author: Fenner, J. Watkins, J.

text:
    No. 227.
    C. C. Walker vs. The Vicksburg, Shreveport and Pacific Railroad Company.
    1. While it ia the duty of a railroad company to stop its train at the station to which it has contracted to carry a passenger and to land Mm safely conveniently, yet the fact that the company neglects tMs duty and the train passes the station without stopping, does not justify a passenger in jumping from the moving train, unless expressly or impliedly invited to do so by the employees of the company.
    2. The plaintiff’s act in jumping from the moving train was purely voluntary, uninfluenced by any invitation expressed or intended by the company’s employees, and excusedly no impending danger or necessity of any kind except Ms simple unwillingness to be carried beyond his destination; it was imprudent and dangerous, and his action for resulting injury is barred by his own contributory fault.
    APPEAL from tlie Second District Court, Parish of Webster. Drew, J.

      Watkins di Wailcins for Plaintiff and Appellee :
    An action for damages for injuries suffered by a passenger on a railroad is one ex-contractu. K. I). p. 1057, No. 14; 5 La. 431, quoted by 40 Ann., p. 91.
    An injury must be repaired by Mm whose fault caused it. R. C. Code 2315; 17 Ann. 19, giving j $25,000 tor similar injuries; 23 Ann. 180, giving $15,000 damages; 34Ann. 139, allowing $7,500 for a broken arm; 38 Ann. 777, allowing $10,000 for loss of an arm.
    It is negligence in a railroad company not to stop its train at a station long enough for a passenger to alight. 37 Ann. 705, Lehman vs. La. Western R. R. Co., 35 Ann. 202, Wardle vs. N. O. R. R. Co.; Wood’s Railway Law, Vol. 2, p. 1126.
    It is nob contributory negligence for a passenger to alight from a train in slow motion when impliedly invited by the railroad company to do so, when he has arrived at the station for which he is destined. 86 Team. (2d Pickle 343), Louisville and Nashville R. R. Co. vs. Stacker; 15 Lea, 254, 258, East Temí. etc. R. R. Co. vs. Conner; Wood’s Railway Law, vol. 2, pp. 1126, 1128, 1129 and 1130; 37 Ann. p. 705, Lehman vs. La. Western R. R. Co.; 35 Ann. 202, Wardle vs. N. O. R. R. Co.; 22 Ann. 603, Howell vs. St. Charles St. R. R. Co.; Abbott’s Digest Law of Corporations, Vol. 2, pp. 598, Secs. 1010, 1011 and 1013, quoting numerous authorities.
    Railroad companies are responsible for damages caused by their trains not being properly equipped. Wood’s Railway Law, 1073, 1078 and 1069; 40 Ann. 178; 39 Ann. 649; 37 Ann. 648; 10 Ann. 33 ; 37 Ann. 650, 694, 630 ; 35 Ann. 751; 34 Ann. 777; 38 Ann. 111.
    The verdict of the jury should not be disturbed unless clearly erroneous. R. C. C., 1934, Sec. 3; 20 Ann. 25; 18 Ann. 26; 17 Ann. 19; 37 Ann. 655; 10 Ann. 33; 38 Ann. 777; 39 Ann. 656.
    The question of negligence is a proper one for the jury to decide where there is a conflict of evidence. Wood’s Railway Law, Vol. 2, pp. 1259, 1257, 1126, 1127.

      T. J. Kernan and Farrar, Jonas & KmUsclmiU for Defendant and Appellant.
   The opinion of the Court was delivered by

Fenner, J.

The following are the facts disclosed by the record:

On the 16th of October, 1886, plaintiff was a passenger on defendant’s train, having purchased a ticket from Bodeau Station to Doylene Station. The latter is a flag-station at which trains do not stop unless they have a passenger to put off or take on. If a signal is given from the station that there are passengers to get on, the engineer blows two whistles to signify intention to stop. If there are passengers to put off, the conductor notifies the engineer by pulling the bell-rope, and the engineer, on receiving such signal, blows two whistles to signify the same intention. If there are no passengers to take on or put off, only one whistle is blown and the train does not stop, but simply slackens speed to a rate of eight or ten miles an hour in passing the station to enable the mails to be thrown on and off.

On this occasion, the traip had been compelled to come almost to a stop about two hundred yards from Doylene, on account of some oxen which were on the track. It then moved forward again and the conductor, knowing he had this passenger to put off, attempted to signal the engineer with the bell-rope, but, owing to some tangle or disarrangement, could not do so. Consequently the two whistles were not blown. The conductor, the engineer and the porter all agree on this point, and that is no contradicting statement.

The porter only calls out flag-stations when there are passengers toput off and the signal to stop is blown. The plaintiff testifies that the porter did pass through the car and call out Doylene Station, but this the porter positively denies, and, considering the uncontradicted testimony that no signal to stop was given, the fact is of little importance.

The consequence was that the train passed by the station only slacking its speed, as customary, but not stopping.

The plaintiff, having several times made this trip, and knowing his station, went out on the platform for the purpose of getting off. He went down on the steps of the car, and after passing a little beyond the station platform, seeing that the car did not stop, and, as he says, supposing that it was intended that he should get off and that he could do so with safety, he stepped off while the train was moving, and he says that as he was in the act of doing so, the train accelerated its motion, giving a sudden jerk which threw Mm and broke his ankle, occasioning the injuries for which his present action in damages is brought.

He says that just before he stepped off, some one called to him: “Is not this your station?” which acted in determining him to step off; but the evidence leaves no doubt that the person who asked the question was not any employe of the company.

The conductor says that, having failed to give the signal, he went through the train after passing the station, to find plaintiff, intending to back the train up to the station and put him off, but failed to find him and supposed he had gotten off'when the train had stopped on account of the oxen on the track.

Under these facts, the fault of the company, in not stopping its train, cannot be disputed. It was bound under its contract to stop and safely discharge its passenger.

But did its negligent failure to discharge this duty justify the plaintiff in jumping off the moving train, or absolve Mm from the charge of contributory negligence which, under the settled jurisprudence of this court, is a bar to his recovery ?

We consider the law to be settled by the .overwhelming of authority, that while a railroad company is bound to stop its train at the station to which it has contracted to carry a passenger and to land Mm safely and conveniently, the fact that the "train is about to pass such a station without stopping does not justify the passenger in jumping off the moving train, unless expressly or impliedly invited to do so by the company.

A leading case on the subject, which we select from a multitude of authorities, not only on account of the great lawyer who delivered it, Judge Black, but also beca,use it has been expressly quoted and affirmed by this court, lays down the principle, in a state of facts strikingly similar to those before us, as follows: “The plaintiff below was a passenger in defendant’s cars from Philadelphia to Morgan’s corner. The train should have stopped at the latter place, but some defect in the bell-rope prevented the conductor from making the proper signal to the engineer, who therefore went past, though at a speed somewhat slackened on account of some switches there to be crossed. The plaintiff, seeing himself about to be carried on, jumped from the platform of the car and was seriously injured in the foot. * * Persons to whom the management of a railroad is intrusted are bound to exercise the strictest vigilance. They must carry the passengers to their respective places of destination and set them down safely, if human care and foresight can do it. * * But they are answerable only for the direct and immediate consequences of errors committed by themselves. They are not insurers against the perils to which a passenger may expose himself by his own rashness and folly. * * From these principles it follows very clearly that if a passenger is negligently carried beyond Ms station, where he had a right to be let off, he can recover .compensation for the inconvenience, the loss of time and the labor of travelling back, because these are the direct consequences of the wrong done to him. But if he is foolhardy enough to jump off without waiting for the train to stop, he does it at his own risk, because this is gross imprudence for which ho can blame nobody but himself.” Penn. R. R. Co. vs. Aspell, 23 Penn. St. 147.

This court long ago laid down the like doctrine in the following language : “If the daughter of plaintiff voluntarily jumped from the cars while, in motion, even though it was the constant habit of the company to stop at that place, the leap not being made to avoid an imminent impending peril produced by the misconduct of defendants, but to avoid being carried beyond her place of destination, she was herself guilty of such imprudence as relieves the company from the consequences of the want of caution on the part of their servants; for in such a case, the accident may be attributed to the fault of both parties, which would destroy plaintiff’s right to recover.” And then the court quotes, with approval, the above decision of the Pennsylvania court. Dumont vs. N. O. & C. R. R. Co., 9 Ann. 441.

In a very recent case we referred to this principle as an evident one, saying:

“Now, supposing that any passenger on a regular train should labor under a similar mistake in believing, for instance, that the train was passing by the station to which he was destined, and fearing that he might be carried beyond the same, should jump out as the train was pulling out of the station, and be injured by falling, could the company be held liable for injuries thus received 9 Evidently not.”

In the multitude of adjudications and judicial expressions on this subject by numerous courts, there have naturally arisen varieties and conflicts of opinions, and decisions, hostile or apparently hostile to each other, are quoted on either side j but the weight of authority undoubtedly sustains the views above expressed, and, at all events, what more nearly concerns us, they have been adopted in the jurisprudence of Louisiana.

The question is, then, whether the plaintiff, in jumping off the moving train, acted upon the express or implied invitation of the company.

The evidence conclusively negatives any express invitation on the part of any employee of the company. It is equally clear that the officers in charge of the train never intended or expected that plaintiff should get off, and certainly did not slack up for the purpose of letting him get off. They acted precisely as they would have done had there been no passengers to take on or let off; for the engineer had no signal to that effect; therefore, did not know that there was a passenger to put off; and only slackened the speed, as was his duty on all occasions, sinqily to allow the exchange of mails. Is it possible to construe this as implying an invitation? If so, such an invitation is given to every one who wants to get off the train, whenever it passes such a station.

The testimony is conflicting as to the rate of speed at which the train passed the station. Nothing can be more uncertain than such estimates, especially when made by unskilled observers. -The natural and probable conclusion from the circumstances is that the train only made the usual slacking of speed for exchanging the mails. There was no reason why the engineer' should have acted otherwise. Plaintiff thinks he would have landed safely but for the acceleration of speed which took place as he was in, the act of jumping. But this acceleration only took plack after the train had passed the platform and after the mails had been exchanged, which was the usual and natural, course.

