author: Nioholls, C. J.

text:
    No. 13,643.
    State ex rel. Charles C. Cotting vs. Hon. Walter B. Sommerville, Judge Civil District Court, Parish of Orleans.
    Syllabus.
    1. An injunction enjoining a person from talcing possession of another's property, prior to payment under expropriation proceedings, should not be dissolved on bond. Private property cannot be taken for public purposes without just and adequate compensation being first paid. (Constitution 1898, Article 167.)
    The owner’s right of retention of his property being guaranteed by the Constitution, the invasion of that right is per se an irreparable injury.
    2. An order dissolving an injunction on bond may work an irreparable injury and is appealable suspensively when the act, as alleged, amounts to a trespass; and the effect of dissolving the injuction would be to change the possession of immovable property. (State ex rel Sigur vs. Judge, 33 Annual, 133.)
    3. Usurpations and wrongs to rights of private properly cannot be justified by considerations of benefit to commerce, and the right of expropriation of private property can only be exercised according to the forms of the law. (Bruning vs. New Orleans Canal and Banking Co., 12 Annual, 541; Dudley vs. Tilton, 14th Annual, 286 ; Ivirk vs. Kansas City, Shreveport & Gulf Railway Co., 51st Annual, G82.)
    4. A deposit in money in the hands of the sheriff subject to the order of the owner of property sought to be expropriated does not authorize the plaintiff in expropriation proceedings to take possession of the property, , prior to the verdict of the jury and the judgment of the court therein, even though the amount of the deposit may be largely in excess of the value of the property.
    5. A district judge who has refused to grant a suspensive appeal from his order illegally dissolving, under Article 307 of the Code of Practice, an • injunction on bond should be ordered by mandamus to grant such an appeal. A plaintiff who has obtained an injunction restraining a person from taking possession of his property in expropriation proceedings prior to payment does not lose the right to have such an order issued for the reason that since the application for a mandamus the property has been expropriated by judgment and that under the judgment, plaintiff in the expropriation proceedings has made a deposit in the hands of the sheriff under Article 2634 of the Civil Code.
    ON Application for Mandamus and, in the Alternative, for Certiorari.

      Benjamin Bice Forman for Relator.
    Respondent Judge pro se.

   The opinion of the court was delivered by

Nioholls, C. J.

In relator’s petition io this court he alleges that since the 19th of December, 1894, up to about the 10th of September, 1900, he was in the quiet, peaceable and undisturbed possession as owner, having been in possession as universal legatee and instituted heir of all the property left by Mrs. Julia Roe, widow of John Creen, by judgment of the Civil District Court of the 14th December, 1894, and among said property that which he described in his petition; that 'on or about the 10th of September, 1900, the Illinois Central Railroad Company, claiming to be the lessee or assignee of the Chicago, St. Louis and New Orleans Railroad Company, was about to throw or had thrown earth and trespassed on relator’s said property, by putting earth thereon, and was about to lay ties and rails and thus take possession of his property, in violation of his constitutional right, protecting him in his right of properly, and especially of the article of the State Constitution which prohibits the taking of property for public purposes, without compensation previously paid, and in violation of the Constitution of the United States, 14th Amendment, which prohibits the taking of property without due process of law; and although the city ordinance providing for the opening of the street along the river front was passed and promulgated about the 1st of March, yet no expropriation proceedings had been taken to- expropriate relator’s property, of which he was in possession as owner; that the said railroad companies were further threatening to trespass upon relator’s property, by laying ties and rails thereon, when, on the 10th of September, 1900, he applied to the Civil District Court for the Parish of Orleans for a writ of injunction enjoining the said two railroad companies, their servants and agents, from entering upon or trespassing upon or taking relator’s said property without previously paying to him adequate compensation, and until the amount of said compensatiou should be ascertained in the mode pointed out by law, in expropriation proceedings, by a jury of freeholders, which injunction was duly issued and served to protect relator in his said constitutional right of property; that on or about the 11th of September, 1900, by an ex parte order, and without evidence (and not upon a rule to show cause^, the Honorable Walter B. Sommerville, judge of the said Civil District Court, did dissolve and set aside the said injunction on the said railroad companies giving bond in the sum of fifty-two hundred dollars; that said order was illegal and in contravention of the Constitution which prohibits the taking of private property for public use, without previous compensation being made, and illegal because it permits the taking of private property without due process of law, and said judgment should not have been set aside by any ex parte order; that on the 19th of September, 1900, he applied to the Honorable Walter B. Sommerville for an order for a suspensive appeal from said order of the 11th of September, and asked the court to fix the return day and the amount of bond, inasmuch as relator had given a bond deemed adequate to cover the damages that might accrue in case his own injunction was unlawfully obtained; that he was entitled to a suspensive appeal from said order or judgment dissolving his injunction, upon giving bond for costs of court; that the said judge refused to grant an appeal and to fix the amount of the bond or the return day; and the said ex parte order of the llih of September dissolving the injunction and permitting the railroad companies to take possession of his property, without compensation previously paid, was in violation of his said constitutional rights, and would have the effect of making the article of the Code of Practice, authorizing, in certain cases, the setting aside of an injunction upon the giving of bond, abrogate and do away with the higher law, to-wit: the Constitution of the State and of the United States, the one prohibiting the taking of private property without compensation previously made, and the other prohibiting the taking of property without due process of law.

In view of the premises, relator prays that an alternative writ of mandamus issue, directed to the said judge, commanding him to allow an appeal, and fix the return day and the amount of the appeal bond in the amount of the probable costs, and that after due proceedings the writ of mandamus be made peremptory, and¿ in the alternative, relator prays, should the court be of the opinion that an appeal was not the proper remedy, but that the relator should have relief against the illegal order which permits the taking of his property, without previous compensation, that a writ' of certiorari issue directing the judge to send up the record, with all the proceedings thereunder, in the suit entitled Charles O. Cotting vs. The Illinois Central Eailroad Company and the Chicago, St. Louis and New Orleans Eailroad Company, to the end that the validity of the said ex parte order of the 11th September, 1900, setting aside the injunction, on bond, should be inquired into and that it be decreed unlawful and set aside.

