Almonester v. Kenton. 9 H. vided such condition was complied with before the cession to the United States; and second, such as were applied for after the settlement was made, commonly called permission to settle with a requête. In both cases we are to look, in our opinion, to the laws and usages of the Spanish government for the definition of an actua. settler, rather than to subsequent acts of congress, which provide for preëmptions in favor of such persons as shall have settled upon, inhabited, and cultivated a part of the public domain. This proviso recognizes the authority of Spain to make certain grants after the date of the treaty of San Ildefonso, and therefore it cannot be said that congress had treated this as exclusively a political question, and absolutely decided that the sovereignty was changed at that period. The only doubt is, whether Guardiola can be classed in either of the categories expressed in the act of congress. He exhibits a title in form to a small tract of land, which was appurtenant to another tract already owned and possessed by him. The intendant of the province, in the preamble of his patent, states him to be a resident of the city, and owner of a piece of land on the Bayou road, where he has his dwelling; which property is deficient in depth to is deficient in depth to graze his cattle upon. It is for these reasons that a small additional grant is made to him. This was done in conformity with the existing ordinances relative to the distribution of the public domain; Guardiola was certainly regarded by the intendant as actually settled on the land to which his new grant was but an appendage; and although the expression used in the opinion of the court first pronounced, that the grant was inhabited and improved, was perhaps not strictly accurate, especially with reference to subsequent acts of congress defining rights of preemptions, yet substantially we consider the grant to Guardiola as embraced in the proviso which protects actual settlers before the cession to the United States; and we cannot suppose congress intended by the act in question, or by any subsequent legislation, to declare null and void those small grants made bonî fide according to the usages of the Spanish government to inhabitants of the province, to meet the wants of a growing population. "Looking upon Guardiola's grant as one made in good faith, according to the usages and ordinances of the Spanish government, and as having become private property according to those laws and usages, and according to the treaties between France and Spain, and the law of nations, we consider it protected, not merely by the proviso of the act of congress first recited, but by the treaty of cession. [ *9 ] *"It is therefore ordered, adjudged, and decreed, that the judgment first pronounced remain undisturbed." Almonester v. Kenton. 9 H. By sect. 909 of the Code of Practice governing the supreme court of Louisiana, that court is required to state the reasons for its judgments, by citing as exactly as possible the laws on which it founds its opinions; and by sect. 912, a party dissatisfied with the judgment may apply for a rehearing in the cause, by petition. From the petition and opinion, it does appear that a construction of the 14th section of the act of 1804 was drawn in question by the state court; but it does not therefore follow that this court has jurisdiction; the fact is found, that no interference exists between the tracts of land respectively claimed, and with this settled fact we have to deal. It concluded the right against Pontalba; she could not go beyond the boundary established as the true one by that decision. And the next inquiry is, whether she can be heard in this court, to call in question a construction of the act of 1804, which did not touch her papers title, nor affect her right in any degree. The state court held that Kenton's title was valid, and sanctioned by the proviso to the 14th section of the act; the decision, therefore, so far as he was concerned, was not opposed, but in conformity, to the right claimed under the statute; and the defendant below, Pontalba, having no opposing title to the land in dispute, could not be injured by the opinion expressed on Kenton's title. The only plausible ground on which jurisdiction could be claimed arises from the mode of proceeding in the state courts. The action was brought by Kenton for slander of title, and to prevent a public sale of land then in his actual possession, and which had been so for thirty-five years next previous. The defendant, Pontalba, denied that Kenton had any title, and set up title in herself to the land claimed by Kenton in his petition; and by her answer and petition, in reconvention asked an affirmative decree in her favor for damages; thus becoming a plaintiff likewise. This is an ordinary mode of trying title in Louisiana. Issue being joined on the right, and this adjudged to be in Kenton, the court gave a decree in his favor, and awarded a perpetual injunction against Pontalba, restraining her from selling the land. The injunction was a mere incident to a final adjudication establishing a right to real property; the decree carried with it (as against the opposing party) conclusive force, to which nothing could be added by the award of an injunction; it was intended to prevent any further illegal intermeddling by the other party, and was rather in execution of the decree than a substantial part of it. The awarding * such [ *10 ] writ cannot, therefore, be relied on as a circumstance giving this court jurisdiction; and being of opinion that on no ground presented by the record can this cause be entertained, we accordinglv order that it be dismissed. 19 H. 202, 252. Irwin v. Dixion. 9 H. WILLIAM H. IRWIN, Appellant, v. GEORGE O. DIXION and JOHN A. 9 H. 10. To maintain a bill for an injunction to restrain a public nuisance, a private person must prove special damage to himself, and that the injury inflicted is of such a character that an action at law does not afford an adequate remedy. A dedication of land for a public highway cannot be presumed, where the land in questior was part of a wharf, was kept open and used as a passage way to a warehouse on the wharf belonging to the owners of the land in question, and they used the land at their pleasure to pile merchandise thereon, and paid taxes therefor as on the residue of the wharf. A dedication of land to a public use is made by an intent of the owner to dedicate it, suffi ciently manifested by some act or declaration by him; and where such intent can not be found, no dedication is made. THE case is stated in the opinion of the court. Jones and Davis, for the appellant. F. L. Smith and Bradley, contrà. [*25] * WOODBURY, J., delivered the opinion of the court. This was an appeal from a decree in the circuit court of the District of Columbia for the county of Alexandria. The proceedings