If plaintiff chose to infer an invitation to jump off from these customary acts of the company, it was a rash conclusion. One of his own witnesses testifies that he never, at any other time, saw a person jump from a train moving as fast as that one was, although he says it was moving slowly.

That plaintiff’s action was imprudent, is shown, by the result, and, as we think, by. all the circumstances. Ilis own evidence shows that he hesitated about attempting the jump, and was only determined by the question of a third person and the thought that, otherwise, he would be carried beyond his station. His act was purely voluntary, uninfluenced by any invitation expressed or intended by the employees of the company and excused by no impending danger or, necessity of any kind except his mere unwillingness to be carried beyond his station. It was imprudent and dangerous, and his action for the resulting injury is clearly barred by his own contributory fault.

It is, therefore, ordered and decreed that, verdict and judgment appealed from be annulled and set aside, and that there be judgment in favor of defendant rejecting the demand at plaintiff’s cost in both courts.

Watkins, J. dissents and roserves the right to file his reasons.

Dissenting Opinion.

Watkins, J.

Plaintiff sued the railroad company for $10,000 damages for injuries he received in alighting from one of its trains while in motion, on which he was a passenger, it having passed the station to which he was ticketed, without making a, fall stop, only slowing up to permit an exchange of mails.

There was a verdict of a jury in his favor, which this court has set aside, and the substance of the majority opinion is: That the act of the xflaintiff was voluntary, and without invitation, on the part of the officers and agents of the railroad comxiany, and — while the conxpany was, primarily, guilty of negligence in failing to carry out its contract of safe carriage — the plaintiff was guilty of contributive negligence, which relieves the comxiany.

The opinion puts the proposition thus: The question is, then, whether the plaintiff in jumping off the moving train, acted upon the express or implied invitation of the company-;” and, answering that question, the opinion says, “the evidence conclusively negatives any express invitation, on the part of any employes of the company. It is equally clear that the officers in charge of the train never intended, or expected that he should get off.”

It will be observed that the opinion does not state that the plaintiff was not impliedly in vited to leave the train; but that there was no express invitation, on the pari of any employe of the company, and, that the officers in charge, never intended, or expected him to leave.

This dieta is the sole foundation of the opinion, and the legal proposition announced rests exclusively upon Damont vs. Railroad Company, 9 Ann. 441; Aspell vs. Railroad Company, 23 Penn. St.; and Reary vs. Railroad Company, 40 Ann. 32.

Let us see what is their purport and what are the principles they announce, and whether they are a proper foundation for the opinion.

In the Damont case none of the facts are stated. The only question discussed was the correctness of the charge of the judge a quo to the jury, and the case was remanded for a new trial.

The only cases cited therein, as authority, were Lesseps vs. Railroad Company, 17 La. 362, and Fleytas vs. Railroad Company, 18 La. 339. Those two cases involved claims for damages sustained by the owners of slaves who had been killed, one in attempting to cross a railroad track, and the other while lying on the track, either drunk or asleep. The mere citation of those cases as authority for the decision of that case, shows how imperfectly understood were the questions involved, in 1854, when that opinion was rendered; for, of course, there being between the owners of the slaves and the railroad companies no contractual relations whatever, the former wore, primarily, guilty of gross negligence, and the latter without fault.

But the opinion quotes with approval the paragraph from Aspell vs. Railroad company, which was quoted in.the Damont case; but in that extract no part of the facts of that case is recited.

They are brought forward in Wood’s Railway Law, at pages 1130 and 1131, and we quote them, to show how very inapplicable to this case they are. They are as follows, viz:

“ Whilst the train was in motion, the plaintiff leaped from the car, though warned by the conductor and brakeman not to do so, and who informed him that the train would be stopped and backed to the station. * * * If he had heeded them, he would have been safely set down at the place ho desired to stoi) at, in less than a minute and a half. Instead of this he took a leap which promised nothing but death; for it was made in the darkness of midnight, against a wood pile close to the track, and from a car going at the full rate of ten miles an hour.''’

On this state of facts both the Aspell and Damont cases depend. On such a state of facts, of course, the plaintiffs were held to have been guilty of gross negligence, and the railroad companies without fault.

But why should those decisions be cited in this case as sustaining the doctrine of contributory negligence? I confess I cannot understand; for I respectfully submit that this record presents no such case.

Nor is the case of Reary vs. Railroad Company, at all applicable, because it was one of a little girl who received injuries in jumping from a train of cars while in motion. But she was not a passenger. The train was in the depot-yard, being uncoupled at the time, and the conductor had gone home. The paragraph quoted from that case in the opinion was hypothetically stated, merely for the purpose of an illustration, and has no weight, as a part of that decision.

Without antagonizing the opinion on its statement of facts, I propose to make an independent one.

As a witness, the plaintiff says that when within two hundred yards of the station of his departure, there was a yoke of oxen on the track, and the speed of the train was slackened until they were frightened off. Afterwards its speed was increased a little, the whistle blown, and it was reduced, and slowly moved by the depot platform while the mail was being exchanged. When the train passed the depot he thought it was running slow enough for a man to get off without danger. The only thing that prevented Mm getting off safely was that the train gave a jerk forward as he got off. The train was moving all the time, but very slowly. The place where he attempted to alight wasabetter place to get off than that where persons usually get off. The ground was smoother. The train was running at less than one-half its usual speed. When he was passing the place where the ties, etc., were lying, he thought it was not a safe ptlacé to get off. As he hurriedly made up his mind, the train passed an open place, and he got off there, because he thought it was bettor ground, and he could get off there without getting hurt.

Using his own language he says: “ Just at the moment that I got off, the train made a jerk. I was in the act of leaving the steps when the jerk came. I had let go the railing, and had started to step in the direction of the way the train was going, and one foot had left the step, and the other (was) still on the steps and (in the act of) leaving, when the jerk came.” This occurrence happened at 10 o’clock a. m.

Another witness for plaintiff states that he was present and saw the train approach the station. Using his own words he says: I think the train checked up a little, west of the platform, but near it. I do not think the train stopped entirely at tiro station, this trip. * * I think the train came nearer stopping that clay, than it usually does, to put off the mail. * * About the time the locomotive got opposite the platform the train was moving very slow.”

Another of plaintiff’s witness states, using his own language:

I was at Doylene Station the day that Mr. Walker got his leg broke. I was in about fifteen steps of him when it happened. I saw Mm when he went to step off the train, and it appeared to me that, as he did so, the train got faster, and jerked his feet from under him. Just before, and at the time he attempted to get off, the train was going slow, and just as he went to step, it appeared to me that it jerked his feet from under him. I do not know that it was going any slower than when thep checked up for the mail. I have never seen any one get off there when the train was running as fast as it was then, except Mr. Walker. I have frequently got on the train * * when it wees going as fast as that.”

On the part of the defendant there is not a syllable of positive testimony in opposition to these emphatic statements.

The conductor was sworn, and simply stated that the average rate of running is about twenty-four and one-half miles an hour, on the road from Monroe to Shreveport. This was true in October, 1886. * * The average rate of speed, when passing flag-stations, when the train does not stop, is between eight and twelve miles an hour, for the exchange of mats, as above stated.” This witness does not profess to have any knowledge of the occurrence, because he says: , “ I learned the day afterwards, that Mr. Walker jumped off the train and had broken his leg.”

He subsequently volunteered the statement that: “ I judge that the train was running at about ten miles an hour on that day when it passed Doylene, because it usually passes at that speed when only delivering the mail.”

The engineer testified that he was on this road, running a passenger engine and train in October, 1886, but that he had no recollection of the, accident that resulted in the injury of Mr. Walker.” Said he did “not recollect who wees engineer on the passenger train going out on the 16th of October, 1886.”

The defendant’s third witness was the porter, who states, using his own words : I recollect the time that Mr. Walker wees send to have been hurt, at or near Doylene Station.” He says further: “I remember that on that day no signal was given to stop at Doylene, and I did not leave my seat.”

Consequently, it is established by the concurring statements of defendant’s three witnesses — all of them trainmen — that they knew nothing of the occurrence, and could testify to nothing adverse to the testimony of plaintiff’s witnesses. Of course the mere theoretical conjecture of the engineer as to the speed of the train amounts to nothing at cill.

The recital of the foregoing facts is sufficient to take this case out of the principle announced in Aspell vs. Railroad Company. They plainly show the defendant in fault, and without excuse.

Now I will consider whether they- show the plaintiff guilty of contributory negligence to such a degree as to preclude his right to recover.

A review of authorities will first be necessary.

It was decided by the Supreme Court of Tennessee, in 1877, that the act of a passenger in alighting from a train while in slow motion, who sustained injuries in consequence, has been, in the courts of several of the States, treated as negligence per se, and no damages can be recovered; “but,” say the court, “this is contrary to the current of judicial opinion, in this country, at least. The true rule deducible therefrom is, stated in Wood’s Railway Law, Yol. 2, pp. 1130 et seq: ‘In all cases the question is one of fact, whether in view of particular circumstances, the passenger was guilty of negligence in attempting to leave the train while it was in motion. In this, as in reference to all other matters when the safety of the passenger is concerned, the company owes a duty to the passenger to act with proper caution and care; and if the motion of the train is not entirely stopped, amd the passenger is expressly or impliedly invited to leave the train while moving at a slow rate of speed, he has the right to presume that it is safe for him to do so, etc. * ■ * If the train is moving slowly, and there is no obvious danger in getting off, it cannot be said to be negligence per se, to make the attempt, especially if the passenger is directed to do so * * and it would be error to instruct'the jury that such attempt per se constituted contributory negligence, Id. 1129.

“As a rule, it may be said that when a passenger, by the wrongful aet of the company, i$ compelled to choose between leaving the cars while they are moving slowly, or submitting to the inconvenience of being carried by the station when he desires to stop, the company is liable for the consequences of the choice, provided it is not exercised negligently or unreasonably, Id. 1131, 1132. (Citing Thompson on Carriers, pp.227, 267; Plopper vs. Railroad Company, 13 Hunn. (N. Y.) 625; Keating vs. Railroad Company, 49 N. Y. 379; and Faber vs. Railroad Company, 70 N. Y. 489, Sections 1131, 1132.) The earlier cases,” says the Tennessee court, “ established the rule that leaving the train (whilst) in motion, was such negligence as defeated the right of recovery, unless done to avoid danger of remaining on board, and this is still stated as the general rule, in many authorities. 2 Wood’s Railway Law, p. 1126; Thompson on Carriers, p. 267. But the rule we have laid down.is the modern one, formulated from the many exceptions, and this modification has been recognized in this court. Railroad Company vs. Conner, 15 Leca, 258;” Railroad Company vs. Stacker, 86 Pickle 345.

