The New Orleans daily Democrat. [volume], October 31, 1877, Page 6, Image 6

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CITY COUNCIL--OFFICIAL.
IEOULAS MlETIGO.
I OIrrY HAi I, NIW ORI,EAN, I
Tuesday, October 30, 1877.
The Council met this day at 12 o'olock m. In
Wigular session.
Present: Bon. Ed. Ptlsbnry, Mayor, presiding,
ead Administrators Brown, savanac, Denis,
Diamond, McOaffrey and Rengatorff.
The minutes of the previous meeting were sp
proved and their reading was dispensed with.
mMttstuletieons from the Mayer and
Adminlti raters.
The following communication was ordered
tspred on the minutes and referred to the City
Attorney:
IelLTIONN OF THE .tTY OF NI W ORILANSP TO ThE
ONTONTIARTRAIN RAILOAD (laMPANY ('vN('RnN
1E T.'R TIRA'T OF LIAND KNOWN AN FhYSIAN
fInLDs ITREET.
Bernard Marigny was owner of the Cordant
ltieon, situated northeast of the limits of the
tf of New Orleans, as existing in the year 1805.
set No. 3t, of session sets of 1804.5, page
roved April 19, 1805, it was enacted that :
W =ase, Bernard Marigny a minor under
t11e of e. years, together with Solomon Pre
]bl guardlian, have by petition represented
hh' tk said B]ernard is the proprietor of a plan
taIes adjoining the City of New Orleans, and
Sthat euneaenoe of the public as well as his
_fa to interest would be promoted by laying the
U a0 out nlate streets and lots, but that by
.lel of his minority no conveyance of the said
etestild be made, and by the said petition have
d thbat the said Solomon Prevost be author
to lrty o. t the said plantation into lots and
se., oonformable to such plan as may be
adse thiecof, and to sell and dispose of the lots
toIssh persons as may be inclined to become
si ee. .es of the same or any part thereof.
petition appearing to be reasonable and
Ssaid plan productive of public convenience:
aLarOTow I. lie iat iacteai p.e., The the esaid
llld Marlgany, jolly with Holomon Prevost,
ils gardlan, be and they are hereby authorised,
10twithstanding the minority of the said her
Maid Markgny, to lay out his said plantation into
sO0h lots. streets ad squares, as they, w.ith the
erOetst of the ('i yIy 'o,,ntll of the city of Newr (r.
tae, may deem proper, and that a plan of such
-1ýlon signed by the said Bernard Marigny and
Olo n Prevost, in which all the intended
Iteets, squares and other places intended for
airluse shall be distinctly traced and marked,
l, before any sales be made under this act, be
de ited in the office of Peter Pedeeclaux, to re
Ml as a publi reord; and arR oon rrs iany lid of
l hnd aIt he sold boln1.dil nt, aly o!lf the sIlreet
Os squares so lord ot vland trvvrd on the said lvlap
or piano, then and, from the nate lrf Ithe tonel/wyinve
q Me said lots, the whole of such streel or square
O l.hih thle sa.me fte,i/bhe houndedehtll ,the welated
B thie corporatiovan of lIre olyt qf Newi Orlrteon, fr
pubfi use, to lbe forever thereitler .ept open as (i
jUti&t waley.
"Lao. i. Authorizes Bernard Marigny to sell
taensfer said property."
Idlnrsuane of the authority thus conferred,
3,aiirgCny transformed his plantation into a
, ltboun, with well marked streets, squares and
e oSordia to a pian made by N. Definlels
, NUy , 1806, whloh plan was deposited in the
ia. s of the city of New Orleans.
. Mlarligny submitted his proposltiop of a
.Iabourg and bis plan to the City Council. A
h emittee was appointed to consider the advan
L tlt s of the offer. In the report of this com
S t e, which ts to be found in the ordinances of
S city Council, volume 1805 to 1815, on the
sumoeeding the session of May 11, 1805, we
Sal the following language:
I'. sider these considerations, your committee
of Opinion that the advantages offired to
bleo by Mr. Maigny, in establishing his
into a faubourg, are a motive suffioiently
mw not to put any obstacles In sacknowledg
the limit which has been traced by order of
Sd Lemos. These advantages oonsist in
eslsion to the city of twelve lots, forming an
s quare, or a publio square (subsequently
1d WshIngtaon Square); in the cession of a
e quare for the estabdshmdnt of a hospital;
the session of fifty feet on each bank of his oanal
the whole depth of the adid fanbourg, to be
as a road and for a public promenade." ete.
: t report was unanimously adopted on May
, 00. A private act recorded in the archives
theSybof New Orleans was passed on June
180, , between B. Marlgny and the city of New
O ae. By its provisions B. Marigny accepts
stipulations of the legislative act of April 19
,onfirms the divisions and dispositions of
plan and "acknowledges making a oeesion in
fq olMrty In favor of the city of New Orleaus
ny feet of ground along the whole depth of
the fubourg on each bank of his ianal, such as
It s described upon the plan for the purpose of
Iakitn streets and public promenades; the saidt
eanal being mentioned as measuring also fifty
eet, h1iiav;i in vveim the intention vif e.vtending it
t at width. f he dea('s it proper, etc.; ano
aoquse Pitot, the Mayor of the city of New Or
ns, droares, besides h scu'inigi Lo the savid Mlr.
.artgny the openttiu: qof hris ynatl, snbch as it ex
late on saild plan, saving his responsibility to all
concerned, for the management of said conal
and for damages," etc.
