Livaudais v. Municipallity Number Two

Martin, J.,

delivered the opinion of the court.

The defendants are appellants from a judgment in which the plaintiff recovered a square of ground in the city of New-Orleans, in their possession, to which they claim title. They also pleaded the general issue.

We have not examined the plaintiff’s title, because the defendant’s have recognized it, by urging a title in themselves under him, and have presented as evidence of it the plan of a Faubourg, laid out into lots, streets, squares and public places, on a plantation formerly belonging to him"; the locus in quo, being a square figuring on said plan, on which the word “colysée” was written.

The defendant’s counsel has called our attention to a billof exeception which he took to the rejection of parole testimony, offered to prove the interpretation which the plaintiff had given in verbal declarations to the word “colysée.” He has relied on the case of Morgan vs. Livingston, 6 Martin, 19 , in which this court recognized the regularity of the admission of witnesses to prove the meaning of the words “frente al rio.” This is certainly correct when the general meaning of the word is in question; but not when it is attempted to show in what sense the party, against whom the testimony' is offered, had declared he had used the word : For it would be an attempt to establish, by parole testimony, that for which the law requires written proof.

No recovery by the original owner can be had if he lias divested himself of title by a dedication of the locus in quo to a public use, thereby rendering it a locuspub licus, hors du commerce.

On the merits the defence is, that the plaintiff cannot recover, because he has divested himself of his title to the locus in quo, by a dedication of it to a public use] thereby rendering it a locus publicus, to wit: a piece of land hors du commerce.

This is certainly true if such a dedication, as that contended for, has taken place ; and whether it. has or not, is the only question which the case presents.

The word “Coliseum,” is the proper name of an edifice in Rome, originally known as the “Amphitheatre of Titus,” the dimensions of which were extended to such a degree that it is said, it was called “Coliseum,” from its collosal magnitude. Gibbon’s decline and fall of the Roman Empire ; ch. 71, title “ Coliseum of Titus.” The Roman people met in this place to view the fights of gladiators wild beasts, &c. It was a place of public diversion and amusement. It was originally the private property of the Emperor, and we are without any evidence of the character of that property being changed.

There is no evidence of the alleged dedication, out of the plan in this case; and none in the plan out of the word “coliseum.” In this same plan is marked a locus publicus, called “ Le place du Vannunciation,” in the middle of which is a spot, designated as a place for a church. If the plaintiff did not by this designation contract the obligation of building a church, he certainly renounced the right of appropriating it to any other object. The erection of a church by him could not be resisted by anybody. He might make it a catholic or protestant church ; and when built, he might avail himself of it, by selling or leasing it out. He might employ clergymen, and rent out the pews. There is nothing with us that prevents a public building, designed for public worship, from being private properly or from being sold or leased out as such. We have seen a presbylerian church in St. Charles-street, purchased and leased out to the congregation ; and we have seen a catholic chapel built on private property, in Delord-street, between Constance and Tchoupiloulas, consecrated by the Bishop, used a while for divine worship, and *514 nothing now remains than the “locus ubi Troj&fuit,” now occupied for profane uses.

Butthe desigsquare of ground object, by mark-' ing or writing on it in the plan, the word “co-divest theüwner °f title or make it a locus pubh cus. it may persemtn5efoifthis which lthe adjacent proprietors qui're\he mner ed! and dedicate it to the object designated.

There is not within this city any place of public worship, that is not the private property of its congregation.

Are places of public amusement of a different character, in this respect, than places of public worship? Had the plaintiff designated on his plan, places for a theatre, a ballroom, a concert hall, or a tennis court, would this designation be construed as a dedication of those places to public use, divest him of his title, and place them out of commerce? If it did, what remedy would there be if these places were not applied according to the dedication? Who should be put in mvrct ? and against whom would the process be directed for the purpose of setting the dedication aside? As we have said in regard to the spot designated for a church or “Le place du V annunciation,” the obligation which the plaintiff has contracted by the use of the word “colliseum,” might certainly be discharged by the erection of such an edifice. In the meanwhile he may have lost the right of using the square for any other purpose ; as to the erection of this edifice, who has put him in mor&? If the building is not necessarily to be erected by him, who has offered to erect it? Who has accepted the donation which results from the dedication?

Tbe Municipal officers have no right over the property dedicated to public use, more than to watch over if, to prevent >ts deversion to other uses ; to remove incumbrances and all obstacles to the full enjoyment of the public of the property, ,. , , , • J, . .. . 1 according to the terms and object of the dedication. I he defendants do not pretend that plaintiff has impeded the ¡ e 0f that right. They contend that this property is , , „ . , . . ' ' , their own ; and all their efforts in this case have tended to show that the plaintiff has been divested of his title. The being a petitory one, this would suffice to prevent a recovery ; but as we have said, there was no dedication, Had there been one, it was inchoate only, until the acceptanee Pai-ly f°r whose benefit the dedication was intended. Of the acceptance, there is not the least tittle of evidence.

*515 It is not for us now to say whether the purchasers of lots from the plaintiff, in reference to his plan, acquired rights or not on this square. If.they did, whether those rights were personal or real, in the nature of a servitude, and whether the lots were the creditor-estates, and the square the debtor-estate of the servitude. The rights of the purchasers of lots, whatever they may be, cannot be acted on in a suit to which they are not parties, by themselves or their legal representatives. The Municipality is without authority to represent them.

It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be affirmed, with costs.