Thus it is stated, on the highest authority, that, when a passenger “ is impliedly invited to leave the train ” — not by the officers of the train, but by surroionding circumstances — “ while moving at a slow rate of speed, he has a right to presume that it is safe to do so.” But the opinion states, that such an act was but “rash” and “imprudent,” because it “was purely voluntary, uninfluenced by any invitation, expressed or intended by the employes of the company.”

It was decided by the Supreme Court of Georgia, in a recent case, that “the railroad was bound to put a passenger off; to stop its train for this purpose. This it failed to do, and it was not want of ordinary care in the passenger to use the only means to get off, the course of the defendant permitted.” Railroad Company vs. McCurdy, 45 Ga. 289; Citing, Filer vs. Railroad Company, 49 N. Y. 47; Lloyd vs. Railroad Company, 53 Mo. 509; Railroad Company vs. Able, 59 Ill. 131.

The Georgia court then states what is the proper limitation of that rule thus: “But, generally, no recovery can be had if the cars are under such motion as to render it obviously dangerous for a person to attempt to leave them.” (Citing 2 Wood’s Railway Law, p. 1136; Railroad Co. vs. Randolph, 53 Ills. 510; Railroad Co. vs. Hazard, 26 Ills. 373.)

“When the danger is apparent it must not be braved simply because the company is bound to stop the train, or because it is very important that the passenger should stop at that particular place.” 45 Ga. 289, Ante.

But the rule is stated concisely in Wood, to be: “But, in all cases, the question of liability must necessarily be determined by the facts and circumstances of each case — -whether the train was in rapid motion * * and whether the real danger was obvious.” 2 Wood’s Railway Law, pp. 1137, 1148.

“But when a railway company fails to bring its train to a full stop at a station it is liable in damages for injuries sustained by a passenger, in attempting to get off, if, under all the circumstances, it was prudent for him to make the attempt.” J hid. pp. 1148, 1149; Price vs. Railroad Co., 72 Mo. 414; Railroad Co. vs. Letcher, 69 Ala. 106; Railroad Co. vs. Houston, 95 U. S. 297; Railroad Co. vs. Copeland, 61 Ala. 376.

[The italics in preceding quotation are those of the writer.]

Abbott states the rule thus :

“Alighting from a car at an unsuitable place is not eontributive negligence, if the train is not stopped at a suitable one, and if there is not such apparent danger as would deter a person of ordinary prudence.” Abbott’s Law of Corporations, vol. 2, p. 598.

Beach announces the ride thus:

“As in the case of boarding a railway train in motion, so it is held not contributory negligence per se for a passenger to jump off a train whilst it is moving. Railroad Co. vs. Smith, 59 Texas, 406; Lloyd vs. Railroad Co., 53 Mo. 509; Railroad Co. vs. Kilgore, 32 Penn. St. 292; Brooks vs. Railroad Co., 135 Mass. 21.
“ Whether or not a railway company shall be held in damages for injuries sustained by a passenger in attempting to leave one of its trains while in motion, will depend upon whether, under all the circumstances, it was prudent for him to make the attempt.” Beach on Contributory Negligence, p. 157, Sec. 53. Citing the following authorities, viz: Price vs. Railway Co., 72 Mo. 414; Doss vs. Railroad Co. 54 Mo. 27; Parish vs. Eden, 62 Wis. 272; Langhoff vs. Railroad Co., 19 Wis. 515; Cuney vs. Railroad Co., 43 Wis. 688; Leovit vs. Railroad Co., 64 Wis. 228; Railroad Co. vs. Pierson, (Ark.) 4 S. W. Rep. 755; 4 S. W. Rep. 52; Railroad Co. vs. Mask, 2 So. Rep. (Miss.) 360; Hunter vs. Railroad Co., 19 N. E. Rep. 820, and many other cases.

In Solomon vs. Railroad Co., 9 N. E. Rep. 430, it was held that to justify a recovery, the act of the defendant “must put the passenger to a sudden election between alternative danger, or inconvenience, or create some situation which inlerferred, to some extent, with his free agency, and was calculated to divert his attention from the danger, and create a confidence that the attempt could be made in safety.”

This principle has been frequently maintained and upheld by different courts and notably in the following, viz: Railway Co. vs. Ware, (Ky.) 1 S. W. Rep. 493; Collins vs. Davidson, 19 Fed. Rep. 83; Hoff vs. Railway Co., 14 Fed. Rep. 558; Lawrence vs. Green, (Cal.) 11 Pac. Rep. 750; Railway Co. vs. Miller, (Mich.) 9 N. E. Rep. 841; Railroad Co. vs. Casper, (Ind.) 13 N. E. Rep. 122; Stewart vs. Railroad Co., (Mass.) 16 N. E. Rep. 466; Canal Co. vs. Webster, (Pa. St.) 6 Atlantic Rep. 841; Railway Co. vs. Parsons, (Ark.) 4 S. W. Rep. 755.

The rule was again formulated thus, in Stroud vs. Railroad Co., (Mich.) 31 N. E. Rep. 184: “In order to make him negligent, he must, as in all other eases, decide upon facts as they appear, as a man of ordinary care would do tinder similar circumstances. It is not the right of a passenger to run evident risks to his safety; but the rule of prudence binding on him must be that which, under just such circumstances, would restrain all men of ordinary prudence. If the mind of an ordinarily prudent man would bo impressed with the behef of danger, he has no right to incur that danger. If the danger would not be apparent, he is not negligent in acting on that assumption.”

To this list might be added,an almost indefinite number, and variety of cases, to the same effect. But it is quite sufficient to say that, on the faith of those quoted and cited, the following principles are firmly established in American jurisprudence, viz:

1. That it is not per se negligence on the part of a passenger to alight from a moving train.

2. The question is one of fact whether, under the particular circumstances the passenger was guilty of negligence in attempting to thus alight; and if, it appear that he was not expressly or impliedly invited to leave the train while running at a slow rate of speed by the employes of the train, but was by surrounding circumstances, he has the right to presume that it is safe for Mm to do so.

3. When a passenger, by the wrongful act of a railroad company is compelled to choose between leaving the cars while they are moving slowly, or submitting to the inconvenience of being carried by the station where he desires to stop, it is liable for the consequences of the choice, provided it is not exercised negligently or unreasonably, and it is not want of ordinary care in the passenger to use the only means to get off, the course of the defendant permitted.

4. To justify a recovery, the act of the company must put the pas- ' senger to a sudden election between alternate danger, or inconvenience, or create some situation which interfered, to some extent, with his free agency, and was calculated to divert his attention from the danger, and create a confidence that the attempt could be made in safety.

5. It is the duty of the passenger to exercise his own judgment, and, if the danger was so great that a man of ordinary prudence would not have attempted it, he is guilty of such contributory negligence as bars recovery; for, when the danger is apparent, it must not be braved, simply because the company is bound to stop the train, or because it is very important that the passenger should stop at a particular place; but, in all cases, the question of liability must depend upon whether tlio train was in rapid motion and the danger obvious — the question being whether, under the circumstances, it was prudent in the passenger to make the attempt, to alight, and that depends upon whether the danger was imminent and obvious.

I, therefore, respectfully submit, that the mere fact of the plaintiff having attempted to alight from defendant’s train while in motion, did not constitute his act contributory negligence, because it was voluntary and without an invitation, express or implied, on the part of the company’s employes.

The act of the company put the plaintiff to a sudden election between alternative danger, or inconvenience, and thus created a situation well calculated to divert his attention from that danger, and inspired a confidence in the safety of his attempt to alight therefrom. The danger does not appear to have been either apparent or imminent.

I think the verdict of the jury and the judgment of the court should have been affirmed.

As was appropriately said in Williams vs. Pullman Palace Car Company, 40 Ann. 420, in deciding a kindred question: “This court should seek to place its rulings and jurisprudence in line, and in harmony with those of the Supreme Court of the United States, and of the courts of last resort of our sister States, whenever those decisions do not militate against the principles of our special and exceptional system of laws;” and it is in this spirit I have prepared this elaborate dissent, and in the hope of attaining this end that I place my views on record.


source: Caselaw Access Project

author: Fenner, J.

license: Public Domain

text:
    No. 243.
    Mrs. E. E. Griffin vs. The Shreveport and Arkansas Railroad Company.
    1. Under Article 156 of tlio Constitution, providing that “Private property shall not be taken nor damaged for public purposes without just and adequate compensation first paid,” it is not necessary to establish an actual trespass or physical taking of the property itself; it suffices if the property has been substantially damaged by the public work.
    2. What kinds and elements of damage may or not be recovered do not need to be determined in this case, in which the demand is restricted to the actual diminution in the market value of the property occasioned by the work, which is undoubtedly recoverable.
    3. When a railroad company builds in a public street an elevated embankment for its roadbed, the effect of which is to seriously impair and obstruct the access to plaintiff’s property and to impair its value, it is not protected from responsibility by showing corporate authority for the work.

      Í. Quantum of damagos and consideration duo to verdict of jury discussed.
    APPEAL from tbe First District Court, Parish of Caddo. Midis, J.

      Land dj Land for Plaintiff and Appellee :
    1. Tlie power of tlie Legislature or municipalities to grant railroad companies tlie riglit to lay and operate tracks in streets is subject to tlie proviso tliat tlie road be so constructed as not to exclude the public from any part of tho street. 35 Ann. 041.
    2. A railway laid out over or on a highway so as to obstruct it, without express statute authority, is a nuisance. Dillon. Sec. 708.
    3. The right of the owner of land to use au adjoining street is property, and any deprivation . of the ordinary use of it is a taking of property. Cooley, Const. Lim., 680-1; 679, note 1.
    4. Article 15 of Constitution of 1879 gives the right to property owners to recover any substantial damage sustained by the making or using of an improvement that is public in its character. The elements of damage are the diminution in the sale or rental value of property and the impairment of value of improvements. Chicago vs. Taylor, 125 T7. S., 161-170.

