author: Nicholls, C. J.

text:
    No. 12,495.
    Freeman F. Frank vs. Edward E. Magee.
    In passing upon an exception of “no cause of action,” this court is not callea upon to analyze the petition to ascertain whether, even if sustained by proof, particular portions of tlie demand would not have forcedly to he rejected as not resting- on a legal basis, and upon so finding to designate in its judgment what those portions are, and sustain defendant’s exception to that extent, If the court finds any portion of plaintiff’s petition able to withstand the attack made upon it through the exception, the court will reverse a judgment sustaining such exception.

      Trees standing by tlie roots on property at the time of its seizure, which are cut down by a trespasser pending the same, are not to be classed as "fruits” or “ revenues ”• of the land. If they are still upon the property at the time of the judicial sale thereof, not having been specially withdrawn from falling under . -the operation of the sale, nor made the subject of a special separate adjudication, they pass to the purchaser of the land as part of his purchase.
    APPEAL from the Tenth Judicial District Court for the Parish of Avoyelles. Oullom, J.

      A. V. Coco for Plaintiff, Appellant.

      William H. Peterman for Defendant, Appellee.
    Argued and submitted May 11, 1897.
    Opinion handed down May 31, 1897.
   The opinion of the court was delivered by

Nicholls, C. J.

This case comes to us on appeal by the plaintiff from the action of the District Court in sustaining an exception of no cause of action filed by the defendant setting aside a writ of sequestration which had issued at appellant’s instance, and dismissing this •suit. Plaintiff had filed a petition and a supplemental petition.

The allegations of the first were as follows:'

“That the plaintiff, on the 26th of December, 1896, became the purchaser at sheriff’s sale at the suit of the State of Louisiana ex rel. P. Breazeale, District Attorney, et als. vs. Clifton Cannon, of the following described property situated in Avoyelles, namely:
“A certain tract of land and improvements thereon situated on Yellow Bayou in Avoyelles, containing three hundred and fifty-one and sixty-one one-hundredths acres, and being lot No. 3 of the partition between Lester Cannon and Clifton Cannon as per plat annexed to said act of partition recorded in alienation book PEP, folio 222.
“That of-this tract about three hundred acres are of woodland, upon which, at the time of its seizure, were valuable cypress brakes, for which said land was particularly valuable. That he has been informed by reliable parties, he believes it to be true, and, therefore, alleges that since the seizure of said property under which he bought it and during the sheriff’s possession thereof one Edward E.. Magee, who resides in said parish, running a saw-mill in the neighborhood of said property, had forcibly and unlawfully entered upon petitioner’s said land with a force of men, and in the short time of the sheriff’s possession thereof, which had been transferred to petitioner, had cut and removed much of petitioner’s most valuable timber, most of which timber is now lying on Yellow Bayou directly in front of petitioner’s said property, and some of which petitioner-is informed still lies on petitioner’s land. That he fears that said Magee would convert said timber into manufactured lumber, or that he would remove same from the jurisdiction of the court, or so mix it up with other property as to destroy its identity. . That petitioner is informed that said Magee had during the time above set forth cut about one thousand logs on his said property, which are still in his possession in Yellow Bayou on petitioner’s land in the neighborhood, thereof, which are worth twenty-five hundred dollars.
“ That his principal inducement for purchasing the aforesaid property was the timber thereon at the time of its seizure, and which petitioner had just reason to believe still existed at the time-of the sale. That it was only after the sale that he discovered the true condition of things. Petitioner avers that he has the right of possession and ownership of all the timber cut and on said land by said Magee, and now in his possession as aforesaid, and to a writ of sequestration to preserve said property during the.pendency of the-suit, or should said property be removed or destroyed by said defendant Magee, then petitioner is entitled to a judgment for the-estimated value of said timber or such deficiency as might be found.
“The premises considered he prays that a writ of sequestration issue directed to the sheriff, commanding him to sequester, seize, take into his possession and keep during the pendency of the-suit about one thousand cypress trees now in the possession of Edward F. Magee, in Yellow Bayou, in the parish of Avoyelles, or-on petitioner’s land, as above described, or in the neighborhood thereof; that Magee be cited to appear and answer; that the legal delays thereafter expiring his rights .of possession and ownership of said logs sequestered be recognized and enforced; should, however,, less quantity be found, or they all be removed before their seizure, then petitioner prays that Magee be condemned to pay petitioner-their estimated value, as alleged, at the rate of two dollars and a half per log.”

A writ of sequestration was ordered to and did issue as prayed for. In execution of this writ the sheriff sequestered “twenty (more or less) logs lying in the swamp and six hundred and twenty-three logs (more or less) lying in Yellow Bayou.”

The defendant on January 6, 1897, applied for and obtained the right to bond the said property. The record does not show whether this right was exercised or when so exercised.

On the 23d of January, 1897, plaintiff’s supplemental petition was ■filed.

In it plaintiff adopted and reiterated all the allegations of the •original petition and the prayer thereof. He then averred that the defendant Magee was further indebted to him in the further sum of five hundred dollars, making a total sum of three thousand, instead of twenty-five hundred dollars as originally claimed, because ■said Magee did further undercut, deaden and otherwise destroy a lot of standing timber on petitioner’s land described in the original petition to the extent of'five hundred dollars, for which said Magee is indebted to petitioner.

Adopting the prayer of the original petition he further prayed for citation on Magee and judgment against him for three thousand ■dollars, instead of twenty-five hundred dollars as originally asked for.

On the 3d of February defendant filed an exception of no cause of action, which having been sustained resulted in the judgment appealed from.

Appellant in his brief urges that viewing, his action in the light -of the allegations of his petition we have several causes of action. We have the allegation that during the short time of the sheriff’s possession under the writ of ft. fa. the defendant, Magee, took a force of armed men and forcibly and without legal right entered upon the land and cut and felled one thousand trees. That some of these trees are still on the land and claim is made to the whole of those found on and those found beyond the property. To those "trees two distinct causes of action exist. To those lying on the land from the fact alone of their being there, and to all from the fact that they were cut on the land, and a third cause of action is that embodied in the amended petition, which claims five hundred dollars from the undercutting and deadening of the trees standing. For two of the causes we contend plaintiff’s suit should be maintained independently of the question as to what is transferred by the sheriff’s deed. Independently of that question he has a certain and distinct right to the trees found on the land, and to a restitution for-the damage caused by the deadening of the trees still standing.’’ Defendant’s exception of no cause of action is directed at the.whole demand. We have to deal with it in its entirety; that is to say, w©must either entirely sustain or entirely reject it. We are not called on to analyze the petition to ascertain whether, if even sustained by proof, particular portions of the demand would not have forcedly to be rejected as not resting on a legal basis, and upon so finding to designate in our judgment what those portions are, and sustain defendant’s exception to that extent. If defendant had good cause to object to any particular part of plaintiff’s pleadings he should either have made special reference to that part and prayed for relief under an exception such as he has filed, or he should have made a direct motion to strike out, or he should reserve his objection tO' be urged on the trial by way of objection to the’introduction of evidence. If we find any portion of plaintiff’s petition able to withstand the made attack upon it through the exception, we will be forced to reverse the judgment appealed from and remand the cause.

