Thomas Jefferson Papers

Enclosure: François Xavier Martin’s Motion for an Injunction against Edward Livingston, 14 August 1813


François Xavier Martin’s Motion for an Injunction against Edward Livingston

State of Louisiana Parish of OrleansbleJudgeParish of orleans

Francis X. Martin Attorney general for the Said State comes hereinto Court and gives the Court to understand and be informed, that the River mississipi is an ancient navigable River and Publick high way used and to be used of Right by all the people of this State in common with all the people of the united states, in its whole width, breadth and length; and that the Banks, Battures, Beaches, and Shores of the Said River are and from time immemorial hath been known and used as a common high way by all the persons, sailing upon, and navigating their Ships, Boats Barges and vessels, and on which they might freely anchor, unload, moor, make fast to, and lie at. and that, portion of the Bank and shore of the Said River, forming the Port of the city of new orleans and its Suburbs has been always heretofore bounded by an embankment, Dyke and Levee and that all the Land lying in front of the Said Levee, Dyke and embankment forming the shore and Batture of the River, has always heretofore been and now is a part of the Common high way. and that the Said embankment, Dyke and Levee extending along the margin of the Said River from the ancient limits of the City in front of the Suburb St mary as far as and to the former plantation of madam Delor, has been erected and kept up and maintained at the public costs and Labour, and has ever heretofore been known to be, and now is the Boundary and dividing line between the land and water, and to which embankment and Levee So as aforesaid made, kept up and maintained at the Public Cost and labour, the high water flows as a part of the River and Port aforesaid, and that all that part of the said River flowing up to the Said Levee at high water, in front of the Suburb St mary in the Parish aforesaid constitutes and forms a part of the Public and common port of the Said City and is part of the Said navigable River and as Such has always heretofore been used and known—and that at the time of low waters in the Said River there is left bare, a large Bar, Beach or Shoal of Land commonly called the Batture lying below the Levee in front of the Said Suburb St mary, and that the Same is part of the Public high way of this State, and upon which, all the good people of the State have been heretofore used to pass and repass, to unload their boats and vessels upon, and temporarily to lay their cargoes of whatsoever kind, and wood and Lumber—brought into the Said Port for Sale there—And further that no one1 person, can have any exclusive right to occupy permanently any part of the Said Port, and high way, without annoying and obstructing the rights of the public, and violating the fundamental Laws of the State and acts of the General assembly. And further that no2 works, buildings, embankment and fixtures can be made on the Said Batture, but which in their effects must occasion great damage to the navigation of the Said River by filling and causing to be filled up the Said Port and harbour, by the deposits of mud and Sand which Such works will occasion to the common nusance of the Public—And the Said attorney general further gives the Court to understand and be informed, that Edward Levingston of the Said Parish attorney and Counsellor at Law on the twenty-fourth day of august one thousand Eight hundred and Seven in the Parish aforesaid with a great number of labouring men with Spades, Shovels, hoes, axes and other impliments did unlawfully, wickedly and injuriously enter into and upon the Said Batture So as aforesaid being part of the Public high way and port of the said City and Suburb St mary, he the Said Edward Levingston well knowing all and Singular the premises, and with the labouring men aforesaid did unlawfully employ them for the Space of one month and longer in digging into the ground, and heaving up large mounds of Earth across the Said Batture, and did dig a large Canal and Basin, and Surrounded the Same by a high mound and embankment across the Said Batture, and did with the Said Labouring men cause to be erected divers works on the Said Batture, and did plant, logs of wood, and Posts for an enclosure of a large part of the Said Batture being a part of the public high way and Port of the Said City to the common nuisance of all the citizens of this State passing and repassing and Sailing and navigating in the Same Port, and the Said works So erected the Said Edward Levingston from the day aforesaid until the day of exhibiting this present information has caused to remain to the great obstruction of the Said Port and high way by which the Port and Harbour of the city of new Orleans is in a great degree choaked and filled up with the deposits3 of mud and Sand, and the currents and eddies of the Said River in and about the Said Port greatly changed and altered and parts of the port so filled up with mud and Sand that it cannot be any longer navigated with Safety, and the harbour and Quay opposite to and lying immediately in front of the Said Suburb St mary is So obstructed and filled up by reason of the works aforesaid that the good people of this State cannot navigate, sail, pass and repass with their Boats and vessels nor can they moor and anchor their Said vessels in parts of the Said Quay, harbour and Port as conveniently as they before were used and accustomed to do and Still of right ought to do—and the Said Attorney general further gives to the Court to understand and be informed that the Said Edward Levingston has Said, and declared, and So the truth is that he means and intends again to enter unto and upon every part of the Said Batture, and then and their to occupy and exclusively appropriate to his own use every part and parcel thereof in its whole extent from opposite to the upper end of the city line, to some place above Julia Street in the Suburb St mary in the Parish aforesaid—and thereon to erect Such works and edifices as he from time to time may please to direct and order, thereby wholly Shutting up the Said Port, destroying the Harbour and entirely obstructing the Said high way to the great injury and nusance of the publick and all the good people of this State and others resorting to and wishing to pass and use the Said Port and Harbour as formerly they did and as of right they now ought to do, to the evil example of all others in like cases offending and contrary to the act of assembly in Such case made and provided—and against the peace and dignity of the state of Louisiana, all which the Said attorney general is ready to verify and prays may be inquired into by a Jury—wherefore and in consideration of the before alledged facts, all of which will be proved in due Season by inquestionable evidence, the Said attorney general in behalf of the State of Louisiana, prays that your honor will be pleased, the premises considered to grant an injunction against the Said Edward Levingston injoining and restraining him and all other persons for him in whatever character or capacity they may presume to act, from entering into and upon the Said Batture, for the purpose of possessing exclusively the Same or any part thereof, and from causing the Same or any part thereof to be enclosed, and from making any buildings4 or works thereon of any kind to the prejudice of the public in the enjoyment of the Same as a port Quay, harbour and public high way as they have heretofore been used to enjoy in passing and repassing Sailing with their vessels, unloading and loading the Same in the Said port in the Customary places and of anchoring, mooring, and landing their vessels as formerly and in the accustomed places and manner in the Said Port in front of the Said Suburb St mary—and to cause Such other proceedings to be had herein as the nature of the case may require and the Laws of the Land Justify; and that all the works on the Same Batture, So as aforesaid injuriously and unlawfully made and erected may be abated, demolished, and removed—

