to represent him. There is something on which the jurisdiction of the court is based, and the judgment rendered would be within the recognized and ordinary prerogatives of the judicial power."

The principles stated in that case were substantially followed in many subsequent opinions, and notably in Peterson v. McRae, 3 La. Ann. 101; Jelks v. Smith, 5 La. Ann. 674; Ackley v. Lyons, 6 La. Ann. 648; Ferguson v. Thomas, 6 La. Ann. 218; Prindle v. Williams, 9 La. Ann. 34; Stephens v. Graves, 9 La. Ann. 239.

But in Field v. New Orleans Delta Co., 19 La. Ann. 36, a departure was taken, the principles announced in the quoted cases being recognized, but misapplied to a strictly personal action. In the more recent cases of O'Hara v. Booth, 29 La. Ann. 817, Morris v. Bienvenu, 30 La. Ann. 878, and Fly v. Noble, 37 La. Ann. 669, those earlier cases were followed, and they are in keeping with Pennoyer v. Neff, 95 U. S. 730, to which our jurisprudence has been conformed: McKenzie v. Bacon. 38 La. Ann. 764; Laughlin v. Louisiana etc. Ice Co., 35 La, Ann. 1184; Heirs of McGehee v. McGehee, 41 La. Ann. 657; Duruty v. Musacchia, 42 La. Ann. 357.

Our conclusion is, that the case stated is one in which substituted service of citation is effectual, and that a judgment pronounced thereon contradictorily with the curator ad hoc will bind the absentee defendant quoad the property in controversy, and that the judge a quo incorrectly sustained the curator's exception, and dismissed the plaintiff's suit.

It is therefore ordered and decreed that the judgment appealed from be annulled and reversed, and it is further ordered and decreed that the suit be reinstated, and the cause remanded for further proceedings according to law and the views herein expressed.

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JUDGMENTS AGAINST NON-RESIDENTS. As to what judgments are valid rendered against non-residents, see Harris v. Daugherty, 74 Tex. 1; 15 Am. St. Rep. 812, and note; Anderson v. Goff, 72 Cal. 65; 1 Am. St. Rep. 34, and note; Harris v. Pullman, 84 Ill. 20; 25 Am. Rep. 416; Ewer v. Coffin, 1 Cush. 23; 48 Am. Dec. 587, and note; Dearing v. Bank of Charleston, 5 Ga. 497; 48 Am. Dec. 300, and note; Flint River S. 8. Co. v. Foster, 5 Ga. 194; 48 Am. Dec. 248, and note,

MEYERS V. MATHIS.

[42 LOUISIANA ANNUAL, 471.]

DEEDS - CONVEYANCE OF BATTURE OR ALLUVION RIGHTS. A deed which describes the property sold as fronting on a certain street, and extending between certain lines to the river, without guaranty of measurement, conveys the batture or alluvion rights to the river frontage described in the deed.

DEED, WHEN CONVEYS BATTURE OR ALLUVION RIGHTS. A deed describing the property sold as fronting on a river conveys the batture or alluvion rights without any provision to that effect contained in the deed.

Henry P. Dart, for the appellants.

Moise and Cahn, for the appellees.

BERMUDEZ, C. J. This is a suit to compel the defendants. to comply with an adjudication made to them of certain real estate in this city for eleven thousand seven hundred dollars.

The defense is, that the title offered describes the lots as carrying the batture privilege, or right of accretion, when in truth the plaintiffs have no right thereto, for the reason that titles of their authors to them make no conveyance thereof.

From an adverse judgment the defendants appeal.

The property adjudicated, consisting of three contiguous lots, is described as situated in a square bounded by Jena, Water Street, Napoleon Avenue, and the Mississippi River, having a stated front on Water Street, and extending in depth. to the waters of the river, together with all rights of batture. or accretion, whether the same is now formed or hereafter to be formed, without any reservation whatsoever.

These lots were sold to the company represented by the plaintiffs, under the same description, by Widow Seiler, as universal legatee of her husband.

The latter's title, derived from the Millaudons, contains a description of the lots as bounded by Jena and Water streets, Napoleon Avenue, and the Mississippi River, fronting on Water Street, with a stated approximated depth, without any guaranty as to the measurement.

The property thus sold measured, each lot, some thirty feet front, on a depth of a little more than three hundred feet.

Accretions have since formed successively and imperceptibly to the first quantity of soil, by which the river water line was distanced by about six hundred feet.

The right of the Millaudons to the batture at the time of sale is not disputed.

AM. ST. REP., VOL. XXI. - 25

The contention is, that as the deeds to Seiler are reticent as to the right to batture, and merely mention the river line as a boundary, all the accretions since formed have not inured to Seiler and his assigns; in other words, that the description given is an exclusion of land not described.

It is admitted that other lots above the avenue fronting on the river were sold at the same auction at which Seiler bought, to various purchasers, and that all the deeds, except Seiler's, contained an express mention of the right of batture being sold.

Jena Street and Napoleon Avenue run perpendicular, apparently, to the river. On Water Street, which runs parallel with, or in the same sense as the river, the levee existed at the time. Since, it has been removed therefrom, and built nearer the river, so that the land in controversy lies back of the old levee, to the river water line.

The only question presented is, whether the title made to Seiler carried with it a right to alluvion soil in posse, which now constitutes the six hundred feet mentioned.

The sale was by metes and bounds, as concerned the front and rear lines.