Under plaintiff’s allegations he became the adjudicatee at sheriff’s sale under a fl. fa. of a tract of land which derived a great part-of its value from the cypress trees standing by the roots thereon at the time of the seizure. A portion of those trees so standing were cut down by a trespasser in the interval between the seizure and the sale, and the same were still upon the land which he purchased. Fearing that they were about to be removed without. shadow of right, he had them sequestered and claims ownership thereof — as against a trespasser. Under this statement of facts, the trees in question formed part of the land at the time of the seizure. Had they not been cut down as they were, they would have passed with the land to the purchaser at the judicial sale. The possession of the property passed from the owner of the property to the sheriff by the seizure. It went in its entirety as real estate into his hands. -Had there been crops standing by the roots at the time of the seizure,:, and had they become detached during the same, they would have-become mobilized and would have enured to the benefit of the. seizing creditor, as objects separate and distinct from the land of which it had formed part when seized. The subsequent purchaser of the land would have had no claim under the express provisions of the Code of Practice to the fruits and revenues produced by the thing seized, pending the seizure.

It must not be argued from this, however, that every physical detaching during the seizure, of objects forming part of the realty at the time of the seizure, has, as its legal effect, the mobilization of the things detached and of withdrawing them, ipso facto, from passing under the ownership of the subsequent purchaser of the land as forming part of the thing purchased by him. They might or might not so pass according to circumstances. The objects detached might be made the object of a separate sale by advertisement, or by being withdrawn from being included in the sale of the real estate by proper announcement. Trees standing by the roots on property at the time of its seizure, which are cut down by a trespasser, pending the same, are not to be classed fruits” or “ revenues” of the land. They are not necessarily mobilized b.y their detachment, any more than would be a building, or a portion of a building, on the property blown down by a storm pending the seizure. If the latter were still upon the property at the time of the judicial sale thereof, not having been specially withdrawn, nor made the subject of a special, separate adjudication, it would pass to the purchaser of the land as part of his purchase. Rogers vs. Gillinger, 30 Penn. State Reports, 188, 189; Leidy vs. Proctor, 97 Penn. State Reports, 492.

We need not complicate the situation in this particular case as it comes to us, by enlarging our inquiries as to what would be the rights of parties if the trees cut by the trespasser were no longer in esse reelaimable in kind, but had been removed from the property and disposed of by him, leaving as the sole recourse against him an action for damages, or as to whether the purchaser would not be-entitled, on ascertaining that the object purchased by him had had its value impaired by standing trees having been cut down during the seizure, to either refuse to comply with his bid, or insist upon a proportionate diminution of the price.

It is argued that if they had been removed, the action for their recovery would have been in the sheriff. The sheriff would unques-' tionably have been entitled to sue for their recovery had he been a.ble to trace them, but it by no means follows from this that after the sale and surrender of the main property to the purchaser, the latter would not have an independent right of action for the same purpose, if they had passed to him by the effect of the sale. A prominence is given to the right of action of the sheriff in the premises to which it is not entitled. Take the case of the seizure of a sugar plantation with improvements and stock thereon, and suppose that pending the seizure and advertisement of the property for sale, a portion of the mules should have been stolen and removed, as also portions of the machinery, and that the sheriff having discovered their whereabouts had instituted proceedings for their recovery, but before judgment the plantation had been sent to sale. Suppose that thereafter the objects removed should have been recovered and taken possession of by the sheriff. What would he have done with the mules or the machinery so recovered? Would he have turned them over to the seizing creditor, or had them sold as movables, or delivered them to the seized debtor, or would he have delivered them to the purchaser in order to place the thing purchased in the condition it should have been and would have been but for the tort committed. We think there can be no question as to the right of the purchaser to have had them delivered to himself. We are of the opinion that the purchaser would have been entitled to take them. We do not propose to enter into any elaborate discussion of the doctrine of “relation” in its connection with the subject of judicial seizures and judicial sales and make no further examination of the subject than is necessary for us to reach a conclusion as to whether plaintiff’s petition utterly failed to show a cause of action as defendant claims it does.

Should there be anything in the facts of this special case leading the defendant to suppose that he might come contingently under a double liability from claims which might be advanced by either the seizing creditor or the seized debtor, he can very easily protect himself by making them parties to this proceeding and- giving them the opportunity of contesting plaintiff’s demand, if any cause they may have for so doing. Le Blanc vs. Dashiell, 14 La. 274; Hazard vs. Agricultural Bank of Mississippi, 11 Rob. 326.

We think defendant’s contentionis wrong, and that the court erred in sustaining the exception.

Eor the reasons herein assigned, it is ordered, adjudged and decreed that the judgment appealed from be and the same is hereby annulled, avoided and reversed, and ifc is now ordered that the exception of no cause of action be and it is hereby overruled, the cause reinstated and remanded to the District Court for further proceedings according to law.


source: Caselaw Access Project

license: Public Domain

text:
    No. 12,433.
    Charles F. Collom vs. H. J. Bruning.
    The mere fact that two persons may both he interested pecuniarily in the same business venture, and that each give to it his time and attention, does not carry with it as a matter of law the conclusion that they stand toward each other as partners.
    •Consent shown by one person who has furnished the capital by which certain operations are carried on, that another who has employed his time, his shill and given his services for their success should receive one-half of the profits to be derived from the same, is perfectly consistent with the fact that the latter person stands toward the tormer as a mere employee.
    APPEAL from the Civil District Court for the Parish of Orleans. Théard, J.

      Hughes & Favrot for Plaintiff, Appellee.

      Bernard Titehe for Defendant, Appellant.
    Argued and submitted April 29, 1897.
    Opinion handed down May 31, 1897.
   The opinion of the court was delivered by

Nicholls, C. J.

Plaintiff alleged that in July, 1895, he entered into a verbal contract of copartnership with the defendant for an indefinite period under the firm name of H. J. Bruning.

That the purpose for which said partnership was entered into was general contracting, and particularly with a view of securing contracts from the city of New Orleans. That the profits and losses of said copartnership were to be divided equally, and of the capital, plaintiff was to devote his time and energy to the furtherance of the interest of the enterprise, to arrange and prepare the bids, make., contracts for material and labor and supervise the work. That. Bruning was to furnish ten thousand dollars capital in cash. .,

That plaintiff had faithfully complied with his part of the contract,, but that said Bruning had not done so, having furnished only about three thousand dollars of the capital. That Bruning had, at all times, had control of all the assets, books and accounts of said partnership.

That among other work done by said partnership were the following:

Repaired Julia street between Rampart and Dryades streets in New Orleans.

Paved Willow street from Julia to Lafayette, with shells;

Furnished filing cases in Assessor’s office at the Oity Hall.

Furnished and set new boiler and pumps in parish prison.

Building bridge at the intersection of Esplanade and Broad streets.

Building bridge at the intersection of Claiborne and Ursuline streets.

That the partnership had been successful and plaintiff had made demand on said Bruning for an account of the condition of the same, but Bruning had refused and continued to refuse to render such an account; that of the profits he had received only about one hundred and eighty dollars, and that his interest in the partnership was more than two thousand dollars, exclusive of interest. That he was no longer desirous of continuing said partnership, and had notified Bruning accordingly; that Bruning should be made to render an account, and the- partnership should be dissolved and its affairs liquidated. ' ■ . .

He prayed that Bruning be ordered to file an account;' that the partnership be dissolved; that plaintiff be appointed liquidator of same and that he have- judgment to the amount shown, to be due him by defendanD in the liquidation proceedings with interest.-

Defendant, after pleading the general issue, specially denied that he ever entered into any contract of copartnership with the plaintiff at any time or place, or of any nature or kind whatever.

Judgment was rendered by the District Court in favor of the plaintiff and against defendant, “ decreeing the dissolution and liquidation of the partnership existing between the said parties under the name of H. J. Bruning, ordering the plaintiff be appointed liq-uidafcor of said partnership upon his furnishing bond with security to the amount of one thousand dollars, the amount of the bond to be increased should the court deem it necessary.”

Defendant appealed suspensively from this judgment.