      Alexander & Blanchard for Defendant and Appellant:
    The verdict of a jury on a question of fact is no stronger than the evidence which supports it. In case of doubt this court will sustain it; if manifestly unsupported by the evidence, such a verdict will be disregarded.
    The verdirt of the jury, even as to tho facts of the case, has no controlling influence upon the conclusions of this court. It is its province and duty to rovorse such verdict, as well as the judgment of an inferior court, when a careful examination of the verdict and review show that the jury was mistaken as to the facts. Boon vs. O’Neal, 33 Ann. 1187.
    A careful review of the evidence in this rocord, while it may leave the court in some doubt as to the amount of benefit which accrued to plaintiff’s property by reason of the construction of the work complained of, will certainly force upon it the conviction that the property suffered no damage.
   Tlie opinion of the' Court was delivered by

Fenner, J.

The plaintiff claims damages in the sum of $10,000, being the amount of diminution of tlie market value of her property occasioned by the construction by defendant of elevated embankments for the laying of its tracks along the streets contiguous to said, property and several feet above the grade of said streets, the effect of which is to obstruct and partially to cut off access thereto.

The anwer of defendant admits the building of the embankments and the tracks; but avers that said constructions were made under authority of the council of the city of Shreveport; that, therefore, it acted in exercise of a legal riglit, with due care and caution, and is not liable for any resulting damage to plaintiff.

The Art. 156 of the present Constitution of this State provides:

Private property shall not he taken nor damayed- for public purposes without just and adequate compensation first paid.”

A similar article in tlie Constitution of the State of Illinois has recently passed under tlie review of the Supremo Court of the United States, and it was held that under such provision, a recovery may be had in all cases whore private property has sustained a substantial injury from the making and use of a public improvement, whether the damage be direct, as when caused by trespass or physical invasion of the property, or consequential, as in a diminution of its market value. Chicago vs. Taylor, 125 U. S. 161.

The opinion is well considered and conforms to the rulings of the'Supreme Court of Illinois on the same subject. Rigney vs. Chicago, 102 Ill. 64; Chicago and W. I. R. R. vs. Ayers, 106 Ill. 518.

The doctrine seems to us clearly correct and we adopt it.

It follows that the authorization by the city of Shreveport cannot avail to protect the defendant. Had the city itself done the work it would have been responsible.

There is no serious conflict in the evidence on the point that the embankments do materially obstruct access to plaintiff’s property and impair the convenience of its use as a cotton warehouse for which it is constructed.

We are not concerned, in this case, with the character and extent of the consequential damages for which a party may be entitled to recover in such a case. The plaintiff has herself confined her demand to the diminution in the market value of her property, and the authorities quoted leave no doubt that this is a recoverable element of damage.

' There is really but one controvertible question in the case, viz : the quantum of damages.

The case was tried before a jury, which heard the testimony, viewed the Zocas in quo, and returned an (apparently) unanimous verdict for $1625. Amotion was made for a new trial and the judge rendered a written opinion refusing it, in which he says the jury was an intelligent one, and announces his own approval of their verdict.

We have carefully read and considered the testimony, which is conflicting and contradictory in the estimates of the effect of the works upon the value of the property. While we are not bound by the findings of a jury even on questions of fact or of damage and do not hesitate to reverse them when manifestly erroneous or excessive, yet we give them the weight to which they are justly entitled and do not lightly disturb them. We can find no warrant to reverse the verdict in this case, which is moderate in amount and fully sustained by numerous witnesses, though contradicted by others.

Judgment affirmed.


author: Watkins, J.

text:
    No. 246.
    Pacific Express Company vs. W. S. Haven.
    1. An exception of Us pendens cannot prevail, unless tlie suit set up as a bar, lias the same object as tlie one in which the plea is tiled.
    2. The lessor is bound, from the very nature of his contract, to cause the lessee to be maintained in the peaceable possession of tlie property during the term of the lease. -
    3. If the lessee be evicted, the lessor is answerable for the damage and loss he may have sustained by the interruption of the lease.
    APPEAL from tlie First District Court, Parish of Caddo. Hicks, J.

      Wise & Herndon for Plaintiff and Appellee:
    1. It is the duty of the lessor to maintain the lessee in possession of the leased premises. C. C. 2692.
    2. Where a lease of land has not been recorded in the manner required by law for absolute sales of real estate, the lease will have no effect as to purchasers from the lessor. Constitution of 1879, Art. 176; C. C. 2264, 2266, 3347; 3 Ann. 198; 6 Ann. 729; 30 Ann. 436; 33 Ann. 1119.
    3. Actual notice will not supply want of registry. 21 Aun. 426; 22 Ann. 402; 29 Ann. 323.
    4.- If the lessee is evicted the lessor is answerable for tlie damage and loss sustained. C. C. 2696; 9 Ann. 504; 20 Ann, 73 ; 37 Ann. 904.

      JR. J. Looney for Defendant and Appellent:
    1 Ins 2’endms. Week vs. Gilmer, 4 Ann. 520; Bisclioff vs. Tlionrer, 8 Ann. 15.
    Equities always existing between parties to contracts. It. C. 1964, 1969; 2 Hen. Deg., p. 1020, Sec. 19.
    Brokers and principals, factors and principals, sureties and principals are the agents of each others, also vendors and vendees, lessors and lessees. Conreo vs. Brandgee, 2 Ann. 132; Pepper vs. Dunlap; 5 Ann. 200.
    Hotice to agent is notice to principal. 7 Rob. 406; 1 Ann. 80; 2 Ann. 316; 14 Ann. 711.
    Tmui) Persons.
    6 La. 148;6KS. 716; 7 R. 44; 2 Ann. 846; 16 Ann. 212; 35 Ann. 830.
    Registry was not necessary, though it was made in time. 12 Ann. 699; 6 Ann. 162; 7 Ann. 65; 3 Ann. 587; 11 Ann. 122; 1 R. 135.
    Ho sale without price paid. In addition to the authorities cited we cite. 2 Ann. 265; 5 Ann. 157 ; 4 Ann. 262 ; 10 Aim. 408, 575 ; 14 Ann. 833 ; 6 Ann. 729.
   Tlie opinion of the court was delivered by

Watkins, J.

This action of the Express Company is for the recovery from the defendant, as their lessor, of the sum of $2160, as damages on account of his failure to maintain it in possession of tlie leased premises, the store No. 810 fronting on Texas avenue, in tlie city of Shreveport, whicli damages consist in tlie difference between the rental the company liad agreed to pay tlie defendant per month, for a series of five years, and the rental it subsequently contracted to pay the vendees of the property, for the residue of the term subsequent to its alleged eviction, through certain judicial proceedings by said vendees, in vacating the leased premises, after their purchase. That its former lease, from the defendant, was at the rate of $60 per month, for a period of five years, and that its latter lease from his vendees was at the rate of $100 per month for the remainder of the term of the lease of the defendant.

In limine, the defendant filed a plea of lis pendens, and it having been overruled, he answered and claimed a trial by jury.

On the trial there was a verdict and judgment in favor of the plaintiff' for $1363 60, of which $258 60 were declared due, and the remainder payable in monthly instalments of $25. From this judgment both parties have appealed.

I.

The plea of his pendens was properly overruled. The suit relied upon as constituting the bar had not the same objeei as the instant one. That was a suit by Yonree and Scott, vendees of the defendant, Haven, against the Express Company, plaintiff here, to'compel the latter to vacate the premises. In that case defendant appeared and answered that they were tenants of defendant, under their contract of September 14, 1887, and averred that same had been faithfully fulfilled and performed, on the part of said company, and it should be maintained in possession thereunder.

It further averred the obligation of Haven as its lessor to maintain it in possession, and prayed that he be cited as their warrantor, '“to defend the possession of the defendant company.” In that cause the warrantor, Haven, appeared, by way of an exception to the jurisdiction of the court of the justice of the peace, and averred that “because the issues between the defendants and warrantor were far in excess of $100, same cannot be examined and adjudicated by the court in this form of action.” This exception was referred to, and tried with the merits.

Ho answered and averred the lease to the Express Company, full notice given thereof to the purchasers and plaintiffs, Yonree and Scott, and his sale to them to avoid litigation. He also averred that the plaintiffs were not third persons, and, therefore, they purohased with full notice, and that the Express Company was duly notified of his intention to sell, and warned and requested it to record its lease contract. There was a trial had, and judgment rendered therein, to the effect that the company “ depart forthwith from the premises ” leased, and deliver possession to the plaintiffs as purchasers. The judgment effectually disposed of the warrantor’s plea to the jurisdiction, and virtually disposed of all of the demands of the defendant,-and the counter-claims of Haven, warrantor.

It was in that case, and under the issues raised by the warrantor’s answer, a question whether Haven had given due- notice of the lease of the Express Company, to the purchasers, Yonree and Scott, prior to the sale; and full proof of that fact would have furnished a good ground for the justice of the peace to have refused their demand for the vacation of the leased premises.

Had the justice of the peace been satisfied that the purchasers were not third persons, in the sense of the law, he would have possibly turned them out of court, as being without just ground of complaint of the Express Company’s occupation of the property. And, in so far as the warrantor’s averment that he liad given Haven due notice of his anticipated sale, is concerned, it was no answer to the demands of Yonree and Scott, which was simply for Haven’s lessee to vacate. This judgment must be accepted as satisfactory to all parties, as it was not appealed from by anyone, and was subsequently, voluntarily executed; and Yonree and Scott executed a new lease to the Express Company.

The Code of Practice defines Ms pendens to be another suit being pending between the same parties for the same object.” C. P. 33S.

If the demand of the warrantor be still pending in the justice court,— and this is very problematical,- — clearly, it is not- “ the same object’’’ as that involved in this suit. Hence the plea of Ms pendens was correctly overruled.

II.

The plaintiff relies upon his eviction of the leased premises, under the operation and effect of the judicial proceedings and decree rendered and just adverted to.

