author: Bermudez, C. J.

text:
    No. 9268.
    Jesse K. Bell vs. J. D. Edwards.
    A railroad switch or turn out laid, without municipal authority, on part of a public street, is a nuisance, which, the owner of property, in front of which the same is used, is entitled to have abated, as inflicting injury peculiar to himself.
    Such owner, however, has no standing, to champion the rights of others, in front of whose property the switch is laid with municipal authority, and who do not complain.
    APPEAL from the Civil District Court for the Parish of Orleans. Houston, J.
    Singleton, Browne & Ohoate for Plaintiff and Appellee :
    1. Streets and public places cannot he appropriated to private use. 0. C. 454, 458, 863 ; Dillon’s Mun. Corp., Secs. 61, 518; 2 Ann. 770; 3 M. 296, 303; 27 K. X. 611; 4 Oald. 406, 419 ; 70 Pa. St. 310 ; 79 Pa. St 257; 56 Pa. St. 413.
    2. The switch in question is an obstruction of the highway, especially injurious to plaintiff and his property, and liable to he removed as a nuisance. 3 L. 566; 4 M. 9; 6 JEt. 349; 6 East. 427; 35 Ann. 1062, 1074.

      3. The ordinance relied on does not authorize the construction in front of plaintiff’s property. Ordinance; 23 How 435 ; 6Paige, 554; Dillon’s Mun. Corp., p, 502, Sec. 55; 23 Pick. 71.
    4. Public places cannot be used for public or private purposes so as to damage private property without just compensation. Constitution; American Law. Reg., vol. 23, p. 440. July number, 1884; 6 Barb. 313; 5 Barb. 79; 7 Barb. 508; 8 Barb. 427; 10 Barb. 360; 25 Wend. 462; 3 Hill, 567 ; 7 Hill, 575; 27 Barb. 207, 6 John. Ch. 439; 12 H. Y. 486 ; 19 Pick. 250.

      Leovy & Leovy and J. P. Blair for Defendant and Appellant:
    1. Under the charter of the city of Hew Orleans, the council has full power ‘ ‘ to authorize the use of the streets for horse and steam railroads, and to regulate the same.” Act 1882, p. 14. “The city charter vests the Mayor and common council with full power to make such by-laws and ordinances as are necessary and proper for regulating and making improvements in the streets.” 14 Ann. 854, [842]; 27 Ann. 442; 34 Ann. 462; 35 Ann. 642.
    2. “Contraventions of city ordinances by the railroad company cannot be a cause of action by private parties; unless they allege and show damage therefrom. The power to correct such abuséis vested in the city, under its police powers ” 35 Ann. 641 [Syllabus!. Special damage must be proved. “The city, alone, could and should take steps to enforce the condition of its regulation. ” 35 Ann. 648; 34 Ann. 462; Pierce on Railroads, p. 648.
    3. Where parties “have lain by and seen the work constructed upon their streets, for the benefit of tbeir property,” “they should be estopped from questioning the right of the city to make such improvements.” 35 Barb. H. Y. Rep. p. 9.
    4. “In case of doubt, the benefit thereof must he given to defendant, if his trade is a lawful one.” 35 Ann. 641.
   The opinion of the Court was delivered by

Bermudez, C. J.

The object of this suit is to have a municipal ordinance annulled and the defendant denied the exercise of any rights under it.

The attacked ordinance grants to the defendant permission to lay a switch, or turn out, on Delta street, between Poydras and Gravier streets, connecting Ms warehouse shops with the trades of the Morgan's Lomsiana and Texas LaiVroad, to be located between the curb line and the inner rail of the track.

The plaintiff owns the property forming the corner of Delta and Gravier streets, between the last named street and Poydras street, measuring a front on Delta street of fifty feet, while the defendant owns six contiguous upper lots, measuring a front of at least one hundred and fifty feet on the same street, on which his warehouse shops are to be found.

The complaint is, that the defendant has acted in excess of the privilege conceded him by the municipal ordinance in this, that he has built the switch from Poydras to Gravier streets, while he should have made it terminate in front of his property and gone no further.

Privileges of this character should not he enlarged.

It is clear that, had the city designed to allow the defendant to build the switch, as he has done, the word between found in the ordinance would not have been used, but the word from, would have been employed instead.

The patent intention was to confer on the defendant the right to extend the switch from the railroad tracks to connect the same with his warehouse shops and no further.

It appears that the track in front of plaintiff’s property was designed and has been used, as a sort of retreat or stopping place for cars which have been unladen at and hacked away from defendant’s premises and which obstruct the way.

This unauthorized construction and use of the switch in front of plaintiff’s property, is a nuisance, which he has a right to have abated, as inflicting injury peculiar to himself.

As the plaintiff has shown no legal interest in asking relief against the laying and use of the track or switch which is not in front of In's property, we do not think that he can he heard to champion the rights of those who do not complain.

The view we have taken of the case, relieves us from the necessity of considering the other questions submitted by the plaintiff.

The district court has properly appreciated the facts and applied the law.

The judgment appealed from is affirmed with costs.


source: Caselaw Access Project

author: Poché, J.

license: Public Domain

text:
    No. 9272.
    Diego Estopinal vs. M. A. Peyroux and F. M. Dautrive.
    In a suit for damages against a justice of the peace, the petition 'which charges that the magistrate rendered a judgment beyond the scope of his authority or jurisdiction, based on malicious and oppressive motives, is not amenable to the exception of no cause of action.
    In order to claim immunity from an action in damages for error in judgment, the justice of the peace must nob only show that he had jurisdiction of the matter in which he rendered judgment, but also that he acted within his jurisdiction.
    PPEAL from the Twenty-fourth District Court, Parish of St. XriL Bernard. Lkaudals, J.

      JR. T. Beauregard and Jno. 8. Tully for Plaintiff and Appellant.
    P. 0. Beyroux for Defendant and Appellee.
   The opinion of the Court was delivered by

Poché, J.

Plaintiff appeals from a judgment which maintained an excej)tion of no cause of action, interposed by the Defendant Peyroux to his suit for $5000 damages against the defendants for an alleged malicious prosecution.

His petition charges, substantially, that on the affidavit of the defendant Dautrive, lie was arrested on a charge of trespass, under sec. 818 of the Revised Statutes, and brought before the defendant, Peyroux, a justice of the peace in the parish of St. Bernard, to answer to said complaint; and that his trial thereon resulted in the following judgment: ‘‘State of Louisiana vs. Diego Estopinal.' You are hereby commanded to leave the premises occupied by you as trespasser within three days from the service of this notice. Arid herein fail not under penalty^ of law.”

He'charges that the nature of the judgment thus rendered against him in said criminal prosecution is beyond the power vested by the Constitution and laws of the State in the defendant justice of the T>eace; that it was-prompted by malicious and arbitrary motives, and that it caused him the damages which he claims.

The ground of the exception is that the justice of the peace is not answerable in damages for an erroneous judgment rendered in a matter within his jurisdiction.

The rule, as settled in our jurisprudence, is, that in order to claim immunity for errors'growing out of his official acts and judicial functions, a justice of the peace must not only show that he had jurisdiction of the matter brought before him, but also that he acted in the premises within the limits of his judicial authority and of his jurisdicdiction. 2 N. S., Dressen vs. Cox; 1 La. 131, Buquet vs. Watkins; 13. Ann. 281, Maguin vs. Hughes.

Thus, it has been held that a justice of the peace who had rendered a final judgment in a criminal prosecution, over which he had no jurisdiction but as a committing magistrate, was answerable in damages for the judgment thus rendered beyond the scope of his jurisdiction. Bore vs. Bush, 6 N. S. 1.

In that case the Court said: “The justice of the peace was not protected by his plea of error in judgment, for he was not acting within his jurisdiction.”

This is precisely the nature of the charge made against the defendant justice of the peace in the allegations of plaintiff’s petition, which for the purposes of this discussion must be taken as true.

Tested under this rule, the petition does disclose a cause of action against the exceptor, hence there is error in the judgment which held otherwise.