Had the titles to Seiler described the lots as measuring so many feet front on the river, between Jena Street and Napoleon Avenue, extending in depth to Water Street, on which the levee stood, there could have been little or no room for discussion; for it is settled beyond the possibility of a doubt that the words "front to the river," frente al rio, convey a riparian estate, and that under them the vendee is entitled to the river for his boundary: 6 Mart. (La.) 216; 18 La. 259; 9 Mart. (La.) 656; Cambre v. Cohn, 8 Martin, N. S., 596.

The ruling in the last-mentioned case, invoked by the defendants, itself recognizes the correctness of the doctrine. In expounding the law, the court said, however, that it is "not applicable to a sale made of a certain limited part, taken from a whole tract of land, when, at the time of sale, the vendor held in full property another part, between that sold and the river."

In the more recent case of Ferréire v. New Orleans, 35 La. Ann. 209, it was held that when property was sold fronting and ending on the levee, and not on the river, the sale embraced all the rights of property which the owner had in the premises up to, but not beyond, the levee, and therefore that the vendor had not conveyed the batture accretion or alluvion right. This case is but a corollary of previous ones.

The right to future alluvial formations is a vested right inherent in the property, thus: "The portion added is not considered as new land. It is part of the old, which acquires the same qualities and which belongs to the same owner, in the same manner as the increase by the growth of a tree makes part of the tree": 8 Martin N. S., 567; 18 La. 54; 13 La. Ann. 105.

In the present case, the sale is not of a certain limited part taken from a whole tract of land, and the vendors at the time of sale did not hold any other between that sold and the river.

The sale was from the levee then in existence on Water Street to the river, and included not only the soil actually susceptible of possession, but, besides, all such other as might be subsequently formed in the course of time, labentibus annis, or in addition, as an increment, to that conveyed.

It is to be observed that the measurement of the lateral lines is not fixed and determined with precision. It shows that it was not possible to do otherwise, precisely because the probability of accretions had entered into the minds of both vendor and purchaser. Hence it is that the act declares that the sale is made without guaranty as to measurement. The declaration is clearly indicative that the vendor was unwilling to be bound as selling a certain limited part which was not ascertainable, but designed to sell the property, such as it was and might thereafter be, in area.

Such being the case, what difference is there between selling front to the river, with a depth extending from it to a parallel or similar line, and selling front on such line, with a depth extending from it to the river?

In either case, the superficies would be the same, and the rights to the batture alike.

Under no conceivable contingency would the vendor pretend not to have sold the whole of it, and claim an inch of ground between the river and the street and the lateral lines, for the plain reason that, having divested himself of all title to the land comprised between the front and rear lines and the side limits, he could not be permitted to gainsay and repudiate his acts, and revendicate what has passed by his free volition from him to his vendee for due consideration.

There is no force in the contention that because at the time of the auction sale, at which Seiler acquired, other lots were sold to other purchasers, with the batture right expressly mentioned, and because such right was not thus mentioned in his deed, he did not acquire it.

The mention of the batture right as conveyed in the other title was surplusage. The omission of it from Seiler's title is innocuous. As the property sold to those parties extended to the river, as it did in Seiler's act, the purchasers would have acquired, as Seiler has, without such mention.

The conclusion is, therefore, that Seiler acquired not only the soil in esse at the time he purchased, but also the right of the batture or alluvion soil susceptible of formation in futuro; that his rights passed to his widow as his universal legatee, and from her to the company now represented by the plaintiffs as commissioners; and that the title offered by them to the defendants is such as they are bound to accept. Judgment affirmed.

ALLUVION. For the law applicable to alluvion, see note to Hagan v. Camp bell, 33 Am. Dec. 276–280; Leonard v. Baton Rouge, 39 La. Ann. 275.

DEEDS - WATERS - BOUNDARIES. -As to the rights acquired by the grantee in a grant or conveyance of land bounded by a river or watercourse, see Chandos v. Mack, 77 Wis. 573; 20 Am. St. Rep. 139, and note; Miller v. Mendenhall, 43 Minn. 95; 19 Am. St. Rep. 219; Palmer v. Farrell, 129 Pa. St. 162; 15 Am. St. Rep. 708; Wiggenhorn v. Kountz, 23 Neb. 690; 8 Am. St. Rep. 150; Lake Superior Land Co. v. Emerson, 38 Minn. 406; 8 Am. St. Rep. 679.

STATE V. HEIDENHAIN.

[42 LOUISIANA ANNUAL, 488.]

MUNICIPAL CORPORATIONS-CONSTITUTIONALITY OF ORDINANCE PROHIBIT ING SMOKING IN STREET-CARS. — An ordinance making it an offense for passengers to smoke while in street-cars, adopted by a city under its charter conferring authority to maintain good health and sanitary conditions and to suppress nuisances, is constitutional and valid. MUNICIPAL CORPORATIONS-POWER TO ABATE SMOKING IN STREET-CARS. A city, in the exercise of its legislative discretion, may determine what is a nuisance, and enact necessary ordinances to suppress it, and it may thus abate, as a nuisance, the act of smoking by passengers while in street-cars, as part of the police power vested in it. MUNICIPAL CORPORATIONS-POWER TO DETERMINE WHAT IS NUISANCE. — -The discretion exercised by a municipal corporation in determining what is a nuisance will not be judicially interfered with, unless the corporation has been manifestly unreasonable and oppressive, or has invaded private rights and transcended the power granted it. An ordinance prohibiting smoking by passengers in street-cars is not open to attack on either of these grounds.

E. Howard McCaleb, Girault Farrar, and Henry Heidenhain, for the appellant.