Plaintiff relies upon his own testimony, that of Fuller, McDonald and one Schelin to establish his claim that there exists a partnership between himself and the defendant. Not a single contract orr subcontract has been shown to have ever been made wherein the-name of the plaintiff appeared, or wherein the latter was known as-one of the contracting parties by those who entered into them.

Fallon, to whom a subcontract was given for the brick work andl resetting of certain boilers included in a contract made in the name of Bruning, says that the subcontract was made with him. through Oollom, but he does not assert or pretend that it was made in the name of any partnership. He does say that after the contract was made Oollom represented himself to him as being a partner of the defendant, but this was never done in the latter’s presence, nor were such representations shown to have ever come to the latter’s, knowledge. All payments to Fallon were made by Bruning.

Schelin, a brother-in-law of the plaintiff, testified that he had! delivered to Bruning a letter which he had received from Oollom for-that purpose; that after reading the letter Bruning told him “that-when Mr. Collom got well (he was then sick) to come down and he-would made a settlement with him.” In the letter thus delivered; plaintiff wrote to the defendant that he had concluded it advisable that their business relations should be brought to a close, as their ideas on business matters did not harmonize, as well as for other reasons useless to enumerate. Continuing, he said: “We have now:’ completed all our contracts excepting the one for constructing at. bridge at Ursuline and Olaiborne streets. I have been waiting for the past two months for you to make some effort to commence this work, but you have not done so for reasons you have not explained tome. However, I have formed my own conclusions in the matter. The profits in this particular contract will amount to not less than twenty-eight hundred dollars, and could b,e completed in thirty days-after the material is- placed upon the ground as the matter now stands (through no fault of mine, however). I consider that I am justly entitled to my share of the profits in this, as well as in- the balance of the work now completed, making in all due- me, two> ■¡thousand seven hundred and thirty-eight dollars. This does not include what profits may eventually accrue from the boiler contract. .1 make the following statement from memorandum kept by me which I believe to be correct:

Profits on willow street contract.. $622
Profits filing cases at City Hall. 545
Profits Julia street contract. 265
Profits Broad street bridare. 1,245
Profits Hrsuline street bridge contract. 2,800
$5,477

'“lOne-half of the above belongs to me. Hoping the above will ■meet with your approval I will consider it a favor if you will advise me at how early a date you can make it convenient to make settlements. I am,” etc.

In this letter the writer refers to “business relations” between himself and defendant and claims one-half the profits, but he nowhere claims the existence of a “ partnership ” between them. The .answer to Schelin by defendant that he would make a “ settlement ” thereafter with the plaintiff does not carry with it therefore the conclusion that the latter would have us draw from it.

The testimony of McDonald was to the effect that he was foreman •over the work done in execution of the contract referred to as that of the Broad and Esplanade Street Bridge. He said he understood that he was working for Oollom & Bruning. Oollom was the man who employed him and gave him his instructions and paid him. The first time he saw Mr. Bruning he was out at the work .standing by himself; he passed near Bruning, when the latter addressed him, saying: “ Has my partner, Mr. Oollom, been out here this morning? ” He answered no, but that he would be there .after a while; Bruning asked him about what time Oollom generally got out there; he answered “ aboht 9 o’clock in the morning and again in the afternoon,” and he (witness) then walked off; .Bruning frequently was out where work was going on, but never referred him to Oollom for anything.

The plaintiff’s own testimony was substantially as follows:

“ On the first day of July, 1895, Mr. Bruning suggested to me that we engage in the business of contracting. I asked him how much ready capital he had, or how much money he had on hand in order ■ to prosecute the business. He stated that he had about ten thousand dollars idle that he could use, and if I would prepare the bids, try and secure the work, that he would furnish the ten thousand dollars capital, and also furnish the necessary bonds required by the city on-contracts. I was to superintend the construction of the work, make-all contracts for material and labor and we were to divide the profits and losses, whatever they might be. Upon the strength, of that we secured the contracts contained in the statement.” Referring to the Willow street contract, he said that he superintended the construction of the work and did all that was necessary to secure the material and labor; that there was no foreman on the work; that a portion of the Julia street contract (the paving) was “ sublet;” that the balance of the work he superintended; that he, himself, made-the estimate in the matter of the contract for filling the cases in the-assessor’s office, and a contract was made with a Mr. Manske-to build them and put them in place; that that was all the labor attached to it; that he and Brunipg together made the contract with Manske; he was present when the contract was made. With reference to the contract for the bridge at Broad and Esplanade streets, he said he had a foreman at that work (McDonald), but he was out, at the work nine or ten hours every day. With respect to the contract for the boilers at the court house and jail, he said that-the brick work and resetting of the boilers was “ sublet” to Fallon; that he, himself, superintended the balance of the work, and that the contract for the Ursuline and Claiborne street bridge was let in its entirety to William Gause. He said that he drew up the bids for these various pieces of work, ordered all the material and approved all the bills before they were paid. On cross-examination, plaintiff stated that defendant made the proposition to him to go into business together; that they discussed the matter in a number of interviews, but that no one was ever present at these interviews. Neither Fallon, McDonald nor Schelin pretend to know anything of the terms of any arrangement between the plaintiff and the defendant. Defendant, in his testimony, contradicts the .plaintiff positively in, every particular tending to show the copartnership claimed. He says that the plaintiff was in his employ on a salary of fifty dollars per month, commencing with work on the first contract, and he testified that he has been fully paid. Defendant’s brother testified to having heard the arrangement which was made between the parties when made; that plaintiff was employed by the defendant at a monthly salary of fifty dollars per month.

Leaving aside plaintiff’s testimony, squarely contradicted by that of defendant and his brother, the demand made herein rests upon the testimony of McDonald, that Bruning had, on one occasion, asked him whether his partner, Oollom, had been out at the works •on that particular day;” on Pailón’s testimony that the plaintiff, in ■conversation with him (but out of the presence of Bruning) referred to himself as being Bruning’s partner; on Schelin’s testimony that on .handing the defendant the letter written to him by the plaintiff, and •after reading it, Bruning had answered him (the witness) that if Oollom would go down to see him when he got well “he would make settlement with him,” and upon the fact that he actually rendered •services in connection with the contracts referred to in plaintiff’s pleadings.

None of the bills which plaintiff declares he approved for payment ;are shown to have been made out otherwise than as against Bruning, -and none of the parties who held them were produced to show that plaintiff was known to them in any of these different transactions as ¡under any liability upon the same. Plaintiff assigns as a reason for this that the firm name was “ H. J. Bruning.” Plaintiff produces no one other than McDonald (and he under very unsatisfactory testimony) who ever heard Bruning refer to the plaintiff as his partner, and no one who ever heard the plaintiff in presence of the defendant claim to stand toward the latter in the relations of a partner. It is strange that at some time or other some third person dealing with these parties should not have been placed in a position to know and to testify how they stood toward each other. Partnership is á special contract dependent for its creation upon the consent of the parties (O. 0. 2806), that that particular relation should be established between them. The mere fact that two persons may both be interested pecuniarily in the same business venture, and that each give to it equally his time and attention, by no manner of means •carries with it as a .matter of law the conclusion that they stand •toward each other as partners. Consent shown by one person who has furnished the capital by which certain operations are carried on that another who has employed his time, his skill and given his services for •their success should receive one-half of the profits to be derived from the same is perfectly consistent with the fact that the latter person stands toward the former as a mere employee. Contracts of that .character are formed every day, the extent of the participation in the profits varying in the different cases. It is possible that defendant may have consented, as plaintiff declares, that the latter should, in consideration of his services, divide equally with him the profits to be derived from the contracts entered into between Bruning’ and the city of New Orleans, but the trouble is that no one but plaintiff himself has testified to that fact, and he is flatly and directly contradicted •by the defendant and his brother. It is true that plaintiff declares in his pleadings (and so testifies also) that it was agreed between de - fendant and himself at the inception of the relations between them that they were to share equally any losses which might result from the contracts referred to, but the trouble is that no one but the plaintiff seems to have known of any such*arrangement, and defendant swears positively that such was not the fact.