It is therefore ordered and decreed that the judgment appealed from be annulled, avoided and reversed; that the exception interposed by the defendant Peyroux be overruled, and that this case be remanded to the lower court to be there proceeded with according to law and to the views herein expressed; costs of this appeal and of the exception to be paid by the defendant Peyroux; other costs to abide the final determination of the case.


author: Todd, J. Bermudez, C. J.

text:
    No. 9415.
    Adam Brothers vs. Gomila & Co. et al.
    In a suit on an attachment bond for damages alleged to be caused by the attachment, which had been dissolved, the plaintiff is not entitled to recover all the coats and expenses incurred in the suit, but only such as resulted directly from the writ. So the counsel fee for defending the snit on its merits cannot be charged against the plaintiff in attachment, but only a fee for services directed exclusively to procuring a dissolution of the writ.
    APPEAL from the Civil District Court for the Parish of Orleans. Jiightor, J.

      Henry Denis for Plaintiffs and Appellees.

      J. Ward Gurley, Jr., and P. D. Théard & Sons for Defendants and Appellants.
   The opinion of the Court was delivered by

Todd, J.

This is a suit on an attachment bond to recover damages alleged to have been caused by the writ of attachment and charged to have illegally issued.

Prom a judgment in favor of plaintiff’s for $1179.57, the defendants have appealed; and the plaintiffs ask in this Court an amendment to the judgment, increasing the amount awarded them by the lower court.

The plaintiffs were non-residents, and a ship belonging to them was seized under the writ named. The writ issued and the seizure was made on the 23rd of .October, 1882, and the property released on bond on the 26th same mouth and year. There ivas no rule taken or motion made to dissolve the attachment, but an answer to the merits was filed, the case tried, and the demand of the plaintiff therein rejected,.

The contention of the counsel for the obligors in the attachment bond, the defendants in the present suit, is, that only such damages can be allowed in this action as resulted directly from tlie attachment itself; and that all the expenses attending the defense of the previous' suit cannot be recovered, but ouly those relating exclusively to the writ. Hence it is argued with respect to the counsel fees in defending said previous suit, that, inasmuch as the services therefor were rendered in defeating the demand on the merits and were uot specially-directed against the acpomi>anying writ, they cannot form an element of damage in this action ; and that this would apply to all like costs and expenses of the former suit.

After due examination of the authorities hearing on this point, we are of opinion that this proposition is correct. We have so recently held in the case of McDaniel vs. Gardner & Co., 34 Ann. 341, and Cretin vs. Levy, not yet reported, and these are supported by previous decisions. See 33 Ann. 6; 5 Ann. 714 j 13 Ann. 440, 214.

It is to be noted that in the attachment case, though the defendants were brought into court by a curator ad hoc, they were represented in its defense by attorneys of their own selection, that issue was joined by an answer to the merits, and the services of the attorney were directed not against the attachment by motion or rule, but in resistance to the plaintiff’s demand and to defeat a personal judgment against the defendants.

We are referred to the case of Frank & Co. vs. Chaffe & Sons, 34 Ann. 1203, as sustaining a contrary doctrine. The plaintiffs in that case had been decreed the owners of the property attached by Chaffe & Sons, as belonging to one Hyner, their debtor, and were allowed as damages the attorney’s fees paid out in rescuing the property from the seizure under the attachment.

The only actual damages we can find as resulting directly from the attachment in this instance and the seizure under it, is the amount paid out as commissions for procuring a release bond, $275, and the fee of the attorney in effecting the release of the property and obtaining and preparing the bond necessary therefor—which we estimate at $50 —making in all $325.

Besides the actual damages claimed, there is a demand for exemplary or vindictive damages, the plaintiff in the attachment being charged with having procured said writ through malice and without probable cause.

Conceding that there is any authority under our system for the recovery of such damages, we find from attentive examination of the whole record that the evidence is not sufficient to sustain the charge. It does not appear that there was either malice- or want of probable cause in the institution of the attachment proceedings.

It is therefore ordered, adjudged and decreed that the judgment of the lower court be amended by reducing- the amount thereof to $325, and as thus amended it be affirmed, appellees to pay costs of appeal.

Dissenting Opinion.

Bermudez, C. J.

The bond on which this suit is brought was furnished in an attachment proceeding against non-residents, under which their property, a chartered vessel, was seized.

The seizure was released on the execution of the bond required by law.

The proceedings for the writ were regular on their face and no rule could be taken for the dissolution of the order.

The bond furnished by the defendants in the suit merely released the seizure of the vessel. It did not dissolve the order on which the writ was issued, which continued in force until it wan actually dissolved by the judgment on the merits.

Had the release bond proved insufficient and none other substituted, the attaching creditors could, without obtaining any new order, have had any other property of the absent debtors seized.

The bond famished to obtain the release represented, if not the property itself, as a forthcoming or delivery bond does, at least the value of it.

The surety on such bond was responsible for the amount of the judgment, should any be rendered in favor of plaintiffs, up to the value of the vessel released.

The attachment not being dissolved by the bonding of the property, could not be dissolved otherwise than by a judgment on the merits of the case, as the proceedings were regular on their face and could not have been set aside by rule previous to final judgment.

In injunction cases, where the commission of the prohibited act would not work irreparable injury, the effect of the injunction may be suspended on giving bond, but the defendant is not on that account debarred from taking proper proceeding-for dissolving the order for the writ on the face of the papers; or if this.cannot be done, from doing so by trial of the merits.

The rule is the same in attachment cases. 13 Ann. 526, 550; 22 Ann. 146, 335; 21 Ann. 349.

The value of the services of counsel should therefore be fixed at what the services for defending the suit would be worth. It is indifferent to the defendants that two counsel were not employed, one to dissolve the writ, another to resist the claim.

The authorities invoked by the defendant to resist the allowance of such fees, can have little or no bearing on the issue, as the rulings were made in cases in which the seizure, attachment, sequestration or provisional seizure appears to have been set aside before trial, on the merits.

Those relied on by the plaintiff for the recovery of the fees, appear to be in point and to entitle them to the same. Frank & Co. vs. Chaffe, 34 Ann. 1203; British Navigation Company vs. Sibley, 27 Ann. 191; White vs. Givens, 29 Ann. 572.

In Brandon vs. Allen & Co. 28 Ann. 60, in which the attachment executed on property of a non-resident, had not been dissolved on rule, the court, on a suit for damages on the bond furnished to obtain the writ, allowed the counsel fees, paid for defending the suit on its merits, saying of the defendant that his property had been illegally attached, that to get rid of the attachment he had to employ counsel; that the fee which his counsel earned, and which he was obliged to pay, was a damage to him. The court allowed the fee claimed which was ¡§1800.


author: Manning, J. Bermudez C. J.

text:
    No. 9320.
    Catherine M. Aiken et al. vs. Thomas P. Leathers et als.
    A bond given in an injunction-suit in tlie U. S. Chancery court, conditioned that the obligors will pay such damages as the party aggrieved may recover against them, can be sued on in our State Court before any recovery has been had, and for the purpose of effecting the recovery for which the bond provided.
    Counsel fees for obtaining the disposition of the injunction are an element of damage in our practice in suits upon such bonds, and are recoverable therein. Therefore an exception of no cause of action, based upon the non-recoverability of such damage in an action upon-the bond) will not be sustained.
    APPEAL from the Civil District Court for the Parish of Otleans. Houston, J.

      Thomas H Bayne for Plaintiff and Appellant.

      Kennard, Howe & Prentiss and Ohas. 8. Bice for Defendants and Appellees.
   The opinion of the Court was delivered by

Manning, J.

The plaintiffs are the legal representatives and partners of Joseph A. Aiken who leased the wharves of New Orleans for five years. Leathers pending that lease filed a bill in the U. S. Circuit Court attacking the validity of the lease, resisting its enforcement, and obtained an injunction restraining the collection of dues and fees under it. The bond given under order of court was for five thousand dollars and the condition is that the obligors will pay all such damages as he may recover against us in case it should be decided that the injunction was wrongfully obtained.” After an interval of several months the injunction was dissolved and the bill of complaint was thereafter abandoned.

This suit is upon that bond. The damages suffered are laid at five thousand dollars counsel-fees and four hundred and ten dollars other expenses.

The defendants excepted, that the bond is null and void but if valid, is not exigible, and that the petition shews no cause of action.