It Is well here to give a history of this Marigny
anal, which acquiree such importance in this
discussion. At the date of these transactions
this canal was only an ordinary drainage plants
tlon canal emptying into Bayou Ht. John, and
U1ed for plantation purposes only. We quote
from the testimony of L. H. Pills, in the case of
the Pontobhartrain Railroad Company vs. the
Mobile and Chattanooga Railroad Company:
"I am a surveyor by professlon; I have been liv
lag here nearly ffty-one years. I was on 'he
Aret car run on the Pontchartrain Itlvlroad; it
was a horee car; I know this was in 1431; it wars
1en1 run In 188. with a loomotive. * 0
I am familiar with that locality; there was a
enal then to my knowledge; there was a canal
en Elysian Fields street, from the river down to
the elbow about Florida Avenue, then extending
en Marigny Avenue to the Bayou Lt. John. 1 have
aen It sitnce I was a child; I have often fished in
t; part of it Is still in extestenoe, from Olaiborne
trestl t to the elbow, and on Marigny Avenue to
the Bayou iBt. John; that part on Marigny Ave
lne to the Bayou tia. John was widened by the
ity of New Orleans, and is now used as a drain
ing oranal; this was partly filled up by the Pont
elhartrain Railroad Company when they built the
road; then some years ago it was filled up
when they were altering from Lit. John the Bap
..... * .When I first knew
he canal it was In mse as a ronal, but not
for commeroial purposes only for drawing wood
orom the swamp; and at that time, thirty odd
oma ago, the canal ran through what was
nkown an the Marigny plantation, which was
formerly Villau Dubreuil's. It existed in 1754,
and then the canal was called the canal 'El Mo
ino de Arroz." There was a mill on it-on what
Sis lled Peters street now. * Mr.
Marigny only used the canal to draw wood from
the swamp. I have never seen any other use
made of it, nor ever known any other. He con
tinned to use it in the same man
tier after the Pontchartrain Railroad be
wan to run in 1832; but used it only a
lw years longer; it is hardly possible to nea
when he stopped using it. * * At the time
the Pontchartrain Railroad Company was incor
porated there was a canal in the centre and two
walks, fifty feet wide, on each aide; they were
called Elysian Avenue, street, or promenade. In
1880 there wan a canal of forty-five feet in width
horn Peters street to Goodohildres street, and
of about four feet in depth, and from Good
abildren street running back to the Bayou tt.
John it was about twenty-five feet wide, with
ver little water. It was closed then. Before it
had had connection with the river. That I did not
see, I suspect there must have been wooden
oalverts passing to the river but I do not know
it. There was water in it. We used to fish in it,
and catch crawfish and pataesate."
From all that precedi e, it seems to have been
the intention of Mr. Marigny, then a wealthy
man, to excavate and widen his canal and make
tImavigable. This enterprise taken in conneo
$1a with the creation of his new faubourg was
ealculated to give reciprocal enhanced value
both to the canal and to the lands adjoining.
Rence bhi reservation of the fifty feet for the
,awe of a canal. It was with this view that
Marigny in making his plan laid out 150 feet for
oe broad avenue, in the centre of which ran or
was to run his projected canal; and for that
reason he called the avenue Elysian Fields street
a ,tromenade. But the intention was never car
ried out.
Therefore it clearly appears that Mr. Marigny
had established this avenue as a public open
StoO. subject only to a reservation in his favor
oe acna. It follows as a legal consequnce,
S:rhlbh I shall develop hereafter, that this iten
l.ce ecuetitutegd a dedioat o' or destlnation
Mr. Marigny could not afterwards alter to
ndlce of those who had aoquired righte
i n this statE fha 10 to
liu. The ides efdemt 1 M. est b.aJ bj
abatndoned; IO.1 enh s bf fcun ea usie
Fields street, houe built, tteete extended
across the oanal and a new suburb had arisen
upon the fields of the former plantation.
At this Juncture the Pontohartrain lailroad
wu organized into a corporation by act approved
Jannary 20, 1880, with Martin Dnralde as presi.
dent. Dy sot dated February 28, 1880, before
Felix de Armas, Bernard Marigny transferred to
the Pontchartrain Bllroad Company all his
rights to said cnual under his plan and cessiton to
the city of June 17, 1801, related above.
Now, then, the question is, What were the
rights of Mr. Marigny and what did he transfer
to the Pontchartrain 'tailroad Company?
We shall first consider the rights of Mr. Ma
rigny existing after the act of the Leglslature of
April 1', 1805, after the execution of the plan of
Faubourg Marigny, and after his act of cession
to the city of June 17, 1805.
7'Thee ,ri/lde soe to ha , and k0'fl p open a a'nvial
50 feet vride, and nothing more, as we shall show.
'his conclusion sl reached from an inspection
of the plan of Fanbourg Marigny and from the
act of essieon of June 17 1805, and eontempo.
raneous acte. We have been unable to find this
original plan. But subsequent planse of the same
iaubourg have been taken and preserved from
this original by surveyors of our city. I quote
from a certified plan of B. Lafon, dating as far
back as .IJun 80, 1807. I may state hers that I
have examined many partial plans of this fan
bourg, tdeposlted in the office of Pedeeolaux,
dating back to 1837, aud later drawn by d'Heme
court Pille, Burgi and other reliablesanrveyors,
and that they all reproduce the same plan. Be
sides, the oats and declarations of Mr. Marigny
corroborate the plans in every particular.
Upon these plans there figures a tract of ladd
measuring 150 feet wide (I rench measure) be
ginning on the River Mississippi and extending
toward Lake Pontchartrain. In the centre of
and all along this tract of land there is a datk
strip marked: "This canal represents fifty feet in
width, reserved by Mr. B. Marigny." On each
side of this strip is a vacant spnce marked each
" H'lsigin d1'/"hs, strret andl, ddiio prm.enalde."
Thus:
hlirt jE (i -. ' IA IVo).
-i.
"1 Hi 1
Hira A NHIoi
.-I
hue > W ,i 1'AMoun.I
IeI. IR lhtNrHN ENFANsT .