Plaintiff’s admission of liability for losses was made after the situation had disclosed the fact that there were no losses (as he himself stated in his testimony) to share. Had such losses occurred, and •had defendant sought to have held plaintiff liable for one-half of the same, the position of parties would have been reversed and defendant’s claim would have failed for want of proof. The whole pecuniary responsibility to result from unsuccessful ventures in the matter of these contracts would have rested upon the defendant. Plaintiff’s liability upon the same was. known to no one, and could have been made available to no one, and the evidence in the case makes it very doubtful whether plaintiff’s pecuniary condition was such as would have enabled him to respond to any liability had such arisen.

Parties who thus stand in the background while chances are unknown and uncertain should be prepai’ed when they come to the front to sustain their pretensions by clear proof. So long as men deal in important matters in the loose manner which plaintiff-by his own showing testifies he has done with the defendant in his business arrangements, they must not be surprised to meet with difficulties and losses, even with well founded rights. Courts can not rectify the results of gross carelessness or repair the effects of over-confidence.

Granting all that plaintiff says to be true, we can only come to judicial knowledge of its truth by the application of judicial tests. So tested plaintiff’s demand must fall.

We do not feel justified, under the very slight evidence adduced-to show a partnership, in holding that such a partnership existed and to reason thence by presumption to an equality of interest in the profits.

Por the reasons herein assigned it is ordered, adjudged and decreed that the judgment appealed from be and the same is hereby annulled, avoided and reversed, and it is now ordered, adjudged and decreed that plaintiff’s demand be rejected and his suit dismissed without prejudice to any right he may have to claim from the defendant remuneration for his services.


text:
    No. 12,475.
    P. L. Gusman and Mrs. H. A. Gusman vs. Caffery Central Refinery and Railroad Company, Limited, et al.
    It is rare that abstract principles of law are so fixed and absolute as not to be modified or controlled by the special facts of the case to which they are sought to be applied.
    While defendant’s proposition that “ it is not negligence in a railroad company t° construct or permit to be constructed overhead hanging bridges, etc., over its tracks so low as not to permit a brakeman to stand upright on the top of a box car,” might be true, in some special case, under exceptional circumstances, it is certainly not true as a general proposition. On the other hand were it true,* that if a brakeman knew or was presumed to know of the existence of such a construction he would be held as a general rule to have assumed the risk of injury therefrom; it is not true that the mere fact of such knowledge carries with it necessarily and on all occasions, and under all circumstances, the cutting off of the remedy for injuries received by him from such constructions.
    APPEAL from the Twenty-fourth Judicial District Court for the Parish of St. Mary. Allen, J.

      D. Gaffery & Son for Plaintiffs, Appellants.

      Farrar, Jonas & Kruttsohnitt for Defendants, Appellees.
    Submitted on briefs April 14, 1897.
    Opinion handed down April 26, 1897.
   The opinion of the court was delivered by

Nicholls, C. J.

Plaintiffs have appealed from the action of the District Court in sustaining an exception that plaintiffs’ petition discloses no cause of action ” and decreeing that their demand be .rejected.

In the petition in the ease plaintiffs alleged that on or about July 1, 1894, James B. Gusman, a son o'f petitioners, from the marriage between them, was employed by Ernest Wailles, an officer of the >Oa£fery Central Refinery and Railroad Company, Limited, and of the Franklin & Abbeville Railroad Company, as fireman on a locomotive (owned by the latter company, or by both of them), then used and ■operated by them both in the business in which they were engaged for their common benefit, as would thereafter be more fully set out. 'That Wailles was local manager of the Caffery Central Refinery and Railroad Company, Limited, and also manager of the Franklin & Abbeville Railroad Company, and was in full charge •and authority over the Caffery Central Refinery, owned by the former corporation and operated by them, and was also in full control over the cars, operation and operatives of the Franklin & Abbeville Railroad Company, and had full power and authority to employ and discharge all persons employed in and •about said Caffery Central Refinery and the ears and locomotives of the Franklin & Abbeville Railroad Company, and especially to employ petitioners’ said son. That the Caffery Central Refinery is a large factory for the manufacture of sugar from cane and syrup, situated in the parish of St. Mary, near the "town of Franklin, on the extensive grounds on which the Caffery •Central Refinery and Railroad Company, Limited, have constructed and built numerous railroad switches and tracks for the hauling of cane and syrup from their said factory; that the Franklin & Abbeville Railroad Company is a mere adjunct to the said •Caffery Central Refinery & Railroad Company, Limited, as it has been conducted since its organization for no other purpose than to enable the said Caffery Central Refinery and Railroad Company to lay a road to the sugar plantations from which they receive their supply of sugar cane, and to haul the said cane to the said factory; that the railroad built by the Franklin and Abbeville Company is never operated in any other business than that of the said Caffery ^Central Refinery and Railroad Company, Limited, and never except at the times and seasons when the said company is in operation; that practically the whole of the stock of the Franklin & Abbeville Railroad Company is owned by the Caffery Central Refinery Company; that the Franklin & Abbeville Railroad Company is controlled and operated, and all their affairs directed by the Caffery Central Refinery Company and was so controlled and operated at the time of the employment of petitioners’ son and of the injury received by him as stated below. That the management of both corporations is one and the same and their business is so completely blended and inseparable that although they are informed the pay of their son was charged upon their books or account to the Franklin & Abbeville Raih'oad Company, yet they charge that the Caffery Central Refinery and Railroad Company, Limited, was equally the master of their son in his said employment, or really and substantially wholly so, as the said Franklin & Abbeville Railroad Company has only a nominal and fictitious existence as an independent corporation; their son being, at all times, under the control and direction of the officers of the Caffery Central Refinery and Railroad Company, Limited, and all his duties being really, though not nominally, for the service of the Caffery Central Refinery and Railroad. Company, Limited.

That the duties of their son in his said employment were prinei- . pally to keep up the fires of the said locomotive and to assist whenever required, or whenever circumstances made it necessary, irr doing the braking on the train hauled by said locomotive; and that the business of said locomotive was to haul cars and do switch work over the numerous tracks and switches on the grounds of the Caffery Central Refinery and Railroad Company, Limited, and over-, the switch running from the tracks of the Southern Pacific Company to the Caffery Central Refinery.

That on the grounds of the Caffery Central Refinery, the Caffery Central Refinery and Railroad Company, Limited, had erected, prior to July 1, 1894, a frame or derrick over one of the said switches, which frame consisted of two upright posts some twenty feet high planted on either side of the said switch and of a cross beam of heavy timber-standing at right angles over and across the said switch and attached to and supported by the said upright posts, which cross beam stood about four and a half or four feet above the top of a box car of the ordinary height; that the said cross beam was too low to permit a. brakeman standing erect on the top of such a box car to pass beneath it in safety, and that only by stooping or dodging could the same be avoided by a brakeman in such position, all to the full knowledge of said corporation. That the said frame was erected for the purpose of loading and unloading barrels from and on the flat ears, a block and tackle being attached to the cross beam for the purpose of hoisting said barrels; that the said contrivance had been found clumsy and impracticable, and had, prior to July 1, 1894, been abandoned, and after that time was used for no purpose whatever, and was a useless obstruction which should have been removed and should never have been erected. That said cross beam could easily, and without any expense or inconvenience or impediment to the work for which it was designed, have been'raised to a height sufficient to enable a person standing on a box car to pass under without danger, and that not so to build and elevate it was great negligence on the part of said corporation.