The bond is claimed to be null because it was given in a chancery suit in the U. S. Court and the condition of it should have been to pay such damages as were sustained. It is claimed not to be exigible because the condition is that such damages will be paid as the party aggrieved may recover and none have yet been recovered—this condition having •been interpreted in Bein vs. Heath, 12 How. 168, to mean snch as may be recovered in a suit in the chancery court.

This identical question was before us in Block v. Myers, 35 Ann. 220, presented in the same form with reliance upon the same authority. The case is not reported in the Annual but merely digested. We therein held that the bond in this ease did comply with the condition prescribed in the Judge’s order and that it was a valid bond. It may be as held in the second place that, in Courts of Equity, the bond thus conditioned was not actionable, until its condition was broken. But in our jurisprudence it is elementary, that before our courts an action on such a bond will be maintained without first showing that the condition was broken. ' The terms of this bond were judicially interpreted thirty years ago, and have since been uniformly understood to mean that the surety on the injunction bond may be proceeded against in the same suit as the principal obligor. Parham vs. Cobb, 7 Ann. 157. We therefore conclude that there is no force in the exception.”

The lower judge overruled the exception on the authority of that decision and we sustain his ruling thereon, but he maintained the exception of no cause of action so far as it applies to the claim for counsel-fees and having thus stricken from the petition the main demand, the plaintiffs have appealed.

The ground of his ruling was that counsel-fees are not recoverable in the U. S. Courts in an action upon an injunction-bond.

However that may be there, nothing is more usually claimed in our courts as an element of damage in those suits than counsel-fees. It is safe to say that such claim is always made in our courts, not only in actions upon the bond, but before and without any suit on the bond, in the answer to the injunction suit.

Following and applying our decision in Block vs. Myers we hold that the bond is valid and exigible, and we do not very well see how in a suit upon such bond before us we can do otherwise than maintain the rights of the parly to include in his claim for damages an item or element that has always entered into them in our practice and lias been sanctioned by our jurisprudence.

We do not touch the question whether they had suffered damage in the matter of counsel-fees to the extent claimed, nor whether they ought to recover any at all in this case, but merely that the inclusion of a claim for sucb damages in their demand is not ground for exception of no cause of action, and that they are recoverable in a suit upon an injunction-bond.

It is therefore ordered and decreed that the judgment of the lower court is reversed, the exceptions are over-ruled, and the case is remanded to the lower court to be proceeded with according to law, the defendants paying costs of appeal.

Bermudez C. J.

having dissented in the Block case, which is ou writ of error to the U. S. Supreme Court, abstains from participating herein.


author: Eenner, J.

text:
    No. 9338.
    Edgar Hincks et al. Commissioners, etc. vs. George T. Converse et als.
    Exceptions to tlie corporate capacity of the 'Workingmen’s Bank and to the official capacity of its liquidation are overruled.
    The exception that the bank was not tbe owner of the claim sued on was matter of defense and properly cumulated with the merits. ,
    The former decision in 29 Ann. 369, is res judicata on the questions that the former ‘•Workingmen’s Accommodation Bank, ” obligee of the bond herein sued on, was not a corporation, and that said claim was the property of the individual member of said concern.
    No portion of the members could transfer the rights of the others without their consent, nor was the legislature competent to make such transfer
    In order to maintain their action, plaintiffs must establish that the corporation under liquidation by them, owns, or represents the ownership of the stock in the concern. To the extent of the interest so established, they may maintain the action and recover their proportion of the total liability 011 the bond. This must he established by legal evidence such as suffices to prove title.
    The books of the Workingmen’s Bank may be evidence of ownership of its own stock; but they are not admissible to establish its acquisition of the interests of members in the . former concern.
    The judge erred in holding that the Workingmen’s Bank acquired rights of the former concern by any title of succession -and as he has not passed on the proofs going to show specific transfers from members, the case is remanded.

      APPEAL from the Civil District Court for the Parish of Orleans. Rightor, J.
    F. W. Baker and W. 8. Benedict for Plaintiffs and Appellees.

      Rercij Roberts and F. F. Moise for Defendants and Appellants.
   The opinion of the Court was delivered by

Eenner, J.

This is a suit upon the same bond which was involved in two suits heretofore decided by this Court, viz:

Workingmen’s Accommodation Bank vs. Converse, 29 Ann. 369, and Workingmen’s Bank vs. Converse, 33 Ann. 963.

The bond was originally given to the Workingmen’s Accommodation Bank and the first suit was brought in that name as a corporation ; but it was held that the then plaintiff was not a corporation and could not maintain the suit as such, and the suit was dismissed, reserving the rights of the individual members of the association to sue in their own names. 29 Ann. 369.

The second suit was brought by a different plaintiff, called the Workingmen’s Bank, which claimed to be a corporation and to have succeeded to the ownership of the claim sued on.

Its corporate capacity and its proprietorship of the claim were both put at issue, and, holding that neither was established by sufficient evidence, a judgment of non-suit was entered. 33 Ann. 963.

Since that period, the Workingmen’s Bank has passed under judicial liquidation, and the present x>l»intiffs are its official liquidators. Sundry exceptions were filed of which the only ones requiring notice are, in substance, the following:

1.That the Workingmen’s Bank was never a legal corporation and that plaintiffs could not stand in judgment as liquidators of a corporation which never existed.

2.That the proceedings under which plaintiffs claim to act as liquidators were null and void.

3.That plaintiffs and the alleged corporation of which they claimed to bo liquidators were with out right, title or interest in the bondsuedon.

These exceptions, after having been submitted to the judge in limine, were by him referred to the merits.

Answer was filed, under due objection and protest against this reference, containing a general denial, and the case went to trial on exceptions and merits together, resulting in a judgment for plaintiffs.

Grave complaint is urged against the action of the judge in refusing to decide the exceptions in limine, and in cumulating them with the merits.

So far as the first two exceptions were concerned, Ms course was certainly irregular. They were of a nature having no connection with the merits of the controversy and should have been decided in limine; bnt, as the exceptions a.re before us for review and as we can determine them, we see no practical ground for complaint.

As to the third exception putting at issue plaintiffs’ ownership and title to the right sued .on, we think the judge had the right to treat it as a defense to the merits and to cumulate it with the latter, as involving a question of fact which the plaintiffs might be required to prove as an essential to his-right of recovery. Questi vs. Griffe, 3 La. 307; Burns vs. Hayne, 13 La. 13; Haynes vs. Carter, 9 Ann. 265.

As to the corporate capacity of the Workingmen’s Bank, the evidence which was wanting in the 33 Ann. case, is here furnished, viz : the notarial act of incorporation and the act of the General Assembly No. 113 of 1874.

If the former stood alone, it might give rise to the same questions which were presented in the 29 Annual case; but it is a grave mistake to suppose that the decision there would operate as res judicata upon the corporate capacity of the Workingmen’s Bank, the latter having been, in no manner, a party thereto. That decision is entitled to the force of a precedent and no more. It has no application to the case presented by the Workingmen’s Bank. The ground of the decision was, that the Accommodation Bank had not complied with the conditions precedent essential to the creation of a corporation under the Free Banking law of this State. Those conditions precedent are expressly mentioned in the opinion, and a reference to the act here presented will show that they have all been complied with.

The court did not sustain the exception that the free-banking law of the State was suspended by the Acts of Congress authorizing the issuance of greenbacks and national bank notes; and we think that the only effect of the Federal upon the State law was to restrain the issuance of circulating notes, which was not essential to the creation or existence of a banking corporation under the free banking act. But, in any event, the legislative Act No. 113 of 1874 would seem sufficient to remedy any defects in the original act and to endow it fully with corporate capacity; though it is not necessary so to hold.

We are, therefore, of opinion that the exception to the corporate capacity of the Workingmen’s Bank was not welL taken.

As no other objection is pointed out to the validity of the proceedings under which the plaintiffs were appointed liquidators, the exception to their capacity, as such, likewise falls.

We now approach the question of plaintiffs’ title to the obligation sued on or to any interest therein.

The decision in 29 Ann. ¡'69, undoubtedly acts as res judicata in the strictest sense, upon the questions: first, that the nominal obligee of the bond, the “Workingmen’s Accommodation Bank” was not a corporation ; second,, that the real obligees on the bond were the members composing that association, who alone had the right of enforcing it, and to whom, in the proportion of their respective interests, the bond belonged.

