author: Nicholls, O. J.

text:
    No. 13,042.
    J. I. Kirk et al. vs. Kansas City, Shreveport and Gulf Railway Co.
    Syllabus.
    (1) An act by which land owners granted a right of way over their land to a corporation for the construction of a railroad, wherein the consideration stated was one dollar, and the advantages, benefits and conveniences resulting from the building of the road and the enhancement in value of their adjacent property, evidences, not a donation pure and simple, but a commutative contract.
    (2) While such a contract does not relieve the corporation from the affirmative continuing obligations devolving upon it from the building of the road, nor from responsibility for damages to the land owner subsequently actually accruing from its faulty construction, yet claims which would have been within and gone to make up the .original damages or compensation that wouid have been assessed against and paid by the company as the condition precedent to the right of way in an expropriation proceeding — matter which must have been known, foreseen and anticipated — must be held to-have been considered and included by the parties as being within the consideration agreed upon when they balanced advantages and disadvantages.
    (3; It is the duty of a railroad company where its road crosses a water course, or would interfere with its flow of water or interfere with the drainage of adjacent lands, to construct the road so as not to impair its usefulness or do-injury to the owners of the lands along the route — this duty is a continuing one, and where the road is not properly constructed each overflow incurs-new cause of action for damages.
    (4) A railroad company cannot on the ground of its being a quasi public corporation build its road so as to serve its own interest and be permitted to do so to the injury of those who are as much entitled to the full benefit of their own property as the company is of its. If the exigencies of the situation should be such as to require absolutely and necessarily the building of the road in a manner which carries with it Injury to other parties, the company is bound to hold them harmless from such damages for usurpations and wrongs to private rights of property, and cannot be justified by considerations of benefit to commerce.
    (5) If the mill and mill site of the land owners have been injured by the acts of the railroad company, they would be entitled to require that it replace the property in thoroughly safe condition. It has no right to expect that the owners should advance money out of their own pockets to relieve themselves from an injurious situation brought about by it to which they, in noway, contributed.
    ON APPEAL from the Twelfth Judicial District Court for the-Parish of Vernon. Readj J.

      Scarborough & Oarver for Plaintiffs and Appellees.

      T. Alexander and Pujo & Moss for Defendant and Appellant.
    Argued and submitted February 8, 1899.
    Opinion handed down March 20, 1899.
   The opinion of the court was delivered by

Nicholls, O. J.

Plaintiffs asked judgment against the defendant .for $6,000.

The case was tried before a jury, which having returned a verdict for the plaintiffs for twenty-five hundred dollars, judgment was rendered accordingly, and defendant appealed.

Plaintiffs alleged that they were joint owners of certain property which they fully described.

That they had sold the defendant the right of way across the said land, consisting of a strip of one hundred feet, as shown by copy of the .act of sale, which they annexed to their petition.

That there was situated on said land the home and family residence of J. I. Kirk, one of the plaintiffs; also a store house, at which he had theretofore conducted his mercantile business, also a valuable water mill at which he had theretofore conducted his saw mill business.

Petitioners further represented that in the construction of said road, the said railway company negligently, carelessly, wantonly and inexcusably, wrongfully, improperly and unadvisedly constructed said road bed in such a manner as to greatly damage their property 'by reason of the manner of the construction of said road bed. They further represented that the residence was situated about two hundred feet from the mill and site, on or near the bank of the mill pond in which water was collected for the use of the mill in running the same; that the store house was situated about two hundred feet from the residence, and almost south of the mill house, and both of which were about two hundred feet west of the residence.

They further represented that their mill pond, which was very valuable, was the only place on their property where a mill pond could be constructed with a stream that afforded a constant flow of water, making it possible to operate said saw mill by water, at least nine months of the year. That with the water furnished by said ■stream, made available by the situation of their mill pond, said mill ■was capable of cutting ten thousand feet of lumber a day during nine months of the year. That this amount of lumber could be cut at a very small expense, it not requiring over four hands to operate the mill under these conditions.

They also represented that while it was not necessary to do so, said. Railway Company wantonly, illegally and improperly constructed its road bed immediately across petitioner’s mill pond, driving heavy piling in the construction of the same, building their road bed immediately between the residence and the mill house and between the-residence and the store, constructing a very high embankment, closing up all the drains across the swamp of the stream on which the mill is situated, thereby impeding the flow of water at high water times, jarring, bursting up and ruining the mill site by driving the enormous lot of piling near the mill house so as to utterly destroy and ruin the present mill property as constructed, destroying the mill site for future use; completely destroying the residence, the dwelling house and the site on which it is situated for residence purposes, completely destroying the business stand on account of the building of aii immense embankment right at it, so that customers could not get to or from, nor the proprietor, to or from the mill house or the other house, without crossing said embankment.

They further represented that with the construction of a railway through the parish of Vernon, the value of its water mill would be very ■ much enhanced, that is to say, the possession of a water mill which could be operated for the purpose of sawing lumber .near a railway line would become a very valuable piece of property, and that the manner in which this road was constructed utterly destroyed the present and all future value to the owners from such mill and mill site, place of residence and place of business.

Petitioners therefore represented that they had been damaged in the sum of six thousand dollars ($6,000), for which they desired judgment against said railway company.

Defendant answered, pleading, first, the general issue. It admitted that it acquired the right of way through lands of plaintiffs, as described in the copy of deed annexed to plaintiffs’ petition, and that the road bed was constructed thereon.

It also averred that the said road was properly located and constructed through said land, with all due regard to the topography of the country, as well as the rights and interest of the plaintiffs.

It denied that plaintiffs had suffered any special damage whatever from the construction of its road through said lands, or any damage of any kinds not contemplated and included in the right of way granted and conveyed by them to the Railway Company. And further-, it specially denied that the mill or mill site of plaintiffs was injured in any way, or suffered any damage which was occasioned by any act or fault on the part of respondent or its employees, contractors or agents. That said mill was old, poorly constructed, of little value and subject to washouts, which had been of frequent occurrence prior to the location or construction of the railroad in its Vicinity, and if any washout occurred subsequent to said location and during the construction of the railroad, as alleged, same was due to inherent defects in the mill itself and appurtenances, and not to any fault of respondents.

