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MEYERS V. Mathis.

(42 LOUISIANA ANNUAL, 471.1 DEEDS – CONVEYANCE OF BATTURE OR ALLUVION RIGHTS. - A deed which

describes the property sold as fronting on a certain street, and extend. ing 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 describ

ing the property sold as fronting on a river conveys the batture or allu. vion 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 & 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 Bold.

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 pre, tend 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 vendeo 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. 276.

DEEDS WATERS - BOUNDARIES. As to the rights acquired by the grantee in a grant or conveyance of land bounded by a river or watercourse, 108 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. Ste 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 con.

ditions and to suppress nuisances, is constitutional and valid. MUNICIPAL CORPORATIONS - POWER TO ABATE SMOKING O STREET-CARS.

A oity, in the exercise of its legislative discretion, may determine what is a nuisance, and enact necessary ordinances to soppress 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 nuisanco will not be judicially interfered with, unless the corporation has been manifestly anreasonable and oppressive, or has lnvaded private rights and transceuded the power granted it. An ordi. BADOO probibiting smoking by passengers in stroet-cars is not open to attack on either of these grounds. E. Howard McCaleb, Girault Farrar, and Henry Heidenhain, for the appellant.

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T. McC. Hyman, assistant city attorney, and Carleton Hunt, city attorney, for the appellee.

McENERY, J. The defendant appeals from a conviction by the first recorder's court of the city of New Orleans for a violation of ordinance No. 4197, adopted January 2, 1890. For two distinct and separate violations of the ordinance he was for each violation sentenced to pay a fine of twenty-five dollars, or thirty days' imprisonment.

The ordinance is as follows: Wbereas the custom of permitting smoking in the street-cars of this city is a most vile and objectionable one to the majority of our citizens, especially to the ladies, who are entitled to that courtesy and consideration due to their sex; and whereas this alone of all the cities of the Union allows such a discomfort to those of its citizens who ride in the public cars, - be it resolved that from and after the promulgation of this ordinance that smoking in any street-car of this city is hereby prohibited and shall hereafter be considered as a misdemeanor, and any one 80 offending, or any driver of a street-car who permits such an offense, shall be fined not less than five dollars nor more than twenty-five dollars, or imprisoned not less than five days or more than thirty days, recoverable by the recorder of the district in which the offense shall be committed; and be it further resolved that one half of any money thus recovered shall be the property of the party giving such information and testimony to the recorder as will lead to the conviction of the offender. Be it further resolved that all laws or parts of laws in conflict with the above be and the same are hereby repealed. Adopted by the council of the city of New Orleans January 2, 1890.

The defense is,-1. The unconstitutionality of the ordinance; 2. That the city of New Orleans is without power or authority under her charter to pass such an ordinance; 3. That the ordinance in question is vague, indefinite, and insufficient in its terms, and does not define what acts shall constitute a violation or infringement; 4. That it imposes upon the drivers of street-cars duties and functions beyond the powers of the common council.

The ordinance does not deprive the defendant of personal liberty, nor does it invade any right of private property.

Smoking is not made an offense, but it is prohibited only in certain designated place. The third and fourth grounds are without merit. The ordi

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