Those were questions presented and finally determined in a case between the obligors and obligees on the bond; and it is vain now to attack that decision on the ground of error.

It follows inexorably, that no one can claim any right or interest under this bond unless supported by membership of the association known as the Workingmen’s Accommodation Bank or by title derived from such members. No portion of the members was competent to transfer the rights of the others without their consent; nor was the legislature itself competent to make such a transfer.

It is therefore evident that, neither by its act of incorporation nor by the subsequent act of the legislature, did the Workingmen’s Bank acquire the interests of any members of the former association except of those who expressly assented to those proceedings.

The judgment of the lower court, which recognizes the' plaintiffs as entitled to full recovery on the bond and was no doubt based upon the ownership of the Workingmen’s Bank, as successor of the former association, under its charter, is manifestly incorrect.

Nevertheless, under the pleadings, the plaintiffs claim that the bank is the assignee of the rights in the bond of the original owners.

It had the right to prove such assignments and to the extent of such proof it is entitled to recover.

The membership in the Accommodation Bank was represented by 3434 shares of stock, belonging to numerous persons.

It is claimed that the Workingmen’s Bank has acquired ownership or direct representation of 3294 of these, and evidence is found in the record tending to establish this claim. This evidence has not been passed upon by the judge a quo.

It consists, in large measure, of the books of the Workingmen’s Bank itself, which the judge admitted in evidence over the objection and exception of defendants. This was error. The books of that corporation may be very good evidence of the ownership of its own stock; but we cannot see how they can be received to establish its acquisition of the interests of members in the former concern.

It is useless to decide this case by piecemeal; or to comment on other evidence.

The task devolving on plaintiffs is to establish, by competent evidence, the extent to which they own, or represent the owners of the stock in the Workingmen’s Accommodation Bank. To the extent of the interest so established, they may maintain an action on this bond and recover their proportion of the total liability of the defendants thereon.

As these matters have not yet been passed on by the lower court, we will reverse the judgment and remand the case for further proceedings in accord'ance with the views herein expressed.

It is, therefore, ordered, adjudged and decreed, that the judgment appealed irom be annulled, avoided and reversed; and it is now decreed that this case be remanded to the lower court for further proceedings according to law and to the views herein expressed.

On Application por Rehearing.

The learned counsel for defendants advances the startling proposition that there exist two kinds of corporations, under the law of Louisiana, viz: corporations authorized by law and corporations unauthorized by laxo-, arguing therefrom that th e Workingmen’s Accommodation Bank,” though decided not to be a legal corporation, was nevertheless a corporation of some other kind (an illegal one, we suppose), and, as such, can alone stand in judgment against his clients. With due respect, the proposition has not the slightest foundation. It is utterly inconsistet with the definition of the nature and qualities of a corporatoin as given in Articles 427, 432, 433, 436, 437, etc., of the code, amongst which we may mention that it is an intellectual being, considered for some purposes, as a natural person; that it must be authorized by the legislature or established according to law; that it must have a name, and in that name xnust sue and be sued and do all legal acts; that its members can neither sue nor be sued, etc.

These are essential qualities of a corporation, without which it cannot exists. The loose language of Art. 446 cannot be construed as recognizing the existence, as corporations, of associations of individuals who have attempted or pretended to form a corporation, but, by reason of want of legal authority or non-compliance with legal requirements, have failed to do so. Although the article refers to such associations by the name which they have themselves assumed, such description was not intended to recognize them as corporations in any sense.

In using the phrase “ corporation unauthorized by law,” Article 146 only uses like license of speech with that employed by judges and text-writers in speaking of “unconstitutional laws”, well knowing that a law unconstitutional is no law at all, and a corporation unauthorized by law is not a corporation. -

Such associations have always been treated by this Court as unincorporated, or as having “ no corporate existence.” Soller vs. Mouton, 3 Ann. 541; Vredenburgh vs. Behan, 33 Ann. 638; African Church vs. New Orleans, 15 Ann. 443.

In the last case the court said: “We are not to be understood as denying the members of this pret ended corporation, considered as individuáis, the right of property in what they have acquired in a social name.”

II.

The objection that the associates in this pretended corporation are estopped to deny .its corporate existence, if well founded otherwise, does not lie in the mouth of these defendants who have themselves denied the corporate character and provoked a judicial determination sustaining their denial.

III.

We have not passed upon the sufficiency of the title established by plaintiffs to all or any part of the interests of the original members of the Accommodation Bank, all members connected with which are included in the remauding.

IY.

As to the necessity of joining in this action all the members of the association or their transferees, that question has not been presented to, or passed upon by us. There was no exception of non-joinder in the court below. We intimate no opinion as to its necessity, either on general principles or under the particular circumstances of this case. If, however, defendants have incurred the peril of a multiplicity of suits, it is the result of their own proceedings.

Rehearing refused.


text:
    No. 9465.
    The State of Louisiana vs. Antoine A. Labuzan.
    Evidence to establish prior threats is inadmissible unless proof be first given that there was an overt act of attach and that the defendant at the time of the collision was in apparent imminent danger.

      In the absence of proof of abostile demonstration by the deceased, evidence of threats made against accused, to prove that the latter had a right to kill, is irrelevant.
    ITo one has a right to kill another simply because he has made some threats against him.
    Witnesses should not be cross-examined on the assumption that they have testified to facts, touching which they have given no testimony.
    Where no foundation has been laid as to the quarrelsome disposition of the accused and the case does not present a single element of self-defense, questions: whether the witness is acquainted with the reputation of the deceased as being of a quarrelsome disposition, or otherwise, and whether that reputation was good or bad, are properly ruled out; the more so when there was shown no attack by the deceased and no disposition on his part which gave the accused reasonable ground to believe that he was about to be attacked.
    A trial judge cannot be asked to charge the jury, in a criminal prosecution, as to what the law is in a case which is not before them, but totally differs from it. As well might he be called on to read to them the Civil Code and the Code of Practice, or the Institutes of Justinian.
    APPEAL from the Criminal District'Court for the Parish of Orleans. Balcer, J.

      M. J. Ounningham, Attorney General, and Lionel Adams, District Attorney, for the State, Appellee.

      J. G. Macmahon and J. ill. Pratt for Defendant and Appellant.
   The opinion of the Court was delivered by

Bermudez, C. J.

The accused was indicted for murder and convicted without capital punishment. He appeals from the verdict and from the sentence condemning him to hard labor for life.

The record contains four bills of exceptions.

I.

The first one is to the refusal of the district judge to permit the accused to ask a State witness under cross-examination the following question:

“Do you know for whom the accused, Labuzan, voted for at that election, and whether Eisher did not threaten to fix those who voted against him ?”

The witness had previously testified to the fact that the election referred to had taken place and that Eisher was a candidate at it.

The judge overruled the questions as improper and irrelevant.

He supplements the bill with the statement that the counsel for accused asked the witness: whether the “deceased had not threatened the accused,” to which question the witness answered—{before the court had passed on the objection of the State) that he Had not.

The judge further states that pursuing this same line of inquiry, counsel asked the witness whether, on the night before the killing, at an election of officers of the fire company to which deceased and accused belonged, the deceased had not threatened to fix anyone who should vote against him.

The judge observes that there was not even an attempt made to prove1, communicated threats of any kind.

The reasons assigned by the district judge justify the exclusion of the questions.

It is apparent, from his undisputed statement, that not only had not even an attempt been made to prove communicated threats of any kind, but that the witness on the stand had formally denied that the deceased had at all threatened the accused.

Evidence to establish prior threats is inadmissible, unless proof be first given that there was an overt act of attack and that the defendant, at the time of the collision, was in apparent imminent danger.

When evidence of threats made against an accused is offered to prove that the latter had a right to kill the deceased, there being no proof of a hostile demonstration by the deceased, the evidence is irrelevant. Wharton Cr. Ev. § 757.

No one has a right to kill another simply because he has made some threats against him. Wharton Cr. Ev. § 68; lb, on Horn. 482, 606; 34 Ann. 1078; 33 Ann. 1087.

II.

The second bill is to the refusal of the judge to allow, under similar circumstances, the following question to be put to the State witness, under cross-examination:

“Were you present at Dastilion’s store on the night of December 3, 1884, when the deceased wanted to beat and assault the accused?”