On the twenty-sixth of June, 1896, an act sous seing prive was passed between the plaintiffs and the defendant, in which the plaintiffs, for and in consideration of one dollar ($1.00), and the advantages, benefits and conveniences resulting from the building of the Kansas City, Shreveport and Gulf Railroad Company through their lands, and in further consideration of the enhancement in value of their adjoining lands by the construction of their railroad, did thereby sell, convey and deliver unto said Railroad Oompany, its successors and assigns, the right of way over and across a certain tract of land situated in the parish of Yemon, described in the said deed; the right of way granted being one hundred feet in width, as then surveyed, or might be located, with the privilege to the Railroad Company of cutting down all trees along the line of the right of way outside of its limits, which in falling might reach the track. The right of way was declared to be given in perpetuity, so long as it should be used by said company, its successors or assigns, as a railroad company.

The line of location was established by survey and known to plaintiffs at the time the right of way deed was executed.

On this tract of land was a water mill, storehouse, dwelling and stable, etc.

During the construction of the road in January, 189Y, and while piles were being driven in the mill pond, the sluice way in which the gate was placed washed out, and also the mill foundation. The mill remained and is still in place.

The mill was a wooden structure with similar foundation, built in 1858, and was used for ginning cotton, grinding corn and sawing .lumber. Its lumber manufacturing capacity is testified to as being from 600 to 4000 feet a day, board measure. Its ginning and grinding capacity is not shown by the record with any degree of certainty.

After the break occurred no effort was made to replace or repair the foundation, and it was at the time of the trial in the same condition as when the washout took place.

While the road was in course of construction, the store building was removed from the right of way, at the expense of the Company, by Mr. Foster, the tenant of plaintiffs, to the place it occupied at the time of the filing of this suit, about thirty-four feet from the right of way.

The embankment between the dwelling and store is six feet high, and at this point a crossing was put in at grade, with filled approaches, so as to make it an easy pull for teams.

The mill is 119 feet 5 inches, and the dwelling 130 feet from the •center of the track.

The mill is located on East Anacoco, about fourteen miles from its .source, at a point where the channel is about three hundred feet wide, and the land on both sides makes what is known as a “bottom,” having a width of 2600 feet, including bed of creek.

In the construction of the road it became necessary to cross this bottom or low land and creek, which was done by filling and bridging, the fill covering 1956 feet and the bridge 644 feet.

The entire mill pond and part of the low overflowed land was bridged, and the road was constructed so as to allow ample water way, according to defendant, and insufficient water way according to plaintiffs.

The mill dam is one hundred and thirty-four feet from the dam.

At the time of the washing away of the gate in the sluice way, and the break in the foundation, there were about seven feet of water in the pond, which, according to the testimony of plaintiff and Foster, was not sufficient to cause the break which they attribute to the jar caused by the driving of piles.

Several breaks had previously occurred in the damaged mill foundations, some when one Dr. Payne was operating the mill, and others while it was in the possession of Foster, and as late as 1896.

Foster and his son, both witnesses for plaintiff, say that when the piling was being driven, the jar could be felt in the mill, and the saw ■would ring at each stroke of the hammer.

Hnoble, the locating and constructing engineer in charge of the work, says that no damage was caused, in his judgment, on account of the construction of the road.

Randall, the foreman in charge of the bridge gang at the time of the washout, says that the water was high and the dam broke once in the night and two or three days later it broke again at 12;30 in the day time, the last break causing the washout of the foundation. He further says, “there was a quicksand foundation where the break occurred, and it was caused by the high water.”-

John Franklin, one of the defendant’s witnesses, testified, that the mill had settled down at the northeast corner, the result of a former break in the dam.

In describing the mill, Knoble says: “It was a small, primitive' mill, operated by water power collected in a pond just above the mill. The total cost of construction probably was five hundred dollars when first constructed, covering both mill and dam.”

The value of the property testified to by the witnesses ranges from one thousand to five thousand dollars, at the time of the construction of the road, and $500 after the washout.

Plaintiff and all of his witnesses fixed the value of the property as-an entirety, previous to the washout, at from twenty-five hundred to five thousand dollars, and after the break, at five hundred dollars.

T. C. Wingate, who had been for several years assessor, said that a fair valuation before the break would have been one thousand dollars, and that if the dam. and mill were repaired it would be worth as much as before the railroad was built.

J. P. Cain, also one of defendant’s witnesses, testified that the reason that the mill was no longer valuable was because it was no longer profitable to operate it in competition with the large saw mills ■ along the line of the railroad.

Opinion.

While the plaintiffs in their pleadings describe the deed between themselves and the defendant, as an act of sale> they maintain in their brief that such is not its character. That to have made it such it would have been necessary that there should have been a price in money, and that the price should have been serious and in proportion to the value of the thing sold; that otherwise, it would be considered’ a donation, citing in support of this position Article 2454 of the Civil' Code, Nugent & Co. vs. Buisson, 35th Ann. 108, Groebel vs. Ristroph 35th Ann., 490, Barrow vs. Wilson, 39th Ann., 410.

They further contend that the right granted was a “mere floating permit to enter and locate a right of way.” That to constitute a sale, the thing sold must be definite, or the act would be void for uncertainty, (quoting Pargoud vs. Pace, 10th Ann., 613, Green Brothers vs. Witherspoon, 37th Ann. 751, and Woods on Railroads, Vol. 2, page 94, Sections 208-211).

They insist that the deed was “a donation in disguise” — in reality a donation.

Starting from this premise, they argue that where a citizen, out of a spirit of liberality, has seen fit to generously donate the right of way requiring no compensation for the land taken, he does not lose any of his rights other than the right to demand compensation for the land actually taken; that in other respects the rights of the parties are just as they would be if a formal proceeding for the expropriation of the property had been instituted by the railway company. They refer the court on this subject to Volume 14 of the American Railway-Cases, page 398, and to the case of Stodgill vs. Chicago, Burlington Railway Company; to Woods on Railways, Vol. 14, Sections 208-211, to Am. Ry. C., Vol. 14, page 398, Boudier & Bellesein, 35th Ann., 947; Railroad Company vs. Dillard, Foster et als. 35th Ann. 1045; Railway Co. vs. Murrell, 36th Ann. 346, and Payne vs. Railroad, 38th Ann. 164.

