Bruning v. City of New Orleans , 165 La. 511 ( 1926 )

This is a possessory action brought by Mrs. Amelia J. Becker, widow of Theodore W. Bruning, against the city of New Orleans and its officials, to quiet plaintiff in the possession of certain property.

The pleadings are given in full in the original opinion herein handed down, and therefore need not be repeated here.

Suffice it to say that, if the property in controversy be of a nature subject to private ownership and exclusive private possession, then our former decree is correct, and should be reinstated.

On the other hand, if the property in controversy be of that class of public things, "the property of which is vested in a whole nation, and the use of which is allowed to all (R.C.C. art. 453)," such as the seashore, being "that space of land, over which the waters of the sea spread in the highest water, during the winter season (R.C.C. art. 451)," or such as the streets andpublic squares of a city (R.C.C. art. 454), then mere physicalpossession thereof by a private individual "is not such a possession as entitles the possessor to maintain himself against the public until ousted by a petitory action; that the public is entitled to enter thereon at once." Martin v. City of Lafayette,162 La. 262, 110 So. 415, and authorities there cited.

The same is also true of land actually covered by the waters of the sea (Milne v. Girodeau, 12 La. 324); nor does it make any difference that such land be uncovered even for whole seasons at a time, if in fact it be subject to periodical inundation by the regular rise or flow of the water at the appropriate season (Sapp v. Frazier, 51 La. Ann. 1718, 26 So. 378, 72 Am. St. Rep. 493).

Hence, if this land be of the class above stated, then our former decree was erroneous, and the judgment appealed from, which was for defendant, should be affirmed.

I. Now the land involved in this controversy lies directly north of a certain tract of land which plaintiff's mother-in-law, Mrs. Catherine Zeller, widow of Theodore Bruning, acquired by purchase from Hyacinth Thomas Hazeur et al., by act before Ernest Commagere, notary public, on June 4, 1873. In fact, it is formed by extending in a northerly direction, some 800 or 900 feet, the side lines of the very tract of land so acquired.

Which tract of land, so acquired in 1873, is described as follows:

"A certain piece or portion of ground * * * situated on the shore of Lake Ponchartrain, * * * between the property belonging to the N.O. Canal Banking Company, * * * and the property belonging to the Jefferson Lake Ponchartrain Rail Road Company; said piece or portion of ground measuring, on the plan drawn by Jules G. Dreux, surveyor, on June 11, 1873, and deposited in this office, 500 feet in front on the line dividing it from the property of said N.O. Canal Banking Company, * * * between the points marked A and D on said plan; 500 feet on the line dividing it from the property of the Jefferson and Lake Ponchartrain Railroad Company between the points marked B and C on said plan; 575 feet in width in the rear between the bounds marked C and D on said plan; and 575 feet in width on a line parallel with the Lake Ponchartrain, between the bounds marked A and B on said plan, * * * together with the right of batture, alluvions, and accretions, which shall form successively on the shore of said lake.

On August 2, 1889, Mrs. Catherine Zeller, widow as aforesaid, sold said land by the same description to one Henry A. Seiler; and on September 30th of the same year said Henry A. Seiler sold the same to the present plaintiff, daughter-in-law of his own vendor; both acts being passed before John Bendernagel, notary public.

And Hyacinth Thomas Hazeur et al. had owned said property since their purchase thereof from Antoine H.H. Delorme, on August 25, 1828, by act before Louis T. Caire, notary public.

II. It is not seriously disputed, but at any rate it is abundantly proved, that the points A and B on the plan by which Mrs. Zeller (Bruning) purchased in 1873 are marked by two stones, which yet stand; and that the line drawn between these two stones marks the southern boundary of the property in controversy here; being also the northern boundary of the property described in the sale by Hazeur et al. to Mrs. Catherine Zeller Bruning on June 4, 1873.

Now the very title of Mrs. Zeller (Bruning) declares that said line was parallel with the shore of Lake Pontchartrain in 1873; and, even if that title does not say so in just so many words, yet it leaves no room for doubt that the line was intended to show practically the location of the shore line at that time. Otherwise the making of the survey and the annexing of the plan (now lost) to the act of sale would have been both absurd and misleading. For the survey was undoubtedly made for the sole purpose of showing the extent and limits of the premises sold, to wit, a frontage of 575 feet on the lake by a depth of 500 feet between parallel lines. And a series of public surveys made at that time and before and afterwards all confirm the location of the shore line of Lake Pontchartrain as being practically at the line A B aforementioned.