The claim made is that the company wanted to continue its occupancy of this particular piece of property, which was, in the opinion of its officers and mangers, best suited to the prosecution of its business, and in a specially favored locality.

That the act of sale made to Yonree and Scott, contained neither mention or reservation of its rights as lessee, and Haven had violated and broken the terms of his lease contract, and there was no alternative left to the company for the maintenance and protection of its rights of occupancy, but to contract a new lease with the purchasers, subsequent to the judicial decree, on the most favorable terms possible.

But the ’defendant maintains that: First, the neglect of the Express Company to register its contract of lease, notwithstanding it was duly notified, and urged by him to do so; second, tlie company’s refusal to prosecute an appeal from the judgment in the eviction proceedings; third, its “swift acquiescence in the judgment;” fourth, its neglect to call upon him to furnish it another place equally as good, valuable and convenient; fifth, its positive refusal to accept another place, have had the effect of exonerating him from all liability for the damages claimed.

Finally he claims that $60 per month rent, was all the property was worth, and that the Express Company had contracted to pay Yonree and Scott too much. It is unnecessary that we should argue these different propositions separately.

It is perfectly clear that if the company had caused its lease éontract to have been seasonably recorded, it would have affected the property in the hands of the purchasers; and, because adequate proof was not made of such registry, in the justice court, it is quite likely the decree to vacate the leased premises was rendered.

The proof on that question furnished us in. the transcript, fails to establish timely and sufficient registry, to bind the purchasers. We fail to perceive in what sense Yonree and Scott were parties to the act of lease, unrecorded as it was, and which was executed long before their acquisition of the property — this lease not being mentioned in the act of sale. While it may be conceded that, through the intermediation of Martin, the broker, they were parties to all the negotiations antecedent, and leading up to the sale, they did not for that reason become parties to the contract of lease. Therefore they obtained a title free of its incumbrance, and acquired the legal right to the possession of the property, and the consequent legal right to dispossess the plaintiff. It is equally clear that the Express Company had a legal right to contract with the purchasers for a new lease of the property.

Then, we are to ascertain in what way the rights of the parties to the original contract of lease are affected by the sale to Yonree and Scott, and the Express Company’s dispossession of the leased premises.

Under the textual provisions of the Civil Code the lessor is hound, from the very nature of the contract, and loithout any clause to that effect * to cause the lessee to be in peaceable possession of the thing, during the continuation of the lease.” R. C. C. 2692; 14 Ann. 564; 15 Ann. 321, 323; 17 Ann. 178. (The italics are ours). In the face of this position of affairs, and unequivocal legal requirement, the defendant sot in motion negotiations for the sale of the property under lease, to the plaintiff, through a real estate agent, which eventuated in a sale .to Yonree and Scott. The act of sale contains no reservation of the rights of plaintiff as lessee, yet it does contain a full, and complete reservation of tlie rights of the defendant, as a lessee of a portion of the property, for one year. There may have been something said to the plaintiff in reference to the necessity, or propriety of its having its contract of lease recorded; but this was unreasonably delayed until after the deed had been actually marked filed, by the clerk of court, and it had been deposited in his custody. This was entirely insufficient to shift the responsibility upon the plaintiff, and shield the defendant from the direct and immediate consequences of his voluntary act.

The several causes assigned by the defendant, as exonerating him from pecuniary liability, cannot avail him; for it was quite as much his duty to have prosecuted an appeal from the judgment of eviction, as of the Express Company.

It had a perfect right to accept the situation and acquiesce in the judgment, in order to avoid judicial expulsion. The manager of the company did serve upon the defendant a notice that he must juotect him “in the occepancy of the premises,” and he was not bound to accept another, at his behest. “If the lessee be evicted, the lessor is answerable for the damage and loss, which he sustained by the interruption of the lease.” R. C. C. 2696.

In this instance the lessee lost the use of the premises he had leased, and it found itself constrained to. accept a new lease from its lessor’s vendees at a higher monthly rental, by $40 per month, i. e., $100 per month instead of $60.

A thorough examination of the record has satisfied .us that that was the best possible terms the company could make with the purchasers, and we are not justified in saying it was too much. Then, it is clear, that $40 per month for the residue of the term of five years — taking-date Horn the 1st of April, 1888 —is the amount of damage the company sustained “ by the interruption of their lease,” and that it is the duty of the defendant to repair it.

The judgment of the court should be amended and increased to the total sum of $2160, as demanded in plaintiff’s petition, payable in monthly instalments of forty dollars per month, in lieu of twenty-five.

It is, therefore, ordered and decreed that the judgment appealed from be amended and increased to the sum of $2160, and that of this sum $760 be paid in cash as the amount due, and that the remainder of $1400 be paid in monthly instalments of forty dollars each, during- the balance of the term, and that as thus amended the judgment be affirmed with all costs taxed against the defendant and appellant.


author: McEnery, J.

text:
    No. 241.
    J. D. Stille vs. W. L. Shull.
    Possession as owner is an essential condition by which the ownership of immovables can be acquired without title or possession in good faith.
    "When evicted, a trespasser, a possessor in bad faith can not recover the value of improvements.
    As against a trespasser the plaintiff in a petitory action is not bound to show title perfect against the world. Ho can not take advantage of any defects in tlie muniments of title exhibited by plaintiff. An apparently good title is sufficient against him.
    The irregularities and defects in a tax deed not apparent on the face of the deed are cured by the prescription of five and ten years, if the deed is valid in form.
    APPEAL from tlie Eleventh District Court, Parish of Sabine. Person, J.

      J. F. Smith for Plaintiff and Appellant:
    All"irregulavities and informalities of a probate sale are cured by the lapse of five years. Passiana vs. Towell, 21 Ann. 584; Woods vs. Lee, 21 Ann. 505; R. S. 3392, 2376; R. C. C. 3543.
    Irregularities and defects growing out of any judicial sale are as well cured by the lapse of live years as by -a judgment in a monition proceeding. R. S. 2376; Roberts vs. Zansler, 33 Ann. 205. .
    A judicial sale cannot be attacked in a collateral manner. Louque’s Digest, Bale X, Ros. 2, 3; Dixey vs. Mandell, 23 Ann. 499; Anderson vs. Carroll, Hoy & Co., 23 Ann. 175; Doherty vs. Leake, Sheriff et al., 34 Ann. 224.
    If the validity of titles acquired under judicial sales within the last forty years wore to he tested by the records in existence at any subsequent period, time, instead of healing the defects of such titles, would gradually weaken and eventually destroy them. In all such cases the presumption “omnia rite acta ” may well be invoked and applied. Old Hennen’s Digest. Evidence XXI, Ros. 47, 56, 57; Gibson vs. Roster, 2 Ann. 503 ; Rontenot vs. Husband, 2 Ann. 780; Gentile vs. Roley, 3 Ann. 146 ; Roberts vs. Zansler, 84 Ann. 205.
    Since the adoption of the Constitutions of 1868 and 1879 all tax collectors’ deeds aro prima facie evidence of a valid sale, and such sales will be presumed to be valid until annulled in a direct action. 'Chose articles simply change the law of evidence, the effect of evidence, and apply to all tax sales, irrespective of the time when made. Const. 1868, Art. 118; Const. 1879, Art. 210; Gidden’s Executors vs. Madison Mobley, 37 Ann. 417 ; Jurey vs. Allison, 30 Ann. 1235; Lannes vs. Work. Bank, 29 Ann. 115; O’Hern vs. Hibernia Ins. Co., 30 Ann. 400; Konshaw vs. Iniboden, 31 Ann. 661; Asso. vs. LaBranche, 31 Ann. 839; Ludeling vs. McGuire, 35 Ann. 893; Roberts vs. Zansler, 34 Ann. 205: Dupre vs. Thompson, Sheriff et al., 25 Ann. 504, and case cited at Opelousas.
    The possession of an immovable accompanies the execution of the act which evidences the sale, and the tax title or any other title translative of property, duly recorded, will form the basis and foundation for acquiring property by prescription. Gidden’s Executors vs. Madison Mobley, 37 Ann. 417; Roberts vs. Zansler, 34 Ann. 205.
    Where there is no title translative of property real estate can he acquired only by a continuous and uninterrupted possession of thirty years, and under the title of owner. R. C. C. 3499, 3500; Dodeman et al. vs. Barrow, 11 Ann. 87.
    Proscription by which property is acquired is interrupted, or ceases to run, whenever the party makes acknowledgment of the right of the person whose title they prescribed. R. C. C. 3520.

      The possessor in bad faitli owes rents or fruits during the time of his possession, and is not entitled to pay for improvements. Hill vs. Bowden et al., 3 Ann. 258; Gibson vs, Hutchins & Vaughan, 12 Ann. 545; French; Executrix, vs. Bach et al., 26 Ann. 733.

      Scarborough c6 Garver for Defendant and Appellee :
    3.If the record does not affirmatively show the amount in dispute to he over $2000, the Supreme Court will not entertain jurisdiction. 39 Ann. 113 5 34 ¿Inn. 406.
    2. Plaintiff in a petitory action must recover on the strength of his own title and not on the weakness of his adversary’s. C. P. 44; 11 Ann. 546 ; 22 Ann. 57.
    3. Even against a naked possessor plaintiff must show title prior in date to defendant’s possession. 15 Ann. 454; 23 Ann. 274.
    4. Plaintiff even against a naked possessor, must produce a title hotter than auy that defendant can oppose against him. All outstanding titles enure to dei'endaut’s benefit. 11 Ebb. 240; 10 Eob. 510; 3 Eob. 206.
    5. Defendant sought to be evicted by a petitory action can urge against plaintiffs title, by way of exception, anything that lie' could plead in a direct action of nullity. 1E. 378; 22 Ann. 20; 27 Ann. 121; 8 H. S. 105; 5 Ann. 678; 11 Ann. 761 or 671.
    6. TJie burden of proof is on plaintiff in petitory action to show identity as well as title. 10 M. 293; 12Eob. 46.
    7. Tlie prescription of ten years acquirendi causa requires possession to support it. C. C. 3479, 3487.
    8. The prescription of five years (curing informalities in public sales per C. C. 3543) cannot be successfully plead by a party not in possession against one who is in possession. 1 Eob. 378; 4 Ann. 248.
    9. Same rule as to prescription of three years (Act 105 of 1874). 39 Ann. 409; 32 Ann. 912.
    10. Prescription will not be noticed unless plead specially. Pleading it in brief is not sufficient.
    11. Under all the Constitutions prior to that of 1868, the purchaser of property at tax sale was obliged to show that all the formalities prescribed by law had been complied with. 19 Ann. 184.
    12. A tax sale without assessment, notice or advertisement (besides other errors) is null. Corpus juris Louisiana} generally.
    13. Uninterrupted possession of real estate, without good faith, for thirty years, confers title. O. C. 3499.
   On Motion to Dismiss.