A simple inep, ution of this plan precludes the
idea that the land occupied by the canal had
ever been reserved as private property, subject
to any other use but that of a canal. If such
had been the intention, the streets on either side
of the canal would have received different names.
The unity of name given them conveys to the
mind the idea of one united street and repels the
idea of an intention ever to separate them by
obstructions of any kind. The name Elysian
Fields recalls to the mind a broad expanse, an
avenue or promenade. The magnifloent avenue
represented In the plan would have ceased to be
snuch if susceptible of a divicion. The value of
lots fronting on the avenue was great by reason
of the avenue itself. The strip of fifty feet had
no value but from the privilege of a canal.
Then, if we look at the act of June 17. 1815, we
read that he acknowledges ceding 50 feet of
ground on each side of hi. can.?l, such as it Is
represented on the map. the width of said ranal
being also marked at 50 feet, having the mind to
widen it to that extent if he deems it proper; and
the Mayor preserves to said Marigny the right to
keep his said canal open, such as it exists on the
plan. Then, when by the same act he codes the
batture, he reserves the right of extending his
canal to the river.
Nowherein these transactions do we perceive
an intention of reserving the absolute ownership
of the land itself. On the contrary, it appears
clearly that the only right reserved is that of a
canal. This reservation precludes the idea of any
other right, and includes the idea that the canal
once abolished, the whole space was to remain
part and parcel of the broad avenue. From 1805
to 1830, a period of twenty-five years, during
which the canal had been partly filled up, streets
extended across it, and all idea of making it nay
igable abandoned, it remained an open common,
enjoyed by the inhabitants as a public place,
with no protest or adverse claim from Mr. Ms
rIt[ny doubt could exist on this subject, we
must refer to the contemporaneous interpreta
tion adopted by the parties themselves:
"When the intent of the parties is doubtful
the construction put upon it by the manner in
which it has been executed by both, or by one,
with the express or implied assent of the other,
furnishes a rule for its interpretation." 0. U.
1956.
In the deliberations of the City Council of Oc
tober 23, 1811, we are informed that B. Marigny
I insinuated rights of ownership in the tract com
posing the 50 feet occupied by the canal. The
sensitive Council put down these pretensions and
at once define his rights in relation thereto. By
t resolution of November 23, 1811. it declares:
t "That by the right of property which it recog
nizes in Mr. Marigny on that tract, it means to
recognize no other right than the one possessed
by Mr. Marigny to own a canal and to take dirt
therefrom: to use it to suit his own purposes. It
declares besides that by the act of June 17. 1805,
passed between the corporation and Mr. Marigny,
said Marigny has these rights alone."
This resolution was never disputed. Nay,
more, it was acquiesced in and submitted to by
Mr. Marigny in his act of sale to the Pontchar
train Railroad Company, and remained a final de
cision of the matter.
L The intention of reserving merely a canal is
again manifested by the following dcument:
City Council, session of October 12,.1820:
"I, B. Marigny, do by these presents grant
t full and complete consent for myself- and my
heirs to the Mayor and city of New Orleans to
establish at their cost, on Canal Marig .y, situated
1 in the fauhourg of same name, and the properly
!t f which canal I hove reser.red to tIyself, one or
r more bridges,eto. * * * The whole under the
express condition that in case this same canal
shall be converted into a basin or navigation
canal, said bridges shall be destroyed," eto.
But apart from the apparent intentions, let us
examine the legal consequences of the plan
which fixed the nature sad oharacter of things.
iThe ats of Apuil 19, 180, the plan of Faubonrg
.,rue 1 .{ Jl. 1 , rt.ed the on*
t between the city and hit, the purohalers of
lots and the publio.
The divisions and dispositions of this plan,
when ofue accepted and noted upon, becnme, as
a legal consequence, fixed and unalterable. Ac
cording to this plan B. Marigny had established
a tractof 150 feet wide for a public promenade,
subject to a servitude in his favor of a canal in
the centre, which he prijeeted. This formed a
dedication. It 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. All those who acquired from B. Marigny
under that plan, the city, the purchasers of lots,
the inhabitants of the faubourg, acquired a vested
right to the divisions and dispositions of the plan,
of which they could not be divested.
This principle has become the settled jurisprn
denoe of the land.
The destination made by the owner is equiva
lent to title. 0. 0. 707.
When large portions of ground within a city
are laid off into squares and streets, and sold in
lots with reference to a plan, the plan forms part
of the title. 0. 0. 1959; 7 A. 259; 19 A. 01t;: 0L.
650; 9 A. 448: 12 A. 108; 18 A. 500.
When a plan referred to in an act of sale repre
sents an alley, it forms a dlti,,oa(ion in favor of
adjoining lots. 14 A. 280.
The oame of Durke vs. Wall, 29 A. 819, was de
cided by our present Supreme court. It appears
that $t. Patrick's Ohurch had drawn a plan of a
oemetery. According to said plan the cemetery
was divided into blocks, intersected by avenues.
Plaintiff purchased a lot according to the plan
exhibited to him. After all the lots had been dse
posed of, the church attempted to sell to defend
ant Wall a portion of one of the avenues for a
tomb. Held: "It is evident to our minds that
the avenues in the cemetery were, when the plan
thereof was made and the plaintiffs lot was pur
chased, dedicated to the use of those who puar
chaset lots therein, and that no obstructions can
be put upon them which would render that use
either impossible or Imperfect. If theowners of
the cemetery can block up one avenue, they can
block up another, and so on from avenue to
avenue, until all the tombs therein will be inac
cesslble. The rights of the owners of otse plr
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 habitual use of the avenue, at least by the
general public, as well as by the lot owners,
would come very near constituting a dedication
of them to public use, and would certainly do ro
to the use of the lots and those holding them,
whether their titles be absolu e or qualifled, or
right to the soil or in and over it.