Moreover, if the line A B, indicating the northern boundary of the property purchased by Catherine Zeller Bruning in 1873, were not practically the shore line at that date, then her deed did not convey title to the water's edge, but only to that line; for a meander line supposed to mark the shore line of a body of water must conform to, and approach, the true shore line, otherwise a deed given according to such a survey does not convey title to the water's edge, but only to the line laid out. Land v. Brockett, 162 La. 519, 110 So. 740; Thigpen v. Noonan,162 La. 527, 110 So. 743. And a distance of more than 800 feet from the water's edge is entirely too much for the meander line of a tract of land declared to have only 500 feet in depth from the water's edge.

III. There is considerable evidence in the record to the effect that in 1873, and for some years afterwards, the land now in controversy was dry and cultivatable, though even those who so testify admit that it was subject to periodical overflow in times of storms and high winds. But we think that these witnesses, who testify nearly 50 years afterwards, are mistaken as to the land which they saw, for other witnesses testify equally positively that the land was never cultivatable, and was always subject to constant inundation by tides and high water. And, as we have said, the public surveys made at the time and before and afterwards all show that the land in controversy was then under the waters of the lake. IV. In 1828 the shore line of Lake Pontchartrain was probably much further north than in 1873, for in 1837 a state survey showed that it was. But from 1837 to 1873 the sea was taking its usual toll from the land; and the only reason why the shore line has remained practically intact at this point since 1873 is this, that in 1873 the city of New Orleans threw up a breakwater, in the shape of a "protection levee," at a point about 800 or 900 feet north of said shore line, which prevented further erosion.

And that brings us to the next phase of this case.

V. By Act 209 of 1906, and again by Act 9 of 1910, the city of New Orleans was given authority to fill in, improve, and embellish, as a recreational and amusement park (a) the aforesaid protection levee, (b) the lands lying under the waters of the lake for 1,500 feet north of said levee, and (3) the lands lying under said waters between said levee and the southern shore of the lake. (The property in controversy is included in the last.)

In 1915 the city did the work on the levee and to the north thereof. It also filled, to the south of said levee, that part which constitutes the property now in controversy; and hence this controversy.

VI. Plaintiff attacks the constitutionality of Act 209 of 1906, principally on the ground that the title to said act is not broad enough to cover its provisions. It is a sufficient answer to this to say: (1) That plaintiff has no interest in raising any question as to the constitutionality of that act; (2) that said act has been held constitutional in all its parts by this court in Saucier v. City of New Orleans, 119 La. 179, 43 So. 999; and (3) that all the pertinent provisions of that act have been embodied in Act 9 of 1910, the title whereof is broad enough to cover all that it contains, and the constitutionality of which is not attacked. VII. We are aware that the disposition which we are about to make of this case in accordance with the views herein above expressed will practically dispose of the title to the property in controversy; even over the objection of plaintiff that titles should not be gone into in a "possessory" action.

But this we cannot avoid. In order to determine whether plaintiff is entitled to maintain this sort of action, we were obliged to examine whether this be public property. We find, as a result of that examination, that it was once seashore and lake bottom, and that it has been recovered by artificial means, and with public funds, and dedicated to public park purposes.

If we were not permitted to do this, then any one may take physical possession of a street or park, or of a river bank or seashore; and, when removed therefrom by the public authorities, he may then deny the right of the court to examine into the question whether the place be in fact public property, on the ground that a finding that it is would dispose of the title to the property.

But, as we said at the beginning, our jurisprudence is to the contrary.

IX. There is, of course, no such thing as a "right of batture, alluvions and accretions" on the shore of Lake Pontchartrain, an arm of the sea (Zeller v. Southern Yacht Club, 34 La. Ann. 837; R.C.C. 510); nor in any case as to lands reclaimed by artificial process and with public money (St. Anna's Asylum v. New Orleans,104 La. 392, 29 So. 117; Leonard's Heirs v. Baton Rouge, 39 La. Ann. 285, 4 So. 241). Decree. The judgment appealed from is therefore now affirmed; but the right is reserved to plaintiff to apply for a second rehearing. On Second Rehearing.