Tlie opinion of the Court was delivered by

McEnery, J.

The appellee moves to dismiss the appeal on tlie ground that the value of the property in dispute is not shown to be worth over- $2000.

The answer of the defendant and appellee admits the property described and set forth in the petition of plaintiff to be worth $2300.

Plaintiff, in an amended petition, disclaims ownership of eighty acres of the land claimed by him in the original -petition. Deducting tlie value of the land relinquished there is left the value of the balance of the land claimed, $1,556, to which add the amount claimed for rent, •will make the sum of $23656.

The motion to dismiss this appeal is therefore overruled.

On the Merits.

This is a petitory action instituted to recover from the defendant the southwest quarter of northeast quarter and north half of northwest quarter, section 27, township 8, north range 12 west, situated in Sabine parish.

Plaintiff claims by purchase at the succession sale of Robert B. Stille, on 20th June, 1883. The defendant was in possession of the property, and answered denying that the succession of R. B. Stille, from whom plaintiff claims title, ever had any title to said property, and that if said Stille ever owned said property it was not inventoried among the effects of his succession and was never advertised and sold. He further avers that he has been in possession of said property and has held it as owner since the year 1868, and that his possession as owner has been open, public and notorious and pleads the prescription of thirty years.

He also avers that plaintiff’s title was divested by tax sale in 1879-He pleads the prescription of three and five years against any action to cancel and set aside said tax sale. He also avers that he has made improvements to the amount of $300, and paid taxes to the amount of $200, and if deprived of said property he asks for judgment for this amount.

In 1848 William B. Stille bought at tax sale in the Parish of Sabine the Rio Hondo claim containing 840 acres, assessed in 1847, as the property of José Estrader. The property was sold for parish and State taxes. K. J. McLemore, the sheriff and collector of taxes, made a deed of said property to' William B. Stille, which was duly recorded in the book of sheriff’s deeds, and in the book of conveyances in the Recorder’s office.

In 1875 William B. Stille died and instituted Robert B. Stille his universal legatee. In 1879, Robert B. Stille died, and the present plaintiff, J. D. Stille, was appointed and qualified as the administrator of his succession.

On the 20th day of June, 1883, under the order of the district judge, the lands belonging to the succession of Robert B. Stille were sold at succession sale and purchased by J. D. Stille. In the inventory of the effects of the succession of R. B. Stille, the immovable property is described as follows:

“ Real estate, lands and town property,” $12,000.

In the advertisement and in the deed to the present plaintiff, only the north half of northwest quarter of section 27 is mentioned. There was evidently no sale of the southwest quarter of the northeast quarter, and the present plaintiff has never acquired any title to this portion of the land claimed by him. It still remains in the succession of Robert' B. Stille.

We will, therefore, oidy consider the title to the north half of section 27. This is a part of the land purchased at tax sale in 1843 by William B. Stille. In relation to the sale of this portion of Section 27 there apXiears to be no irregularity.

The defendant contends that this land was sold to one Caldwell at’tax sale in 1879. It is not described in the tax deed to Caldwell, and, therefore, could not have been sold. This was a sale of the lands assessed to unknown parties,” and sold in one lot, by agreement, to Caldwell. There wore no other bidders, although it is in evidence that parties went to Many to purchase some of these lands, but were informed that Caldwell had purchased them. They went to Many early in the day, and it is stated by Caldwell in his testimony that they were sold to him in the afternoon about 3 o’clock.

The tax sale from the sheriff and tax collector to Wm. Stille, in 1848, is attacked because the land was not assessed in 1847, and there are five other reasons assigned for irregularities under the Revenue Act of 1847.

The tax deed is as follows:

“ STATE OF LOUISIANA, ? “Parish or Sabine. $
“ Know all men by these presents, That I, K. J. McLemore, Sheriff of the Parish of Sabine, have this day sold at public auction to William B. Stille, of said parish, he being the last and highest bidder, one tract of land situated on Bayou Scie ’ in said parish, Rio Hondo Grant, No.’ 27, containing 040 acres, assessed on the tableau of said parish for the year 1847, in the name of Jose Estrader, seized and sold according to law by virtue of said tableau, for taxes due the State and parish for the year 1847, together with the costs of sale, amounting in all to $10 34, this certificate to operate as a deed in favor of said purchaser and his legal representativos from and after the 4th day of November, 1850.
“ Given under my hand, officially, at Many, this 4th day of November, 1848.
“K. J. McLemore,
“ Sheriff Sabine Parish.
“ Filed and recorded June 21, 1859.
“John Baldwin,
“ Recorder.”

The proof is in the record that the assessment rolls for 1847 were lost or destroyed many years ago. The deed is jprima facie evidence of what is recited therein. The deed expressly recites that the property was assessed in 1847. It is valid in form and there are no apparent irregularities or defects on its face. The irregularities and defects complained of by defendant are cured by the prescription of five and ten years. 39 Ann. 403, 1033; R. S. 3392, 2376; R. C. C. 3543.

The defendant has exhibited no valid title. He never purchased the land, but only the improvements. Ilis possession of the land and that of those from whom he purchased the improvements has not been uninterrupted during the length of time to acquire ownership, and his plea-of thirty years, prescription cannot avail him. Possession under the title of owner is an essential condition by which the ownership of immovables can be acquired without title or possession in good faith. He disclaimed any possession as owner, and during his possession and occupancy of the land he acknowledged title in the plaintiff, offering to purchase from him. 39 Ann. 1033.

As against a trespasser the plaintiff in a petitory action is not bound to show title perfect against the world. He can not take advantage of any defects in the titles exhibited by plaintiff. An apparently good title is sufficient against him. 19 L. 396; 9 R. 317; 3 R. 215; 12 Ann. 748; 15 Ann. 76; 35 Ann. 612.

The defendant is a possessor in bad faith. He located on the land without a title and purchased the improvements from his predecessors, who had also located on the land, without title. These transactions were verbal. • No written titles to the improvements were given to the defendant. He is not entitled to-be paid the value of the improvements irarcliased by him and for those made by himself. The plaintiff’s claim for rent is made on the condition that defendant’s claim for improvements is allowed and is pleaded as compensation against the same.

The taxes on the property have been paid by plaintiff. The defendant has also paid taxes, but he must look elsewhere than to plaintiff for reimbursement.

We conclude that the plaintiff has a valid title to the property in controversy.

It is, therefore, ordered, adjudged and decreed that the judgment ivppealed from be annulled, avoided and reversed, and it is further ordered, adjudged and decreed that the plaintiff, Joseph D. Stille, be adjudged the owner of the north half of northwest quarter of section 27, township 8, range 12 west, situated in the Parish of Sabine, and that the defeiulant, W. L. Shull, be evicted from said property and tlie plaintiff be placed in peacable possession and enjoyment thereof.

It is further ordered that the reconventional demand of defendant and the demand of plaintiff for rent be rejected, the defendant to pay costs of both courts.

Application eor Rehearing.

In the application for rehearing our attention is called to the diction in the opinion which sajrs: If there were any complaints they are cured by the prescription of five and ten years. Possession was not necessary, as contended by defendant, to support the plea.” As this was unnecessary to the determination of the issues presented in the case, and the decision stands without it, we have stricken it from the opinion.

We have also corrected the misdescription of the land in the decree.

Rehearing refused.


author: Poché, J.

text:
    No. 254.
    W. J. Mobley et al. vs. Police Jury of Bossier Parish et al.
    Under tlie provisions of Article 250 of the Constitution, in all cases in which the Legislature passes an act removing the parish seat of any parish, it must order a special election for the purpose of ratification or rejection of the act hy the electors of the parish.
    The Legislature has, in such cases, the full power hy a special act to prescribe rules for conducting such elections, and to adopt such parts of the general election laws as may suit the purpose. Article 46, which prohibits the enactment of special or. local laws for opening or conducting elections, has no reference to special elections required by the Constitution in cases of removals of parish seats.
    APPEAL from t.he Second District Court, Parish of Bossier. Boone, J.

      J. A. Snider for Plaintiffs and Appellees :
    Act 33 of 1888 conflicts with Articles 46, 47, 30 and 250 of the Constitution.
    1. It violates Article 46 by passing a local and special law ‘ ‘ for the opening and conducting of elections.”
    2. It violates Article 47 by indirectly enacting a local or special law by the partial repeal of general laws, viz: the general election and general registration laws.
    3. It violates Article 30 by amending tlie general olection law hy reference to it.
    4. It violates Article 250 hy failing to submit the act in its entirety to the vote of the people affected hy it, and hy providing for a multitude of elections, and again hy failing to provide for a definite removal of Bossier parish seat from one specified locality to another fixed-locality. Act 33 of 1888 compared with the general election and registration laws. All acts relative to the removal of parish seats, passed since the adoption of present Constitution, except Act 33 of 1888, have ordered elections, in pursuance of Article 250, under general election laws, or at congressional elections, and this is a legislative construction of the Constitution, supporting plaintilFs contention, liofemices to said acts by sections and numbers.