Upon the reading and consideration of the application, this court, on the 25th September, 1900, ordered the district judge to show cause why the mandamus sought should not issue as prayed for. In obedience to this order he answered that on February 28th, 1899, the City Council, in and for the Parish of Orleans, adopted Ordinance No. 15,080, C. S., which ordinance was approved March 1st, 1899, which would fully and at large appear by a copy of said ordinance annexed to the answer; that the object of said ordinance was the opening and widening of Water and Front streets, and that the Supreme Court, in the case of City of New Orleans vs. Steinhardt, 52 Ann. 1043, held that said ordinance was valid and that the city had the-power and right to purchase or expropriate the land necessary to carry out the object and purposes of said ordinance; that soon after the decision in the case of City of New Orleans vs. Steinhardt, 52 Ann. 1043, became final, the City of New Orleans and the Illinois Central Railroad Company organized a large force of labor for the purpose of laying out and widening Water and Front streets, and to lay the track of said Illinois Central Railroad Company on said street when thus laid out and widened as provided for in said ordinance; that when the property of relator, mentioned and described in petition herein, was reached, all of which property was and is vacant and necessary for the opening, and widening of Front and Water streets, as provided for in said ordinance, relator insisted upon being paid an exorbitant value for his property, which the city declined to pay, and thereupon plaintiff applied for and obtained the writ of injunction, the effect of which was to retard and stop the work of public improvement necessary and essential to the commerce of the port; that application having been made to dissolve said injunction, on bond, for the reason that the act complained of by the plaintiff was of such a nature as to be repaired or compensated in money, and respondent, therefore, had the discretion, under Article 307, C. P., to dissolve said injunction, on bond, the dissolution of the injunction not working plaintiff any irreparable injury, and respondent, upon examination, being of the same opinion, and with evidence before him showing that $2,100.00 had been deposited in the suit of City of New Orleans vs. Chas. O. Cotting, No. 63,062, Civil District Court, Parish of Orleans, the same being a suit (o expropriate the land in question, and it appearing on the face of the papers that the property was vacant, and evidence being adduced that Colting was anxious to sell, and the only difference between the parties being one of price, respondent ordered that said injunction be dissolved upon defendant executing bond in the sum of fifty-five hundred ($5,500) dollars, a sum far in excess of the value of the property as placed thereon by plaintiff; that in a similar case to the present, that of Gay vs. Pacific R. R. Co., 32 Ann. 277, it was held that where a corporation illegally entered upon land and constructed' works thereon without previous expropriation, the owner, on a perpetuation of an injunction prohibiting the entry before expropriation, was only entitled to a monied judgment for the value of the property illegally taken; As the Supreme Court had determined in the case of City of New Orleans vs. Steinhardt, that the ‘ordinance of the City of New Orleans, No. 15,080, providing for the opening and widening of Water street was valid, and that the city had. the right to expropriate the necessary lands to carry out the purposes and objects of said ordinance, as the land of plaintiff which was vacant and unimproved was necessary to carry out the purposes expressed in said ordinance, and, as under the Gay decision, 32 Ann. 277, the only effect of the city entering upon said land before expropriating it would be for plaintiff to obtain a judgment for the value of said land upon his 'injunction being perpetuated, relator could suffer no possible injury from the dissolution of the injunction upon a bond, far in excess of the value of the property placed thereon by plaintiff himself (36 Ann. 772); That it was well settled that whenever the act prohibited by the injunction is not such as may work an irreparable injury to the plaintiff, the judge might, in his discretion, dissolve the same on bond, and that no appeal would lie from said interlocutory decree permitting said injunction to be dissolved on bond. (O. P. Art. 307; 32 Ann. 1192; 45 Ann. 1493; 37 Ann. 826; 46 Ann. 83; 48 Ann. 1348; 50 Ann. 273.) That a failure to dissolve the injunction- on bond would have retarded and prevented a work of public improvement essential to the commerce of the port; and, besides, it would have entailed inconveniences and serious loss to both the city and railroad company, if the labor organized to do this work disbanded (30 Arm. 971, 972); that application' having been made to respondent in vacation for a suspensive appeal from the order dissolving said injunction on bond, respondent refused to allow same, as the order dissolving the injunction on bond did not work plaintiff an irreparable injury; that in 37 Ann. 825, it was held, “that a district judge who allows an injunction to be dissolved on bond, because the act complained of would' not work' an irreparable injury to the plaintiff, should consistently, refuse a suspensive appeal from his dissolving order, as the latter only applies when the interlocutory decree would cause irreparable' injury;’’ that in 32 Ann. 1196, the court said: “It is well settled by jurisprudence, in ac: eordance with law and reason, that no appeal lies from' an order dissolving an injunction on bond,, • by defendants, in compliance with Article 307, C. P., where the facts of the case show the dissolution can work no irreparable injury;” that in 37 Ann. 1193, it was held: :“That as a general rule, no injury can be considered irreparable where the damage or loss caused by the act complained of can be made good or repaired by the payment of money. (See also 50 Ann. 273; 46 Ann. 83; 36 Ann. 772 ; 33 Ann. 493; 34 Ann. 1181, and 39 Ann. 902 to the same effect). That plaintiff has failed to allege any personal injury to flow from the dissolution of the injunction on bond? and. it was; therefore, safe to conclude that he did not suffer irreparable injury from the interlocutory order dissolving his injunction on bond (37 Ann. ’825); that the only judgment plaintiff could obtain in this case, under .the Gay case, 32 Ann. 277, would be for the value of'the property, as there could be no question, under the Steinhardt case, but that the city had the right to expropriate this property, and he was amply protected by the bond given to dissolve the injunction, as said bond was largely ip. excess of the value of the land as fixed by plaintiff, and by verdict of the jury; it follows; therefore, that the damage or loss paused by the act complained of by plaintiff could be compensated in money;, that the injunction was of that class and nature that respondent had a right- to order same dissolved on bond and to refuse a suspensive appeal from the order permitting- same; that the City of New Orleans, on the 7th day of September, 1900, instituted expropriation proceedings against plaintiff to expropriate the lands mentioned and described in plaintiff’s petition, and that on the 26th and 27th of September, 1900, said expropriation proceedings were tried and the jury rendered a verdict authorizing and empowering- the City of New Orleans to expropriate said lands upon the payment to relator of twenty-five hundred dollars, which sum had been deposited in the hands of the civil sheriff, in accordance with Article 2634, R. C. C.; all of which would more fully appear by the proceedings on file in the suit of City of New Orleans vs. Chas. O. Cotting, No. 63,062, Civil District Court for the Parish of Orleans, Division “D,” which he annexed and made part of his answer, and also receipt of the civil sheriff for the Parish of Orleans, showing that amount of said verdict had been deposited in the hands of the sheriff; and that under the law and jurisprudence of the State, title to said property was now vested in the City of New Orleans and her agents could lawfully enter thereon and were at the time of the filing of the answer in possession thereof (R. C. C. Art. 2634); that plaintiff had no further interest in the lands referred to and no right to appeal from the order permitting the injunction to be dissolved on bond.

On the 5th of October, 1900, the district judge filed a supplemental answer or return in which, after reiterating the averments which he had previously made, he alleged that in accordance with the verdict of the jury rendered in the case of the City of New Orleans vs. Chas. O. Cotting, a judgment was rendered and signed, in open court, October 3, 1900, as would appear by a copy of the judgment which he annexed ; that under the law of Louisiana, the verdict, the judgment, thereon, and the fact that the money fixed by tihe verdict was paid into the hands of the sheriff, subject to the orders of Charles O. Cotting, had operated a complete and absolute transfer of the property in question to the City of New Orleans, and the relator was without further interest to further prosecute any proceedings in the injunction suit, and any decision rendered by the Supreme Court would be simply the decision of a moot question, and that under the jurisprudence of the Supreme Court, in an unbroken line, it had always refused to decide moot questions where no real issues were involved.

In view of the premises, he prayed that the application for the writ of mandamus be refused.

On the 12th of October, 1900, relator filed in the Supreme Court a paper verified by his oath, in which he alleged that he had had no notice of the application on the part of the Illinois Central Railroad Company, or the other defendant, in the case of Charles C. Cotting against the said Illinois Central Railroad Company, of its intended motion of the 11th of September, 1900, to dissolve the injunction which he had obtained on bond; that he was not present and as he was informed and believed his counsel was not present and had no notice of the said application; that if it were true, of which affiant was entirely ignorant, “that the Illinois Central Railroad Company organized a large labor force for the purpose of laying out and widening Water and Front streets, and to lay the track for the said Illinois Central Railroad Company on the said street, when it was thus laid out and widened, as provided for in the said ordinance, then that was a matter of which he was ignorant; that he had no knowledge of any intention to introduce any such evidence before the Honorable Walter B. Sommerville, and he would have the legal right to contradict the said evidence and to show that his property was neither on Water nor Front street, and did not touch either of the said streets, of which he was deprived by the illegal ex parte order of the 11th of September, 1900, complained of in this proceeding; that he denied that he insisted upon being paid an exorbitant value for his property, which the city declined to pay; he averred that he had no dealings whatever with the city; that the city never applied to him to buy his property, or offered to páy him anything until the Illinois Central Railroad Company, acting in the expropriation proceedings hereinafter referred to, deposited twenty-five hundred dollars in the court; that if there was any evidence before the court when it rendered this ex parte order on the 11th September, 1900, complained of, allowing the Illinois Central Railroad Company to trespass upon his property without having previously paid him the value thereof, or damage that he would sustain, in violation of Article 167 of the Constitution, “he was not aware of the said evidence, was not present when it was offered, had no opportunity to cross-examine witnesses or to show that the property on which they were trespassing, and which they wfere attempting to take by force, was not the property provided for in the ordinance and on the lines and plans of the city engineer, authorized by the ordinance of the City of New Orleans;” that as to the issues in the case, of the City of New Orleans against Steinhardt, they were totally different from the issues in the case of the City of New Orleans against him; that his property was not upon Water street and when the expropriation case of the City of New Orleans against him came up for trial it was long after the ex parte order of the 11th of September, 1900, which he complains of, and he insisted that the property sought to be expropriated was not the property included in the city ordinance and fixed by the lines of the city surveyor, an issue which was not raised in the case of Steinhardt; that relator’s property was some two or three miles from the Steinhardt inoperty and totally differently situated, and the judge of the Civil District Court, in trying the expropriation case, erroneously charged the jury that they had no concern with the question as to whether or not the property sought to be expropriated in that case was that authorized by the ordinance and by the lines of the city surveyor, and whether it was totally different property; and relator, through his counsel, duly excepted to the said charge, as well as excepted to the charge of the judge with reference to the method of fixing the value of ■the property and the damage done to relator by reason of the unlawful taking of his property; that if any evidence of the facts, stated in the judge’s answer in this mandamus case, was offered on the 11th of September, 1900, or at any other time, before the Hon. Walter R. Sommerville, relator had no notice of the same, was not present and had no opportunity to cross-examine witnesses or disprove the facts alleged in the judge’s answer, and it was not true that “relator could suffer no possible injury from the dissolution of the injunction ux)on bond” as stated by the judge; that “if there was any evidence before the Honorable Walter B. Sommerville that a failure to dissolve the injunction on bond would have retarded and prevented the work of great public improvement essential to the commerce of the port, and would have entailed inconvenience and serious loss to both the city and the said Railroad Company, if the labor organized to do this work was disbanded,” relator had no notice of any intention to introduce evidence on the subject, and he denied the truth thereof; on the contrary, the Illinois Central Railroad Company, or the city, if it had any legal ground to expropriate the property of relator, could have commenced this expropriation suit some months ago, long before the courts adjourned, and had it finally decided; that it was illegal and improper, when he seeks to have reviewed and set aside an illegal order which permits the taking of his property, in violation of his constitutional rights, without compensation being first paid, to set up matters and things which may or may not have occurred long after the illegal order complained of; that while it was true that in the expropriation suit, that of the City of New Orleans against him, tried before Judge King, on the 26th and 2Yth days of September, 1900, the Railroad Company did deposit twenty-one hundred dollars, and the jury did find the value of the properly to be twenty-five hundred dollars, yet the said finding was illegal, because the judge instructed the jury that they had no concern as to whether the property sought to be expropriated was the same fixed in the lines and the plan of the city surveyor, that because the judge erroneously charged as to the manner in which the jury should arrive at their verdict, which was duly excepted to, relator has taken an appeal from the said judgment, and the said verdict of the jury; and the judgment of Judge King, rendered long after the order complained of herein, was not proper to be considered in this proceeding; that relator denied all of the material allegations of fact (except those expressly admitted) in the answer of the said judge, and he prayed either that the mandamus be made peremptory, compelling him to grant a suspensive appeal, or, in the alternative, that a writ of certiorari issue, commanding him to send up the record in the case of Chas. C. Cotting vs. The Illinois Central Railroad Company and others, and that his order aforesaid, on the 11th of September, 1900, be set aside as null and void and in violation of relator’s constitutional rights; and he further prayed that the Supreme Court would send to the clerk of the Civil District Court the papers in the case of the City of New Orleans vs. Chas. C. Cotting, in order that a transcript of appeal may be made and filed on the return day, to-wit: On the 23rd of October, and that it may consider the legality of the said expropriation'proceedings before determining upon'the said appeal.