That the constructing and maintaining of said hoisting frame was gross, wanton and culpable negligence on the part of the Caffery Central Refinery and Railroad Company, Limited, and of the Franklin & Abbeville Railroad Company, because the said contrivance was essentially murderous, a man-trap built with a reckless and wanton and criminal disregard of human life.

That on July 24, 1894, while their son was acting as brakeman, according to his employment, his duties required his presence on the top of a box car of the customary height, then in transit over the said switch over which hung said cross beam. " That the train, of which the car on which their son was formed part, rapidly approached the cross beam, their son being a few feet from the rear of the said car, near the brake, with his back turned to the said beam; that he nevertheless was on the lookout for the danger and stooped or dodged, but on stooping and endeavoring to escape the said beam he lost his balance and fell over between two cars to the ground, where he was horribly crushed by the cars and the wheels thereof. That their son prudently endeavored to avoid the dangerous obstruction, and did so with that amount of skill that would be expected of an ordinary man under like circumstances, and that his falling, therefore, was due wholly to the presence of Said cross beam over the said switch, and not to any fault or want of care on the part of their son. That their son was five feet eight inches in height. That immediately after their son received his injuries in the manner stated the said hoisting frame was removed, and that the same has not been rebuilt in any other position or in any other manner.

That the risk from the said extraordinary and useless obstruction was one which the said corporation had no right to impose on their employees; that their son, after said crushing and mangling, lingered many hours in great pain; that at times he was fully conscious of his situation, and. that to his bodily sufferings was added the keenest mental agony; that after enduring excruciating torture for thirty hours he finally, on July 26, 1894, died from the effects of the crushing and mangling received by him as aforesaid and of the suffering caused thereby. That their son was twenty-seven years of age at the time of his death, and unmarried; that he was earning wages of about forty-five dollars per month, nearly all of which he gave to petitioners for their household expenses; that he was a good and dutiful son, in whom petitioners took great pleasure and comfort, and whose death has distressed them and caused them sorrow beyond measure. That by the gross, wanton and culpable negligence of the said corporation in erecting and maintaining said dangerous contrivance, useless as it was, under their sole control and in causing the use of such switch in the unsafe condition described, and in running over such switch cars and train, manned by brakemen, whose duty necessarily require their presence on the top of cars, all as set out in the petition, and in so causing their son to fall and become wounded and mutilated he sustained through his said injuries and mental and bodily suffering, damage in the sum of ten thousand dollars, which petitioners are by law entitled to demand, and that by the same fault and negligence in causing to them the loss of their son, the loss of his comfort, help, affection and society and their consequent sorrow and distress they have suffered damage in their own right in the sum of ten thousand dollars. That the Caffery Central Refinery and Railroad Company, Limited, is responsible for all above acts and faults of the Franklin & Abbeville Railroad Company, and that the fault and negligence of one is that of both, and so that they are liable in solido for said sum.

Plaintiffs prayed that they recover judgment against the two corporations in,solido for the amount stated, with interest and costs.

Counsel of defendants in their brief say: “The only allegation of negligence on behalf of the defendant is having the beam so near the top of the cars. Defendants submit that from the allegations of the petition no cause of action is disclosed for the reason that it was one of the assumed risks of decedent’s employment, he having knowledge of the height of said beam and its position. The question of injuries of this kind is not new and has been decided by almost every court in the land, all of which, we believe, have maintained a doctrine that it is not negligence for a railroad company to construct, or permit to be constructed, overhanging bridges, water-spouts, coal sheds, eaves from sheds, etc., so low as not to permit a brakeman to stand upright on the top of a box car. That if the brakeman knew or was presumed to know of the existence of such obstruction he assumed the risk and could not recover.”

They quote from Brossman vs. Lehigh Railroad Company, 113 Penn. State, Reports, 490 (6 Atlantic Reporter, 226); Baylor vs. The Delaware, etc., R. R. Co., 40 New Jersey Law Reports, 23; Rock vs. Retsoff Mining Co., 15 New York Supplement, 872; Platt vs. Chicago, St. Paul & Missouri Railway Co., 51 N. W. Rep. 254; Lynch vs. New York, L. E. & W. R. R., 18 New York Supplement, 417, and Gibson, Adm’r, vs. The Erie Railway Co., 63 New York Reports, 449, in support of that position, and direct the attention of the court to numerous other decisions by reference.

Plaintiffs'maintain that the doctrine contended ior is not law and has never been recognized in Louisiana. They contend, on the authority of Sherman & Redfield on Negligence, 4 Ed. Sec. 198; Beach on Contributory Negligence, Sec. 134, and Patterson’s Railway Accident Law, Sec. 289:

1. That an overhead beam across the track of a railway company, which is too low for a brakeman to pass beneath while standing upon the top of a box car, is an essentially murderous contrivance, and its maintenance, especially after it has become useless, is gross negligence.

2. The risk of injury from such a structure is not assumed by an employee where the dangerous apparatus is under ’ the exclusive control of the employer and who could easily have removed it and whose duty it was to have done so.

We are of the opinion that the District Court erred in sustaining defendants’ exception. Defendants should answer and the issues be determined after all the facts and circumstances of the ease are before the court. It is rare that abstract propositions of law are so fixed and absolute as not to be modified or controlled by the special facts of the cases to which they arc sought to • be applied. While defendants’ proposition that “it is not negligence in a railroad company to construct or permit to be constructed overhanging bridges, etc., over its tracks so low as not to permit a brakeman to stand upright on the top of the box car” might be true in some special case under exceptional circumstances, it is certainly not true as a general proposition. On the other hand, were it true that if a brakeman knew or was presumed to know of -the existence of such a construction, he would be held, as a general rule, to have assumed the risk of injury therefrom; it is not true that the mere fact of such knowledge carries with it necessarily and on all occasions, and under all circumstances, the cutting off of remedy for injuries received by him from such constructions.

We are by no means prepared to say that plaintiffs could not, through testimony properly received, under their pleadings, present a state of facts such as would entail liability on the defendants upon the demand. It is particularly proper in cases of the character of the present, resting so largely on facts, that the rights and obligations of parties be tested after the entire situation has been developed and brought out by testimony.

For the reasons assigned it is ordered, adjudged and decreed that the judgment appealed from be annulled, avoided and reversed, and it is now ordered that the suit be reinstated, and the cause is hereby remanded to the lower court for further proceedings according to law.


author: Nicholls, C. J. Watbiins, J.

text:
    No. 12,435.
    Postal Telegraph Cable Company of Louisiana vs. Louisiana Western Railway Company.
    Under the provisions ol Act 124 o£ 1830 and the act o£ the Congress of the United States •with reference to the construction and maintenance of telegraph lines, nothing more than an easement or right of Tray was intended to be authorized to be acquired by telegraph and telephone companies on rights of way already appropriated or expropriated. The lawmaker did not intend to abridge the franchise of the corporation already holding possession or to cast affirmative active duties upon them in respect to such lines as might be constructed upon their right of way.

      under such circumstances the words '‘value of thoproperty to be expropriated" (C. C. 2623) mean “ value of the use and occupatioii of the property to be appropriated."

    In determining what is a fair compensation for the use and occupation of the land sought to be expropriated, the improved condition of the land is a proper element to he considered. The defendants are not entitled to recover the original cost of the improvements, but are entitled to reasonable remuneration in view of the same.
    APPEAL from the Seventeenth Judicial District Court for the Parish of Lafayette. DeBwillon, J.