      Alexander & JJlanchard, Land & Land and Joannes ¡Smith for Defendants and Appellants:
    Question at issue: Constitutionality of Act Ko. 33 of 1888, relating to removal of parish seat of Bossier parish.
    Act 58 of 1877 and Act 101 of 1882 relate solely to general elections, or those at which members of the General Assembly, State, district, parish and ward officials are voted for. They have no applicability to special elections such as that contemplated in Article 250 of the State Constitution.
    Sections 4 and 37 of Act 58 of 1877, and Section 5 of Act 101 of 1882 prescribe no duty for the returning officer to perform in respect of elections hold on the question of removing parish seats.
    Act 12Í3 of 1880, which is the general registration law, requires no revision of registration oxcept prior to general elections at which officials are voted for. See Section 39.
    The General Assembly has never passed any general law “ for the opening and conducting ” of the special elections contemplated by Article 250 of the Constitution. Until it does so the Legislature is competent, in any’act directing such special election, to determine how it shall be opened and conducted. Act 33 of 1888 is not, therefore, violative of clause 1 of Article 46 of the Constitution.
    Act 33 of 1888 is not a local or special law, but is a general or public law, because it affects the community as a whole of one of the political subdivisions of the State. Articles 46, 47 and 48 of the Constitution do not, therefore, apply to it. 35 Ann. 1141; 39 Ann. 458; 33 Ann. 568; 35 Ann. 492; 39 Ann. *147.
    The act relates to nothing except the removal of the parish scat and how it shall be accomplished, and this object is expressed in the. title. !Nbt violative, therefore, of Articles 29 and 30 of the ‘Constitution.
   Tlie opinion of the'Court was delivered hy

Poché, J.

The object of this litigation is to enjoin the execution of Act 33 of the General Assembly, approved June 29, 1888, entitled “ An Act removing the parish seat of Bossier parish to the depot at Benton, Vanceville, Aldan’s Bridge, Bossier City or Haughton, and providing for the submission of this act to the electors thereof for ratification in accordance with Article 250 of the Constitution.”

The ground of resistance is tire alleged xmconstitntionality of the act, which is charged to he violative of seven articles of the Constitution.

The defense is practically a general denial. The district judge declared the act to be unconstitutional and rendered judgment in favor of plaintiffs, and defendants appeal.

The following articles are alleged to he violated hy the statute in question : Articles 29, 48, 30, 46, 47, 250, and Article 1 of the Bill of .Rights; and we shall discuss them in the order herein presented.

The act under consideration contains eight sections;

The first section purports to remove the parish 'seat from its present location to one of five designated places.

The second section directs the police jury to order an election for the ratification or rejection of the' act.

The third section provides for the mode of election and for the announcement of the result; and it directs, in case of ratification, that an election be held for the selection of a new parish seat, out of the five designated places.

The fourth section is intended to give effect to the election in case any place shall receive a majority of the votes cast.

The fifth section provides for an election between the two points receiving the greatest number of votes at the second election, in case neither of the five places had received a majority of the votes cast at the previous election.

The sixth section provides for the appointment of commissioners of election by the police jury, aud makes it the duty of that body to proclaim the result of said election or elections, in five days after holding the same.

The seventh section provides that no fees shall be allowed to any of the officers entrusted with the election or elections ordered in the act, and directs that no revision of registration shall be necessary for the purposes of said elections.

Section eight reads as follows: That the election or elections herein provided for shall be held in pursuance of the general election laws, in so far as they are not in conflict with this act, and at the polling places now established by law.” 1, 2 and 7.

Counsel for plaintiffs offers no argument in support of his position touching the nullity of the statute as affected by Articles 29, 48 and 1 of the Bill of Rights, of the Constitution:.

In his brief he in terms submits these points without argument, and in his oral argument he candidly abandoned all three. Hence we consider them as eliminated from the discussion. We need only to add that after due consideration of their respective provisions, we find that neither of the articles in question has any injurious effect in their application to the contention involving the alleged unconstitutionality of the act under investigation. The act embraces but one object and that is fully and clearly expressed in its title.

Should it be conceded that the act is a local or special law, it cannot be affected by Article 48, for the simple reason that its enactment is specially authorized, if not required, by Article 250, and hence it cannot, be subjected to the provisions of Article 48. Planting and Manufacturing Company vs. Tax Collector, 39 Ann. 458, and authorities therein cited.

As to Article 1 of the Bill of Rights, no suggestion, has been made either in the pleadings or in argument, of its bearing on the subject of discussion, and our imagination can suggest none. 3 and 5.

The points made under Articles 30 and 47 are germane, and hence they may be discussed together.

Article 30 reads: No law shall be revised or amended by reference, to its title, 'but in such cases the act revised or section as amended shall be re-enacted and published at length.”

Article 47 provides: The General Assembly shall not indirectly enact special or local laws, by the partial repeal of a general law; but laws repealing local or special laws may be passed.”

The argument on this objection is predicated mainly on the provisions of the eighth section of the act, which is hereinabove transcribed, and also on those provisions of the statute which direct that the return of the special election shall be made by the police jury; that the commissioners of election shall be appointed by that body, and that no revision of registration shall be made prior to holding the election or elections contemplated by the act. On these subjects the provisions of the general election laws are different; hence the contention is that the act under discussion is constitutional!y vicious for the reason that it proposes to amend the general election laws by reference to the title only, and for the further reason that it exhibits a legislative attempt to enact a special or local law by the partial repeal of a general law.

Avowedly and inevitably the election ordered by the act was of necessity a special election.

Article 250, which is the only mandate of the Legislature on the subject, provides in express terms that: All laws * * removing parish seats shall before, taking effect, be submitted to the electors of the parish * * at a special election held for that purpose, and be adopted by a majority vote * * cast at such election.”

That construction of the article flows from its plain and unambiguous language; it is not only conceded to be correct by plaintiffs’counsel, but it is pressed as an argument.

Now from the very text of Act 98 of 1877, as amended by Act 301 of 3.882, which contains the general election laws of the State, it appears that they are intended to apply exclusively to elections of State, district, parish and municipal officers, and of presidential electors and members of Congress. There is no reference to special elections for the removal of parish seats in the amendatory act of 3882, and there is not, as there conlil not be, any intention to regulate such elections, in the act of 1877, for the plain reason that the constitutional provision which gives them birth was itself not yet in existence.

It is, therefore, safe to conclude that Article 250 cannot be construed as requiring such elections to be conducted under the general election laws; nothing in the article or in any other part of the Constitution directs the manner in which such elections shall be conducted, or suggests any inference that the General Assembly is inhibited from enacting-special regulations for the conduct- of the elections contemplated by the article. Hence follows the irresistible conclusion that the inherent power of the Legislature to legislate on the subject matter is unchecked or unrestricted by any constitutional limitation. It therefore existed and its exercise in the act. of 1888, is fully warranted. ' '

It was in the exercise of that unquestioned power that the law maker provides for the conduct of the election in the fifth, sixth, seventh and eighth sections of the act.

No portion of the act, and no language used in its entirety can justify the assumption that the statute purports or intends to repeal, amend, or in any way alter any other law on the statute books, and particularly any section or provision of the existing general election laws of the State.

These laws are yet in full force in their original autonomy, unaltered and untouched by the statute under discussion, or by any subsequent legislation that we are aware of, or which has been pointed out in this contest.

Until such legislation occurs, as it was conceded in argument, any election for office to be hereafter hold in the State must be conducted by the provisions of the general election laws which are now contained in Act 98 of 1877 as amended by Act 101 of 1882.

What then becomes of the argument that either of those general laws has been amended or modified by the act under discussion ?

As it is demonstrated that the Legislature liad the untrammelled power to regulate the Special election which its constitutional duty required it to order, it follows that it had the. unquestioned right to borrow, as it were, certain rules which it found suited to the purpose in hand from the general election laws, and that, and nothing else, is the purport and effect of the eighth section of the act.

As soon as the elections ordered thereby have been held, the object of the legislation is accomplished, its mission is filled, and to all intents and purposes of future action it will cease to have any effect or any existence. .

But notwithstanding tho foregoing considerations the point is made that by providing special rales for the conduct of that election the Legislature has transgressed constitutional limitations. 4.

And that brings us to plaintiffs’ fourth ground of objection, which rests on' Article 46, which is to the effect that:

“The General Assembly shall not pass any local or special law.” * *
“ For the opening and conducting of elections or fixing or changing the place of voting.”

Under the plainest rales of construction the scope of this article must be tested with reference to, or in connection with, Article 250, under the textual provisions of which the Legislature is empowered and may eventually be required to order special elections for the purposes therein specified.

As it has been shown that there is not, and that there could not be, a general law governing such elections, it follows beyond a doubt, that the power to legislate by special acts for the conduct of these elections must be in the Legislature, for otherwise, such elections could not be held legally.

I-Ience we conclude that the framers of the Constitution did not and could not have intended to paralyze by Article 46, or in one and the same breath, a necessary power which they created and conferred in Article 250.

The limitation contained in Article 46 means that in general elections, the Legislature cannot provide for a mode of conducting or opening-elections in one locality or part of the State different from others, by means of a local or special law. Such differences can be operated or effected, as it is done, only in a general law. But we are clear in the conviction that the article has no reference or application to special elections held under the mandate of Article 250. 6.

On the ground of the objection growing out of Article 250, the argument seems to be that the act is obnoxious to the Constitution because the statute does not squarely remove the parish seat from one locality to another,.particular or designated spot or point, but from one place to an indefinite number of places at the same election.

From our reading of the act it appears tliat the intention was unequivocally to remove the parish seat from Bellevue, which is the exercise of a power clearly conferred by Article 250. It is then clearly submitted to the votes of tho electors for ratification or rejection.

Under the article the Legislature had the undoubted power to finally select another locality as the parish seat; it chose to leave the exercise of that power to the people. It had the greater power, and that certainly included the less. Where is the harm under a constitutional test?

As argued by counsel, the "mode adopted may be more comx>licated, and may prove more expensive; or it may be unwise and unfair, but it is not unconstitutional j and surely it cannot be pretended that the judiciary department of the State should assume or usurp th.e power and function of enforcing its own views of wisdom and jiropiiety on the law making x>ower.

The only mandate of the judiciary is to see that the law maker shall not transgress beyond constitutional harriers; and true wisdom die-' tates that even that power shall never be exerted but in extreme cases.

The legislation which we have considered, and which we have endeavored to expound, does not x>resent such a case, and we must, therefore, decline to interfere with the execution of the solemn expression of legislative will in the matters which are herein submitted to our review.