Accompanying this paper was an affidavit of B. R. Forman, relator’s attorney, in which he declared that he had no notice of the application of the Illinois Central Railroad Company dissolving the injunction on bond; that he was not present and had no opportunity to examine the witnesses, or contradict or disprove the facts Judge Sommerville; in his answer, sets up; that if such facts were before the judge, in his opinion, they were before him illegally, and he could take no cognizance of them without an opportunity on the part of Cotting and his counsel to cross-examine the witnesses and to offer rebutting testimony, and, therefore, that the legal effect of the order of Judge Sommerville, dissolving. the injunction on bond, was to permit the Illinois Central Railroad Company to take violent and forcible possession of the property of Charles O. Cotting, without previously paying therefor, and in accord-a-no with Article 107 of the Constitution, and was a taking of private property without due process of law.

Opinion.

The only question before us on this application is whether the relator was entitled to a suspensive appeal from the action of the district judge dissolving on bond the injunction which had been issued in his favor.

The authority of a district judge to dissolve on bond an injunction which he has granted to a party applying for the same is derived from Article 307 of the Code of Practice, which declares that, “whenever the act prohibited by the injunction is not an irreparable injury to the plaintiff, the court may, in their discretion, dissolve the same provided the defendant execute his obligation in favor of the plaintiff, with the surety of one good and solvent surety residing within the jurisdiction of the court, for such sum as the court may determine according to the nature of the case, as security that he will deliver the property in dispute in the same state in which it was at the moment of issuing the injunction, and that he will pay besides to the plaintiff all damages he may have sustained by his act, if a definitive judgment be rendered against him in the suit pending.”

The district judge is entitled to decide, primarily, whether an act prohibited by an injunction is one which may work an irreparable injury to the plaintiff, and when he has exercised the right so vested in him in favor of the right of the defendant to have the same dissolved on bond, it is not surprising that he should decline to grant a suspensive appeal from his decision on that subject. The discretion vested in him of passing upon the character of the injury which might result to the plaintiff-from a dissolution of the injunction,- is subject to be reviewed, as to its correct exercise, by the Supreme Court, and where this right of review, claimed by the plaintiff to be open to him through a suspensive appeal, is denied by the judge, the issue so raised is properly referred to this court under an application for a writ of mandamus to the inferior judge.

The District Court contends, in the present instance, that his refusal of a suspensive appeal was an interlocutory order, working no injury, for the reason that the act prohibited by the injunction was itself an act working no injury. He maintained that, by the decision of this court, in the case of The City of New Orleans vs. Steinhardt, 52 Ann. 10M, it was adjudged that the ordinance of the City of New Orleans, providing for the opening' and widening of Water street, was valid, and that the city had the right to expropriate the necessary lands to carry out the purposes expressed in said ordinance; that the only effect of the plaintiff entering upon relator’s land, before expropriating it, would be for plaintiff to obtain a judgment for the value of his land upon his injunction being perpetuated, and he could suffer no possible injury from the dissolution of the injunction upon a bond far in excess of the value of the property placed thereon by himself.

It is true that the right of the city to expropriate property, under the ordinance referred to, for the purposes .therein stated, and its right to expropriate the property of the defendant in that particular case, was affirmed in the case cited as against the objections urged by that defendant, but the scope and effect of that judgment is not as sweeping and radical as is urged for them. Questions as to the application of this recognized right of eminent domain to the particular property belonging to the relator, and the terms, conditions and circumstances under which its title and possession should pass from its owner,- were matters left open by the decree in the case cited. These were left to be determined in the special proceedings which would be directed against relator and his property on the special issues which would be raised therein.

Granting that in point of fact and law the property was properly subject to expropriation for the purposes stated and on the lines claimed by the parties desiring expropriation, and that proceedings instituted for that object would result in a judgment for money, easy to be gauged as to value, it by no means followed, from these facts, that possession of the property should be taken from its owner prior to payment for the same under the verdict of a jury.

The Constitution of this State declares, in Article 167, that “private property shall not be taken nor damaged for public purposes without just and adequate compensation being first paid.” The retention of one’s property, even in expropriation proceedings, until just and adequate compensation should be first paid, is a right secured by express constitutional provision, and there is no legal justification for an order of court which would authorize the invasion of this right by permitting the possession of the property to be changed, pending the litigation, by giving of a bond to the owner.

There is no basis whatever for a contrary contention in the proposition that the bond furnished would fully and amply protect the owner from ultimate loss, and, therefore, no irreparable injury to him would accrue. A court is bound to assume that the deprivation of a right secured to a person by constitutional guarantee works him per se an irreparable injury.

Flow can a court order or permit an act to be done which the Constitution declares shall not be done? If relator’s allegations be true, a tort and a trespass has been committed.

A court cannot authorize the continuance of such an act by and through the giving of a bond.

It has been repeatedly held by this court, independent of any question of constitutional right, that an order dissolving on bond may work an irreparable injury, and is appealable when the act, as alleged, amounts to a trespass, and the effect of dissolving the injunction would be to change the possession of immovable property. ((33 Ann. 133, State ex rel. Sigur vs. Judge; Ruckette vs. Flicks, Judge, 39 Ann. 901; State ex. rel. Hake vs. Judge, 52 Ann. 105.)

The District Court states that at the time that he ordered the dissolution of the injunction on bond, proceedings had been instituted to expropriate this property in the suit of the City of New Orleans vs. Charles C. Cotting, and he made the order, with evidence before him that $2,i00 had been deposited in that suit by the city. Flow, and under what circumstances, the District Court came to receive this evidence is not shown, but the order to dissolve was made ex parle.

The court evidently considered this deposit of money made by the city equivalent to the prior payment of the price required by the Constitution as a condition precedent to the shifting of the title and possession of the property, but we are of opinion that this view of the situation was erroneous.

It is true that Article 2634 of the Civil Code authorizes the execution of a judgment for the expropriation of particular property, either by the payment of money or the deposit thereof, subject to the owner’s order in the hands of the sheriff, but this payment is not of money fixed as to an amount by the party plaintiff, or by the court, but fixed by the verdict of the jury. The law contemplates a payment or a deposit made after a trial and a verdict. The court assigns a3 a further reason for its action that a failure 'to dissolve the injunction on bond would have retarded and prevented a work of public improvement, essential to the commerce of the port, and besides it would have entailed inconvenience and loss to both the city and railroad company, if the labor organized to do this work had disbanded. In support of his position, the judge cites the decision of this court in the Jefferson and Lake Pontehartrain Eailroad Company vs. the City of New Orleans, 30 Ann. 971, and that in Gay vs. Pacific Railroad Company, 32 Ann. 277.

Referring to the latter case, he says it was therein held that where a corporation illegally entered upon land and constructed works thereon, without previous expropriation, the owner, on a perpetuation of an injunction prohibiting the entry before expropriation, was only entitled to a monied judgment for the value of the property illegally taken.' An examination of this decision does not sustain the view taken of it, nor the action of the court predicated upon it. So far from justifying the entry of the railroad company upon plaintiff’s property prior to payment to the owner, the Supreme Court reinstated the injunction which the latter had taken out and which the District Court had dissolved.

The court did, in the matter of the Jefferson and Lake Pontchartrain Eailroad Company (30 Ann. 971), sustain the District Court in dissolving on bond the injunction which the plaintiff had caused to be issued “restraining the city from using and maintaining on land belonging to it, a canal running from Northline street to the lake, and from draining into said canal, and over said property, and from entering upon his land and from trespassing thereon, and from preventing the plaintiff damming said canal, so as to prevent the city’s draining therein,” but the judgment of the court was based upon the special state of facts disclosed by the evidence taken in that case, which brought prominently into it, as factors affecting the decision, the doctrines of .estoppel, waiver and acquiescence, doctrines which play no part in the case now before this court.

Other cases might be cited where the owner of property, having stood by and permitted works of a public character to be entirely ■constructed tliereon before opposition thereto, or having raised objections to the same only at the last moment, just before their completion, the courts have refused to prevent their continuance through an injunction, to order the removal of the works, and have confined the relief 'granted to the owner to just and adequate compensation, then or 'thereafter to bo made.to him; but decisions to that effect furnish no precedent for not affording to an owner who invokes, in proper time ■for his protection, the remedies of the law, full relief from an illegal 'entry upon his property under an - alleged right to the possession thereof and prior to payment to him therefor, under the exercise of the right of eminent domain.