      Thos. E. Lewis and James H. MeLeary for Plaintiff, Appellee:
    . Act No. 124, regular session of 1880, amending Sec. No. 696 of the Revised Statutes, gives the right to erect telegraph lines along and over the lands, privileges and servitudes of all persons and corporations within this State, that right to be exercised by an expropriation suit fixing the extent of ground privileges and servitudes to be taken by the plaintiff, and the amount of compensation to be made to the defendant company for the land taken and the damages inflicted, if any.
    The statutes of this State accurately lay down the rule by which the defendant company’s rights must be governed. The plaintiff must pay for the true value of the land taken — its present market value — and no more. The cost to the defendant of preparing its right of way, and its availability for the construction of a telegraph line, are not to be taken into consideration. C. 0., Arts. 2628, 2682, 2633; 33 An. 344, R. R. Co. vs. Murrell. The remedy being statutory, common law authorities have no application.
    The law, in requiring jurors in such cases to be freeholders, gives to them the character of experts, and they are authorized to resort to their knowledge and judgment in forming an estimate of the value of the land to be taken, and their verdicts have been uniformly respected by the court, and will not be disturbed by the Supreme Court,unless itbefound that they are “ inconsistent with the proof in the record or entirely unsupported by evidence.” 39 An. 707, R. R. Co. vs. Frank, and other cases.
    In estimating the damages, if any, inflicted upon the defendant company in addition to the loss of the land taken, the jury may take into consideration the advantages which the defendant company may derive from the project for which the expropriation takes places. 15 An. 481, Vicksburg R. R. Co. vs. Caulder-wood; 31 An. 478, Jefferson & Lake Pontchartrain R. R. vs. New Orleans.
    By permission of the attorneys in the case of this plaintiff company in the suit against Morgan’s Louisiana & Texas Railroad Company, recently decided by this court, the following extracts from-the syllabus of their brief in that case are added:
    “The plaintiff will exercise the mere nominal right of stretching its wires along and above this track, taking the actual use of only a few square feet of land. The market value of this right is fixed by indisputable evidence at a purely nominal figure.
    “Defendant is entitled to no compensation for alleged danger of derailment of trains from falling of poles and wires, because the proof is that such danger is so remote as to be purely theoretical, * * * because defendant is entitled to recover only the-market value of its land appropriated for public purposes considering the question of its adaptability for any and every purpose to which it may be put, and not compensation for contingent- and speculative damages to rise from the public use to which it is to be put. The true inquiry is solely: what is the market-value of the land, in view of any use to which it may be applied, and of all the uses to which it is adapted. Lewis on Eminent Domain, Secs. 478 and 479.
    “ Where a portion of a tract of land, or a piece of a property is taken for a public use, compensation may be allowed for all depreciation of the value of the remainder of the property due to exposure to danger from said use; but it is to be borne in mind that compensation is not to be given for increased exposure and risk, nor for probable losses by the exposure alleged, but simply for depreciation in market value of the property by reason of the exposure. See Lewis on Eminent Domain, Secs. 496, 497 and 498; Hornstein vs. Atlantic & Great Western Railroad Company, 51 Penn. St. Rep. 87; Pittsburg, Bradford & Buffalo Railroad Company vs. McCIoskey, 110 Penn. St. Rep. 436, S. C. Atl. Rep. 555; Pierce vs. Worcester & Nashua Railroad Company, 105 Mass. 201.
    “ The law is well settled that damages for anticipated, improper or illegal construction or use of a line of telegraph or railway are to-be excluded in a condemnation proceeding. Lewis on Eminent Domain, Se'c. 482; Carpenter vs. The Eastern & Amboy Railroad Company, 24 New Jersey Equity Reports, 249; same case, 76 New Jersey Equity Réports, 168; Hill vs. Mohawk & Hudson Railroad Company, .7 New York, 152.”

      Garland & Dupre and Denigre, Blair & Denegre for Defendant, Appellant.
    Argued and submitted April 3, 1897.
    Opinion handed down May 10, 1897.
    Rehearing refused May 31, 1897.
    These plaintiffs instituted proceedings to obtain the condemnation of the property necessary for the operation of their line of telegraph between New Orleans and the town of Lafayette over the right of way of Morgan’s Louisiana & Texas Railroad & Steamship Company, Ante, p. 58.
    The questions presented were, first, whether Act No. 124 of 1880 gave the right to construct a telegraph line over a railroad’s right of way, and second, the amount of compensation to the defendants, if such right existed and was exercised. The court held that the act .of 1880 gave such a right and affirmed the verdict of the jury, allowing compensation at the rate of fifty-four dollars per mile. The object of the present suit is to extend plaintiffs’ telegraph line from the city of Lafayette to the Sabine river, a distance of one hundred and five and forty-one one-hundredths miles, over and along the right of way of the railroad of the defendant company, which is a continuation of that of the Morgan’s Louisiana and Texas Railroad and Steamship Company. Plaintiffs obtained judgment in their favor in the District Court, the jury fixing the compensation to be paid to defendants at eight dollars and fifty cents per mile, and defendants appealed.
   . The opinion of the court was delivered by

Nicholls, C. J.

The only issue before us is as to the amount of compensation allowed. Appellants contend it is entirely too small .and call our attention to the great difference between the award in the present case and that in the matter of the Morgan Railroad. Counsel on their behalf say: “Considering that one railroad is merely a continuance of the other — that the evidence proceeds on the same lines — the two awards are too far apart for both to receive the sanction of the same court. They can not be explained, even as a difference of opinion, after considering the same elements of value. They can only be explained on the theory that the two juries proceeded on different views of the law. In other words, the present jury did not apply to this case the law as laid down in the Morgan Company case. Hence this case presents not simply a difference of opinion as to a question of fact — the value •of the property appropriated. The insignificant, unprecedentedly low award evidences a mistaken view of the law of the case. Either this, or the jury were influenced by prejudice.

We have carefully examined the evidence in this case in reference to the amount awarded to the defendant company. Quoad that •question the burden is on them to make good their claims. The expropriation proceeding in this suit is of a character different from that with which we are usually called on to deal. Ordinarily such demands have been based on a prayer by a railroad company to obtain a right of way by original expropriation from the owners of the fee. In the case at bar the right of way is sought to be obtained from a railroad which holds its own right of wajq through having itself exercised a right of expropriation, or appropriation or both. In answer to a question propounded by the defendants’ counsel to those of the plaintiffs as to the nature and character of the rights plaintiffs were seeking to acquire herein, they answered they sought the acquisition in part of the fee of the defendants’ right of way •and the acquisition in part of an easement upon it.

It is generally accepted as true that lands devoted to one public •use can not be subjected to another, unless the authority so to do be given in express words or by necessary implication; that the Legislature is not presumed to have intended to allow that this should be done (Lewis on Eminent Domain, Sec. 267). In view of that fact statutes bearing on that-subject must be strictly construed.

In 1880 the General Assembly of Louisiana, by Act No. 124 of that year, enacted that corporations chartered or formed under the laws ,of this State or under the laws of the United States, for the purpose of transmitting intelligence by magnetic telegraph or telephone or other system of transmitting intelligence the equivalent thereof, may construct, maintain such telegraph, telephone or other lines necessary to transmit intelligence along all State, parish or public roads or public works, and along and parallel to any of the railroads in the State, and along and over the waters of this State, 'provided, that the ordinary use of such roads, works, railroads and waters be not thereby obstructed, and along the streets of any city, with the ■consent of the council or trustees thereof, and such companies shall be entitled to the right of way over all lands belonging to the State, and over the lands, privileges and servitudes of other persons and corporations, and the right to erect poles, piers, abutments and other works necessary for constructing, working, operating and maintaining their lines and works upon making just compensation therefor. That in the event such company shall fail on application therefor to secure such right by consent, contract or agreement upon just and reasonable terms, then such companies or .corporations shall have the right to proceed to expropriate the same as provided in and by the laws of the State relative to expropriation of lands for railroads and other works of public utility, and shall so construct their works as not to impede or obstruct the full use of the highways, navigable waters or the drainage or natural servitudes of the land over which ■the right of way may be exercised.