It is, therefore, ordered, adjudged and decreed that the judgment appealed from be annulled, avoided and reversed; anditisnow ordered that the injunction herein obtaiiied by plaintiffs be dissolved and their action dismissed at their costs in both courts. And it is further ordered that tlie right of defendants to sue for and recover damages on account of said injunction be reserved.


text:
    No. 244.
    McMahon and Perrin vs. The St. Louis, Arkansas and Texas Railroad Company.
    1. An injunction to prohibit the construction of a public work, the building of which involves no taking or invasion of plaintiff’s property, but only an alleged consequential damage to its value, which is conjectural and incapable of ascertainment until after the construction, may he properly bonded, notwithstanding the provision of Article 150 of the Constitution.
    2. Article 156 of the Constitution only adds the requirement of compensation for clmnage to private property to the former requirement of compensation for the taking of property. • The compensation in both cases is restricted to and measured by the value of the property itself, being the whole valuewhen taken and the diminished value when damaged. The article does not rescue from the category of damna absque injurié, mere consequential injuries to the owners resulting from discomfort, inconvenience, loss of business and the like.
    3. The nature and measure of the damage recoverable are the actual diminution in the value of the property for sale or rental, occasioned by the public work.
    APPEAL from the First District Court, Palish of Caddo. Hieles, J.

      It. J. Looney, for Plaintiff’s and Appellees:
    ;. Any act complained of that would amount to a trespass or interfere with the use óf real proimrby, is not bondable when enjoined. Marion vs. Johnson, 22 Ann. 512; O. P. 307 ; 14 Ami. 57; 7 Rob. 442; 12 Ami. 455; 24 Ann. 154; 20 Ann. 003; 36 Ann. 918, and casos cited.
    2. Tlio trial judge erred in refusing to charge the jury as to the injunction and attorney’s foes. 5 Ann. 518 ; 11 Ann: 3032; 29 Ann. 571; 34 Ami. 61.
    3. Tlio acts of defendant.wore in violation of prohibitory law. Constitution, Art. 156; R. C. 2626-7-8,2633; 34 Aim. 357; 35 Ann. 1045, and 125 United States Supreme Court Rep., 161 to 170.

      Alexander cG IUanchctrd for Defendant and Appellant:
    . 1. The damages entitled to he recovered by the property owners, under Article 156 of the Constitution oí' 3879, are limited to the diminished market value of the property caused hy the public construction, or the impaired value of any permanent improvements which may have been put upon the ground for a special purpose, and which may have been thereby rendered useless.
    Mere inconveniences and annoyances, .or supposed loss of profits in business, arc not recoverable. Chicago vs. Taylor, 325 United States Supreme Court Reports, 161.
    2. Under the most latudinous construction that could be given to that article tlio plaintiffs have suffered no damage.
    Their house was built on leased ground, and its original cost of construction was only $3650. They bought it, together with the unexpired five years* loase, and presses, shortly before the tracks were laid, for $2000 on five years’ credit, and one of them testifies, on the trial, that he would not then take $2500 for it excluding the presses.
    Even if such could be allowed no damage to plaintiff’s business is shown, on the contrary one ol* them swears that if their books were balanced they would show no profit; that neither he nor his partner put. a dollar into the business; and finally that one Loot), who is no party to this suit, owns a third interest in the business.
   Tlio opinion of the Court, was delivered by

Fenner, J.

Plaintiffs are the lessees from tlie City of Shreveport of a certain lot of ground for an original term of ten years, of which about live years had expired at date of this suit. They owned a building constructed on said lot in which they conducted a wood and hide business.

They brought a suit against the defendant railroad company alleging that, against their protest, the said company had laid a railroad bed and track along Commerce street, which obstructed their trade and business and rendered their lease and buildings valueless; that these works are a trespass on their rights and have damaged them in the sum of $5000, for which they ask judgment.

Subsequently they filed a second suit, in which they averred that the railroad company was maiong further constructions of a similar character, the effect of which would occasion an additional damage' of $5000, unless restrained, and they asked tor an injunction prohibiting further construction, and for a final judgment making said injunction perpetual, and compelling the'defendant to remove the works already built and granting the additional $5000 damages.

On application tlie defendant was permitted to dissolve the injunction on bond, of which the plaintiffs bitterly complain. We think the action of the judge was clearly legal and proper.

The petition did not even allege that the injury was irreparable; on the contrary the damage, present and prospective, was very exactly appraised in dollars and cents, and the case presents no feature, of injury not readily and fully appreciable by that standard. The case falls within no recognized exception to the general rule of the Code of Practice, Article 307 authorizing the bonding of injunctions when “ the act prohibited is not such as may work an irreparable injury.”

It is true the Constitution, Article 156, provides that “Private property shall not he taken nor damaged for public pulposos without adequate compensation being first paid.” We will not say what might he the effect of this article on the right to bond if the act prohibited involved the taking of property, the value of which might he settled in advance. But in this case there is no taking of plaintiffs’ property, which is not invaded Or touched. The damages claimed are purely consequential in their nature, necessarily conjectural, and impossible of any accurate determination except after the construction of the road. To impose upon the parties the necessity of settling and paying-such damages before proceeding with the work would he to require a manifest impossibility; and if such an injunction could not he bonded it would operate, a perpetual bar to the construction of public works, which was certainly not contemplated by the Constitution.

The two cases were brought to issue by answers of defendant, setting-up that their road was constructed on a public street, under lawful authority of the City of Shreveport,, with due care and prudence, and denying their liability for the damages claimed. They were consolidated and tried together and culminated in a judgment against the defendant for $1500 damages, from which the latter appeals. The'plaintiffs ask an amendment perpetuating the injunction and compelling removal of the road.

The evidence satisfies us that the track is laid in accordance with the permission granted by the municipal authorities, at least so far as the locality in question is concerned.

The track does not approach nearer than within twenty-six feet of plaintiffs’ building, and about nine feet from his banquette. It is laid flush with the street, or nearly so, and a well planked crossing is provided.

There is no taking of plaintiffs’ property and no invasion of, or trespass upon it, in any manner whatsoever.

The defendant has done nothing but what it had a legal right to do, and it lias exercised that right in a proper, prudent and cautious manner, inflicting upon plaintiffs no. injury or damage except such as necessarily resxxlts from the exeicise of the right.

The question prim.arily to be determined is, what are the nature and measure of the obligations incurred by. defendant towards plaintiff by reason of the former’s exercise of this legal right.

The ordinary rule of the law exonerates a party from responsibility for damages resulting from the prudent and careful exercise of a legal right, assigning to sxxcli injury the character of damnum absque injuria. Wirges vs. R. R., 35 Ann. 646; Hamilton vs. R. R., 34 Ann. 974.

Rut, in this case, the legal right passed to the defendant encumbered with the restriction imposed by Article 156 of the Constitution, above quoted, and it must discharge that.burden.

Prior to the Constitution of 1879 the organic law of this State, like that of all the States of this Union, simply provided that “Private property shall not be taken for public pxxrposes without adequate compensation, etc.” Under this rule, iix absence of other special provision, a taking of the property was a condition precedent to liability and the measure of compensation due was the value of the property taken. Merc consequential damage to property, when the property itself was not taken, was not recoverable; and much less any damages resulting to individual owners, in the way of discomfort, inconvenience, loss of business and the like. All sxxcli injuries, inasmuch as they resxxlted only from the exercise bj another of his legal right, were damna absque vnjurid.

The Article 156 of the present Constitxxtion, in providing that “private property shall not be taken nor damaged for public purposes without adequate compensation, etc.,” only extended its protecting shield over one additional injury and required compensation, not only for property taken, but also for property damaged.

As in the case of a taking the measixre of compensation is the value of the property taken, so in the case of damage, the measure of compensation is the diminution in the value of the property.

There is no warrant for extending the liability one whit beyond this. We are simply to inquire what damage has deen done to the property, i. o., to its value for rental and sale. Mere consequential injuries to the owners arising from discomfort, disturbance, injury to business and the like, remain, as they were before, damna absque injur id, particular sacrifices which society has the right to inflict for the 2nxblic good.

Such is the view taken by the Supreme Court of the United States in applying an identical provision of the Constitution of the State of Illinois. We quote from the opinion : The jury were instructed that although the occupant may have found it difficult to haul coal out of this lot, that did not weigh upon the question as to the value of the lot in the market. * * , The scope of the charge is fairly vindicated in-the following extract: 'The real question is, has the value of the property to sell or rent been diminished by the construction of this viaduct ? It may be that it cannot longer he used for the purposes of a coal yard, or for any purpose for which it has heretofore been used, hut that would not he material, if it can he rented or sold at as good a price for other purposes — except that if the proof satisfies you that any of the permanent improvements put on this lot for the particular business carried on there, have been impaired in value, and you can from the proof determine how much these improvements are damaged, the plaintiff would he entitled to recover for such damage to the improvements, etc.’” The Supremo Court fully approves this charge, which contains much more of similar import. Chicago vs. Taylor, 125 U. S. 161.

Hotliing in the evidence shows that the building on this lot has any exclusive adaptation to the particular business conducted therein ; and, therefore, this element does not figure in this case.

Guiding ourselves by the foregoing principles, we must disregard all the evidence and the contentions of plaintiffs in support of their claim for damages except those which go to show a diminution in the market value of plaintiffs’ property, viz : the right of occupancy during the unexpired term of Ms lease and his building.

We have carefully read the evidence and fail to find any which would enable a juty or the court to determine any diminution in the market value of plaintiffs’ property or to fix any amount therefor. A great portion of it is devoted to elements of damage which are not recoverable. The statements of witnesses on the real question of damage to value are vague, uncertain and equivocal, furnishing no basis for any estimate whatever. The jury have evidently considered matters of damage, for which defendant is not liable. In fact, the whole case lias been conducted on a false theory. It may he that plaintiffs’ property has been damaged within the meaning of the Constitution, but, if so, the fact and amount of such damage are not established by any evidence which would support any judgment whatever. Out of abundant caution, however, we shall make the judgment one of non-suit as to the damages.

■ There is no foundation for the injunction or the relief sought in that suit.

It is, therefore, adjudged and decreed that the judgment appealed from bo annulled, avoided and reversed; and proceeding to render such judgment as should have been rendered, it is now adjudged and decreed that the demand of plaintiffs in the injunction suit be rejected, and that his demand for damages he dismissed as in case of non-suit, plaintiffs to pay costs in both combs.