Assuming this position to be correct, and that they occupy to-day precisely the same position which they would have occupied had no-deed been passed between the parties (except as to non-liability by the-railway company-for the price of the land actually granted for the-right of way), plaintiffs charge that the railway company, in locating-the right of way, adopted that one of the three surveys which it had’ caused to be made, which was most injurious to them; that the injury to them was so great that it practically destroyed the mill property and mill site. That the special use of the property as a mill and mill’ site was its chief and almost exclusive use, and that for this destruction the defendant company is liable.

In arguing as to the duties of Railway Companies in making the-works necessary for the construction of their roads on lands legally expropriated, they say that this court has repeatedly announced as a. rule of law, that a railroad company, in enforcing its right, of way-over the lands of others, and in constructing its road, should leave the adjoining lands and fields which it crosses in the same condition as regards the facilities of cultivation and as concerns the utility of these lands to their owners as they were before the entry of the railroad company; that a railroad which constructs an embankment on the lands of a planter, and thereby stops up his ditches and other artificial drains, is responsible to such owner for all losses of crops and other damages occasioned by such interruption of his drainage.

That in obtaining the right of way a Railroad Company does not thereby obtain the right to divert the water from its natural flow to the injury of the land owner.

They say that these views are in accord with those of the Supreme •Courts of other States, and of text writers, as would appear from ex.¡amination of Third (3) Elliott on Railroads, Section 1005, Woods on Railroads, Vol. 1, page 698, Edition of 1894; Woods on Railroads, Vol. 14, Section 208, 211; American Railway Cases, Vol. 14, page 398; Fowler vs. N. H. & R. R. Company, 112 Mass., 334; 57 Georgia, 178; 56 Penn., 445; Woods on Railroads, Vol. 1, pages 213, 214, 218, 219, 220; Hatch vs. Vermont Central Railroad Company, 25th Vermont, page 857.

There can be no doubt that a railroad is not authorized by reason -of having obtained a right of way, to subsequently construct its works without reference to the rights of others, nor at liberty to consult ■simply its own interests, to the injury of the owners of the land ex- ■ propriated. The decisions of this court, cited by the plaintiffs, command our approval, and would serve us as guides under a proper state of facts, but we think they are not applicable under those disclosed :by this record.

We do not accept as correct the broad proposition advanced by the •plaintiffs, that they occupied, after the execution of the deed between themselves and the defendant, the same position which they would have occupied had that deed not been passed and the present suit were one by the present defendant asking as a plaintiff an expropriation •of the right of way, with the present plaintiffs as defendants advancing against the railroad all claims which the situation would warrant ■or justify it in making, in order to fix the amount it would be entitled -to receive as compensation for the right of way.

We could not reach such a result without disregarding the conventional agreement made between the parties.

The deed may not be technically a sale, but it is not a donation pure .and simple, nor a disguised donation.

The parties were dealing with each other with reference to a matter in which they each had an interest, and as to which each had the ■capacity to contract.

There is no charge that there was any error, fraud or misconception .as to what each was agreeing to. They measured each other’s advantages and disadvantages, and the deed between the parties, as it .stands, evidences a commutative contract, where what is done, given ■ or promised by one party is considered an equivalent to or a consideration for what is done, given or promised by the other. (Civil Code, .Article 1768.)

How can it be asserted that the act evidences a mere donation, pure .and simple, by the plaintiffs to the defendant, when they declare the consideration of the grant of the right of way to be not only the one • dollar mentioned therein, but the advantages and conveniences to be • derived by the plaintiffs from the construction of the railroad and the enhancement of the value of their adjacent property?

True, their expectations on this subject may not only not have been realized, but the building of the road may have, on the contrary, resulted in great injury to their interests, but that fact does not alter the character of the deed.

If there be a valid existing cause for a contract, it is immaterial that it should not fall under some contract particularly named or classified in the code. (C. C. 1777; Helluin vs. Minor, 12th Ann. 124.)

It is evident that if the railroad company, being plaintiff in an expropriation proceeding for a right of way over the lands of the present plaintiffs, the parties pending the suit should have drawn up an agreement couched in the identical language of the deed filed in this case, and the defendant in the suit should have consented that judgment be rendered in favor of plaintiffs, according to the term of the agreement, and judgment should have been rendered in the case, the railroad company would have been decreed the right of way without any monied judgment against it Could it be claimed that, thereafter, the owners of the' land, without any damage having been subsequently, actually sustained, could bring suit against the company for -compensation for claims which might legitimately have been urged by -them as the compensation for or as the price of the right of way ?

We think not. Claims which would have been within and would have gone to make up the original damages or compensation that would have been assessed against and paid by the railroad company as-the condition precedent to the condemnation of the right of way in an expropriation proceeding, must be held to have been considered and included by the parties as being within the consideration agreed upon when they balanced advantages and disadvantages. Elliott on Railroads, Vol. 3, Sec. 937, page 1300; Lewis on Eminent Domain, Section 567 and authorities. Wood on R. R., Vol. 1, page 698.

Would the situation when a “judgment” has been rendered, resting upon the deed as a basis, be different from that which would exist where no judgment has been rendered, and the parties stand upon the deed itself?

We are of the opinion that it would not.

The judgment would have rested exclusively upon the rights and obligations fixed in the deed itself; the decree would neither have restrained nor broadened them.

If so, the parties stand without the judgment, precisely where they would with it.

' The plaintiffs cannot say that the line of the right of way was uncertain, not fixed.

The deed refers to the right of way, as to be either on the line of the survey then made or on the line which might thereafter be located. There was no objection made to the location of the road, either at the time or since. If, however, the place for the exercise of the servitude had1 not been fixed in the deed of the right of way, the owners were-bound to have fixed the place where they wished it to be exercised. (C. 0. 779.)

It is too late for them- to complain of the location after they have stood by and seen the road constructed without complaint. Patout vs. Lewis, 51st Ann., 210.

Plaintiffs’ claim (urged through the testimony) that the road had separated the buildings upon their property; that the residence was so-near the embankment and the latter so high as to greatly disfigure the-place and interfere with the comfort of the occupants; that the store was so close to the embankment as to frighten the horses of the parties dealing at the same; that the water in the trenches dug along the line for the fillings were calculated to breed disease; that the stock upon-■the property was liable to be killed by going upon the track, have no merit in them.