On the 24th of July, 1866, Congress passed an act entitled “An act to aid in the construction of telegraph lines and to secure to the government the use of the same, for postal, military and other purposes,” by which it was enacted that any telegraph company now organized, or which may hereafter be organized under the laws of any State of this Union, shall have the right to construct, maintain and operate lines of telegraph through and over any portion of the public domain of the United States, over and along any of the military or post roads of the United States which have been or may be hereafter declared such by act of Congress, and over, under and across the navigable streams or waters of the United States, provided, that such lines of telegraph shall be so constructed and maintained as not to obstruct the navigation of such streams and waters, or interfere with the ordinary travel on such military or post roads.

In 1872 Congress declared all the railroads in the country which were then or might thereafter be in operation, post roads. The syllabus of the decision of this court reported in Ante, p. 58, declares that “Act No. 124 of 1880 gives the right to construct a telegraph line over a railroad’s right of way;” that “ the acts of Congress of 1866 and 1872 are on the same subject and give the right to construct a line of telegraph under certain conditions along and over the right of way of railroads, and that the State law was subordinated to these acts, but might' be resorted to for condemnation and compensation.”

What under the laws cited was the character of the right granted? Was it a right to dispossess railroad companies of the fee (if any they had) of a portion of land which they had acquired themselves by expropriation, or was the right limited to an “ easement,” and this right subject to be modified by changing conditions of the railroad companies as to their own necessities? Was it the intention of the lawmaker to make the prior acquired right yield permanently to the last one acquired? Was the latter a fixed right not susceptible of change, or was it a temporary one taken, subject to the paramount, ultimate right of the first company, to be regained and re-exercised in case of necessity.

Lewis (Sec. 267) declares that property not in use for railroad purposes and not necessary to the proper exercise of the corporate franchise may be taken by another company. He says (Sec. 269) that “ a telegraph may be established along a railroad right of way, it being no material interference with the use for railroad purposes,” adding: “ but a special authority to a telegraph company to build upon, over or under any public road, street or highway, is to be construed strictly, and when such new right is given, it must be so exercised as to do as little injury as possible to the old way or road.”

When the whole of the right of way of a railroad is needed longitudinally for railroad purposes, or when grounds, shops and the like, which are devoted to special uses in connection with the road and necessary to its operation and in constant use, in connection therewith, it should not be permitted to be ousted completely from its rights by a newcomer seeking to exercise a franchise of a different character, unless under most extraordinary circumstances, if at all.

We have noticed these general principles as the starting point for an examination of the character of. the right which is to be acquired by the plaintiffs herein, and of the extent it can be permitted to interfere, either permanently or temporarily, with those of the defendant, inasmuch as the amount of compensation to be awarded will be affected by those facts. We may say, in that connection, that we are by no means certain that the defendants themselves have more than an “ easement” over a large portion of their right of way. The evidence shows that when built, the road was constructed, in large part, over the public lands of the government of the United States, and it is more than likely that most of their right of way is held by “ appropriation” or “ occupancy” instead of by purchase, grant or expropriation — and that defendants have no “ fee” which the plaintiffs could expropriate, even if the law authorized them to do so. Be that as it may, we do not think, under the terms of the laws cited, that more than an easement or right of way was intended to be authorized to be acquired by telegraph and telephone companies over rights of way already appropriated or expropriated. We do not think it was the intention of the lawmaker to abridge the franchises of the corporation already holding possession, or to east affirmative, active duties upon them in respect to telephone lines which might be constructed upon their right of way. We think the lawmaker intended simply to force public corporations holding a right of way by expropriation to permit the use and occupation of a portion of the same, whenever the conditions under which the legal permission to do so was granted and upon which it was based were found to exist, and so long as they should continue to exist. These conditions are “ that the ordinary use of the roads, works, railroads and waters be not thereby obstructed.” We are inclined to believe that should the situation of affairs change subsequently so as to make it necessary for the original corporation in order to carry out their functions and duties to resume the use of the whole or a portion of the right of way which the second company had newly acquired, they could legally do so (unless controlled by special considerations) through proper proceedings and proof and under proper conditions. Qui prior est tempore potior eat jure.

The State government, in the statute quoted, “ granted to telegraph companies, conditionally, the privilege of constructing and maintaining their lines over and along all State, parish and public roads or public works,” and “along and over the waters of the State,” and declared that such companies should be entitled to the “right of way over all lands belonging to the State and over the lands. privileges and servitudes of other corporations, and the right to erect poles, etc., necessary for constructing, working, operating and maintaining the lines.” There is nothing in the language of this law indicative of an intention of doing more than authorizing a conditional easement or servitude upon defendants’ right of way. The compensation to which defendants are entitled for the use and occupation of a portion of their right of way would vary materially (if that be the character of the right to be acquired by the plaintiffs) from what it would be entitled to if these proceedings were to carry with them to plaintiffs the fee of any portion of defendants’ right of way.

“ Upon the principle,” says Lewis (Sec. 278), “that statutes conferring compulsory powers are to be strictly construed it follows, that where the estate taken is not defined only such estate or interest will vest as is necessary to accomplish the purpose in view. Thus under an authority to take land for a highway, railroad or other use, only an easement can be acquired.” A right of way in legal meaning is a mere easement -on the lands of others. (Am. and Eng. Ency. of Law, Vol. 6, verbo Eminent Domain, p. 531.)

The basis of calculation would be different as between the parties to this suit from what it would be if the plaintiffs were seeking to obtain rights under an original expropriation from the original owners of lands for public purposes.

It would be difficult to ascertain the “ market value ” of the land taken up in the erection of a telephone line over a railroad’s right of way, even if the railroad company held the fee. When once the land which is included in such a right of way has become separated from the different tracts of which it originally formed part, it has practically become hors de commerce as land. The value of the lands from which they have become detached and which border the right of way furnishes a poor basis for determining that within the right of way, as the lacter has ceased to be available for general purposes.

The Civil Code directs the jury of experts, impaneled to assess the value of the land sought to be expropriated, to “ determine by their verdict, after hearing the parties and their evidence, what is the value of the land described in the petition, and what damages, if any, the owner would sustain in addition to the loss of the land by its expropriation ” (0. C. 2622), and declares that “ in estimating the value of the property to be expropriated the basis of assessment shall be the true value which the land possessed before the contemplated improvement was proposed, without deducting therefrom any amount for the benefit derived by the owner from the contemplated improvement or work” (C. C. 2623).

The articles of the Code on this subject deal obviously with the question of expropriation and assessment as presented in its most’ usual form, and provide no standard where the object of the expropriation is the acquisition by one corporation of a right of way or right of occupation and use over a right of way already acquired by another.

Under such circumstances we are forced to construe the words “ value of the property to be expropriated ” to mean value of the; use and occupation of the property to be appropriated.”

The American and English Encyclopedia of Law in referring to-the subject of the measure of damages where they are demanded ‘ ‘ for running powers over another railroad ” declares that it is difficult to arrive at any rule for the computation of damages in such a case.