Under the facts of this case the church itself
could not close these avenues or render their usee
more Inconvenient, if objected to, so long as the
ground is used as a cemetery; and the dr fendants
are in no better position, to say the least of it."
0. 0. 777.
From these authorities, which consecrate well
settled principles of law, it follows that Bernard
Mlarigny 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 cession of
June 17, 1805; that is, the rights to have and keep
open a canal.
Beslides special legislation had fixed the un
alterable condition of things under the plan. The
aot of the General Assembly of April !9t, 1805,
which is the corner-stone of this fanbou'g, had
enacted that "so soon as any lot of land shall be
sold bounding on any I, 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 nhoe qf sttclh .sree or square, on which
'he same may be bounded, shall be iested in fth
ruortyiont of /he Pil of ea, O(h'leatns fotr piblit
,sr. to be fo~ever fther't.er kept openl a ps at ul
'.ty," All the lots sold by B. Marigny were sol i
on the faith of his plan fronting on Elystan
Fields street. To admit for one moment that the
whole of the 150 feet did not constitute Elysian
Fields street, is to admit that each street on
either side of the oanal was a separate or distinct
street; which would be a contradiction of the
plan and of the facts established above. By soa
cepting the benefits of the act of the Legislature,
Marigny bound himself to submit to its condl
tions. The whole of Elysian Fields street was,
therefore, vested in the city of New Orleans for
public use, to be forever thereafter kept open as
a public way.
thus we nave shown that the right of having
and enjoying the whole of Blsilan Field4 street
as a public promenade, 150 feet wide, kept open
and unobstructed save by a canal, was vested in
the city of New Orleans, in the front proprietors,
and in the public, by the acts and deolarations of
the owner Bernard Marigny. These aots con
stituted a dedication. It is well settled that no
particular form is necessary to a dedication. All
that is required is the assent of the owner, and
the fact of its being used for the purpose Intend
ed. 18 A., 560.
The plan of Mr. Marigny, his actions and sol.
emn declarations in relation to this avenue, the
aot of the Legislature, the resolutions of the
Council, the fact that this avenue has been used
as a public common for over half a century, with
out Ilaime of adverse ownership from any one,
are circumstances which leave no doubt in our
mind.
We shall consider now the rights of the Pont
chartrain Railroad Company nuder its oact of pur.
chase of Feb. 28, 1830.
The act reads: "The said Mr. Marigny declares
that he cedes and transfers by those presents,
and wi'hout any warranty whatever, except that
he 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 to
a portion of ground known as Marigny canal,
having fifty fIet (French measure) iu width,
more or less, and extending from the high road
of the levee, with the same width, down to tie
limit of Judge Martin's 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 Faubourg
Marigny, measures six'y feet wide by 280 feet long;
and from the limit of Judge Martin a plantation
the said portion of ground, known as larignb
canal, measures seventy-two feet wide, more or
less, composing the canl and the road on each
side of said canal, forming part thereof up to
Bayou St. John. The said Mr. Marigny declares,
also ceding unto said company, the right which
he has to extend said canul to the river on a
width of fifty feet, which portion of ground,
known by the name of Mnr'ig c!/anal, te repre
sented for the greater portion on a plan, of iru
borigy .falrilny, deponlted in the archites of the
('onvcil of the cily 'ef Nen 1lrleans, atnd daled
AMay2t, 1805; and also for the greater portion on
another plan comprising the old and new Fan
bourg Marigny, dated '4eptember 14, 1800, drawn
by Joseph Pills and deposited in the office of the
undersigned notary; which plans are signed
by the said Mr. Marigny and to which the
parties hereto refer, said canal beinog
tralngferred conformably to said plans;
and the said Mr. Duraldedeclares, well knowmn
said portion of land known as anal Marilqny and
taking it such as it purports to be. l'he said
Marigny declares that from the year 1R05 and
since he has passed divers acts with the corpora
tion o( New Orleans in which the question of this
canal is brought up; * * * that said City Coun
cil has passed divers ordinances and resolutions
concerning said canal, of which acts, ordinances
and resolutions the said Mr. Martgny declares to
have had full knowledge and o whth, tie has s1h
mitted htim.self: In consequence of which he de
sires aml intends that said loomrpany shall bI, bouid
to submit to them. * * * The said Mr. Duralde
in his capacity afores id drel,uarrs hatOing a perfilc
knlctleldge qf all such acts., devlartlions, ordi.
nflc's tolnd resoldion qof said City (Ciuncil h)0o e
tenttion,'d, and olfll rithls, alovantanres, chtarqes,
1and serlituides flocrincl frome those diitrfervnlt acts,
and to submit to them,, declaring bi sid.s putting
himiself in the place antd stead of Mr. MAlarlny tun
ttll thiings pertaining to said canal," e-c.
If we examine the phraseology of that part of
the act translative of property, we discover that
the object of sale engrossing the mind of the
parties is the canal. The land is only used as
designating the .t..s of the canal. If the land
had been the object of sale the customary words
would have been used, viz: A tract of land sit
uated, etc., measuring, etc., the parties welt
knowing that ownership of the land carried with
it ownership of everything under or above it.
The act taken as a whole, together with the plan
to which it specially refers as descrip'ive of the
thing conveyed, repels the idea of a sale of the
land. The object of the railroad com.
pany was to disinterest Mr. Marigny
in hiscanal privileges, so that they might run
their cars over the strip occupied by the canal.
The fact of the sale being made without warranty
of any sort discovers the timidity of Mr. Marigny.
He would not assume ownership of the thing
sold. The care and precision with which he re
fers to his own acts, the resolutions and ordi
nances of the city concerning this canal, show
clearly enough his own doubts of the title. If he
was considered as selling the land, hiknew he
had no title; if the canal, he feared it might be
held be has lost this servitude by non.usage of
over ten years.
