other as the property of that state, and the objection here set up by the board of control was urged by them, that court said: "If a suit by an individual against individuals to recover the possession of property is not a suit against the United States merely by reason of possession being held by the defendants as agents of the United States and under title asserted to be in the government, we cannot perceive how the present suit can be rethe defendants assert a right of possession in garded as one against the state merely because the state through them as its officers and agents. The essential principles of the Lee Case have not been departed from by this court, but have been recognized and enforced in recent cases." And the court cites several of the cases tor of public accounts every three months, of which examinations reports are made to the Governor, and that reports of the affairs of the Canal and Shell Road are made to the General Assembly at its biennial sessions. It also appears that the leases are held by dealers in sand, gravel, shells, brick, lumber, and many other articles, the trading in which constitutes the commerce that is carried on through the canal and supplies the tonnage; and we find it plainly inferable from all the testimony that, other than as thus stated, the land so leased has never been used for the purposes of the canal, and has never produced any revenue to its owner. In fact, that which is the subject of the thus referred to, and proceeds to cite and lease here in controversy had never been reclaimed from the swamp until it was filled and built upon by the lessee before the court. Opinion. Upon the exceptions: [1] The question first to be inquired into is whether the trial court was vested with jurisdiction to render the judgment appealed from, and whether this court has the power to affirm it. Upon that question it has been understood that the position of the learned Attorney General was at one time sustained by the jurisprudence of the Supreme Court of the United States, which is controlling upon the subject, but in United States v. Lee, 106 U. S. 196, 1 Sup. Ct. 240, 27 L. Ed. 171, that august tribunal handed down a decree based upon an opinion the substance of which, so far as it need be here stated, is expressed in the syllabus as follows: "(1) The doctrine that the United States cannot be sued as a party defendant in any court whatever, except where Congress has provided for such suit, examined and reaffirmed, and the nature of this exemption considered. "(2) This exemption is, however, limited to suits against the United States directly and by name, and cannot be successfully pleaded in favor of officers and agents of the United States, when sued by private persons for property in their possession as such officers and agents. "(3) In such cases a court of competent jurisdiction over the parties before it may inquire into the lawfulness of the possession of the United States, as held by such officers or agents, and give judgment according to the result of that inquiry.' In reaching the conclusion thus stated the court had no occasion to consider the Eleventh Amendment to the Constitution of the United States, declaring that the judicial power of the United States shall not be construed to extend to any suits brought against one of the United States, by citizens of another state, or citizens or subjects of a foreign state, since the suit to be decided was not against one of the United States; but, in the later case of Tindal v. Wesley, 167 U. S. 218, 17 Sup. Ct. 775, 42 L. Ed. 142, in which plaintiff (Wesley) sued for the recovery of real estate held by the secretary of state of South Carolina and an consider a number of others in which the Eleventh Amendment was involved, and thus states the result: "The settled doctrine of this court wholly precludes the idea that a suit against individuals to recover possession of real property is a suit against the state simply because the defendant holding possession happens to be an officer of the state and asserts that he is lawfully in possession on its behalf." Applying that doctrine to the instant case, we can discover no difference in principle between a suit to recover possession of real property and a suit to enforce a real right in such property. We therefore conclude that the exception to the jurisdiction on the ground that this suit is against the state was properly overruled. We are also of opinion that the other exceptions were not, upon the face of the petition, well founded. Upon the merits: [2] It is admitted that the New Orleans Canal & Banking Company acquired an undivided half interest in the Macarty plantation, a body of land of much greater width than the tract 300 feet wide devoted to the Company's canal and roadway; that in June, 1833, it, with its co-owners, sold to S. W. Oakey, from the land so acquired, a certain lot "No. III," containing about 97 acres according to a plan by Charles F. Zimple, deputy city surveyor, of date April 27, 1833; that plaintiff's square, 589, formed part of that lot and fronted on the 300-foot tract upon which the canal and roadway, now known as the New Basin Canal and Shell Road, had then been constructed; that the blueprint filed in evidence by plaintiff is a correct copy of the Zimple plan of 1833; and that the abstract of title filed by plaintiff is correct. It is also admitted that the Company acquired the other half interest in the 300-foot tract. The description in the conveyance