We find it laid down in that work under the authority of Griswold vs. St. Louis, etc., R. R. Co., 8 Mo. Ap. 582; S. C., 1 Am. and Eng. R. R. Cas. 626, that: “Where the use made of the land is simply temporary the measure of damage is not the full value of the land, but only a fair recompense to the owner for the use made of it and for any injury done to it.” We think the standard there adopted a just one, which can well be taken for the purposes of cases like the present. In determining what a fair compensation should be, the improved condition of the land sought to housed is a proper element in reaching conclusions. (Postal Co. vs. Morgan’s Co., 49 An. 60.) The defendants are not entitled to recover the original cost of improvements, but are entitled to reasonable-remuneration in view of the same. (Am. and Eng. Ency. of Law, Vol. 6, page 558.) In the case at bar plaintiffs’ telegraph poles are proposed to be placed on the outer edge of defendants’ right of way, considerably outside of any portion of the same which the railroad company has now in use, or is likely to call into use in the near future. We think the poles are sufficiently removed from defendants’ track to justify our designating danger from the same as a remote danger, even as to the sidings. The railroad right of way has-been already fenced in (in their own interest) in almost its entire length. Defendants are not called on to make any change in the same in the interest of the plaintiffs, nor will they be specially called on in interest of the latter to keep their right of way clear of grass to guard plaintiffs’ poles from danger from fire. Railroad companies are under a general obligation to keep their tracks free from combustible materials, but the plaintiffs, in voluntarily seeking to place their line along defendants’ right of way, assume certain risks (C. C. 2323), and also the obligation of taking the necessary steps and precautions for the protection of their own property from fire and for the operation of their line. Defendants’ fear of danger of liability from the presence of the telegraph poles on their line of way is greatly exaggerated, if it exists at all. A proportionate sharing of the expenses necessary for the purpose of keeping the right of way free from grass or undergrowth can easily be made the subject of conventional agreement between the parties, and if it be not so reached they would not stand without remedy. The telegraph poles of the plaintiff company will occupy ground throughout almost the entire length of the right of way claimed, which has never needed nor received improvement at the hands of the defendants. They will be placed, generally, on open, flat prairie land, which has called for no clearing. Defendants thus refer to their expenditures on their line of way for clearing purposes:

“The right of way of defendants over which plaintiff seeks to expropriate a right of way for telegraph purposes is one hundred and five and forty-one one-hundredths miles in length. Of this right of way eighty-six miles pass through agricultural and prairie lands, or urban property, there being numerous towns on the railroad. Thirteen miles are through timbered land not swamp; four and a half miles through timbered swamp, and and one and a half miles through swamps not timbered. These nineteen miles through timbered and swamp lands have been made available for a right of way at a cost of much labor and money and it is kept clear and in suitable condition at a considerable annual expense, its maintenance in this condition being necessary for the proper and safe operation of defendants’ trains.”
“ If plaintiff were not going to avail itself of the work already done by defendants, it would cost four hundred and thirty-six dollars and eighty cents to clear a width of eight feet (the width of the arms of the telegraph poles) through thirteen miles of timbered land not swamp, and two hundred and sixteen dollars to clear the same width through timbered swamps. In two years time the undergrowth would reach such a height as to interfere with the operation of the telegraph line and the land would have to be recleared every two years at an expense of twenty dollars per mile, or ten dollars per mile per year, or one hundred and seventy-five dollars for the seventeen and a half miles of timbered and timbered swamp land. But this expense of maintenance is saved the telegraph company from the necessity the railroad company is under of keeping its right of way clear and free from undergrowth. From the foregoing it appears that it would cost the telegraph company to do what'has already been done for it to make the seventeen and one-half miles suitable for telegraph right of way, $436.80 x 216, or $642.80. That it is saved a cost of maintenance equal to one hundred and seventy-five dollars per year, which capitalized at five percent, is equivalent to three thousand five hundred dollars.”
“ Is not the value then of the right of way [on that score] over the seventeen and one-half miles worth, at least, three thousand five hundred dollars plus six hundred and forty-two dollars and eighty cents, or four thousand one hundred and forty-two dollars and eighty cents.”

We have reached the conclusion that the amount awarded to defendants is too small and that it should be increased.

For the reasons herein assigned, it is hereby ordered, adjudged and decreed that the judgment appealed from be and the same is hereby amended by ordering and decreeing that the rights described in plaintiffs’ petition be and the same are hereby condemned, expropriated and adjudged to petitioner, the Postal Telegraph Cable Company of Louisiana, as a right of way for the purposes and subject to the conditions set forth and prayed for in said petition, the same to vest in petitioner upon payment by plaintiffs to the defendants of the sum of twenty-one hundred dollars.

It is further ordered, adjudged and decreed that the judgment appealed from, as so amended, be and the same is hereby affirmed, costs of appeal to be paid by the appellees.

On Applicatiok por Rehearing.

Watbiins, J.

The object of this suit is to expropriate the use of, or an easement over the defendant’s right of way from the town of Lafayette in this State to the Sabine river, a distance of one hundred' and five and forty-one one-hundredth miles, as being necessary for the use of the plaintiff in the establishment and operation of its line of telegraph along the route of the defendant’s railroad track.

Our opinion holds that plaintiff has the legal right to make such an expropriation, without disturbing the fee of defendant’s title; and increased the jury’s award of damages so as to allow the defendant the sum of two thousand one hundred dollars, the award of the jury having been fixed at eight dollars and fifty cents per mile,, equal, approximately, to eight hundred and ninety-two dollars and fift^ cents.

The opinion made reference to the case of Postal Telegraph and Cable Company of Louisiana vs. Morgan’s Louisiana and Texas Railroad and Steamship Company, 49 An. 58, in which the same plaintiff instituted proceedings to obtain a similar condemnation of the right of easement for its line of telegraph along the, route of the-defendant’s track from the city of New Orleans to the town of Lafayette; and it treated the instant suit as one for the extension of its line from Lafayette to the Sabine river.

It attracted attention to the fact that the jury, in the case cited,, awarded the defendant fifty-four dollars per mile, and that same, was approved by the judgment of this court on appeal.

In this application, the plaintiff’s counsel complain (1) that this-court improperly exercised the prerogative of amending and increasing the amount awarded by the jury; (2) that some explanation should be made of the grounds on which our opinion proceeds in making an increased allowance.

In the first place, we at once recognize the full force of the decisions quoted in counsel’s brief, to the effect that a jury of freeholders in matters of eminent domain possess, in a limited sense, the character of experts, and that their verdict has that authority in a general sense; and, that such is the jurisprudence of this court, as well as the courts of the country, none will doubt. But this concession does not imply that the power, authority, or jurisdiction of this court, as an appellate tribunal, is not adequate to deal with the verdict of such a jury as in any other case, having a due regard for and appreciation of the evidence upon which they acted.

The maxim resulting from that jurisprudence is, that the verdict of such a jury possesses greater weight than that of an ordinary jury, because of their being empowered by law to act upon knowledge of their own; and, consequently, it is supposed to exercise a. more potential influence with an appellate tribunal than that of any other.

We were not unmindful of that maxim in rendering our opinion, and-in amending and increasing the jury’s award as we did.

Appreciating the manifest discrepancy that existed between the-jury awards in the two cases against the same company for the condemnation of a like easement on the right of way along the same line of railway, we felt it to be our duty to reconcile the same in the-only way in which it was practicable by increasing the award in the case under consideration.

In this effort we carefully examined the facts appertaining to the instant case, and found and, in our opinion, reported accordingly.

The increased^ allowance will be seen by asimple calculation to-have been based upon twenty dollars per mile for one hundred and-five miles in extent of railroad track; that is to say thirty-four dollars per mile less than the jury awarded, and this court approved in the other case the resulting difference, principally, growing out of the difference in the character and topography of the country the-line traverses, and that of the difficulties and expense attending the construction of same.

A careful examination of the application and record has satisfied our minds that our opinion is sound, as well as just and equitable.

Rehearing refused.

Nicholls, C. J. absent; ill.