But, be this ss it my, the rights of the rall
ro.d eapn7pny mEtt not be gded so mtcb by at
MelL From the very words of 0 i 1t@ZUI
well as from the lawt it wasI, a onsequeo that I
the Pontohartrain Railroad could claim no grUater
rights in relation to this strip of land than Ma
rigny himself could If arigny had old Wash- I
ington Square, or any of the public streets de-l
oted on his plan as public places, it is olear that
he could have conferred no title, for he had
already dispossessed himself. 0o It is with the
land of the canal. Just as the title of St, Pat- (
rick's Church was indisputable to the whole I
land covered by the cemetery, even unto the
alleys, so was the title of Marignv to the land
oocupied by the faubourg; but just as they
had made a dedication of the alleys which they
could not divert, just so Marigny had made a
dedication of a tract to a mere canal which he 1
could not change. His use of the land was lim- I
ited to that purpose; it formed a contract be
tween him, the city and adjoining lots. He
could make no other use of it, nor authnriz,
others to do so. He had no other title and could
transfer no greater one. It follows that even if
his act of sale to the railroad company trans- i
ferred the very land, yet the railroad would have
no title.
iesides, the act of sale specially and minutely
recites that it is made under and subject to all
the resolutions and ordinances passed in relation
to the canal by the City Cosuoll; Marigny de
clares that he has full knowledge of them and
that he submits to them, and he desires and in
tends that the compny shall submit to them;
and the company declare having a perfect
knowledge of all said ordinances and resolutions,
and they declare that they submit to them and
put themselves in the place and stead of Mr.
Marigny in all things pertaining to said orial.
Now, then, one of those ordinances was the one
recited hereluabove in which the Council de
clares "recognizing in Mr. Marigny no other
right on that tract than the one possessed by him
to own a canal I"
It is in this light that the founders of the rail
road interpreted their rights. They required the
authorization of the city for all purposes. It was
by ordinance of March 15, 1830, that they so
quired the right of way. According to the recol
leotion of some of the oldest members of the
company, it was by special permission of the oity
that a passenger and freight depot was cmn
struoted. if the land had been their own they
would have required no authorization from any
one.
'hey never demanded any compensation from
the city for all the streets running across the fifty
feet.
No city railroad ever demanded their permis
sion to cross the tract.
They never reported the land as one of their
assets, either in their statements to the public or
in their reports to the assessors; nor has the land
over been assessed for the purpose of taxation.
In line, nei her they nor Mr. Marigny ever exer
cised rights of ownership on the land. It has
been used as a public common without adverse
claim from any one for more than half a centary.
It, i conceded that the Pentchartrain Railroad
Company bought out Mr. Marigny's privileges to
a oansl; the land was subject to that servitude,
and the railroad might perhaps have exercised it
In due time. But even this right has now been
lost to them by non-usage for ten years. O. U.
783, 789, 790, 791.
In the case of Marigny vs. Pontohartrain Rail
road Company, 15 A. 427, the 8npreme Court de
cided:
"Thirty years have elapsed since this contract
was made without the difendant having ever at
tempted to avail themselves of their rights in this
respect-the right to open the canal. On the con
trary,they have tilled tip some portions of the canal
and built a railroad in its place; they have put up
a depot on this land. No car al was ever opened
from the public road to the river, and for many
years the railroad ran to the levee, so that by the
acts of the defendants the exercise of the servi
trde in question has become impracticable."
I quote this decision merely for the purpee of
soustaning the proposition of law that the servi
tude of the canal had been forfeited by non
usage. As to the question of foact therein de
cided, the Supreme Court seems to have over.
I oked the clause in the act of oession of June
17, 1805, in which Mr. Marigny "made a full ces
sion and abandonment of property in favor of
the city of New Orleans for the utility of com
merce of the alluvion or batture beyond the levee
of the road bhrderlog the river the whole length
of the faubourg."
So that the Pontohartrain Railroad Company
remains to day with no shadow of claim on Ely
sian Fields street of any kind save the single
right of way granted by ordinance of March 15,
1880.
nos ieiug uwoers oU suoe l0o suey 5ano0 ou1u1
upon it. The thirteenth section of their charter
provides: "That the said company may *
erect all necessary or useful works therefor, pro
vided the consent of the Mayor and OCity Council
of New Orleans be had therefor in all oases
where the same are erected within the limits of
the corporation of the city of New Orleans."
They have assumed authority to erect a huge
and unsightly re-ervoir in the centre of the
avenue, opposite Washington Square, and imme
diately in front of the police station, spoiling and
obstructing the view. The city, in the exercise
of its right to remove nuisances or obstructions
from the streets, should remove the same. I M.,
187; 4 M., 10. 8 L., 508; 18 L., 278; 14 A., 842.
The privilege of constructing works in the pub
lic highway should be granted only in cases of
absolute necessity. For forty-seven years the
reservoirs of the railroad have been at the head
of Elysian Fields street, and no reason has been
given why they should not continue there.
ltespectfully submitted,
CIHALES F. OLAIBORNE.
New Orleans, October 24, 1877.
The following communications were received
and ordered spread on the minutes:
DEPARTMEiNT OF FINANCE,
New Orleans, October 29, 1877.
To the Honorable the Mayor and City Counoil of
New Orleans:
(.n fle,'men--About the year 1861 8. V. Sickles,
an apothecary of this city, died and left a sum of
money, the revenues of whioh were to be applied
to the distribution of medicines in case of sick
ness among the ludigent poor.
The sum of $16,844 was then paid into the city
treasury and there remained until the year 1873,
when a settlement was made, principal ald iu
terest, amounting to the sam of $25,174 55 in
city seven per cent and gold bonds, and the Ad
ministrator of Finance, under the control of the
Council, charged with the custody thereof.