If relaior was entitled, under the constitution, 'to retain possession of his property during expropriation proceedings instituted under the right of eminent domain until just and adequate compensation should be first made to him, that right could not be defeated by mere consideration of public convenience. In Bruning vs. New Orleans Canal and Banking Company, 12 Ann. 541 (repeated in Dudley vs. Tilton, 14 Ann. 286, and Kirk vs. Kansas City, Shreveport and Gulf Railway-Company, 51 Ann. 682), it was held that “usurpations and wrongs to private rights of properly cannot be justified by any considerations of benefits to commerce, and the right of expropriation of private property can only be exercised according to the forms of law.”

The district judge urges that we should not grant the present application, for the. reason that since his refusal of an appeal the suit of the City of New Orleans vs. Charles C. Cotting, Relator, has gone to judgment; this particular property has been legally expropriated and the amount fixed by the jury as being a just and adequate compensation ■for the same has been deposited in the hands of the sheriff, subject to the present relator’s order; that under such circumstances the city was authorized to take possession of the property.

He contends that if the injunction which has issued at relator’s instance should be reinstated, it could not be presently executed, in view of the fact that the city would be now found in legal possession; that the injunction was sought as a preventive remedy, and it would be futile to reinstate a preventive injunction as against accomplished facts; that to pass upon the issues raised would be to pass upon merely abstract moot questions. The case before us differs in some respects from those where courts have refused to grant a m'andamus, in view of the fact that the writ would accomplish nothing by its issuing, in that the object sought to be ultimately obtained herein, is not the “doing” of an act which can no longer be done, but the undoing of an affirmative act taken by the court in the course of a litigation which is still undisposed of, which it may be to the interest of the parties to the litigation to have set aside to the ascertainment and fixing of their exact rights and obligations.

The original injunction, with the questions raised thereby, has not abated by the fact that subsequent thereto expropriation proceedings touching this particular property have been brought to an end, and that under the same the city may have taken possession of the same. The issues raised were as to the rights and obligations of parties as arising from an alleged unauthorized and illegal taking possession of the property, prior to the expropriation.

We think a writ of mandamus should issue, as prayed for, leaving to be hereafter determined what shall be the result of the suspensive appeal herein ordered to be granted.

For the reasons assigned, it is hereby ordered, adjudged and decreed that a writ of mandamus issue, as prayed for herein, commanding Walter B. Summerville, judge of the Civil District Court for the Parish of Orleans, Division D, to grant the relator a suspensive appeal to this court from the order or decree rendered by him on the 11th of September, 1900, dissolving on Fond injunction issued at the instance of the relator Charles C. Cotting, on September 10th, 1900, in the matter entitled Charles C. Cotting vs. The Illinois Central Railroad Company and the Chicago, St. Louis and New Orleans Railroad Companies, and that the costs of this proceeding be paid in solido by the Elinois Central Railroad Company and the Chicago, St. Louis and New Orleans Railroad Companies.


source: Caselaw Access Project

author: Breaux, J.

license: Public Domain

text:
    No. 13,352.
    Mrs. Marie J. Fortier vs. Spencer B. Roane.
    Syllabus.
    The east and west lines of the east 1-2 of Sec. 8, T. 14, S. R. 8 E., are correctly located.
    The land in dispute as relates to eastern and western boundaries is within the limits of the area just described.
    Plaintiff’s dwelling and that of her son, not long after her purchase in 1808, were built about or near the points indicated by letters X and Y and at that locality she was entitled to an area of 80 58-100 acres by deed dated in 1858. Defendant’s deed to same area dates from 1874. In matter i'of location, and area, he who is prior in time is stronger in right.
    There is controversy about the north and south boundary of the land. On the south, viz: the Borre!, and Scott lines, it does not satisfactorily appear that there ever was a Borrel and Scott line, and if there was It never joined the land in controversy.
    It does not appear satisfactorily who originally owned the lands north of and adjoining the land in controversy. The court holds that as plaintiff’s vendor was the owner of eighty 58-100 acres near the dwellings m question, plaintiff is entitled to the area claimed, and that the defendant being a purchaser subsequent in date is not entitled to judgment ousting the plaintiff from lands in that locality.
    Rental is allowed from judicial demand on lands actually in controversy.
    ON APPEAL from the Twenty-Fourth Judicial District, Parish of St. Mary — Allen, J.

      D. Caffery & Son and J. Sully Martel for Plaintiff, Appellee.

      Charles A. 0’Niell for Defendant, Appellant.

      Philip H. Mente for the Estate of Jules M. Burguieres, and the Estate of Emile Provost, Warrantors, Appellants.
   The opinion of the court was delivered by

Breaux, J.

Plaintiff brought this petitory action against the defendant for the ownership of lands described in her petition, and for rent thereon. She sets forth that the defendant holds adverse possession of this land without title.

This land was acquired by her from Leon David in 1893. The latter, Leon David, bought land at sheriff’s sale January, 1892, which includes, plaintiff avers, the land she claims. It appears that Pierre Maillard and N. Cerf acquired this land from the administrator of the estate of Pierre Cerf. The latter Cerf acquired land included in plaintiffs description from Hortense Borrel in 1882, and Hortense Borrel acquired land from William Doty, and William Doty acquired from Mrs. Charles Grevemberg in 1858.

In her petition, plaintiff describes the land she claims as a tract situated in Cypremortj, Parish of St. Mary, measuring eighty and 58-100 acres; bounded north and east by land formerly belonging to Pierre Cerf, south by land owned by E. P. Scott and Pierre Borrel, and west by land belonging to Mrs. Charles Grevemberg.

In the deed introduced in evidence and under which plaintiff acquired the land, it is described as a tract or parcel of land in Cypremort Prairie, being lots three, four, and five of fractional N. W. 1-4 of Sec. 7, containing a superficial area of 63 and 69-100 arpents and the E. 1-2 of the N. E. 1-4 of Sec. 8, containing a superficial area of 55 and 58-100 arpents, in T. 14 S. of R. 8 in S. W. Land Dist. The whole containing a superficial area of 119 and 27-100 arpents and bounded on the north by the public road in part, and in part by land formerly owned by A. Moresi, on the east by land formerly belonging to A. Sorrel, on the south in part by lands formerly the property of Dr. E. P. Scott, and in part by lands formerly the property of Bres, and on the east by lands of S. B. Roane, said conveyed land being designated on a map as included within the lines marked A. B. C. D. and in the possession of the vendor.

The deed preceding in date the one to which we have just referred, that is the deed under which Leon David conveyed to plaintiff, embraces a larger number of acres than he conveyed to plaintiff. We will refer to this deed later.

The defendant claimed that he is the owner of land described by the survey made by Wm. W. Johnson, which, according to the United States Surveys, is described as being in lot one, Sec. 8, T. 14, S. R. 8 E., which he acquired from Burguieres and Provost on the 5th of October, 1886, and that they, in turn, acquired at public sale made in suit of Emile Prevost vs. Marie A Ferie, wife of A. Grevemberg, on October 2nd, 1886, and that the defendant in the last mentioned case held it as owner by a daíion en paiement made to her by her husband in 1874, and that her (Mrs. Grevemberg’s) husband acquired this property from Mrs. Charles Grevemberg in 1874.

' The title of plaintiff and that of defendant are derived from Mrs. Charles Grevemberg, who acquired the Kilgore plantation in 1855 within the limits of which was the lot now in controversy.

The judge of the District Court handed down a carefully written opinion and rendered judgment in plaintiff’s favor recognizing her as owner o'f the land she claims and specifically described as lot one of the E. 1-2 of Sec. 8, T. 14, S. R. 8 E. lying within the lines lettered A. B. C. D. on the map of W. W. Johnson, surveyor, dated August 3rd, 1897, received and filed August 3, 1897, and also rendered judgment for rent at four dollars per acre per annum, from January 22nd, 1894. From this judgment, defendant appeals.

At the outset, we state that there is really no conflict of title between plaintiff and defendant, save as to a limited area of land. In order completely to’ present the issues to the court, the argument at bar and 'the briefs embraced other titles and other land areas than those actually in’ controversy. At first, this created the impression that considerably moire area is ’ involved than there really is in dispute. The recitals in plaintiff’s deed includes all the area indicated by the letters A. B. O. D. of the Johnson Survey. This embraces an area altogether of 119.27 arpents.

' Plaintiff in suit claims 80 and 58-100 acres. In his answer, defendant claims lot No. 1 in Section 8, T. 14, R. 8 E., and from the argument the quantity, we judge, is considerably less. It is limited to the land included within the figure E. K. A. V.

We take it that at least the line I. N. of the survey, that is, the dividing line of section 7 and section 8 is correctly located, and that the parallel line D. M. also was correctly located. We, therefore, have before us (undisputed) the eastern and western boundaries of lot one. That the lots ten and eleven, between these two lines, are owned by Bres is also undisputed.

We insert here a cut of the map introduced in evidence.