The company paid the tenant himself upon the place, for thi removal of the store from one side of the embankment to the other side, .and there is nothing to show that it was not placed precisely where the parties desired it to be placed.

It further constructed a road to and over the embankment, so as to enable the owners to have free communication between the different parts of the property.

No stock has been shown to have ever been killed on the track, nor .any disease to have been engendered by standing water.

We were under the impression from plaintiffs’ pleadings, that they would attempt on the trial to show that the washing out of the foundations of the mill while the railroad was in process of construction. was due to the fact that the company, instead of carrying a trestle work over the entire flat bottom lying near the mill, as they claimed should have been done, had done so only partially, and thrown a solid embankment up along the balance of the way.

That by reason of this embankment the escaping, overflowing creek waters had been backed up therefrom; the foundations of the mill had been washed out and the mill itself destroyed. Instead of this, the testimony of the plaintiffs went to show an entirely different cause for the washing out of the mill’s foundations.

According to the plaintiff’s witnesses, the officers and employees of the defendant drove large pilings into the ground with Heavy pile drivers in near proximity to the mill.

This caused such violent vibrations that they reached the mill, ■shaking out a small portion of its foundations, and the waters rushed out, destroying the remainder, or a large part thereof.

Defendant, on the other hand, attributes the washing out to the fact that Foster, the tenant of the plaintiffs, had raised the dam two feet, higher, while the pile driving was going on, and water was higher (although not on account of any freshet) than it was usually.

Ransdell, the engineer of the company, testified that the natural flow of the water was not changed, but there was simply more pressure against the dam; that the mill foundations were bad.

It would'be exceedingly difficult for us to decide which of'the two theories as to the cause of the accident is correct, for each is plausible.'

We are not called on to do so, for the reason that whether it be one or the other, the record does not, under our view of the evidence as it. stands, disclose any proper basis for a present monied judgment in favor of the plaintiffs on that particular score.

Instead of making the washing cut of the foundations of the mill the subject of a substantive, specific claim for the damages occasioned; thereby showing the amount required to replace matters as they were and what the amount of profits were which were lost during a reasonable time within which repairs should have been made after the break, the plaintiffs have merely sought to avail themselves of the washout as a fact tending to show the destruction or ruin of the “mill site” itself as a future place of business.

Had plaintiff’s demand been one for damages to the mill, and had the amount of the same been shown, as also the fact that they were-caused by the acts of the defendant company, the situation would have been different from what it is.

We do not give to the fact itself of the washout the probative force-for the purpose for which it is sought to be utilized, which the plaintiffs, the jury and the District Judge have given to it.

The testimony, we think, negatives the idea that the break was occasioned by water, backed up by reason of a solid embankment having been placed where there should have been a trestle.

There was no evidence to show that at the time of the “washout”' the condition of the waters around the mill had been in any way made-more dangerous by the construction of the railroad. On the contrary, the water was not then at a high stage, although Foster seems to have-held it himself higher than there was any necessity for.

If the break was occasioned as Foster and other plaintiffs declared it was, by the violent vibrations of the earth caused by blows of the-heavy pile driver upon piles driven by the defendant company into it, that particular cause of danger will be- eliminated for the future, as the necessity for such driving of piles will no longer exist. Plaintiffs’’ theory is that the worthlessness of the mill site as such for future time-by the improper construction of the railroad is an absolute present, existing fact, and that this being the case, they are authorized to claim and show the amount of damage which they have sustained by that fact.

This they sought to show by establishing the value of the tract of land including the mill site just before the break and comparing it with the present value.

We do not think that the worthlessness of the mill site as such for future time, by reason of the improper- construction of the railroad, has been shown to be an absolute, present, existing fact.

There does not seem to have been, up to the time of the rendering of the judgment, any testing as to what effect the construction of the road as made would have as a permanency on the mill site; it has not been shown that the waters have ever been, since the building of the road, as high as fourteen feet in the mill pond, a height which it had sometimes reached before the construction of the embankment, without the mill’s washing out; nor shown that it had since that time ever-been so high in the bottom lands as to cause a horse to swim there,, as Foster says he had seen it before.

The strongest evidence in the ease in respect to an injurious effect of the construction of the road upon the mill and mill site is found in the answer of Knoble, the engineer of the defendant, to the sixteenth cross interrogatory propounded to” him, in which he was asked, whether he considered that the old mill site was then as good for mill purposes as it ever was ? That is, whether it had or had not been at all interfered with by the construction of the road ?

ITis reply was: “In time of very high water it would require a-stronger constructed building to withstand pressure of water at old mill site as all the water which passed over low bottom North would’ have to pass under mill and sluice way now; however, by making proper arrangements this additional amount of water could be taken care of.

“If this was properly done I consider the old mill site under present conditions more valuable than before road was constructed, as at times more water could he accumulated and consequently more power could be had.

“The mill washed out last time with a rise of '8 inches’ in the-channel; the low bottom North was not covered by water at all; a great deal larger body of water had collected many times and passed under the mill as creek was not full in banks when washout took place.”

Wingate, one of defendant’s witnesses, testified upon the same subject as follows:

“Q. Have you had occasion to be up there (at the Kirk mill) during high water ?

“A. I have been there when the creek was high.

“Q. Were you ever there when the swamp was overflowed to such •a depth as to swim a horse?

“A. No, sir.

“Q. Tour judgment then is, the filling of two-thirds of the distance across that swamp does not interfere with the overflow to the extent of interfering with the mill purpose and operations?

“A. I do not consider it would interfere very much for the reason that there is a slough on the other side of the mill which has been filled up by the dump on the right of way, but at the same time there Was a levee put across the mouth of this slough emptying in the creek below the mill and which I suppose was put there to hold the head water, a levee put across the mouth of this slough emptying in the -creek below the mill.”

By the Court: “.Do you mean that the making of the embankment there across the lowlands on the other side does not affect the •condition of the mill site, for the reason that the slough which runs out and empties into the creek dams up a part of the year ?

“A. That is it; I do not consider that it would interfere with the flow of the water. It would make a small difference, but not a material difference.

“Q. (By Counsel.) Not even if overflowed across the bottom on the other side to a sufficient depth to swim a horse ?