The following shows the amount of annual
revenues and expenditures up to December 31.
1874, when the city was compelled to suspend
payment of interest :
Revenues. Expenditures.
1873...............1,119 22 $2,817 35
1874 ........... 1,738 45 2,201 15
Bince the exchange of the bonds into Premium
Bonds, the revenue has amounted to $3,271 94,
and the expenditures to $4,628, showing the aver
age monthly distribution of medicines to be $130
for the 34 months ending October 31, 1877.
Now the utmost amount of revenue that can
be expected will be about $1200 per annum,which
would have nearly sufficed to carry on the pre
vious monthly rate of expenditure; but for the
past four months, by what seems to be a precon
certed arrangement, a raid has been made on
this fund by prescriptions at t~o rate of over $325
per month, which the fund is entirely inadequate
to furnish, and your attention is called to the
necessity of limiting the expenditure within cer
tain bounds.
The assets of the fund are as follows:
Premium Bonds .................... $25,160 00
Gold Certificate ..................... 14 55
Half Paid Coupons .................. 613 37
Cash balance in Germania National
Bank...... ...................... Si 31
Total ..................... $25,822 23
J. C. DENIS,
Administrator of Finance.
DEPARTMENT Or IMPROVlMENTR,
City Hall, New Orleans, October 30, 1877.
To the Honorable the City Council:
(Gcele,,'en-I would respectfully call your at
tention to the condition of the bulkhead and
levees along the lake shore at Milneburg, as de
scribed in the accompinymg communication of
the City Surveyor, and ask your instructions in
the premises. The communica ion is as follows:
SuRVEYOR's OFFICE, ,
City Hall, New Orleans, October.25, 1877. "
lion. John McCaffrey, Administrator of Improve
ments:
Sir-In accordance with your wishes, I have
the honor to report that in company with Capt.
Fremeaux, assistant surveyor,:1 have made acare
ful examination of the lake shore in that portion
of M'lnebur,. lying we't of the Pontchartrain
Railroad, from the close piling of Washington
Hotel to near Bagatelle street, about 600 feet.
The city property (school-house) measures one
hundred and twenty eight feet front on Columbia
street, or lake shore, between Frenchmen and
Union streets, and is one hundred feet from the
close pilmg of the Washington Hotel garden.
The late storm has detroyeyedolual$a street
be. 1be e.Ma. t4 ta. sbooeakhug popersy
*i-_l-----.Y
to tre end of ti P lmt ro earllor Iewr Nt 1 mUe
--ot Of the damage done is at the sohool-bouse
property, where the land, together with several
brick piers, was washed away from under the
hones. The gallery has been entirely destroyed. P
After mature relection I came to the conolui
slon that the best repairs required would be to I
build a ballast wall, whioh would be very cheap; ;
the more so were the Pontchartrain Railroad
Company, who, being largely interested, to give
free transportation. o
The whole front of Columble street is lined
with piles rotten to the level of low water. Ti a
would afltrd great protectlon to the wall in pre- A
venting the water from undermiolng said wall. b
The wall could be built four feet wide at base,
two feet at top and four feet high, with slope on
lake side. It would require about one-half a toon
of ballast for each running foot.
Respectfully submitted,
J. A. D'HEMEOUrI'T,
pCts Surveyor.
During the past week great inconvenience
has been caused to the residents in the suburbs
of the city by the negilct of the draining meahine
contractors to drain off the rain water as required
by the speclfications. On Saturday and Sunday
the commons, gutters and vacant squares were
partially covered with water from the light rains ti
of the week; and the heavy rains of Monday flud
lig no room in the canals have completely cover
ed streets and banquettes, so as to render it difi
oult for residents to leave their homes this morn. 1
lug. This is particularly the ease in the upper tI
distrlets, as is evidenced by the numerous com
plaints from that section. Having no authority
to appoint a person to superintend the working
of these machines or compel the contractors to e
comply with the specifications, I trust the CUonoil a
will relieve me from any blame or responsibdiity
In thle matter.
During the storm of September 2, one of the t.
boilers of the Dunlin Avenue draining machine ,
was seriously injured by exploding, without doing
much damage to building or machinery.
An examination by the United States local in
spectors and by the City Surveyor shows that
the boilers of one battery of this machine are so t
much worn and burned as to be dangerous, if
used, and recommend that the same be con
demned. The second paragraph of the specif- o
oations provide for the repair of the machinery, a
boilers, etc., and tequires the contractor to keep
them always in good working order, and ritnr,
the same at the termination of his contract in the A
most perfect order and condition.
I respectfully ask the Council to say whether
the contractor should be compelled to replace the
old with a new set of boilers, or whether the city p
should supply the same.
I again invite the attention of the Council to p
the necessity of completing the People's Avenue (
canal to BSaon Blenvenu and to the placing of
proper fliod gates en same. The necessity for
this work and the great relief it would afford to
the whole city, particularly that portion below t
Esplanade street, is so manifest as to need no
comment. By inviting proposals now the cost
can be ascertained and urovided for in the next
budget, and payments would not be necessary I
before the beginninning of next year.
The protection levee at the New Lake End has
been temporarily secured against the force of the
waves, but the repairs made were predicated
upon the presumption that the city intended to e
repair the same, as per resolution. The rejection I
of the bids for this work makes it imp, rative
upon the city to do something to prevent the
wahiblg away of the whole levee, which everyone
must admit would be a sad waste and contrary to I
public interest, considering the enormous cost of 7
the same when originally construocted.
I sincerely trust, therefore that the Council
will reconsider its action, and accept the bid for I
repairing the levee, as per specifications.
Sagain oll the attention of the Council to the
fact that many of the bulkheads and levees on
the river and canals are sadly in need of atten
tion. During low water these could be repaired (
at a much less cost than otherwise.