from the Company to Oakey gives the number of the lot and of the acres, and for the rest refers to the Zimple plan. Turning to that plan, we find that lot "III", bears the same relation to other contiguous property as to the canal property, and that neither the description nor the plan convey the slightest suggestion that it is entitled to a servitude upon one boundary more than another. The other parcels of land constituting the boundary are represented in the usual way, with the usual lines delimiting and separating them from lot III, and are designated, in some instances, by the names of the owners and, in others, by numbers, as I, II, IV, etc., with their acreage, and lot III is separated from the canal tract by a line differing in no respect from that which separates it from lot II, the canal tract being designated by four parallel lines extending beyond the confines of lot III in each direction indicating its subdivision into three parts, with the legend "New Orleans Canal" imposed upon the lines. No better method of designating or delimiting it occurs to us, and none less indicative of any intention to make a dedication of it to the public; and, as the tract formed part of a body of land in which the Company had bought outright an undivided half interest for $130,000, it is clear that such dedication did not, of necessity, result from its sale of adjoining tracts. A railway company may sell land adjoining its right of way without dedicating or imposing servitudes upon the strip so described, in which it owns but a limited fee, and equally may a canal company, or a canal and road company, sell land adjoining the tract upon which its ca nal and road are constructed, and of which it is the full owner, without of necessity subjecting such tract to servitudes in favor of its vendees, or the public. As appears from the foregoing statement of the case, plaintiff alleges that the property now owned by him was sold "by reference to" the Zimple plan of April 27, 1833 "on which petitioners said property was shown to adjoin said roadway, and thereby the said roadway and canal were shown and figured, from which it results that the said roadway and the whole of the space reserved therefor and for the service of said canal were irrevocably dedicated to said purpose, and to public use, and that a servitude in favor of such adjoining property was thereby created, for the use by said adjoining proprietors and by the successive owners thereof, of such public places, for purposes of navigation, the loading and debarkation of freight and similar related purposes, which said servitude includes the right of ingress and egress and of way to, and over, such spaces, in aid of such purpose.' [3, 4] Those allegations of fact and the conclusion deduced therefrom find inadequate support in the Zimple plan, upon which the canal and road tract are represented, as we have stated, by four parallel lines with the words "New Orleans Canal" inscribed upon them, the space in width occupied by them on the blueprint being less then an eighth of an inch, thus: NEWORLEANS CANAL. The word "road" does not appear. The Company was obliged by its charter to construct a road not less than 25 feet wide, which would leave a space of 95 feet between it and the line between the 120-foot strip and the adjoining land, and it is not pretended that any wider road has ever been constructed, though the rest of the strip was, no doubt, to be de owners and administrators might deem advisable, and not to the free use of the adjoining proprietors or the public. It is true that section 9 of the charter, after authorizing the Company to acquire land by agreement or by estimation" and "appropriation," contained the proviso: "That the proprietors of land so estimated and appropriated shall always have the right to communicate with said route and canal, and this, in the whole extent of said lands, which shall be considered as riparious to said canal." That proviso has, however, no application to the land involved in this suit, which was acquired by purchase, and it does not appear in this record that the Company acquired any land otherwise than by purchase; but, if it had acquired all the land needed for the canal and road by expropriation (or "estima. tion" and "appropriation"), we apprehend that some difficulty would have been found in reconciling its right and obligation to administer the property with the privileges thus granted to the adjoining proprietors. It is worthy of remark that though the grant is special, and is by its terms confined to the expropriated proprietors, the plaintiff, whose author was not in that class, is claim ing about the same privileges, merely upon the face of the Zimple plan. And our conclusion upon that point is that the Zimple plan does not sustain the claim. Extending the inquiry beyond the plan to the law constituting the contract between the canal company and the state and defining the powers and obligations of the Company, we find what appears to us a grave reason why the Zimple plan should not have subjected the canal property to the servitude claimed by plaintiff or otherwise have incumbered it. Under that law and contract, the Company was obligated to surrender the entire canal property to the state at the expiration of thirty-five years, free of incumbrance. We use the expression "free of incumbrance," though it is not found in the statute, because we are of opinion that it should be read into it by necessary implication, and because