“A. Not in my opinion; it would not overflow where the mill is deep enough to swim a horse. Should it do so, it would, as a matter of course, make a difference.”

It may be that events in the future may develop as a fact that the mill site has been destroyed by the construction of the road, but that condition of things has not been shown by anything which has occurred up to tide present time.

If that fact should be developed by future events, plaintiffs will then have their remedy. We cannot act by anticipation and on possibilities, or even on probabilities. We do not think matters are in a ■condition to warrant us in dealing with the situation from the standpoint which plaintiffs urge us to view it from.

When we refer to the destruction of the mill site as a place of business by the construction of the road, we mean, of course, an improper construction of the road, for consequential damages resulting from the mere fact of the building of a railroad in the neighborhood -would furnish no basis whatever for a demand against the defendant by the plaintiffs to recoup them for losses of that character.

We are inclined to think that the witnesses who referred to the value of plaintiffs’ property as having at present a value of five or six hundred dollars as against a prior value of twenty-five hundred or four thousand dollars had in their minds a falling off in value for just such reasons.

Estimates made from that standpoint cannot be accepted.

It is no unusual circumstance for persons living along the line of .a projected railroad to entertain most exaggerated ideas as to the advantages which they will receive by reason of the building of the road.

On the strength of such belief they subscribe for stock and grant rights of way only to wake up later to a realization that so far from being benefited, they have lost their land, their money and their business.

As against unexpected results of that character, however disastrous, ■the Railroad Company is not a warrantor.

We question very much whether the value of the Kirk property would be very materially altered even if thé mill were replaced and put into such condition as to effectually withstand all possible pressure which could be brought to bear against it; certainly not to the extent claimed by the plaintiffs.

The water mill would be there, it is true, and in good condition, but whether it would or could be operated so as to malee it remunerative and to make the mill site a factor in increasing to any extent the value of the property, is problematical, in view of the number of the large steam mills controlled by large capital which have recently sprung up in the parish of Vernon, on or near the line of the road of the defendant company.

Plaintiffs’ counsel have with ability and industry collated a large number of decisions touching the rights of land owners along the line of a railroad where property has been injured by the interference by the railroad with the flow of natural streams and the responsibility by the companies for such injury.

We do not question the correctness of the principles announced in them when proper existing conditions of facts call for the application .of them.

We recognize it to be the duty of a railroad company where it crosses a water course or would interfere with its flow of water or interfere with the drainage of adjacent lands, to construct the road so-as not to impair its usefulness or do injury to the owners of the lands along the route; that this duty is a continuing one; that where the road is not properly constructed, each overflow incurs new cause of action for damages. (43 Illinois, 78.)

We repudiate the idea that a railroad company on the ground of its-being a quasi public corporation acting for the public benefit can build its road so as to serve its own interests and can be permitted to do so to the injury of those who are as much entitled to the full benefit of their own property as the Railroad Company is of its.

We hold that if the exigencies of the situation should be such as to require absolutely and necessarily the building of a road in a manner which carries with it injury to other parties, the company is bound to-hold them harmless from such damage, for we hold now, as we did' in Bruning vs. New Orleans Canal & Banking Company, 12th Ann. 541, that usurpations and wrongs to private rights of property cannot be justified by any considerations of benefit to commerce.

If the mill and mill site have in point of fact been injured by the acts of the defendant company, we think plaintiffs would be entitled to-require that the defendant itself place their property in thoroughly safe condition, this whether they be poor or whether they be rich.

The railroad company has no right to expect that the plaintiffs-should advance money out of their pockets to relieve themselves from an injurious situation brought on by the defendant to which they in no way contributed.

Under our equity powers we could see that the defendant do justice.

As matters stand the verdict of the jury and the judgment of the-court thereon rendered and appealed from herein cannot be sustained.

Plaintiffs’ suit must be dismissed as of non-suit and without' prejudice.

For the reasons assigned it is. ordered, adjudged and decreed that the verdict of the jury be set -aside and the judgment of the court therein rendered and herein appealed from, is annulled, avoided and' reversed, and plaintiffs’ suit is dismissed as of non-suit and without-prejudice.

Mr. Justice Blanchard takes no part, having been of counsel.


source: Caselaw Access Project

license: Public Domain

text:
    No. 13,019.
    W. E. Hoggard and Wife vs. Mayor and City Council of Monroe.
    Syllabus.
    1. Municipal corporations are not liable In damages for acts of their Common Councils, in respect to matters entirely outside of the powers of the corporation.
    2. The authority of towns situated on navigable streams to establish and operate public ferries rests entirely in Louisiana upon special grants to that effect, and the fact of the existence of such special grant must be averred, in a petition seeking to hold a municipal corporation liable for damages claimed to have occurred in the maintenance of a public ferry.
    ON APPEAL from the Fifth Judicial District Court for the Parish of Ouachita. Potts, J.

      Hudson, Potts & Bernstein and O. J. Boatner for Plaintiffs and-Appellants.

      Btuhbs & Russell for Defendants and Appellees.
    Argued and submitted January 30, 1899.
    Opinion handed down February 6, 1899.
    Rehearing refused March 20, 1899.
   The opinion of the court was delivered by

Nicholls, O. J.

This case is before us through an appeal by plaintiffs from a judgment of the District Court sustaining defendants’ exception of no cause, of action.

Plaintiffs in their petition asked judgment in the sum of fifteen' thousand dollars as damages for the death of. their minor son, who,. it was alleged, was drowned from a ferry boat, through the negligence • and misconduct of defendants’ servants and employes in charge of the boat.

The allegations of the petition bearing upon the issue before us were:

“That on the 16th of August, 1898, the defendant corporation was engaged in the maintenance and conduct of a public ferry across the • Ouachita River, a navigable stream within the corporate limits of the city of Monroe.

That, on said day, Charles IToggard, the minor son of petitioner, was engaged in hauling wood to the city of Monroe, and, in so doing, was compelled to cross the said Ouachita River at said ferry, and at the invitation of defendants’ servant and employee entered the flat-boat belonging to and operated by said corporation. Driving his team on said ferry-boat, there being no barriers at the rear end of said boat, he stopped the same on or near the centre of the boat, when he was required by the keeper of said ferry, (the employee of said corporation), to drive to the rear of the flat or ferry-boat to make room for other wagons and teams thereon.