Mrs. Grevemberg-, ancestor in title of both plaintiff and defendant, in 1858, in an exchange conveyed the land in dispute to, William Doty, measuring, as stated in the deed of exchange, eighty and 58-100 acres, ■bounded north and east by land belonging .to Cerf. In the same year, he, Doty, in turn, conveyed this land to Mrs. Eugenie Borrel,- who went into possession. She constructed her dwelling- house on the east of a small stream of water or coulee. This part of lot one beyond question was owned by Mrs. Eugenie Borrel. Defendant testifies that north, plaintiffs’ lands are bounded by those of Oerf. We do not take it that he claims any land between Mrs. Borrel and Oerf on the north. Be that as it may, the controversy reduces itself to the land within the figure E.Iv. A.Y. If this be correct, then we must arrive at the conclusion that there is a deficiency of more than forty acres in the Borrel tract or Doty tract This, the defendant contends for, and she says that the surveyor has endeavored to explain it by extending the lines south of line A. B. and thereby taking in part of the Bres tract to which Mrs. Charles Grevemberg never had any title. This is true, and the surveyor by whom these tracts were surveyed, adopted the theory that the eighty 58-100 acres of land given by Mrs. Grevemberg in the exchange with William Doty for lot 6 of section 8 represented by the figure E. E. G. H. consists of south half of lot 10 of Sec. 8 (the Bres land). This is also the view of the opinion upon which the judgment appealed from is asked. Our view is different, although our conclusion is practically the same. We, on the contrary, are of the opinion that Mrs. Borrel was entitled to her quantity of land stated in the deed to her and which her vendor had bought from Mrs. Grevemberg. Lot one contained the number sold. The description was given more or less correctly, except as to the southern boundary. The owners of the land south of the tract conveyed by Mrs. Grevemberg were not Borrel and Scott. There is evidently an error. If that boundary be adopted as correct, then Mrs. Grevemberg received lot 6 of Sec. 8 and undertook to convey therefor land which she did not own. On the other hand, all the other boundaries indicate that lot one was intended. This vendor owned the number of acres at this place which she sold. The number of acres sold corresponds with the number she owned. She could not sell that number of acres of land in the locality without selling lot one.

In 1874 she did, it is true, include this lot one in a conveyance made of it to her son, Agricole Grevemberg. There were no boundaries given and lot one was included with other numbers of lots of land she sold to him. Had boundaries been given, it may be that the error would have been detected. Be this as it may, she could not legally convey the same property a second time. We are not of the opinion that the land was owned by Oerf as stated in the opinion of our worthy, brother of the District Court. If it was, the title is anterior to defendant’s title or that of his ancestor in title, Mrs. Grevemberg.

Defendant insists that lot one is not the tract of land transferred by Mrs. Grevemberg and will have it that it is not, because, as he contends, the ancestors in title of plaintiff have all acknowledged that lot one belonged to the Kilgore plantation; that, for example, in the sale to Joseph David in 1887, the lots four and five of section seven were sold as being bounded on the west by William Kilgore and that the land west is lot one of section eight.

This would exclude plaintiff and all her ancestors in title from ownership of any part of lot one. It will be noticed that lots four and five bound lot one completely on the east, and this would go to show that Mrs. Eugenie Borrel was on the Kilgore plantation and not on the land she bought from Doly. We think it is manifest that Kilgore having been the owner for so many years that the owners of adjacent land continued to designate the western boundary by the name of the plantation, although the owner had long previously parted with the ownership.

This brings us to the questions of estoppel and prescription. The estoppel is based on the defendant’s averment that plaintiff, through her husband as agent, made a demand from respondent to remove the boundaries dividing her land from defendant’s; that without admitting the justness of her claim, he consented to an amicable adjustment and new boundaries were agreed upon. It does not appear in our view of the testimony that plaintiff’s husband was her agent, or that she is concluded from asserting her claim to her lands.

As regards the prescription of thirty years, we do not think that it is sustained by the testimony. Plaintiff was in possession of nearly all the land when the first survey was made. We have not found that the portion of which she did not have the possession was in the possession of defendant a sufficient number of years.to give her prescriptive title. As relates to rent, we have concluded to affirm the judgment as to the amount at four dollars per annum per acre, but to amend the judgment so as to allow rental from judicial demand.

It is ordered, adjudged and decreed that the judgment appealed from be affirmed as to the amount of the rental; that'is at four dollars per annum per acre from judicial demand, i. e., Sept. 1, 1897, on 13.60 acres land actually in controversy.

It is further ordered, adjudged and decreed that the judgment be further amended by recognizing defendant’s ownership to one acre and a half of the land in lot one bought by defendant from plaintiff, i. e., the crescent. shaped tract of land which defendant acquired in exchange for a certain boiler and engine.

With these amendments, the judgment appealed from is affirmed at appellee’s costs.


author: Blanchard, J.

text:
    No. 13,235.
    Mason Smith & Company vs. W. W. Bierce et al.
    Syllabus.
    Certain parties in New Orleans proposed the erection of a cotton compress in Shreveport.
    There entered into their plan the making of such arrangements with the local cotton men as would secure for the press the control of the greater part of the cotton received at Shreveport.
    At the same time they proposed and agreed among themselves that the controlling interest in the corporation should always remain with themselves, and to this end that no one of the promoters should sell his share of stock to an outsider without first offering it to his associates.
    But it was found that the local men who controlled the cotton' trade at Shreveport would have nothing to do with the enterprise unless the control of a majority of the stock was placed in their hands.
    It being reported to plaintiffs that difficulties threatening to defeat the scheme existed, they wired their associates at Shreveport, who had gone there to carry their common plans into execution, that they would ratify and join in whatever it was thought best to do.
    Their associates (defendants herein) then gave the Shreveport people an option on a number of shares sufficient to enable the latter to control the corporation, which was then organized and the compress erected. It proved a success, paying large dividends and its stock advanced within twelve months one hundred per cent, in value.
    In this suit .by plaintiffs to recover damages of defendants on account of the transfer of stock called for by the option without first offering same to plaintiffs :
    Held — That what defendants did was essential to the success of the enterprise and must be considered as coming within the intent, letter and spirit . . of plaintiffs’ telegram and defendants are not answerable in damages.
    APPEAL from the Civil District Court, Parish of Orleans— Ellis, J.

      Branch K. Miller for Plaintiffs, Appellants.

      Eenner, Henderson & Fenner for Defendants, Appellees.
   The opinion of the court was delivered by

Blanchard, J.

Plaintiffs are a commercial partnership carrying on the business of buying and selling cotton in New Orleans, with connections at Shreveport, Louisiana.

Defendants are promoters and builders of cotton compresses.

They proposed to plaintiffs to go in together and organize a corporation at Sheveport for the purpose of building^ establishing and operating a compress there.

Plaintiffs, thinking well of the proposition, suggested the advisability of taking into the enterprise the commercial partnership of C. H. Minge & Co., who were likewise buyers and sellers of cotton at New Orleans and Shreveport. This was assented to by defendants and Minge was brought in.

The three of them, Smith, Bierce and Minge, representing their respective firms, then laid their plans for the consummation of the object they had in view.

Columbus Bierce., one of defendants, was sent to Shreveport to initiate the movement for the construction of the press.

To ensure its successful operation after construction, it was necessary to interest in the project the commission merchants, factors and buyers at Shreveport who controlled the cotton trade of that city.

Smith, Bierce and Minge had started out with the idea and understanding that the control of the corporation should always remain in their hands, and to this end that the holdings of stock of the three should always constitute a majority of the shares.

To carry this out plaintiffs insist it was agreed and stipulated between the three that they, acting separately, should subscribe for enough of the stock which, in the aggregate of their holdings^ would amount to a majority of the shares, and thus, by acting together, the control of the press would.be retained in their hands. Furthermore, that to secure the permanency of this control, it was agreed and stipulated between the three that no one of them could or should dispose of his holdings of stock to any other person or persons without first offering the same to his associates and giving them the opportunity to buy.

Defendants deny this, contending that the extent of the obligation they assumed to plaintiffs, as an inducement for the latter to go into the enterprise with them, was that they (defendants) would agree to insure plaintiffs against loss.

The agreement of these gentlemen among themselves that they (the three) should control a majority of the stock was easy to. make, but in practice it was found it would not work.

The shrewd business men of Shreveport who controlled the cotton output of that city, and whose participation was absolutely essential to the success of the compress, had no idea of permitting the New Orleans parties to dominate the affairs of the corporation. . It was alike their interest and intention that the. control should be at the Shreveport end of the line, and they announced to Columbus Bierce, the agent of the New Orleans parties, their purpose to have nothing to do with his scheme unless it was so arranged that a majority of the stock should be held in Shreveport. They stipulated that the local cotton men, who were in a position to aid the enterprise by sending cotton to the press, should be permitted to take stock, and that in addition to the number of shares so taken three of the largest cotton dealers, Hicks, Ardis and Taylor, should be given an option on 150 shares of the stock at par — the option to last twelve months. The stock covered by the option, added to that subscribed by the local dealers in, cotton, constituted a majority of the shares.

These requirements of the Shreveport parties had to be met, or else there would be a failure of the enterprise which Smith, Bierce and Minge were promoting.

Several other projects were, at the time, afoot looking to the construction of other compresses at Shreveport, or the enlargement of those already there, and the promoters of these were, too, soliciting the co-operation of Hicks, Ardis, Taylor and other local cotton interests and offering large inducements, and unless prompt action was taken by the representative of Smith, Bierce and Minge it was likely a deal would be made with some one of the rival concerns by which the support of the local interests would be lost to.the former.