the statute was so interpreted by the General Assembly in Act 78 of 1858, and that interpretation has never, so far as we are informed, been questioned. The state, by the act of 1831, declared that, in consideration of the reversion of the property to it, "the stock of the said company [fixed at $4,000,000] shall be exempt from taxation by the state, or by any parish or body politic, under the authority of the state, for the whole term of this charter [a period of 39 years]," and it would be absurd to suppose that it entered into the contemplation of either party that, after enjoying that exemption, the value of which in cash may have exceeded the value of the property to be surrendered, the Company should be able to discharge its obligation in the premises by turning over to the state property rendered valueless by reason of mortgages and servitudes to self declared that it should revert to the state, State of Louisiana v. N. O. City & Lake R. "in the situation required by the 8th and 14th sections of this act," meaning, clearly, completed and in good repair; and that it should be unincumbered with respect to obligations incurred in the interest of the Company goes without saying. Where, then, did the Company find the authority to make any dedication of property which it held under such conditions? Where did it find the authority, in order to sell its adjoining land, to concede to its vendees rights and servitudes in or upon property, which, according to the law and to its contract with the state, was to revert to the state free of incumbrance? And where would the courts find the authority to obstruct the state in its administration of its own property by sustaining the claims of those to whom such rights and servitudes were attempted to be conceded? Co., 104 La. 685, 29 South. 312, and Board of Control v. H. Weston Lumber Co., 109 La. 926, 33 South. 923. In the case first mentioned the Attorney General and associate counsel brought suit in the name of the state and of the board of control for nearly $80,000, alleged to be due for the use and occupancy of land on the northeast side of the canal upon which defendants' track was laid, and it was held that there could be no recovery, for the reason that the road had been built, as by legislative sanction, on public land, after due notice, and had been there maintained without objection or claim for compensation during a period of 23 years; also that Act 84 of 1882, authorizing the building and maintenance of railroads on public lands, was so far applicable to the case as to prevent recovery. On rehearing it was said that plaintiffs could not collect rent because the renting of the property was prohibited by the Constitution. In the case last mentioned the board of control brought suit, on behalf of the state, for the recovery of a parcel of land forming part of the canal tract of which defendants were alleged to be in possession, asserting title. Defendants answered that the parcel never belonged to the state, or, if it ever so belonged, that the state was estopped to assert its title by reason of its acquiescence in defendants' possession under a perfect title for more than 30 years. It was held by this We are referred by learned counsel to the cases of Keay v. N. O. Canal & Banking Co., 7 La. Ann. 259, and Bruning v. N. O. Canal & Banking Co., 12 La. Ann. 541, from which it appears that in 1845 the Company caused a certain body of land which it owned adjoining the canal tract, and through which the canal survey had probably been projected, or made, as in the instant case, to be laid off into squares and lots, and had made sales thereof at public auction by reference to colored lithographs of a plan representing them as abutting as upon public places, on the 120-foot strips on the sides of the canal, and that the plaintiff, having purchased some of the prop-court that the vendor of the original defenderty so offered, complained in the one case that the Company had thereafter cut a ditch or draining canal within three feet of his line, and in the other that it had converted what was represented to be a landing and locus publicus into a basin both of which complaints were held to be well founded and entitling the plaintiff to relief, though the court took occasion to intimate, in the case first mentioned, that it was not dealing with the interests of the state, but only with the interests of the parties who were before it, viz. the plaintiff and the Company. One of the cases was decided in 1852, the other instituting the 300-foot tract was a public high1856, and in 1858 the General Assembly enacted the statute containing the declaration that there was reason to fear that the canal property might be "incumbered" or appropriated to other uses than those for which it was intended, and prohibiting its alienation, leasing, etc. ant had no title by purchase, could have acquired none by possession, and could have conveyed none to defendants, who were in the attitude of obstructing a public road. Defendants traced their title to a tax sale made by a constable in 1859 under the supposed authority of Act 285 of 1858. It was held that the act conferred no authority to sell any part of the canal tract, 300 feet in width, and, moreover, that the sale included no part of that tract. It appears, therefore, that in both cases what was said to the effect that the land con way, in the ordinary sense of that term, was beyond the requirements of the occasions, and that the various