The district judge ruled the question out, because it assumed that the witness had stated that Fisher wanted to assault and beat the accused, when he had given no such testimony, which even then could not have justified the killing.

The question was’ improper. Witnesses should not be cross-examined on the assumption that they have testified to facts touching which they have given no testimony. Such questions have a tendency to irritate, confuse and mislead the witness, the parties and their counsel, the jury and the presiding judge, and they embarrass the administration of justice.

III.

The third bill is to the refusal of the judge to allow accused to ask a witness on his behalf whether he was acquainted with the reputation of the deceased as being of a quarrelsome disposition, or otherwise, and what was that reputation, good or bad.

The statement of the judge is uncontradicted that no foundation had been laid for the introduction of evidence as to the quarrelsome disposition of the deceased, and that the case did not present a single element of self-defense.

He adds: There was shown no attack by the deceased and no disposition on his part which gave the accused reasonable ground to believe that he was about to be attacked. Not the slightest foundation was laid for the introduction of any proof of this kind. When it was offered no evidence had been produced showing, or even tending to show, that Pisher attacked the deceased, but quite the contrary.”

Under such a state of things, the ruling was unquestionably right.

IV.

The fomth bill is to the refusal of the judge to give to the jury certain special charges which, even if they were in themselves correct, were properly refused as they referred to a condition of facts, touching which there was no evidence adduced which could have warranted the giving of the charges, or either of them.

The judge states specifically that there was no attack by the deceased on the accused, or any act on his part which gave the accused any ground to suppose he was about to attack him. Not the slightest foundation was laid for the giving of any such charge.

It is clear that a trial judge cannot be asked to charge the jury as to what the law in the abstract is, in a supposed case, which is not that before them, but which totally differs from it. As well might the judge presiding over the trial of a criminal prosecution be called on to read the Civil Code and the Code of Practice or the Institutes of Justinian to the jury, for their general information on the civil law now prevailing in this State, or that which was once in force in Rome.

Judgment affirmed.


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    No. 9315.
    T. A. Beck vs. F. B. Fleitas.
    The rule -of law (C, 0. art. 1933) which requires, in an action sounding in damages for the passive violation of a contract, that the debtor be first put in default, has for its main object to secure the right of the creditor to claim his damages against an offer of the debtor to execute the agreement. Hence it cannot be invoked as a defense by a defendant who absolutely denies the existence of any contract. As a means of defense, the failure to put in default must be specially pleaded.
    A party who violates his contract in bad faith, will be held responsible for all damages, including those which could not be foreseen at the time of making the contract, which can be traced to his breach of contract.
    All damages must be proven with legal certainty. Statements of items in globo, without details when called for, are not sufficient.

      APPEAL from the Twenty-fourth District Court, Parish of Plaque-mines. IAvaudais, J.

      Brauglm, Bucle <& Dinlcelspiel and J. S. Tally for Plaintiff and Appellant.

      W. F. & JD. G. Mellen for Defendant and Appellee,
   The-opinion of the Court was delivered by

Poché, J.

Plaintiff, who is a cooper, having for several years furnished molasses barrels to defendant, who is a sugar planter, brought suit against him on a balance of account in the sum of $503 75.

Hé was met by a demand in roconvention for the sum of $5666 35, as damages for his alleged violation of a verbal contract to supply the defendant rvith all necessary barrels for the molasses crop of the year 1882, at the stipulated price of $1 65 per barrel.

Plaintiff appeals from a judgment in favor of defendant for the full amount of his reconventional demand, subject to a credit in the sum claimed on open account by plaintiff.

The contention involves three points:

1. The existence of the contract alleged by defendant;

2. The necessity of putting plaintiff in default on the alleged breach of his contract, as a prerequisite condition of recovering damages therefor;

3. The measure of damages.

Some complaint is made by plaintiff as to the mode adopted by the judge of disposing of his claim, which is recognized only as a credit or offset against the reconventional demand, and was not put in the shape of an executory judgment. But with such questions we can have no concern, for the very plain reason that his claim is not equal to the amount of the lower limit of our jurisdiction.

Our investigation is of necessity restricted to the issues growing out of the reconventional demand.

I.

Defendant’s theory on the contract is that early in the year, in the month of March, plaintiff agreed to furnish him with all the molasses barrels which he would need for the crop of that year, 1882, at the price of $1 65 per barrel.

That by reason of a sudden and great rise on the market in the price of such barrels, plaintiff fraudulently broke his contract; and after furnishing Mm 200 barrels he ceased to deliver any more, causing to the defendant by his breach of contract the damages which the latter claims, and which he classes under four different heads:

1. For the purchase of four cisterns, and for the costs of putting them in position at the sugar-house.......s.........$ 650 00

2. For the costs of reboiling his molasses.................... 500 00

3. For the difference between the cost price of necessary barrels and the contract price of the same.................. 1016 35

4. For the loss caused by the fermentation and the consequent reboiling of 7000 gallons of molasses, at the rate of 5 cents per gallon............................................. 3500 00

The existence of the contract is sworn to with great assurance by the defendant, and is denied with equal firmness by plaintiff. But the preponderance of the evidence is in favor of the existence of the contract as alleged by the defendant, whose testimony is strongly corroborated by several other witnesses as well as by the probabilities and the equities of the case.

It would serve no useful purpose to give in detail the analysis which we have made of the testimony in the record, or to enumerate the circumstances which have contributed to the conclusions which have been impressed on our minds on this point.

We agree with the district judge in holding that the contract was proved, and that it was broken by plaintiff through a motive of interest growing out of the rise in the market for barrels, which in that season are shown to have risen from $1 65 to $3 75 per barrel.

Under that conclusion, we are warranted by law (C. C. art. 1934, No. 2) to hold him responsible for all the damages which can be attributed or traced to his breach of the contract and which can be proved with legal certainty.

But he contends that defendant has failed to allege and to prove that he (plaintiff) had been put in default; and that such proceeding is indispensable to the right of recovering damages in this case, wherein the alleged breach of the contract is passive and not active.

This is the substance of the second point of contention.

II.

This point does not appear to have been urged in the lower court; at least, it forms no part of the pleadings, and no objection was made on that ground to the introduction of evidence on the subject of damages. With the exception of the plea of prescription of one year, plaintiff filed no plea to the demand in reconvention, aud therefore the question of the necessity of putting in default comes up seriously on appeal only. It is apparent that the alleged violation of the contract is passive, and it is undisputed that, under the general rules of law, putting the debtor in mora is an indispensable prerequisite to the recovery of damages.

But from the very nature of the rule, jurisprudence has deduced several unavoidable and important exceptions.

“The object of the putting in default is to secure the creditor his right to demand damages or a dissolution of the contract, so that the debtor can no longer defeat this right, by executing or offering to execute the agreement.” Moreau vs. Chauvin, 8 Rob. 161; Pratt vs. Craft, 20 Ann. 291.

It follows, therefore, that the rule does not apply to the case of a party who absolutely denies the existence of the contract, as it is not probable that he would in such a case offer to execute a contract which he entirely ignores.

Hence it has frequently been held by this Court that in such cases the putting in default was not necessary. New Orleans and Nashville R. R. Co. vs. Gauch, 18 La. 510; Hivert vs. Lacaze, 3 R. 357; Abels vs. Glover, 15 Ann. 247.

It appears from the record in this case, that in November, 1882, when Eleitas saw that Beck had ceased to supply him with barrels he called in person on the latter and inquired into the reason of-his conduct, whereupon Beck answered that he had made no contract with him. That statement, his subsequent conduct and his failure to plead that defence in answer to the reconventional demand must be construed as a waiver of the formality of putting in default.

These considerations open the way to the discussion of the third element of contention in the case.

III.

It is elementary that the proof of damages must be as direct and positive in a reconventional demand as in a direct suit.

Guided by this rule, we leave the record with the conviction that the evidence on this point is vague, general, and insufficient on all the elements of damages, save two:

1. The record shows to our satisfaction that the failure of plaintiff to supply the defendant with necessary barrels according to the contract, necessitates the purchase of four cisterns at the price of $125 eael), and that these cisterns were useless to the defendant for any other purpose; hence that item must be allowed; but on the question of the costs of foundations for the same, the testimony is too vague to support a judgment therefor. The mere assertion of defendant, in his testimony, that these foundations had cost him over $150, without any details, is not sufficient. When asked on cross-examination to state the proportion of the cost of materials and of labor, his answer was that he could not tell. It was incumbent on him to be informed thereon.