In. this emergency Columbus Bierce urged upon his principals in New Orleans to come to Shreveport and assist him in the matter he had in hand. W. W. Bierce and Smith agreed to come and they were to meet at the train on an evening specified and go together to Shreveport. When W. W. Bierce reached the train Smith did not appear and Bierce went alone. On reaching Shreveport he found a telegram from Smith saying: “Could not get off last night, but will ratify and join in all you do.”

Minge was already in Shreveport.

The same day Smith’s telegram was sent a conference was held at Shreveport between the two Bierces, Minge, Hicks, Ardis and Taylor and one or two other local cotton dealers.

At this conference the project of organization was discussed and certain general understandings were reached. W. W. Bierce returned to New Orleans, leaving Columbus Bierce at Shreveport to continue negotiations and bring the enterprise to a successful issue.

To do this he found it necessary to agree to all the demands of the Shreveport people, among others the option on the 150 shares of stock. This option, in writing, was given some several days following the holding of the conference, at which W. W. Bierce was present. It was executed by Columbus Bierce for and on behalf of the firm of W. W. Bierce only, and, if called, was to affect their'stock only.

By these means the support of the local cotton interests at Shreveport was secured, and a few days after the option was given the Columbia Compress and Warehouse Company was incorporated, officered entirely by Shreveport people, except that Smith, W. W. Bierce and Minge became members of the board of directors.

A site for the enterprise was secured, the buildings were erected and a compress, bought from Bierce, was put up. Everything was gotten in readiness for the approaching cotton season. ,

It seems that when Columbus Bierce, for the firm of W. W. Bierce, of which he was a member, gave the option on the 150 shares of stock, he did not apprise either Smith or Minge of the same.

This option was sure to be called if the compress proved a success by showing itself a money maker; it was equally certain not to be called if the reverse.

In November following, some seven months after the option was given, the success of the enterprise being assured, it was called. The Bierces were then in Chicago.

W. W. Bierce immediately wired plaintiffs at New Orleans as follows :

“Shreveport people have called option they held for our stock, given them at time of negotiation for press. Eeferring to our understanding that would not sell without consulting you, desire to say we are compelled to accept, but to do the correct thing by a friend as nearly as we know'kow, will take your stock if you care to dispose of it at a dollar five. Desire to add that advices from there indicate it’s a money maker. Act exactly as your judgment dictates.”

To this plaintiffs replied:

“Never heard of option.. Do not understand matter. Oould not sell at five hundred and leave Minge.”

Following their above telegram to plaintiffs and confirmatory of the same, the Bierces wrote plaintiffs a lengthy letter from Chicago, and then left, both of them, for Shreveport. In this letter they explained fully the reasons why the giving of the option, which had .been called, had been necessary in the process of negotiations with the Shreveport parties, and that without it the enterprise, now an assured money maker, would have fallen through. They stated they would be in Shreveport on a day named and requested plaintiffs to give them there, by telegraph, a frank expression relative to the matter.

Plaintiffs did not respond to this request and sent no telegram.

The Bierces found Minge at Shreveport. The latter had been apprised by plaintiffs of the condition of affairs. They asked him whether he had any objections to their transferring their stock to Hicks, Ardis and Taylor. They both testify he replied he had no objections, that Hicks, Ardis and Taylor were men of high character, and that the affairs ’of the company were safe in their hands. Mr. Minge in his testimony relative to this conversation, does not admit he went as far as saying he had no objection to the transfer of stock. His version is he replied: “I can’t say it would hurt my stock, but that is all I will say at this time.”

Following this talk with Minge, and on the same day, Bierce met the call of the option by transferring the stock to Hicks, Ardis and Taylor. ,

In the foregoing statement of the case many facts and circumstances related in the testimony and discussed in argument are omitted. The evidence is very voluminous. We have confined ourselves in the recital of facts to those only which are deemed necessary to make clear the view we take of the case.

After transferring the 150 shares .to Hicks, Ardis and Taylor under their option, defendants disposed of, to the same parties, the remnant of stock they held — some 32 1-2 shares- — at one hundred and twenty-five.

Previously they had disposed of 20 shares to a Mr. Bath, who, as a cotton buyer at Shreveport, was a feeder of the compress and as such demanded to be allowed to subscribe to stock. Under the agreement made while negotiations were pending for the organization of the company this demand had to be met and Bierce met it out of his own stock.

According to plaintiffs’ view the suit is one to recover damages for the violation of an agreement to sell stock. The contention is that defendants bound themselves if they should ever, for any reason, propose to sell their stock, they would first offer it to plaintiffs and to Hinge, and only upon the refusal of these to buy would defendants have the right to sell to any. one else; that the stock sold was not offered to plaintiffs and Hinge, but was sold to other parties without first giving the former the opportunity to buy; that the stock was worth two hundred dollars per share at the time it was sold by defendant at par to Hicks, Ardis and Taylor; and that plaintiffs are entitled to recover, as the -amount of loss they have sustained by defendants’ broach of the contract, the difference between the par value of the stock and its real value at the time of the sale, together with the dividends the stock has earned.

According to defendants’ view the suit is, rather, -one for damages alleged to have been caused by the failure of Smith and his original associates to retain the control of the corporation, and the contention is that to recover plaintiffs must show they have been damaged. It is insisted that this is not and cannot be shown. On the contrary, that the case discloses an utter absence of either injuria or damnum, and that “damnum ab&gue injuria” and "injuria sine damnum" are not actionable.

The learned judge below reached the conclusion that plaintiffs had failed to make out a ease and from an adverse judgment the latter appeal.

Our opinion is that whatever agreements were entered into between Smith and Bierce at the inception of the enterprise the same had reference to a corporation then in contemplation to be formed under and subject to said agreements. We do not doubt it was first proposed and agreed to 'form a corporation in which Smith, Bierce and Hinge should take and hold a controlling interest in the stock.

But it was not found possible to organize a corporation on that basis —one whose present and future success would be assured — and no such corporation was ever organized. The leaders of the cotton trade in Shreveport absolutely refused to go into the movement on that basis. The enterprise was doomed to failure if this control by the New Orleans parties was insisted on. True, they might erect a compress— were well able to do so — but erecting a compress was one thing; controlling and securing cotton to feed it was another thing.

What these parties had in mind was not merely the erection of a compress, but, also, along with it, the practical control for the compress of the cotton received at Shreveport.

Oolumbus Bierce, when he was sent to Shreveport, had full power given him to inaugurate and carry through an enterprise such as that described. He was to organize a corporation which, through its members and connections, would control at least the greater part of the cotton converging at Shreveport for the compress which the corporation was to erect.

He and his bother composed the commercial firm doing business under the name of W. W. Bierce. His actions, then, in Shreveport were the actions of that firm.

To the firm of W. W. Bierce did Smith, Bierce and Minge entrust the execution of their plans. That firm acted at Shreveport mainly through its junior member. When he found himself beset by the difficulties hereinbefore mentioned, he asked for the coming of Smith and W. W. Bierce to Shreveport. Both agreed to come, but only W. W. Bierce did actually go. Instead of going, Smith wired that he would ratify and join in all that was done.

This telegram was addressed to W. W. Bierce. That was the firm’s name and Smith knew it. The telegram must, therefore, be considered as having been directed to the firm — to both the Bierces, then in Shreveport. It plainly authorized them to go ahead and do that which might be found necessary to carry through the enterprise.

Two things found essential to this were: (1) to accord to all local feeders 'of the proposed compress the right to subscribe to the stock at par; (2) to give Hicks, Ardis and Taylor the option on 150 shares.

, Both were done and both must be considered as coming within the intent, letter and spirit of Smith’s telegram: “I will ratify and join in all you do.”

After this plaintiffs .cannot be heard to complain that the Bierces ¿id not hold to the original agreement' that the controlling interest in the corporation should always remain in themselves, Bierce and Minge. Much less can they complain that Bierce did not offer his stock to them before parting with it to Hicks, Ardis and Taylor under the option they held.

Neither is the equity of the case with plaintiffs. What Bierce did in the way of granting the option and disposing of his stock enured to the benefit of plaintiffs, for it enabled the enterprise to be carried through, and its shares of stock advanced, according to the plaintiffs’ own showing, in seven months, from par to a premium of one hundred per cent.

Whatever sacrifice was made, was made by Bierce. The option covered his stock only. He met it out of his stock. He let it go at par (one hundred per share) when it was worth two hundred.

Plaintiffs retained their large holdings, and as the result, of the operations of the compress its first cotton season, realized a dividend of 20 per cent, on the amount they had invested.

Judgment affirmed.

Monroe, J., concurs in the decree.


text:
    No. 13,604.
    State ex rel. Anna Ferguson Bromade, Wife of L. P. Hart, vs. Hon. John St. Paul, Judge Division “C.”
    Syllabus.
    1. Where a writ of certiorari has been passed upon and the relator’s appli? cation sustained and a decree rendered which the respondent court chooses to comply with without delay, the relator has no ground upon which to complain because the respondent did not await until the delays for- a rehearing had elapsed. . ; .