That, in his effort to obey these instructions, his team became unmanageable, and walked off from the rear of said boat into the river, carrying and precipitating the wagon and petitioners’ son with them into the stream, where, after a great and desperate effort, and struggle to save himself, he was drowned. That, notwithstanding ample time elapsed from the precipitation of plaintiffs’ son into the water, until he lost his life, there was no effort whatever made by the said corporation. its employees and servants, to render him any assistance, or attempt to save his life. That the death of their son was the result •of gross, wanton and extreme negligence, and criminal carelessness on the part of said corporation and its employees and servants in the fitting out and operating of said ferry, and not from any fault or carelessness of petitioners’ son.

That said negligence on the part of the corporation, its servants and ■employees consisted, among other things, especially in its failure to provide its boats with suitable chains, poles or other barriers, to prevent teams, vehicles and passengers from being precipitated, as was their son, into the river, which chains, poles or barriers it was incumbent on the defendant corporation, under the law as a keeper of a public ferry, to provide its boats with, as well as other necessary appliances for the safety of persons trusting their lives and property into its temporary care and keeping.

That said negligence of the defendant corporation, its servants and employees, especially consisted further, in the command of the keeper of said ferry, (he being the servant and employee of defendant) to plaintiff’s son to drive his team to the rear of said boat and •make room for other teams, notwithstanding the absence of a barrier or other character of appliances to check the same and prevent its precipitation into the water, and further, in the absolute failure on the part of the corporation, its employee and servants to malee any effort whatever to assist plaintiffs’ son in his struggles to save his life, notwithstanding there was ample time in which such effort could have been successfully made, if the said defendant had provided its ferry with properly constructed life saving appliances, as it should have done, and which failure was negligence.

Opinion.

Plaintiffs allege, that the city of Monroe was engaged in the maintenance and conduct of a public ferry across the Ouachita river, a navigable stream, within the corporate limits of that city, “but they nowhere allege, that this was done under the authority of general law, of statutes conferring powers to that effect upon municipal corporations, generally, or of a special provision in its charter. The circumstance that municipal corporations may be situated on the banks of navigable streams, does not carry with it an inherent or impliedly granted power to operate a ferry across the stream. (Millsaps vs. Mayor & Council of Monroe, 37th Ann. 641.) If it did, it would be proper for us to take judicial notice of the fact. We know of no statute conferring generally a power of that kind upon towns so situated; on the contrary, Section 1501 of the Revised Statutes, confers upon police juries, throughout the State, the exclusive privilege of establishing ferries within their respective limits and of generally regulating the police of the same, except those within the control of municipal corporations.” The ferries referred to as being “under the control of municipal corporations,” are those under the control of municipal authority by direct, general or special statute grant.

There being no general, inherent or implied authority, or general statute vesting authority in municipal corporations to establish and operate public ferries, the right to do so must rest in particular cases upon special authority, and the existence of that authority should be specially pleaded.

Plaintiffs herein make before us the broad contention, that the city of Monroe is bound to them independently of any authority in it, either general or special, to operate ferries. That liability flows from the fact itself, that the city did carry on a ferry, and that as resulting from that fact, injury was done to plaintiffs’ son. They urge that it is monstrous to say that the city of Monroe should operate a ferry, freed from all responsibility for the manner in which it was conducted, but this argument involves an assumption of fact, that “the city” did operate such a ferry. It may be true that one was conducted under authority of the common council, in the name of the city, hut unless the corporation itself was authorized to establish the ferry, it can not be said that the act of the council was the act of “the city.” The council represents the city, only in respect to matters which fall within the corporate powers of the corporation. Beyond this, its acts are ultra vires.

We think that it is universally recognized as law, that acts of the directing body of municipal corporations, covering matters entirely beyond the powers of the corporation, do not bind the latter, though it has been held if the acts be within the powers, but directed to be done at some particular time, or in some particular manner, departure from such provisions of law, would not necessarily make the acts absolutely void.

Defendant refers the court on this subject to 2 Dillon’s Municipal Corporations, Sections 968-971, and Section 973 (a) Note, 2 Thompson’s Negligence, p. 737; 15th Am. & Eng. Ency. of Law, p. 1165; Elliot on Roads and Streets, pp. 355, 356; Sherman and Redfield on Negligence, Section 299; Brice’s ultra vires (Green’s Ed.), p. 246; Becker vs. City of Lacross, 4 vol. American Neg. Rep., 96; 15 Utah, 401; 2 N. Y., 261; 76 N. Y., 506; 127 N. Y., 165.

.Plaintiffs advance in support of their position, a decision of the .Supreme Court of the United States, in Salt Lake City vs. Hollister, .118 U. S., 256, but we think the court in that case did not intend to go, nor did it in fact go to the extent which plaintiffs assert.

That ease was presented and passed upon, under an exceptional . state of facts. The city of Salt Lake was not brought into court upon a claim made against it based on either contract or tort, but was in court as a plaintiff seeking to recover money which it alleged it had been improperly and illegally made to pay, but under protest.

The city in bringing its,suit, fell under the operation of the rule, that the right to resist payment of a claim when advanced is much broader than is the right when money has been paid under it to recover it back. Independently of this, the Supreme Court held, that the law made the imposition of a tax in favor of the government follow as the immediate and direct result of the fact itself of the carrying on of a pax-ticular business without reference to who carried it on, or under what circumstances it was done.

The city of Salt Lake had, without authority, carried on a distillery. Galled on to pay a tax, it made the payment, but, under protest, and sought afterwards to have the sum so paid reimbursed to it. The court held, that the claim so presented, was not well founded, and in the course of its opinion declared and showed, that the acceptance of the doctrine contended for was against public policy in tax matters, as it would lead to the destruction of the tax system.

There is no matter of public policy favoring the acceptance of the doctrine advanced by plaintiffs in cases like the present; on the contrary, it would lead up necessarily to ruinous public results, and would do away with all the checks which experience has shown to be absolutely essential for the safety and well being of the different communities. We would not be justified in departing from established legal land marks to meet the hardships and supposed equities of a particular case.