matters which have now been brought to the attention of the court were not considered. Plaintiff, through learned counsel, contends that the Constitution prohibits the leasing of the "New Basin Canal and Shell Road and their appurtenances." That contention and the assumption that plaintiff has the standing to urge it are predicated upon the theory that the 120-foot strips of land upon either side of the canal are public highways, the obstruction of which any abutting proprietor has the right to enjoin in so far as it may inconvenience him, and more particularly where the obstruction of which he complains is expressly prohibited. But these strips, Our attention is also called to the cases of considering each of them as a whole, are not The cases have no particular application here; they arose out of sales made in accordance with a plan that came into existence in 1845, and showed lots and squares abutting on, or surrounded by, streets, whereas the Zimple plan, on which plaintiff relies, shows merely tracts of land, of various dimensions, the one bounding, but not abutting on, the other. The interests of the state were not represented or considered in either of the cases. his square, even though the Liberty Oil Company had erected no building. If the street:: on each side of his property extending back at a right angle from the canal tract are filled, he could, no doubt, reach the road and canal in that way, but, as we understand, his property has not been in use for some time, and it is not likely that he has concerned himself about the streets. public highways in the ordinary sense of that term. The whole tract, 300 feet in width, with the canal and the strips, is state property, to be administered by the state government in the public interest, the asset of paramount importance in which is the canal, and if, in the opinion of the state officials vested with its administration, it were deemed advisable to consume the whole of the strip on the east side in widening the canal, [5] Assuming, however, that he discloses or to occupy it entirely with landings, or sufficient interest to authorize his attack upfreight sheds, or destroy its continuity with on the constitutionality of Act 144 of 1888 and basins, we can discover no reason why those Act 60 of 1910, which authorize the board of steps should not be taken. As to the strip on control to lease whatever property belongs the west (on "upper") side, the law requiring to the canal and shell road not necessary for the company to build and maintain a road their use, "subject to the condition that no upon it not less than 25 feet in width has lease of said property shall extend beyond never been repealed. The road has been their terms of office without the advice and maintained by the state since the reversion consent, of the Governor," there is a good of the property, and it may very well be that deal to be said by way of answer to the rights have been acquired with reference to argument in support of that attack. The its maintenance which it would be necessary constitutional prohibition against the aliento consider if it were now closed or obstruct- ation or lease of the "New Basin Canal and ed. But what may be true in regard to the Shell Road and their appurtenances" is susroad has no application to the strip 95 feet in ceptible, we think, of the construction that width which should be found between the it was intended to be applied to the alienawestern edge of the road and the western line tion and lease of the property as a whole, of the 300-foot tract constituting the canal and not to prevent the board from disposing property. That land, or, as is mostly the to the advantage of the state of articles case, swamp, belongs to the state, just as the which, worn out by use, could never be of canal belongs to it, and, whatever may be any further service, or of leasing parcels of the power of the state with respect to its land such as that here in question, which ultimate destination, we are unable to dis- have never been, and otherwise never will be, cover that it is subject to any mortgage or so far as can at present be known, either servitude imposed or conceded by the Com- useful or productive. Moreover, the statute pany in favor of any individual. It has re- has now been in force for nearly 30 years, mained for, say, 85 years, unreclaimed from during which period, after a lapse of 22 years, the swamp, idle and unproductive, of no use the provision in question was re-enacted, and to the canal, to the owners of the adjoining has at all times been sanctioned by the exland, or to the public, and so long as it re- ecutive as well as the legislative departmains unfilled must be a detriment, rather ments of the state government, to which than an advantage, to such land; the testi- constant reports of its operation have been mony to the effect that, by affording access to made. Beyond that we have had two conthe road and canal, it adds to the value of stitutional conventions, many of the memthe land, being predicated upon the assump-bers of which, no doubt, were fully aware of tion that it may be filled by the state, and the interpretation which had been placed upopened to the adjoining proprietors, neither of which steps can the state be compelled to tion itself has been retained, that interpretaon the prohibition, and, though the prohibitake. that, all the circumstances considered, we are tion appears to have been acquiesced in, so of opinion that the attack on the statutes