    2. The court exercises supervisory jurisdiction when there is no remedy by appeal, and will not interpose its powers of supervision to set aside rulings of the District Court preliminarily made in matters entirely ■ within its jurisdiction.
    Q N Application for Writs of Prohibition, Injunction and Certiorari.

      Carleton Hunt and Henry Benshaw for Eelator.

      Denegre, Blair & Denegre for Eespondent.
   The opinion of the court was delivered hy

Breaux, J.

Relatrix seeks to restrain the respondent judge from proceeding farther on the exception to the jurisdiction in the cause of Anua Ferguson Bromade, wife, vs. Louis Philip Hart. Relatrix avers that the defendant in said cause is not a resident of Savannah, Georgia, but that, on the contrary, he resides in New Orleans.

This court, in the case just cited, heretofore, rendered an opinion holding the plea to the jurisdiction in the said case must be passed upon, before the court below could adjudge and decree upon the application for alimony pendente lite. That opinion is not yet final, as six days have not elapsed since it was rendered. Relatrix sets up in her application here, that she was too hastily coerced into trial of her plea to the jurisdiction of the court below.

Relatrix avers that she has been denied the right of obtaining the testimony in her behalf, of witnesses to be examined under commission; that the judge ordered a commission to issue to take the testimony of two witnesses residing in Massachusetts, and made it returnable on the 29th day of June, 1900, and likewise a second commission returnable on the same day, to take the testimony of a witness residing in Georgia; and that each commission has been forwarded.

The relatrix urges, in the first place, that six judicial days not having elapsed since the rendition of the decision in question in said cause, the court below is obliged to await the mandate of this court, and the return of the record which was brought up with the application of relatrix.

We have not found this ground sufficient upon which to base an application for the writs in question, much less ground to make them peremptory. The judge of the District Court, we think, was free to recall his former ruling of which relatrix complained, and it. follows that he was, also, at liberty to take cognizance of this court’s action before the decree had been sent down, and proceed, before passing upon the question of alimony, to ascertain whether it has jurisdiction ratione personae, as was adjudged and decreed in the application for certiorari heretofore passed upon in the cause cited supra. The mere waiver of delays by the court a qua, and the immediate execution of the decree of this court are not, in themselves, prejudicial to the relatrix.

But relatrix raises another ground of complaint, which presents greater difficulties in its decision. She charges, as we have already noted, that she was not afforded the opportunity of having her witnesses present to testify in support of her averment that her husband is domiciled here, and she avers further that the District Court is, besides, determined to dispose of her husband’s exception of the court’s want of jurisdiction ratione personae, before the return of the commissions in question.

Plaintiff is entitled to a hearing, to the presence of her witnesses, and to a return of the commissions, and to that end a postponement of a trial of the exception until the day on which the commission is made returnable. This is plain enough. Nonetheless, we would not feel justified, were we to assume before final action of the court that the plaintiff will be injuriously denied any of her rights. The District Court has jurisdiction of the questions raised, and upon it devolves the responsibility of deciding them in the .first instance. The apprehension of one of the parties that a right will be denied, or that a trial is being too much hastened, or that more time should be given to summon witnesses, or return commissions, afford no ground for relief under the supervisory powers of this court.

All the errors the application of the plaintiff suggest, are reviewable on appeal. This court has again and again decided that writs under its supervisory jurisdiction would not go to a court to remedy an asserted error reviewable on appeal, and that the right of appeal excludes other remedies.

It was never, as we take it, within the law’s contemplation' to impose upon this court the duty of supervising every step in the course of a trial, and correcting every preliminary ruling which may have some appearance of error or irregularity on the face of the papers. 1 The final decision of this exception may not be against the plaintiff.

It would obstruct the course of trials if this court were to correct errors which may not prove detrimental, or which the judge himself may correct before the final determination of the issues before his court. There is no jurisdictional question raised. The question is one which relates exclusively to whether there shall be a postponement before the District Court of the trial of an exception. We can not, under our law regulating practice, undertake, on the application made, to annul or review the orders of which the relatrix complains. They are interlocutory orders, and we must decline to pass upon them at this time. That certiorari can be resorted to only when the proceedings are null, has been repeatedly decided. After an exception had been overruled in a cause which presents anology on the point here at issue, the court said that the relator would find his only relief in an appeal. State ex rel. Reid vs. Judge, 45 Ann. 947.

We recall only one case in which the court exerted its supervisory jurisdiction in order to restrain the judge of the District Court from carrying out his order transferring a cause to another jurisdiction for trial, and that is Brouillette vs. Judge, 45 Ann. 243. The judge was in the act of removing the cases from his own court having jurisdiction, to another court, without jurisdiction, and for that reason this court exercised its supervisory jurisdiction to annul the proceedings looking to the removal of the cause. In all other cases (in which there was not an error of an absolute nature), the court chose to await the conclusion of the trial.

For these reasons the order nisi is recalled and discharged and the application of relatrix is refused.


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    No. 13,651.
    State ex rel. Paul Leche, Judge, vs. W. W. Leake, Judge.
    Syllabus.
    A District Judge has the right to be heard and consulted in so far as relates .to the fixing of the terms of the Court of Appeals in the parish or parishes in which he is one of the judges of that court.
    Q N APPLICATION for writs of mandamus and prohibition.

      E&ward N. Pugh, for Relator.
    Respondent Judge pro se.

   The opinion of the court was delivered by

Breaux, J.

The purpose of relator, made evident in his petition1 suing for a writ of mandamus, is to submit to the decision of this court a difference of opinion which has arisen between him and respondent, the Honorable W. W. Leake, regarding the fixing of the terms of the Court of Appeal, to be held in the parishes of Pointe Coupee and West Eaton Eouge.”

Eelator, who is the judge of the Twenty-seventh Judicial District Court, was, on the 23rd day of June, 1900, assigned by the Supreme Court to act as one of the judges of the Court' of Appeals in the above' mentioned parishes which assignment went into effect on the first of July following. The terms of the Court of Appeal in the fourth circuit'were fixed by Judges Leake and Thompson on the sixth day of July, 1898. The former was one of the'holding over circuit judges.'

He, the holding-over judge, in answer to the rule nisi, issued by this court, and in support of the order hereinbefore issued fixing the terms of court in the fourth circuit, states that these terms were fixed so as not to conflict with the terms of the Court of Appeal in the other parishes in the circuit; that he has no authority to recall the order fixing the terms, and that to niake changes in the terms of the Court of Appeal in the two parishes in question would render 'it necessary to change the terms of the district court (with which another fixing of the terms would conflict); that there is no necessity for the changing of the terms of the Court of Appeal in the parishes, if the relator complies with the mandate of the Supreme Court requiring district judges to “arrange and order the sessions of their respective courts so as to enable them to act as judges of the Court of Appeal in the parishes' to which they are assigned.”

' Eespondent also urges that, if it be decreed thjat the authority is vested in the judges of the Court of Appeal, as now constituted, then that the authority vested in them regarding the fixing of the terms of their court is discretionary with the judges of that court, and that, being discretionary, it is well settled that mandamus will not issue, unless it clearly appears that the duty is one which, from its character, leaves no discretion in the officer to do or not to do, citing in support of the proposition the case of State ex rel. Moulin vs. Mayor, 49 Ann. 1322, and State ex rel. Hutchinson vs. Sheriff, 52 Ann. 1620. Respondent’s position is earnestly controverted by relator.

■ The Constitution of 1898 ordained that “the Court of Appeal shall remain as at present constituted until the first day of July, 1900.” On this day the relator had been assigned to his new duties on the bench of the Court of Appeal. In our view, the language of the Constitution vests the court, as now constituted, after the first day of July, 1900, with the power to fix its terms.

Under a statute of a date prior,.viz, 1886, the Court of Appeal, as constituted while the Constitution of 1879 was in force, did not have the authority to fix the terms of their court. But the Constitution of 1898 specially vested this authority in the judges of the Court of Appeal, as now constituted.

We, in view of the language of the Constitution of 1898, cannot assume that the words “said court,” as used in Article 100, covered within their meaning the former order fixing terms as a continuing order to have full force and effect until 1904; nor can we agree with the view that would result in holding that this order must remain unchanged, although one of the judges desires to be heard regarding another fixing of the terms and a change. After the date, 1st July, 1900, the several Courts of Appeal '“shall consist of one of the judges of those courts whose terms shall not have expired, and who, with a judge of a district court, to be designated by the Supreme Court,” etc. Article 99, Constitution, 1898.

The articles following the one from which we have just quoted, refer, we take it, to the judges constituting the court under the Constitution of 1898, as those by whom the terms of the court are to be fixed, at least, until the first day of July, 1904. The authority to fix terms until that time is vested in the judges assigned as before stated, an authority not conferred on the court prior to July 1st, 1900, and it is not a continuing authority under the present Constitution, except to the extent that it may fall within the provisions of Article 325 of that instrument.

The attention of the Constitutional Convention must have been directed to the court as now constituted and the judges who preside over it. After having settled upon the functions of the court, the Constitution specially ordained that its terms are to be fixed by the “judges of said court,” and not a word was used which we can possibly construe as having reference to the Court of Appeal of a prior date. The judges referred to, and the terms of the court mentioned, are those of the present court.