For the reasons assigned, it is ordered, adjudged and decreed, that the judgment appealed from be and the same is hereby affirmed.


author: Nicholas, O. J.

text:
    No. 12,982.
    Gus A. Breaux vs. Galbert Bienvenu.
    Syllabus.
    Act No. 54 of 1896, authorizing owners of property situated as described therein to acquire by the expropriation proceedings fixed In the second and third sections of the Act the right to construct a road, tramway, ditches or canal as the exigencies of the case might require over the lands of his neighbors to the nearest public road, railroad or water course for the purpose of getting the products of such land to such public road, railroad or water course, if constitutional, is in derogation of general right and calls for very strict interpretation. The law does not apply to parties whose lands border upon a public road or stream by which the products of his plantation can reach . a market under feasible though difficult conditions. The law does not take into account the inconveniences of the situation, nor the greater or less cost of reaching the railroads, the refineries or public centres of business or trade, but contemplates an absolute inability of doing so without the right of way being granted.

      ON APPEAL from the Seventeenth Judicial District Court for the-Parish of Lafayette. JDe Baillon, J.

      Orther G. Moulon for Plaintiff and Appellant.

      G. D. Gaffery, William Campbell and Grow Girard (Parkerson &. Tobin of Counsel), for Defendant and Appellee.
    Argued and submitted December 23, 1898.
    Opinion handed down February 20, 1899.
    Rehearing refused March 20, 1899.
   The opinion of the court was delivered by

Nicholas, O. J.

The plaintiff in his petition alleged that he had built and then had a tramway road, of which he was the owner, with a right of way, said right of way running partly on the land of Galbert Bienvenu, as described in said petition. That being unable to agree as to the right of way for the said tramway, he applied to the police jury of the parish of Lafayette, under Act No. 54 of 1896, to assess the amount to be paid to said Bienvenu for said right of way, of which he was duly advised, which at its session of December 2nd, 3897, was, by said police jury, assessed at the sum of one hundred dollars, and petitioner, on the 31st day of December, 1897, tendered said amount to Bienvenu, which he. declined to receive, and grant a deed for right of way as aforesaid.

That petitioner had the right under the law to keep his tramway on , said land as it was originally built with the consent of Bienvenu, and that the latter was without right or warrant to enter upon said property or interfere with it. That in violation of his legal rights, Bien'■enu had, since the amount was assessed and tendered him, entered upon said property wrongfully and illegally and was proceeding to injure and destroy the same, and he was entitled to- have Bienvenu enjoined from committing any trespass or doing any injury to petitioner’s tramway or any part thereof. He prayed for an injunction to that effect- and that after due proceedings, petitioner be entitled to the right of way aforesaid for his tramway on his paying him the sum of $100. A preliminary injunction issued under order of court as prayed for.

Defendant excepted that plaintiff’s petition disclosed no cause of' action; and that plaintiff was without right of action under-' the law; that his alleged possession of the strip of land belonging to' defendant, was under and by virtue of a written lease to him by defendant, which lease expired by limitation on January 1st, 1898, and judgment evicting plaintiff therefrom had been rendered by the justice of the peace of the Third Ward of Lafayette, and plaintiff could not change the character of his possession.

That he was without right or cause of action because his action was one to divest defendant of his property for plaintiff’s private benefit and gain; that Act No. 54 of 1896, under which he was proceeding, was unconstitutional, null and void, for the reason that it aimed to, and the purpose of it was, to divest the owner of his property, without due process of law, in violation of the Constitution of the State of Louisiana and of the United States. That its purpose was to divest vested rights and to take property for private benefit and gain; and that it confers judicial powers upon the police jury.

The District Court overruled the exception of no cause of action, and referred the balance of the exception to the merits to stand as an answer with leave to defendant to amend the same.

Defendant answered, pleading first the general issue; further-answering he averred that Act No. 54 of 1896 was unconstitutional,, null and void, but if constitutional the same had not been complied with by the police jury of I/afayette parish in the alleged attempt to take the land of this defendant; that there was no due hearing of both parties; that they did not fix the dimensions of the land to be taken, nor the value thereof and other provisions of the same were not complied with, and that the alleged action of the police jury was otherwise-vague, indefinite and insufficient. '

Further answering-, defendant averred in the event the foregoing-pleas be overruled, that as admitted by plaintiff, he (plaintiff) did not - come within the terms, nor was he, in any manner entitled to the provisions of said Act No. 54 of 1896, but, on the contrary, his place-fronted upen a public road on one side, and the Bayou Vermillion-on the other, besides having another road to reach the public road.

Defendant specially pleaded that he objected to the entry of plain-tiff upon his place; that by so doing said plaintiff would cause him actual damages in the sum of five hundred dollars.

He further pleaded that this suit having for its object the taking of private property for private gain, was illegal, oppressive and vexatious,. causing harrassment and loss of time to defendant, for which he was liable to defendant in the sum of one hundred and fifty dollars, and for which defendant should have judgment.

He further alleged that he therewith tendered bond in the sum of —--dollars, or in such amount as might be fixed by the court, and the sum of twelve dollars in cash, and that under the law he was entitled to trial by jury herein.

Í. 'The premises considered, defendant prayed that he have judgment ^rejecting the demand of plaintiff, and for one hundred and fifty dollars.

Defendant filed afterwards a supplemental answer, in which he averred, “that the tramway described in plaintiff’s petition, was built upon defendant’s land under and by virtue of a contract, a copy of which was annexed, and made part thereof.” Defendant further averred said contract expired by limitation on the 1st day of January, 1898. That not wishing to renew said contract, he notified plaintiff to vacate said property, but that he refused to do so. That defendant objected and had objected to the use and occupation of his land by plaintiff beyond the term of said contract.

In view of the premises, he prayed that, “said contract be decreed to have expired by limitation on January 1st, 1898, and plaintiff be ordered to vacate the property of defendant which he holds thereunder, and that defendant have possession of the same.”

The case was tried before a jury who returned a verdict in favor of defendant, and thereupon the court rendered judgment in favor of the defendant, dissolving the injunction which had issued in the suit, and rejecting plaintiff’s demand.

It further decreed and ordered that the plaintiff remove his tram-road from defendant’s land as prayed for. Plaintiff appealed.

Opinion.