Signed F. X. Martin.

We maketh oath that the material facts in the above information are true—

Sworn to before me   Signed Dejean ainé.
this 14th of August 1813. Signed Paul Lanusse.
Signed N. Girod. Juge de Paix. Signed Fd Percy Jeune

Tr (DLC); in a clerk’s hand, with a few emendations, possibly by Martin; at foot of text, in Thomas S. Kennedy’s hand and signed by him: “A true Copy from the original”; additional notation at bottom of last page by transcriber of above document: “103. The State vs Edwd Levingston} Information Let an Injunction issue as is herein prayed for, to remain in force till the further order of the Court New Orleans August 14th 1813. Signed Js Pitot Judge. Filed August 14th 1813. Signed Thos S. Kennedy clk.”

The act of assembly may refer to section one of the 1812 act granting Louisiana statehood (U.S. Statutes at Large description begins Richard Peters, ed., The Public Statutes at Large of the United States … 1789 to March 3, 1845, 1845–67, 8 vols. description ends , 2:703). juge de paix: “justice of the peace.” ainé: “the elder.” jeune: “the younger.”

On 4 Sept. 1813 Governor William C. C. Claiborne reported to Thomas B. Robertson that “the Judge of the Parish, Mr. Pitot, thought proper to dessolve the injunction, which he had previously awarded;—It seems the Judge was under an impression; that until Mr. Livingston, had done some act to deprive the Citizens of the use of the Batture, or erected some works thereon, which might obstruct the Navigation of the Mississippi, the interference of the Court was premature and improper.—Thus the case rests for the present, nor has Mr. Livingston yet thought proper to prosecute the Mayor of New Orleans, or the inhabitants who are in the habit of taking as formerly Dirt from the Batture;—I am extremely desirous to have the right to tittle [title] to the Batture finally settled; But feel some difficulty in determining the best manner of bringing the question fairly before our Courts.—The subject however is submitted to the consideration of the Attorney General (Mr. Martin) and the course he advises will be pursued” (Claiborne, Letter Books description begins Dunbar Rowland, ed., Official Letter Books of W. C. C. Claiborne, 1801–1816, 1917, repr. 1972, 6 vols. description ends , 6:264).

1Manuscript: “one one.”

2Word interlined, possibly by Martin.

3Manuscript: “deposists.”

4Manuscript: “buidings.”

Index Entries

  • Batture Sainte Marie, controversy over; and injunction from Orleans Parish court search
  • Batture Sainte Marie, controversy over; F. X. Martin on search
  • Claiborne, William Charles Coles; and batture controversy search
  • Dejean, Jean B. search
  • Delor, Mrs. search
  • Girod, Nicolas; and batture controversy search
  • Lanusse, Paul search
  • Livingston, Edward; canal of search
  • Martin, François Xavier; and batture controversy search
  • New Orleans; canals at search
  • New Orleans; Orleans Parish court search
  • New Orleans; port of search
  • Percy, Fernando search
  • Pitot, James search
  • Robertson, Thomas Bolling; and batture controversy search