2. We are satisfied that the fermentation of the molasses,' and the necessity of reboiling the same were the immediate results of the want of necessary barrels, to be traced to the breach of the contract' by the plaintiff, and that the operation cost fully five hundred dollars. Defendant was not called for details on this item, and his statement is uncontradicted; it is corroborated by the testimony of two other witnesses. We shall therefore allow it.

3. In his testimony in chief, defendant states that the purchase of 1227 barrels which he needed for the packing of his molasses, had cost him $3090.40, and .that the same barrels at the contract price would have cost only $2024.55, hence he claims the difference $1016.85, as legitimate damages under this head.

But on cross-examination he was naturally asked to state the price at which he bought the barrels, at what time, and from whom. His answer was from various parties, at different timés, and at various prices, some alt two dollars, others at three, and others at three dollars and seventy-five cents, ending with the statement I, that he could not give these details without referring to the books or to the vouchers of his commission merchants. It is too plain for argument that it was his duty to have produced those vouchers; the necessary evidence was manifestly within his reach and its absence must recoil against him.

IV.

The same reasoning applies with even greater force to the fourth and last item of damages which amounts in globo to $3500.

In his petition the defendant attributes that loss to the shrinkage in value of his molasses, owing to fermentation and reboiling. On trial he attempted to show that the loss resulted from that circumstance, and also from the loss by leaking and.overflowing of the fermenting molasses out of the cisterns and iron tanks in which it had been temporarily stored.-

He says that he lost from fourteen to twenty thousand gallons by the latter cause, and that 5 cents per gallon on 70,000 gallons would cover the loss from both causes.

He offered no evidence to show the fluctuation of the market, the price of any one lot of the 1227 barrels of molasses which had fermented and liad been reboiled, or any evidence to show that, at the same time, molasses which had not fermented and had been reboiled commanded a higher price on the market.

Of course we discard all testimony on the subject of loss by leakage as that element did not figure in the pleading. 'It may be that the shrinkage in value might cover the amount claimed. But it stands to reason that, in the very nature of things, proof of such loss was exclusively within the reach of the party claiming the damages; and it follows that all the testimony which the record contains on that subject amounts to nothing more than opinions and conjectures.

It results from what precedes that we disagree with the district-judge in his-conclusions on the three last items of damage; which should be non-suited.

The plea of prescription of one year seems to be abandoned on appeal. It has no merit whatever; the demand for damages being “m contractu” and not ex delicto. Our attention is called to two bills of exception reserved by plaintiff, but under our views of the case, they are stripped of all practical importance. We do not think that defendant is entitled to interests on his reconventional demand. He did not pra5' for interests and we shall allow none.

It is therefore ordered and decreed that the judgment appealed from be amended by reducing the amount allowed to defendant Fleitas on his reconventional demand, from $5666.35, with interest from judicial demand, to one thousand dollars, with interest from judgment. It is now ordered that the balance of defendant’s claim be rejected as in case of non suit, and that as thus amended said judgment be affirmed,, defendant and appellee paying costs of appeal.


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    No. 9063.
    Jean Torres et al. vs. Felix Falgoust.
    The dedication of property to public use must appear by evidence so conclusive as to exclude all idea of private ownership.
    So where a road has been used by the public for thirty or forty years by the mere sufferance or tolerance of the owners of the land which it traverses, such use does not, of itself, establish the formal assent required to prove a dedication and divest the title of such owners.
    The Act 63 of 1868, entitled an act relating to public roads, is unconstitutional and void.
    APPEAL from the Twenty-second District Court, Parish of St-James. Cheevers, J.

      Mol)t. 6r. Dugué for Plaintiffs and Appellants.

      Sims & PocM for Defendant and Appellee.
   The opinion of the Court was delivered by

Todd, J.

The plaintiffs allege, in substance, that a certain road commonly called “Manche,” running- through their lands and those of ■defendants, is a public road, and that it had been opened and dedicated to public use for forty or fifty years. They further charge that, at a point where it traverses the defendant’s land the road had been rendered impassible by a hole ; that defendant refused to fill up this hole or to permit others to do so, and threatened to build a fence across the road if any attempt was made to fill it.

They asked and obtained an injunction, restraining the defendant from hindering them from repairing the road, and prayed that it be decreed to be a public road.

The defendant Faig-oust answering, after the general issue, specially denied that the road where it crossed his land, was a public road, but averred that it was his own private property.

There was judgment for defendant in terms corresponding with the allegations and prayer of his answer, and the plaintiffs have appealed.

This road has been for years the fruitful source of strife and contention among the citizens of a locality in tlie parish of St. James, known as the Vaclierie settlement.- If seems to have engendered the bitterest animosities, and in a great measure destroyed the ponce and quiet of a neighborhood noted hitherto for the thrift, industry and good order of its people. The dispute over the road has been attended by injunctions and counter injunctions, rules for contempt., prohibitions, etc., resorted to to sustain or favor the respective pretensions of the parties. Some of these proceedings have reached this Court on appeal, but a recapitulation of them would throw no light on the merits of this controversy which wo have now to determine, and is, therefore, unnecessary.

The sole 'matter for our determination is, whether the road in question is or not a public road. The trial of this issue occupied in whole or in part several terms of the district court, find a host of witnesses on each side appeared, whose testimony alone fills iq> nearly one thousand pages of the transcript. We have faithfully perused and considered the whole of it, although much of it might have been dispensed with, since it had no material bearing on the gist of the controversy.

From this mass of conflicting testimony and conflicting opinions, we gather these few salient facts:

That somewhere between 1830 and 1840, a settlement was commenced subsequently known as the “Vacherie” or Vacherie settlement, about ■four miles from the right bank ot' tne Mississippi river, in the rear of the plantations bordering on said river, and lying partly in the parish ■of St. James and partly in St. John the Baptist. It was then all in the woods. Shortly after the first settlers came, they marked out and opened a neighborhood road across the lands of the settlement, which were then nearly through tlie woods, and thereby made an outlet or passage towards the plantations on the river. This was the beginning •of the road now in dispute. Gradually as the lands were cleared by ‘tyie different proprietors and plantations established from time to time, through a series of many years, the inclosures were made with reference to this road, the several land owners building their fences and constructing their ditches on each side of it, so as to leave the same open the usual width for travel and as a passage-way- through the settlement to the road.

Thus, in time, the entire road for a distance of one and a half miles was fenced in and became a lane, by which name it was chiefly designated and is so mentioned in the pleadings and spoken of by the witnesses. This was its condition when this suit commenced.

This lane extended from what was known as the old Vaclierie road, laid out in 1849 and subsequently abolished, to the new Yaclierie road, established in 1870, and both leading from the, settlement to the Mississippi river. As the population increased and the community advanced in prosperity, and their plantations were enlarged, the road became a great convenience and was the main thoroughfare for hauling off the products of the settlement, consisting chiefly of sugar cane and tobacco, to the river. The only- interruption shown to this common use of the road occurred in 18C4, when one end of the road was inclosed by- fences extended across it by a manager of one of the front plantations on the river, but which were removed shortly after the close of the war, and the road left free to the nsc of the jrablic, as before, which continued up to the institution of these proceedings.

During all this time, however, there seems to have been no ordinance establishing or recognizing this road as a public road, and no hands assigned or money applied by the police juries to the working or improvement of it. There is also no mention of the road made in the titles to the land which it traverses; and from time to time some of the owners of these lands, in conversations, have spoken of the road ■as their private property and indulged in threats of closing it.

On the other hand, a large number of witnesses, and among them ■some of the proprietors of the land situated on the line of the road, ■declare that it is and always has been regarded as a public road.

Under this state of facts, is the road in question to be viewed and held a public road?

The plaintiffs’ counsel contends that the facts recited touching the origin and establishment of'the road, and the uninterrupted free use of it by the public for so many years under the law, conclusively prove its dedication to the public and fixes its status as a public road.

