Opinion
No. 29566.
November 26, 1928.
Appeal from Civil District Court, Parish of Orleans; E.K. Skinner, Judge.
Bertrand I. Cahn, City Atty., and Francis P. Burns, Asst. City Atty., both of New Orleans, for appellant.
Dart Dart and Louis C. Guidry, all of New Orleans, for appellee.
This case involves the ownership of the bed of Dublin Street Canal in the city of New Orleans, at the corner of Dublin and Apricot streets, in the square bounded by Carrollton avenue and Belfast street, and designated as Square No. 389 of the Seventh district of the city of New Orleans. A supplemental petition filed in the case, with a sketch of survey annexed thereto, shows that the property in dispute measures 150 feet 6 inches front on Dublin street by a depth of 54 feet, 6 inches, and fronting on Apricot street. The property in dispute was formerly the bed of the Dublin Street Canal. That canal was abandoned by the city before this suit was filed. For many years the city, in the exercise of the right of eminent domain, conferred upon it by the Legislature, maintained a drainage canal through and over this property. It had no title to the property either by purchase, expropriation, or dedication. It only exercised the right of servitude of drain, and, when it abandoned that right and ceased to exercise it, the property it had taken reverted to the owner thereof by operation of law.
This suit was originally begun as a possessory action, but by a supplemental petition it was converted into a petitory action.
The attorneys for plaintiff say that this case involves three questions, viz. the acquisition of title by the city by prescription of 30 years; the acquisition of title through dedication by the owners to public use, and, if the city has not acquired by prescription or dedication to public use, whether the city has acquired title from any other source. So far as the city's rights to any part of the property which was formerly Dublin Street canal is concerned, the title to the bank and bed of said canal have, since its abandonment by the city as a drainage canal, been set at rest by the decision in the case of Victor J. Passera v. City of New Orleans (No. 29215) 118 So. 887, of the docket of this court. In that case the city of New Orleans urged the same plea of prescription and the same defenses as it sets up in this case, and it did not appeal from an adverse judgment upon all its contentions in that case.
Ante, p. 199.
We think the ruling in the Passera Case is decisive of the issues presented in this case, and, for that reason, we think that the judgment appealed from should be affirmed. It is therefore decreed that the judgment of the civil district court be, and it is hereby, affirmed, at appellant's cost.