I would have much of this work done at pres
ent but can neither procure labor nor purchase
material without a guarantee of cash payments, I
and this the Council alone can give.
Begg'ng the Council's favorable consideration
of all the above matters, I am,
Very respectfully
JOHN McCAFFRIEY,
Administrator.
Reports of Committees.
By Mr. Diamond-
1. Reported that he bhad caused repairs to be
made to the tomb of A. D. Grossman, amounting
to $50. Adooted.
2. Favorably on the petition for the erection of
an alarm bell in the vicinity of Magazine Market,
and recommend that the necessary appropria
tion be made and the Administratorof Water
works and Public Buildings cause said belfry to
be erected. Adopted.
By Mr. Oavanao
Favorably by resolution on the petition of Jas.
Sweeney for the erection of twenty or thirty
mooring posts in front of the Willow Grove coal
landing, Sixth District.
Mr. MoCaffrey reported favorably on the peti
tion for the construction of banquettes on Third
street, between Howard and Dryades streets,
and moved that the petition be advertised, as
provided by law. Report received and the motion
adopted.
By Mr. E'lwards-
DEPARTMrNT OF WATxa WoaxR AND Prnrtb()
BurIDINGS,
New Orleans, October 25, 1877.)
To the Honorable Mayor and Administrators:
Grntle/rcn-The following bids were received
for budilding a smallpox hospital:
James Rilgers ....... .......$13,424
John Page ........................ 18,0()
R. J. Connolly .................. 10,465
And B. J. Connolly being the lowest bidder, I
recommend that the con'ract be awarded to said
Connolly for and in consideration of the sum of
$10,465. and that the accompanying ordinance re
lating thereto be adopted.
Respectfully submitted,
JAME'3 D. EDWARDtI,
Administrator.
Mr. Brown called up the report of the Admin
istrator of Waterworks and Public Buildings, laid
over at the last meeting, relative to the bids of
B. J. Connolly and John Page for repairs to
Boys' House of Refuge, which was read. On mo
tion of Mr. Brown the bids were rejected, and
the Administrator of Waterworks and Public
Buildings authorized to readvertise for five days.
Ordinances and Resolutions Offered.
By Mr. Cavana-
Resolution authorizing the erection of mooring
i posts at the Willow Grove coal landing. Adopted.
By Mr. Dents and adopted
Be it lIUolved, That further expenses and dis
bursemuts on account of the pickles fund be
stopped for the present, and that the now dis
penser be so notified at once.
Also, that the Mayor be authorized to select a
committee of three physicians, residents of this
city, who shall be requested to furnish this Conn
oil with their views and suggestions as to the
best plan for carrying out the object of the be
quest.
By Mr. Diamond, and laid over
An ordinance to prevent trespassing on the pub
lic and private swamp lauds within the limits
of the city.
3 Whereas. It has been represented to this de
partment that numerous evil-disposed persons
hbve been and are still cutting or having cut, and
selling for their own account, or for others
equally guilty, fire wood, shingles, staves, pick
ets, etc., and othe rwlse committing depredations,
by the destrnod~in of young trees on the swamp
lands within the limits of the city not their own,
nor in any way under their control:
IResolved1 , That for the protection of the owners
or the lessees of the said lands, the police are in
structed to be vigilant and arrest all p,,rons
round cutting, boating in the canals, hauling or
in any other manner removing wood, as described
in the preamble, from the swamps or canals, who
cannot produce written orders from the owners
or lessees of the said lands that they have full
authority to perform the work mentioned.
B,'sol.ed, That persons purchasing from those
not authorized, wood, ase described above, do but
encourage trespassing, and all material found
and recognized by the proper owners is hereby
made liaole to seizure and sale, upon an affidavit
being made of the foct before the r, corder of
the district in which the offense is committed,
a who shall upon proper proof of the facts order
the material sold or delivered to the proper own
er, and punish by fine or imprisonment all those
acting in contravention of thio ordinance.
By Mr. MCeaffrey
13, 4e9olatio repeig xusmttie R No. 490 A.
d., and agUhogisiug Mesas Esry A teolu 4I nt
their aephalt pavement on GraQer teet, botwem
Front and Delta streets. Adopted.
9. fResolned, That the Admt.irttah.t of Ira
provements be and is hereby Instructed to adver.
time for sealed proposals for the completion of
People's Avenue Canal In accordance with speol
foations to be furnished by the City ourveyor.
Laid over.
3. Resolution authorizing the Administrator
of Improvements to revair the bulkhead and road
in front of the school-house at Milnebnrg.
Adopted unanimously, the yeas and nays having
been called.
,By Mr. Brown
1. Resolution appropriating $:..2 3'5 in favor of
it. J. Connolly, contractor, for extra work.
Adopted.
2. An ordinance in favor of J. C, Denis and
M. MoOullum, amounting to $142 '80. Adopted.
By Mr. Brown, and read twice
1. An ordinance providing for the payment of'
the several aoounts therein named for October,
1877, beginning "Peter Markey," and amounting
to $14,899 93.
2. An ordinance providing for the payment of
the several pay rolls therein named for October,.
1877, beginning "ofilloers, clerks and employes in
the Department of Finance," and amounting to
$19,882 70.
,. An ordinance providing for the payment of
extra labor employed in October, 1877, an*
amounting to $922 25.
4. An ordinance providing for the payment of
the several pay rolls therein named, beginning
"8treet wages," and amounting to $5377 80.
5. An ordinance providing for the payment of
the several pay rolls therein named, beginning
" pay roll of recorders' courts," and amounting
to $66601 66.
6. An ordinance providing for the payment of
certain interest, beginning "A. Iienvenn," and
amounting to $510.
A resolution accepting the bid of R. J. Con
nolly for building a small-pox hospital was re
jected.