On the other hand, the counsel of the defendants hold that public-roads must be established under the provisions of the Act of 1818, now comprising Art. 3368 et seq., Revised Statutes, that is, by the authority of the State or of the police juries of the parishes, or by dedication to public use by the owner or owners of the land which they traverse, the dedication to be in writing or evidenced by a plan or plot.

There being no pretence that this road was laid out by any competent or legal authority, State or parochial, the question to be determined is whether it has become public by dedication to public use.

The right of passage over land urban or rural, is, as termed by the code, a discontinuous servitude.

Article 727 declares: “Servitudes are either continuous or discontinuous. Continuous servitudes are those whose use is or may be continual without the act of man.

Such are aqueducts, drain, views and the like.

Discontinuous servitudes are such as need the act of man to be exercised.

Such are the rights of passage of drawing water, pasture and the like.”

Art. 776: “ * * * Discontinuous servitudes, whether apparent or not, can be established only by a title.

Immemorial possession itself is not sufficient to acquire them.”

The above articles would seem to imply that a discontinuous servitude, such as the right of way or passage, must be acquired by some-kind of a title or means independent of its exercise. That is, that the mere use of the passage by the public for however long a time, cannot-supply a title or serve as the basis of prescription. The evident reason of this is that such use is precarious, not continual, but interrupted, constituting what is termed by the code a discontinuous servitude.

One of the earliest cases directly on this point was that of Crossman vs. Vignaud, 14 L. 173, in which the court seems to have adopted this construction of the above articles. The subject of controversy in that case was an open alley-way between two contiguous lots in the town of Natchitoches, nineteen feet in width and embracing a part of both lots. This alley had been used by the public for thirty or forty years; ■buildings had been erected by the successive proprietors fronting on it. The owner of one of the lots was proceeding to close the alley, when he was enjoined therefrom by the owner of the other lot, on the ground that it was a street or highway dedicated to the public, citing in proof of such dedication the free and unrestricted use of it by the public for so great a period of time, with the consent of the original and successive owners of the property. There ivas judgment in the lower court for the plaintiff.

In deciding the case this Court used the following language (quoting):

“ The plaintiffs contend for the affirmance of this judgment on two grounds: first, that the alley, being left open to public use, is, by its destination, public; second, that the defendants, having acquiesced in the passage by the public, and suffered the plaintiffs to build thereon, without setting up their title, have lost their right, if any they ever had. We think neither of these positions tenable.

In support of the first they have referred us to the cases of the City •of Cincinnati vs. White’s Lessee, 6 Peters 435; Mayor, etc., of New Orleans vs. the United States, 10 ibid. 712; and the opinion of Judge Martin in the case of De Armas vs. the City of New Orleans, 5 La. Reports 132.

“Had the plan of the town of Natchitoches (a portion of which is In evidence) exhibited this space as an open lane, or had the primordial titles so treated it, these cases would have applied; but it is admitted that the defendants have shown a good title to fourteen feet. The town surveyor deposes that no such space had been marked on the plan ; that, though all the other streets have been named, this has been nameless; and it is shown by the act or deed under which the plaintiff holds, that the boundary is the defendant’s line, thus including the remaining five feet of the alley in 1ns lot.

“These circumstances, so far from showing any destination to public use, leave on our minds the conviction that the property was private, and that this case does not fall within the rule invoked.

“If he, or if the public, could acquire a right of passage thereon, it must be by some grant of the defendant—some forced expropriation made under legal formalities, and for a compensation fixed and paid, or by prescription.

“Neither of the first are pretended, and we think, with the defendants’ counsel, the question is, have the plaintiffs (i. e., the public) made out a right of passage by prescription ? The Louisiana code, Art. 723, declares: ‘ Interrupted servitudes are such as need the act of man to-be exercised; such are the rights of passage, of drawing water, pastorean d the like.’ Article 762 provides that ‘continuous non-apparent servitudes and interrupted servitudes, whether apparent or not, can be-established only by a title.’ ‘ Immemorial possession itself is not sufficient to acquire them.’”

In the case oí Morgan vs. Lombard, 26 Ann. 462, the principle enunciated in this caso ivas re-affirnied.

We make the following extracts from the opinion, in the last mentioned case.

“ The plaintiff, alleging that the passage or alley running from the Bayou road to Columbus street is a public thing, enjoined the defendant-from fencing it or obstructing the use of it by the public. The defendant claims that the property belongs to him.”

There is no evidence in this record of an intention of the owners of said land to dedicate it to the public use. The mere fact that for thirty or forty years the public was permitted to piass over this ground would not of itself constitute the place a locus publicas. See also 18 L_ 286; 19 L. 71; 3 Ann. 282.

Whilst the decisions referred to above do not all support in so many /words the contention of the defendants, that a dedication to the public lof a passage can only be established by a written title or its equivalent,, Í as a plot or plan, they all concur in this, that such dedication must be shown by evidence so conclusive as to exclude all idea of I private ownership; and after a critical examination of all the decisions of our own courts on this subject, we have been unable to find one where a dedication of the kind has ever been recognized unless founded upon some written act or authorized plan.

The two cases cited from the Louisiana reports by the plantiff’scounsel in support .of his proposition that the long continued use of a road by the public, without objection from the owner of the land, affords of itself sufficient proof of dedication, being the cases of Pickett vs. Brown, 18 Ann. 560, and Shreveport vs. Walpole 22 Ann. 526, were-cases where the dedication was shown by the plan of the city, and an act of partition among the original owners of the lots.

The two decisions from which we quoted above show that such dedication cannot be inferred from mere user alone; and apart from such user or beyond it we find no evidence that would conclusively establish such dedication.

There are, however, a number of decisions from other States that evidently favor his pretensions, but we must be governed by our own laws and jurisprudence on the subject.

It must be noted that when the road in controversy was first begun, the settlement was new; no public road had been opened by legal authority, and the necessities of the settlers demanded some passage to the river. It might be reasonably inferred that the act of the first settlers in allowing this passage over their lands was for their mutual convenience and accommodation, or an act of reciprocal neighborhood, to last only till the proper provision for a public road or highway could be made by the State or parochial authority. This was subsequently done by laying out a road know'll as the old Yaclierie road, followed by the now Vacherie or section line road, as termed in the pleadings and evidence. A significant fact corroborative of this inference is to be found in the circumstance that in all the deeds and acts of sale, this road was treated as private property, there being therein no designation of it as a public road, and in fact, no mention of it at all.

Again we see that a fence was built across the road and remained there for more than a year without complaint from any one, or charge that the fence was an obstruction to a public highway. There is also the further fact that the author of defendants’ title and the defendant himself and other land owners along the line of the road denied that it was a public road, and threatened from time to time to close it; and this was particularly the ease after the police jury had established the section line road, which ran parallel to the road in controversy and only at a distance from it of about half a mile. Why was this new road established, leading in the same direction and toward the same objective point, if the lane; as it is called, was a public highway? '

All these considerations make us conclude under the facts and law discussed above, that the road in question was not a public road.

The plaintiffs, however, further contend that it became a public ro ad under the operation of the act G3 of the General Assembly passed in 1888.

The first sbction of that act reads:

“That in all the parishes of this State in which public roads are controlled and regulated by police juries, that all roads which have been open and in common use twelve months previous to the passage of tyiis act shall be and are hereby declared to be public roads, and shall not be closed, obstructed or changed without the consent of the contiguous property owners and the approval of the police jury.”

If this act is a valid act, it would determine the controversy; for it is unquestioned that the road in dispute had been open and in common use more than twelve months before the passage of this act. It is, however, urged that this act is unconstitutional and void, because violative of the Federal and of the State Constitutions, wherein they forbid the divestature of private property without due process of law and adequate compensation, and, also that article, of the State Constitution of 1868, forbidding the passage of retroactive laws.

We are satisfied, after due consideration, that the act is amenable to both the above objections. It does purport to take away by a simple legislative fiat private property—as this road, which up to the moment of the passage of the act belonged to the deiendant—and without adequate or previous compensation or the slightest provision therefor. It is not susceptible of any other construction.

Article 497 of the -Civil Code declares that no one can bo deprived •of his property, unless for some purpose of i>ublio utility, and on consideration of an equitable and previous indemnity and in a manner previously prescribed by law.”