mentioned should not be sustained, and that plaintiff's demand should be rejected and his suit dismissed. In conclusion we think it proper to say that, as the parcel of ground leased to the oil company is described as "having a width of 87 feet, beginning at a line 17 feet from the edge of the turnpike paved road and extending to the western line of the property of the state of Louisiana," it would appear either that the strip of land left on the west side of the canal is 129, instead of 120, feet in width, or the road 16, instead of 25, feet in width, or that the lease encroaches upon either a street, or defendants' land, on the west side of the 300-foot canal tract, Mr. McWilliams, real estate dealer, called by plaintiff, gave the following testimony on cross-examination: "Q. Were you there before the Liberty Oil Company filled up that ground? A. Yes, sir. Q. It was all swamp land out there? A. Yes, sir. Q. Who was on it; anybody? A. It wasn't being used; no, sir." Mr. Zander, a civil engineer, called by defendants, was shown a map of survey which he said had been made by him of the square of ground here in question, and gave the following testimony concerning the same to wit: "Q. Was it a physical survey of the property? A. Yes, sir. Q. What was the character and nature of the ground immediately contiguous to the paved shell road and the new basin canal? A. It was a willow swamp." Plaintiff could not, therefore, reach the ment to sanction either a reduction in the width of the road, which the General Assembly has declared shall be not less than 25 feet, or an encroachment by the board of control upon land that is not included in the canal tract. It is therefore ordered and decreed that the judgment appealed from be annulled, and that there now be judgment in favor of defendants, rejecting plaintiff's demands, and dismissing this suit at his cost in both courts, without prejudice, however, to the right of any one who may have an interest so to do to inquire into, and to have determined, the question, whether the lease here complained of includes property necessary to a road 25 feet wide on the upper side of the canal, or property which is not part of the canal tract. O'NIELL, J., concurs in the opinion that this is not a suit against the state, but is of the opinion that the entire strip of land 120 feet wide above the canal was dedicated to public use for a state highway, and that the statutes purporting to authorize the board of control to lease the part not necessary for the canal or shell road are unconstitutional. (75 Fla. 412) SAUSSY v. LIGGETT. (Supreme Court of Florida. March 8, 1918.) sonville is a corporation created by special act 4. BANKS AND BANKING 47(1) — DOUBLE LIABILITY OF STOCKHOLDERS-STATUTES. By a special act of the Legislature, namely chapter 4272, Laws 1893, approved May 9, 1893, a banking corporation was created and granted a special charter containing a provision "that the stockholders of said corporation shall not be individually liable for the debts of the company, except to the extent of any unpaid subscription to the [said] capital stock thereof." Subsequently proceedings were taken under authority of section 2727, General Statutes of 1906, with a view to converting said corporation into a banking company under the general banking law (Gen. St. 1906, §§ 2693-2736). Held, applying the rule stated in the headnote immediately preceding, that such alleged conrersion did not have the legal effect of placing upon the stockholders the double liability imposed by section 2700, General Statutes of 1906, upon stockholders in banking companies organized under the general banking law, since the of the Legislature of the state of Florida, approved May 9, 1893, under the name of Savings & Trust Bank of Florida (chapter 4272 of the Laws of Florida) reference to which is had and which is made a part of this answer as fully as though set forth therein in terms; that said act was amended by chapter 4459 of the Laws of Florida, approved May 28, 1895, reference to which is had and which is also made a in terms; that by chapter 4459 said corporapart hereof as fully as though set forth herein tion was given leave to change its name in the manner prescribed by the general incorporation law of Florida, and in pursuance of said authority said corporation changed its name to that of Commercial Bank of Jacksonville. "(2) This defendant, further answering, says that section 13 of said special charter, chapter 4272, provides as follows: ""That the stockholders of said corporation shall not be individually liable for the debts of the company, except to the extent of any unpaid subscription to the [said] capital stock thereof.' And the power to modify this provision of law by action taken under the provisions of any general law was expressly excluded by section 24 of said act of May 9, 1893, which provides as follows: ""That all laws and parts of laws conflicting with the provisions of this act * hereby repealed.' are "(3) Further answering, this defendant says that some time prior to 1899 this defendant purchased from the said Commercial Bank 37 shares of its capital stock, which are the shares referred to in the bill of complaint, and paid cash therefor; that for some of said stock defendant paid $100 per share, and for the balance he paid an amount considerable in excess of $100 per share; that certificates for these 37 shares of stock were issued to defendant prior to 1899, and that respondent had owned and |