, saw the value the
land would have as the city grew, and
bought part Of the Batture from IRA
veer. The city objected to the claim
Of ownership. and Livingston drought
an action in the territorial court against
the city Of New Orleans. to establish his
title, which in 1907 resulted in a final
decision in his favor. He then pro-
ceeded to improve the Batture. He
built a canal about ESQ feet long right
through the Batture to the river. and
| he erected house on the land Inc
Batture of course was beyond the reg
ular levee. His plan was to extend the
levee around the Batture, as had been
done in other cases, and thus bring the
Batture inside of the levee where it
could be better awaited of. While. he
was engaged in this enterprise, his
workmen were driven off by the people
of New Orleans, who denounced the de-
cision of the court. The territorial gov
ernor, Claiborne, sought to restrain the
rioters, and agreed to submit the matter
| to Washington. When this was done,
the question was considered by Jeffer-
son and submitted to the Attorney
General. who rendered arsopinion that
this Batture belonged to the United
States, because it had belonged to
bo1 nv
ty to the United States. jefferson
| thereupon issued a warrant to the mar
shall directing him to put all intruders
off of this ST. Mary's Batture, as it was
known, using United States military
forces if necessary When Livingston
heard of this. he applied to the Terri
torial Court, who had given him judg-
nnent. or an injunction to prevent the
action of the marshal. and the injunc-
ton was issued.
His Property Seized.
But the marshal ignoring the injunc-
ton called on a posse comitatus to as
sist him to take possession of the Bat
ture. Livingston was thus summarily
deprived of any opportunity to con-
tinue his improvement or to enjoy his
property. Livingston then applied to
the President, who would not hear him.
He applied to Congress and successive
Congresses, who gave no ear to his COM
plant. Finally. exhausting all other
remedies, he brought a suit against
Thomas Jefferson, the individual in the
Circuit Court of the United States of
Virginia, after Jefferson had retired
from the Presidency. in which he sought
to recover heavy damages for trespass
on his land. The case came before the
Circuit Court. Chief Justice Marshall
presiding, and District Judge John Ty-
Ter, the father of President Tyler, sit
ting on the Bench with him. Mr.. Jeffer-
sons counsel first moved that the plain
tiff be compelled to give security of
costs. When this had been satisfied,
a demurrer was filed to the jurisdiction
of the court, on the ground that tres
pass upon real estate was an action
which could only be tried in a jurisdic-
ton where the land was. This ques-
ton was heard, and evidently consid-
cred with care by the Chief Jusrice and
Judge Tyler, and both pronounced
opinions The Chief Justice referred to
a decision of Lord Mansfield, in which
it was held that such suit could be
brought in another jurisdiction, but in
spite OF the great authority of that
name, the Chief Justice was with some
reluctance apparently obliged to hold
that the weight of authority was
against the exercise of Jurisdiction in
Virginia over a trespass of land in
Louisiana, and so dismissed the action.
Livingston had also
against the marshal in Louisiana.
Though he won the suit in the lower
court, he lost it on appeal by divided
court not on the question of title but
on the ground that the marshal was not
personally liable for acting on the
residents warrant. Many years after
ne did secure some compensation which
was not adequate to the loss he had
sustained and which was the result of
compromise. This Batture controversy
had attracted the attention of the ilr-
lists and politicians of the United States.
and Mr.. Jefferson had been criticized by
Chancellor Kent and others for what
was regarded as his arbitrary and high
handed course.
In letter of Marshall to Story refer
ring to some severe dcnunciation of the
Federal Judiciary by jefferson which
was frequent with him. Marshall said:
He can not forget Marbury and NIadi-
son or the Batture"
Jefferson Answered Criticism.
To meet these criticisms. after the
decision in the Virginia case, Mr.. JEFF
ferson published what he entitled THE
Proceedings Of the Government Of the
United States in maintaining to the
Public the Beach of the Mississippi.
adjacent to New Orleans against the
Intrusion of Edward Livingston, pre-
pared for the use of Counsel by Thorn
as Jefferson" It was first printed in
New York in 1872, and then later re-
published in Halls American Law
Journal, Volume 5. in 1914 Mr., JEFF
ferson's statement began as follows:
Edward Livingston, of the territory
OF Orleans. having taken possession of
the beach Of the river Mississippi ada
cent to the city of New Orleans, in de-
fance of the general right of the ma
ton to the property and use of the
beaches and beds of their rivers. 1t be-
came my duty. as charged with the
preservation of the public property to
remove the intrusion, and to maintain
the citizens Of the United States J.;