In the case of the Police Jury of Jefferson vs. D’Hemecourt, 7 R. 509, it was held that this article—above quoted—has a constitutional sanction and cannot be violated by parochial ordinances or even by State legislation.

And in the case of Knox vs. Police Jury, 27 Ann. 204, it was declared that the payment of adequate compensation to the owner, was a condition precedent to the right of a parish or its authorities to expropriate land for a highway.

The statute is also essentially retroactive in its character. Irrespective and apart from the act, the failure of a land owner to close a road on his premises, from whatever cause, or his bare permission to keep it open for a year, could not be regarded as calculated in the slightest degree to affect or impair his ownership of the land traversed by the road, yet by this act, such previous or past omission and permission, without any legal significance of themselves, are given the potent effect of stripping him of his title to the land and giving it to the public.

The enormity of such a proposition can be best illustrated by the circumstances or conditions existing at the date of the act in question. It is notorious that at that time in some portions of the State the dire effects of the then recent war were plainty visible in the general devastation and destruction where the armies had passed. Everywhere were to be seen ruined estates, plantations laid waste, fences destroyed. In many instances the established roads were abandoned and shorter routes or cuts adapted by the traveling public over and across these ■abandoned plantations. The owners, perhaps, were absent, or if present, were unable to rebuild their fences and powerless to prevent this informal making of new roads over their lands, yet notwithstanding they were deprived of all title to the,lands whore this unlicensed use or trespass had continued for one year.

We have had this case under advisement a long time to enable ns to make a complete examination of the immense transcript and to give ■a thorough consideration of the legal questions involved in it of so much public interest, and the result of this investigation and of our ■deliberations is the conclusion that the road in controversy is not a public road and that the case is with the defendants.

Judgment affirmed.

Poche, J., recuses himself, having been consulted as counsel.

On Application eor Rehearing.

Bermudez, C. J.

The appellants charge that the judgment here rendered is erroneous in four particulars which we will consider seriatim.

I.

It is not correct to say that, in the decision of this cause—in which pvMie rights are involved—we have been governed by and have applied laws relative to servitudes which regulate private individual rights.

Neither is it correct to state that we have held that the rights invoked for the public, to the use of the road or land in controversy, ■could be established only by written evidence, to the exclusion of any •other proof. 3

The rights set forth are made to rest on an averment of dedication to the public. In order .to succeed, the plaintiffs should have proved the •alleged dedication by either the quality or quantity of evidence required and adduced in such cases, which is either written proof, or when parol, of such significance and weight as to be equivalent to documentary evidence. In this they haye signally failed.

We did not rule that in the absence of written evidence, no other proof could be admitted. We said simply, that in those cases which we had examined and in which dedication had been claimed, the proof adduced was formal and direct, such as results from authentic acts or •from plans or plots.

The jurisprudence of this State is so firmly settled on the subject ■ that it cannot be questioned.

It is that to support the dedication of property to public use, it must affirmatively appear that the ground has been used with the assent of the owner for such public purposes, in such a manner as to exclude the idea of private ownership, and for such a length óf time .that the public accommodation and the rights of individuals would be seriously affected by the interruption of the use, or else it must appear unequivocally by some plan or writing that the owner has made a dedication —to violate which, would involve a breach of faith.

No one is presumed to give away Ms property. The burden is on-him who avers a divestiture of ownership to prove it clearly.

It is true that we referred to the laws on the subject of servitudes. For doing so we had good authority, as among those laws there exist-provisions concerning public roads, which themselves are generally nothing but highways or passages on the lands of individuals, in favor of the public, either by virtue of some general law or of some private concession j—the individuals retaining the ownership or fee according' to circumstances.

Wo showed that the plaintiff had no title to the road, as they had proved it to bo neither a public nor a private road. This was essential for a recovery.

II.

It is not because numerous bills are found in a record, that the court is bound to consider each and every one of them. There are instances in which bills are taken which are not entitled to notice, particularly in litigated cases in which much feeling is involved.

In the present instance it is claimed that we did not pass upon the bills taken to the exclusion of evidence to prove dedication.'

The ground upon which the district judge declined to receive the evidence is, that it was irrelevant.

• The fact is, that it was designed to prove act's find words which are-abundantly established, though abundantly contradicted or overbalanced.

As we considered that the judge was right in not admitting tlio evidence, which, at best, would only be cumulative and unnecessarily so,.

that, even if the evidence had been received, the result would not. be different, we deemed it unnecessary to notice the bills.

III.

We thought that the section line road had been established by public authority and we inferred that it was a good reason to conclude-that the road no w claimed to be a public road was not thus considered by that authority. But, whether the section line road was thus created or not, is immaterial after all, for the reason that the plaintiffs had to make out their claim to the road as a public road, by sufficient legal-evidence, and that reliance on the creation of the section line road by private authority, could not have proved a tittle to establish expropriation by dedication or otherwise. We are still of that opinion.

IV.

It is true that Act 63 of 1868, which was pronounced unconstitutional, was not charged with being such by the pleadings. The plaintiffs it was, who advanced its existence and validity in argument, thinking it could assist them in the recovery. They invited an expression of opinion as to its binding force and effect on the defendants. It was thus made by the plaintiffs themselves an important factor in this controversy. The defendants joined issue and we deemed preferable to acquiesce and set at rest the question of the validity of a law of such vital importance to the public.

We have devoted again much attention to a re-examination of the merits of the case; wo have considered every point made in the application for a rehearing, and, after due deliberation, could reach no conclusion to alter our previous views.

Interest reipublicce ut sit finis litmm.

Rehearing refused.

Poems, J., recused.


author: Manning, J.

text:
    No. 9663.
    Adler, Goldman & Co. vs. Board of Assessors et als.
    The constitutionality of a tax is in contestation when the law under which it is imposed contravenes some constitutional provision, or when the property assessed ai.d sought to ■ be taxed is exempt by such provision.
    The legality of a tax is contested when it is claimed there is no law authorizing it, or that the statute authorizing it is invalid, or that it has been imposed in violation of a valid law.
    "Where the complaint is of the irregularity or want of form of the assessment or of its timeliness. neither the constitutionality nor legality of the tax is oontested and the Supreme-Court has not jurisdiction unless the amount involved confers it.
    APPEAL from the Civil District Court for the Parish of Orleans. Tissot, J.

      Farrar & Kruttschnitt for-Plaintiffs and Appellees.

      W. H. Rogers and Branch K. Miller for Defendants and Appellants..
   The opinion of the Court was delivered by

Manning, J.

The object of this suit is to annul the assessment .against the plaintiffs made in 1884 of “money loaned on interest and in possession, all credits and bills receivable for money loaned or advanced, and bonds of all kinds, judgments, suits, dioses in action $5,000,” and an increase of that assessment to $30,000 made'by the Council in October on the report of its committee of revision.

The alleged vices of these assessments are uncertainty of description of the property, several kinds of piroperty being lumped in one sum, where a specific assessment of each item should have been made, .and the lateness of the increased assessment, the law requiring the rolls to be completed by October 1st., and want of notice of the intended increase.

The sum involved is admittedly below our jurisdiction, but both piarties insist that we have it because the constitutionality or legality -of the tax is involved. If this be so a vast field of jurisdiction is -opiened that will include all assessments that are irregular or vague or amenable to other objections.

We have already defined what is meant by the constitutionality or legality of a tax being in contestation.

The constitutionality of a tax is contested when it is claimed that the law under which it is imposed contravenes some constitutional provision, or when the propierty assessed and sought to be taxed is exempt by such provision.

The legality of a tax is contested when it is claimed there, is no law authorizing it, or that the statute authorizing it is invalid, or that it has been impiosed in violation of a valid law. Gillis vs. Clayton, 33 Ann. 285.

The dispute in the present case is not embraced by cither of these clauses. It is that the assessment is not in propier form, not that there is no assessment as in McGuire vs. Vogh, 36 Ann. 812, and that it was made or increased too late and no notice thereof given. The contest is therefore over the regularity and time of the assessment, and it is ■fortunate that we have not jurisdiction of such questions, for to entertain them would convert this court into a Board of revision of assessments, and absorb that time which we should give to weightier matters of the law.

We must therefore dismiss the appeal ex proprio motu for want of jurisdiction and

It is so ordered.