From the "Committee of the Fourteenth of
Reptember Monumental Association" for the ex
propriation or as much ground at the head of
Canal street as will be necessary for the erection
of a monument.
On motion of Mr. MoCaffrey the request was
unanimously granted.
From (1) Mrs. A. F. Flanagan; (2) Mary
Mackey; (3) I. Lannes; (4) D. Cloney; (5) M.
Hlleffner; (6) .Tacob Bchwenck (1875); (7) Jacob
Robhwenck (1876), for reduction of assessments;
and (8) First Presbyterian Church, for remisieon
of taxes on Bylvester Larned Institute and re
duction of assessment on the residence of Dr.
Palmer, in ease the Supreme Court deoide that
it is not exempt from taxation.
From (1) 8. Wendling A On., of No. 45 North
Peters street; (2) Fowler & Smith, of No. 108
Tohoupitoulas street, for permission to erect
steam engines; (3) draymen and others, that the
Mobile Railroad be prevented from blocking
Crossman street with their cars, and (4) oitisen$
complaining of a steam engine at No. 789 Maga
zine street. Referred to the Administrator of
Commerce.
From (1) James Clark, that the chimney at No.
458 Magazine street is a nuisance, it being too
low, and (2) citizens complaining of a stable on
lots 490 and 497 Oarondelet street. Referred to
the Administrator of Police.
From lessees of stalls in Magazine Market, for
the repair of said market. Ileferred to the Ad
ministrator of Waterworks and Public Bulildings.
;nflnlshed Business.
The revetment levee resolution was called up
and further consideration of the subject poet
poned.
The Counoil then adjourned.
THOS. G. RAPIER, t.oretary.
FOR SALE.
BUGGIES & CARRIAG.S.
THE UNDERSIGNED IS STILL AT! HIS
Old stand. 35 Carondelet street]
And will sell carrlnages and hggles for a lower
-ri'o than any dealoer l In th, Smuth for the next
sixty days to )omno. to make roomem for a new fall
stoc·k. Will soll lowcr than any dealer in the
city for CASH, or thlrty,sixty and ninety days'
cwosotanceo. to suit the emorgency.
N.T.--I have oxe.sive, control and sale of the
colobhratd Emerson A Fieh'er top and no top
buhglr e.that 'cannot be surtpn.arl for beauty,
olganec eeapners and dlurabll Ity n the
Uniteld htat.re. ''hey are canufae'tured of the
tHtt material: patent wheils annd axlutrees.
t0, l beows. very light and yet strong, oll-tem
pered English stI .l eVring-all fll full aran
tool ; all of which will be sold In a.ccordanoewith
the tiroec.
I thlave, also a largoe stoek of CHILDE.N'8
OARRIIAOES. from $7 up to ste: a full assort
mcent, of VELOCIPEDES, and t.h' square JAP
ANEHE UMI'ELLAH. ncw etylee and water
prorf. Cellt at 3'5 (jtroerelo-let, a.cd nxamlne be
rccrcbyineg celeecwhere, ald savcc moncey.
Again L have olxclive, ealcl ef the work man
utf,'tureed ty Meesrs. Mheacr & KHndall, of
Phi'hll-lphia-thce IlTrgeest rand rmee,,t stuccessful
huci ,lere on thc onrtinetnt of Amrnrliea. They
sernd thier lloods te. evcery eityl il the United
HtatesR; thcvee malny etabllshdl repositorlee,
we'll stocekced with the finret, work, overthocoun
try. and ilelc 2000and soco joet ba year. This
work ie the, very tcect qllJllity leer wear and com
fort, fully guarantrtee for twelve, months. ThiS
firm hte.e tood all time flranaial ,rruptions and
pernltq fo lr twenty yecarc, and to-day i far in ad
vans.e of any et.etebliehetrreet In tlo heonntrT.
L'. H.- I nleso ty largely of Meere. Dart &B ey
noles, or New HLaven. Conn.. the young and en
torrirling su,,c.cesers of 0. T. Newhall. TheyO
butld aeout eIlxty jelc a wc,,ek--work that cannot
he slcreaced for durability and tnish, fully
guarcnretececd.
(Call at 36 Carondellet street, and examine,
ausn L. T. MADDUl.
PREMIUM BONDS
ALWAYS ON HAND AND FOB BALE IN
BUMS TO SUIT.
LEGISLATIVE WARRANTS
Purchased by A. LuMOBI,
a2 WoNn. i allier fkmrt
EQUAL TO TILE BESr.
Marais Street Steam Brewery
86...........Marals street...........96
Between Conti and St. Louis.
H. F. STURCKEN, Proprietor,
iviO m NFW ORLEANS.
PHILIP HIR.CH,
COOPEl3FR,
0,. 52, 54, 56. 58 and o0 North Peter street.
Manufactory-Corner St. Louir and Mirostreets
New Orleans,.
Has for sale ehoiro gre ,n HoRshead and Bar.
ral Poles; also, new Sugar Hograhads, Molase
Barrels, Half Barrels and Keg- . all sizes.
Prl:es mode'rato. Satisfaction guariteed
se7 3m d&w
T. A. B ECK,
0 C0C PEIRAC#JEL I
Offlee and Malesroom, No. 27 Peters st.,
Manufactory, Carondelet Walk, between Bo
and Pricur streets, New Orleans.
Has constaLntly on hand Sugar Hogheadsh
Mola-ses Barrrrel. al Barrels Kegs and Ylou
Barrels, new and seond-hand.
Orders for Hoov-poles fllled at the low
market rates. Particular attention Daid
trimming. _ seamdcw
HENRY KLUNG,
LITHOGRAPHER, ENGRAVER
-AND
PR INW "3 0R.
-Imu..........Maga e street .......
NEW OBLEANS, LA.
All iWesk esecat at19tRortk p of t r