We have, to this point, dealt exclusively with the question of power of the courts, as now constituted, to fix their terms. We consider this an independent issue, and have considered it from that point of view.

This brings us to the next ground presented, by the respondent, to-wit: that there is no necessity of changing the terms of the Court of Appeal in the parishes mentioned. We can only say, in answer, that we do not consider that the question of the necessity of a change in the term is before us for decision. It is not made evident that a change must, of necessity, be made. This question, we take it, has not yet been considered or in any way taken up by the court. When it comes up for consideration, it may be that no change will be made. Before a change is made and until it becomes evident that, in consequence, there is a conflict in the terms of court, and that a very great inconvenience in the administration of justice is the- result, these grounds are, in our opinion, prematurely urged.

It is true, as insisted upon by the learned judge of the Court of Appeal, that mandamus will not be issued and made peremptory if the question is one within the discretionary control of the authority to which it is addressed.

We are, none the less, constrained to disagree with the learned judge, for the reason that the Constitution requires the terms of the Court of Appeal to be fixed by the judges of that court, and, in consequence, one judge is without authority or discretion to let the terms remain as previously fixed, when the other judge asks to be heard, in so far as the appellate judicial district in which he is one of the judges is concerned.

In the face of the plain article of the Constitution, the Supreme Court, in the exercise of its supervisory jurisdiction, under the circumstances here, has the authority to make peremptory a mandamus to the extent that it may be necessary to permit a complaining judge to be heard regarding the fixing in question. The refusal to hear him and let him have a consulting voice gives rise to a question not exclusively within the discretion of the holding-over judge so refusing, and for that reason, in our opinion, mandamus lies.

Tt is ordered, adjudged and decreed that the writ of mandamus prayed for is granted and made peremptory, and the terms of the Court of Appeals of the Fourth Circuit in the parishes in question are to be fixed after the complaining judge, relator, shall have been given a consulting voice.

It is further ordered that the old order fixing the term of the Court’ of Appeals, dated July 6th, 1898, is no longer of any effect from the date of this decree, as relates to the parishes of Pointe Coupee and West Baton Rouge only, and that the writ nisi, which issued, is confirmed, sufficient cause why the writ of mandamus should not issue not having been shown.


text:
    No. 13,631.
    State ex rel. Walter Guion, Attorney General, vs. John St. Paul, Judge.
    Syllabus.
    The writ of mandamus applied for is not made peremptory to the extent of requiring the District Judge to grant an absolute and peremptory writ of injunction, ex parte.

    The writ of mandamus is granted to this extent: The judge of the District Court is to issue an order nisi and decide questions involved , after having heard the parties contradictorily with one another, and after having heard the admissible evidence which they may see proper to offer.
    Q N APPLICATION for Writ of Mandamus.

      Walter Guión, Attorney General, relator, pro se (E. Howard Mc-Galelo of Counsel).

      Denegre, Blair & Denegre (Vidor Leovy of Counsel) for Respondent Judge.
   The opiuion of the court was delivered by

Breaux, J.

The purpose of relator’s application for a writ of mandamus is to compel the respondent judge to grant an order of injunction on the petition of the Attorney General, who appears for, and in behalf of, the State of Louisiana.

The Attorney General sets out that the Morgan’s Louisiana Railroad and Steamship Company has been carrying on a large, extensive, and profitable warehouse business for some time, to the detriment of relators and to the injury of the public warehousemen, with whom this company, with its warehouse business, comes in competition. In substance, relator further charges that this railroad company is only the alter ego of the Southern Pacific Company, against which a judgment has been pronounced condemning it to close its warehouse business, as is fully stated in State vs. Southern Pacific Co., 52 Ann. 1822.

Relator further avers, that the injunction, if issued, will fully enforce the final decree rendered in the cited case.

The usual preliminary order was issued by this court calling on respondent to show cause in answer to said writ of mandamus why the injunction should not issue, as applied for by the Attorney General. The respondent filed an answer in compliance with the said preliminary order, in which he states that an injunction should issue only in case it be found that relator is entitled to the writ 'after trial; that, without passing upon the Morgan Company’s right under its charter, it appears to him, as the papers read, that the company has the right to carry on a-warehouse business apart from its railroad business.

He also avers that the charge brought of an agreement between the two companies, under which the warehouse business is conducted by the Morgan Company for the Southern Pacific Company, is not sufficiently specific to authorize an injunction, and that even if it were more specifically brought, relator, at most, would only be entitled to a modified injunction prohibiting the Morgan Company from carrying on the warehouse business for the account of the Southern Pacific Company, and that this is not the injunction for which the relator prays, Further answering, he avers that no demand was made to issue a rule nisi.

We find no difficulty in arriving at the conclusion that an absolute injunction can be issued, on the face of the papers, to compel one who is bound by a final judgment to respect its terms.

We are equally as well convinced that mandamus should go forth to the judge of the court to which an application for such a writ of injunction is presented, to compel him to issue it, in ease of his refusal to grant the writ.

Put this, in our opinion, is not the case before us for decision. It did not manifestly appear to the district judge, on the face of the papers, that res judicata concluded all the defenses of the Morgan Company. In his return, the respondent judge calls attention to the fact that the Morgan Company was not, eo nomine, a party to the original proceedings. The facts averred, among others, we find, are that the Morgan Company leased its railroad in Louisiana to the Southern Pacific Company for the term of ninety-nine years; that, after the petition of the State had been filed in this suit, the Southern Pacific Company abandoned the possession of its warehouses and surrendered that business to the Morgan Company. This abandonment was made after the suit of the State vs. Southern Pacific Railroad Company, cited above, had been filed.

The question is, whether the Morgan Company is bound by the decision in question (in the cited case) and whether it has the right, under id', charter, to carry on a warehouse business. The effect of the said abandonment, among other issues, will have to be considered.

It may as well be stated here, as it has some bearing upon the issues, that relator sets out in his petition for an injunction two demands. The principal demand, as before stated, is that the Morgan Company is absolutely bound by the judgment to which we have before referred. The second demand is presented in the alternative: that the Morgan Company, in any event, is without authority to carry on the business of a public warehouseman as an independent and substantive business.

We deem it proper to state that the last or second demand is not to be taken up and decided, unless it be first decided that the former demand is untenable. It is manifest that the relator, as a careful and painstaking pleader, did not wish to let his case rest exclusively on the plea of res judicata. While the pleas remain distinct, and are to be considered as before stated, none the less, taking the proceedings as a whole, this alternative demand renders it more difficult to hold that the Morgan Company is absolutely bound by the judgment before cited, that is, bound to such an extent as to justify the issuance of an absolute writ of injunction on an ex parie application.

In so far as our learned brother of the District Court refused to issue an absolute injunction without giving the Morgan Company opportunity of being heard, we do not think that he erred. To this extent we agree with him.

At this point in the consideration of the case, another issue arises. There are cases in which the rights of the State are concerned, which should be considered and disposed of within a reasonable delay, and which should not be postponed, should the forms of law justify a hearing.

Courts have the authority to ascertain judicially, by the most direct mode, whether or not a final judgment is disregarded, and if it is disregarded, to so decide.

Belator, it is true, prayed for an absolute writ of injunction. But, this prayer, as we take it, includes both the absolute writ and an application for the writ nisi. Having properly refused the absolute writ, it still remained proper for him, the district judge, to grant a rule nisi.

We have noted:

Our learned brother of the district court states in his return, in substance, that if the Morgan Company is doing business for the account of the Southern Pacific Company, to that extent only it should be restrained and enjoined; but that he did not choose to enjoin it to that extent for the reason that relator’s petition was not directed to a partial violation of the Supreme Court’s decree; that the general terms of the allegations for the injunction did not embrace, as one of the complaints, the specific violation just stated. We are unable to agree with this view. The greater includes the less, and the general violation charged may be so reduced, after examination of the issues, as to include only this asserted partial violation which justified at least a modified injunction as relates to this point, even though relator urged some relief in the demand that plaintiff (relator here) in the application is not entitled to. Weil & Co. vs. Kent, 52 Ann. 2148.

The extent also to which the charter forms a part of the issues may be considered on a trial of the rule, also the scope and effect of the decree in the case cited supra. (State vs. Southern Pacific Co.)

True, the discretion of the District Court in granting or withholding injunctions should remain unimpaired; but it does not follow in this case that the grounds for its action in not having issued a rule nisi may not be inquired into, and if, in the view of !bhe appellate tribunal, it be erroneous, reversed. The discretion of the lower court is no longer an issue when it does not grant a rule nisi, because of some erroneous construction of a question of law or practice.

In a case recently decided by this court, it was held that it was proper in some cases to issue a rule nisi on an application for an absolute injunction on an ex parte showing. Evidence was to be admitted on the trial of the rule to the extent necessary for the determination of the question involved. While this right was to he sparingly used and the latitude restrained, yet it was decided that some evidence was to be admitted. State ex rel. Lafitte vs. Judge, 51 Ann. 1768. The same rule has application to the case in hand.

Eor these reasons, we do not grant the application of the relator for an ex parte absolute injunction on the face of the papers

We, none the less, remand the application for an injunction to the District Court, and direct that court to recall its recusal of the writ, and direct it further to pass upon and decide the application for an injunction upon a rule nisi which it shall cause to issue.