on which the decree was entered had been in substance as follows. The Dixions, September 6, 1844, filed a bill in chancery, setting out their purchase, in October, 1843, of a certain warehouse in Alexandria," with all the rights and appurtenances to the same belonging," and that they had since been in quiet possession of the same; that this warehouse "fronts, on the east, the River Potomac, and the doors and windows of said front open on a strand, which has been used uninterruptedly as a public highway for upwards of thirty years;" that said strand or street is the great thoroughfare for that part of the town between the river and the last range of warehouses fronting thereon, and "has always been used as a common and public highway for the free and uninterrupted passage and intercourse of the public;" and that said warehouse and doors and windows "have been erected upwards of thirty years, without any effort or claim heretofore to obstruct the same." The bill then charged, that William H. Irwin, on the 5th of September, 1844, prepared materials and employed carpenters to close up and obstruct the doors and windows of the plaintiffs, thus situated, claiming the right to do the same, and intends forthwith to nail plank over it, or build a fence "just in front of the said warehouse, whereby Irwin v. Dixion. 9 H. its use and value would be greatly and seriously injured;" and, unless prevented, it" will cut off all direct intercourse between the said front and the said public strand and the River Potomac." They therefore prayed an injunction to prevent it, alleg ing it would amount to a nuisance, and constitute an irre- [ 26 ] parable injury to their property, and ask further to have it abated, if already erected. An amended bill was afterwards filed on the 21st day of September, 1844, as if at that time original, and varying from the first bill chiefly by describing the fence as then erected, and over eight feet high, and obstructing a window in the warehouse, and extending in front of it about eight feet; and averring that Irwin had refused to obey the temporary injunction already issued. It also alleged, that a dedication of this land had been made to the public by the respondent and his predecessors, and an easement thereby accrued to the public over it; and that the fence was both a private and public nuisance, and caused to the complainants irreparable damage. The answer of the respondent, filed in April, 1846, admitted the erection of a fence near the place, as alleged in the bill, and constituting an inclosure about twenty-six feet square, but denied that it obstructed, "in any perceptible degree," the light of any of the windows of the complainant, or stood on any public highway. On the contrary, the answer averred that it stood on the "wharf property and pier," which belonged to him, his brother James, and sister Ann, in common, from their father's estate; and which had always been claimed, used, and belonged to their father and them as private property. After many further allegations in defence, and putting in various exhibits and much evidence on both sides, as appears in detail in the statement of this case, the circuit court declared itself to be fully satisfied that Thomas Irwin, the ancestor of the said defendant, did in his lifetime dedicate to the public use a highway passing along the eastern front of said warehouse, &c., " and that the same was used for many years before the filing of the said bill, and that there was next to the said warehouse, and within the said highway, a foot-way about four feet wide, beyond and next to which was a highway for the passing and repassing of carts, carriages," &c., "and the same was commonly used by all persons having occasion to use the same." "And being further fully satisfied that the said defendant did, before the filing of said bill, erect across the said highway a fence, which he hath continued to this day, fully obstructing the passage along the said highway," and, being built immediately adjoining said warehouse and its windows, that it was a special and material injury to the use and enjoyment of the warehouse, the court Irwin v. Dixion. 9 H. did adjudge, order, and decree," that the injunction hereto[27] fore issued in the cause be and the same is hereby, made perpetual." The court further ordered, that the fence be removed by Irwin, and that he be enjoined from obstructing in any manner said highway "within the space of nineteen feet wide measured east from the eastern wall of said warehouse," &c. It will be seen that the decree below proceeds chiefly on the ground that a legal public highway exists, running nineteen feet wide east of the warehouse and immediately contiguous to the same, and that a wrong has been done by the respondent by obstructing that highway. It is true that the decree speaks also of the obstruction being injurious to the warehouse and private rights of the plaintiffs, and so does the bill. But the gravamen of both is the existence of a public highway where the fence runs. In our opinion, whether looking to the private or public rights and privileges which are alleged to be obstructed, this proceeding cannot be sustained. The state of some of the circumstances renders the injunction asked here not a proper form of remedy for the supposed damage to any private interests, and the principal ground of complaint for a public as well as private wrong in preventing travel across the alleged highway is not satisfactorily made out by showing clearly the existence of such highway. As to the first ground of objection. This form of remedy was one much questioned, as permissible either to the public or an individual, in the case of a public right of this kind invaded. 3 Mylne & Keen, 180; 2 Johns. Ch. 380; 16 Ves. 138. And when at last deemed allowable, it was only where the community at large, or some individual, felt interested in having the supposed nuisance immediately prostrated on account of its great, continued, and irreparable injury; and it was then used as a sort of preventive remedy to a multiplicity of suits, and in cases where an action at law would yield too tardy and imperfect redress. Osborne v. United States Bank, 9 Wheat. 840, 841; 14 Conn. 581; 21 Pick. 344; Eden on Injunction, c. 11; Jerome v. Ross, 7 Johns. Ch. 315; 17 Conn. 375; 3 Mylne & Keen, 177; 1 Stor. Eq. Jur. 25. When, however, delay can safely be toler ated, the usual remedy in such cases, by or in behalf of the public, is an indictment rather than an injunction. 12 Pet. 98; Bac. Abr. Nuisance, D; Co. Lit. 56, a; 19 Pick. 154; Willes, 71; Wilkes's case, 2 Bingh. N. R. 281, 295; 1 Bingh. N. R. 222; 2 Stor. Eq. Jur. 923. And no remedy whatever exists in these cases by an individual, unless he has suffered some private, direct, and material [*28] damage beyond the public at large; *as well as damage. otherwise irreparable. Hawk. P. C. c. 75; Rowe v. Granite |