Act No. 45 of 1896, on which plaintiff based his rights, provides that in all cases where the owner whose lands are enclosed or entirely surrounded by lands of another, or others, and where the lands thus enclosed or surrounded do not front upon a public road, railroad or water course, and who has no right of way to the nearest public road, railroad or water course, such owner shall have the right to construct a road, tramway, ditches or canal as the exigencies of the case may require, over the lauds of his neighbors to the nearest public road, railroad or water course, for the purpose of getting the products of such land to such public road, or for the purpose of drainage, railroad or water course in the manner, and from and under the conditions fixed in the second and third sections of the Act.

Those sections provide that whenever a party owning lands as stipulated in the first section, desires to construct such roadway, tramway, ditches or canals, he shall present his petition to the police jury of the parish where the land to be traversed is situated, or where the lands lie partly in one parish or partly in another, to such police jury where most of the property is situated, stating whether he desires to construct a roadway, tramway or canal; whereupon said jury after due hearing of both parties in interest shall decide in open session by a majority vote of the members present, whether he shall be permitted to construct a roadway, tramway, ditches or canal, and fix the dimensions thereof, and said jury shall, at once, proceed to assess the .amount to be paid to the owner of the land for the privilege of constructing such roadway, tramway, ditches or canal, which shall, in no case, be less than three times the assessed value of the land traversed, nor more than three times the assessed value. In computing and fixing such valuation the said police jury shall count a lineal acre as a whole acre. That on payment to the owner of the land to be traversed by the party seeking said right of passage, of the amount assessed by the police jury as above provided to be evidenced by the receipt in writing of the party whose land is to be traversed, and on production of such receipt to the president of the police jury, such officer shall grant a permit in writing to such party who shall be at once authorized to proceed to construct such roadway, tramway or canal as the case may be, provided that work thereon he begun within one year from date of permit, otherwise all rights shall be forfeited.

The evidence shows that the plaintiff is the owner of a certain sugar plantation in the parish of Lafayette. That a public road runs along a part of the tract and that his lands border also to a certain ■extent on Baycu Vermillion; that by means of this road and this bayou he has access to the town of Lafayette, the Southern Pacific Railroad, and the Lafayette Sugar Refinery, but by longer lines than ■would be required to reach the same points by a tramway crossing certain lands of his neighbors’ intervening between his property and the points mentioned. That the plaintiff cultivates' and sells cane to the Lafayette and Caffery Befineries, which axe situated on the line of the Southern Pacific Eailroad; that the cost of delivering his cane to those refineries by the public road or by the bayou are much greater than by a tramway such as has been mentioned.

That in 1893, plaintiff, by reason of said increased cost which 'he testified would make the cultivation of cane at that point really unremunerative, sought and obtained from his neighbors (among them the defendant) the right to construct and operate a tramway over their respective lands so as to connect his property with the points-mentioned. That the right granted to that effect by the defendant was evidenced by a written act between the parties, and by the terms of the agreement the right was to expire by limitation on the 1st of J anuary, 1898. That defendant several months before the expiration of this stated period, notified the plaintiff that he would not renew the privilege and called on him to remove the tramway at the expiration of the grant of right of way.

That defendant on one or more occasions refused positively to renew the grant, and finally instituted legal proceedings before a justice of the peace to force plaintiff to remove the tramway and vacate the premises. That that proceeding culminated in a judgment, ordering the plaintiff to remove the tramway and to give possession toBienvenu; that on appeal to the District Court that judgment was set aside upon the ground that the matters and issues raised were involved in the present proceeding, which was then pending in the District Court.

The evidence shows that the lands of the defendant do not join those of the plaintiff; that the tramway which had been constructed crosses the properties of several of plaintiff’s neighbors before it reaches defendant’s property.

The exigencies of this ease do not call for any expression of opinion whether it is within the power of the General Assembly to authorize the expropriation of the lands on one person for the exclusive benefit or convenience of another where there is no element of public or general interest involved in the expropriation and whether if it has such power it has the right to refer to the police jury instead of to the judicial tribunals the adjudication of the rights and obligations of the parties. The testimony discloses the fact that plaintiff’s plantation is not so situated as to make the provisions of the Act of 1896 applicable to it. That act is in derogation of general right and calls for a very strict interpretation. Plaintiffs land borders upon both a public road and a stream by which the products of his plantation can reach a market, under difficulties, perhaps, but none the less, under feasible •conditions. The law does not take into account the inconvenience of the situation nor the greater nor less cost of reaching the railroads, refineries or the public centres of business and trade, but contemplates an absolute inability of doing so without the right of way sought to be expropriated.

We are of the opinion that the judgment appealed from is correct, and it is hereby affirmed.


author: Watkins, J.

text:
    No. 12,910.
    State of Louisiana vs. Henry Jackson.
    Syllabus.
    The transcript containing neither bill of exceptions, motion in arrest of judgment, nor assignment of errors, and there being no error apparent from an inspection of the transcript, the judgment appealed from will be affirmed.
    ON APPEAL from the Criminal District Court for the Parish of Orleans. Moise, J.

      M. J. Gunningham, Attorney General, Robert H. Marr, District Attorney, and Joseph B. GenereTly, Assistant District Attorney, for Plaintiff and Appellee.

      II. N. Gautier for Defendant and Appellant.
    Submitted on brief November 12, 1898.
    Opinion handed down March 20, 1899.
   The opinion of the court was delivered by

Watkins, J.

On information, the defendant was prosecuted on the charge of feloniously committing an assault upon one August Pare, by wilfully shooting at him; and the jury of trial having returned a verdict of “guilty as charged,” he was sentenced by the court to im.r prisonment in the State penitentiary for a term of five years, and from that verdict and sentence he prosecutes this appeal.

The transcript contains no bill of exceptions, assignment of errors,, or motion in arrest of judgment; and, there is no error apparent from an inspection of the record.

Defendant’s counsel has favored the court with no brief in support of his appeal.

Under the circumstances, we will follow the rule announced in State vs. Potter, 33rd Ann. 795, and affirm the judgment.

Judgment affirmed.


text:
    No. 13,025.
    State of Louisiana vs. James Robinson.
    Syllabus.
    The testimony of third persons as to what accusations the wounded man made-against the accused, whilst under arrest and in his presence, is incompetent as hearsay; same being neither dying declarations, or part of the res gestae.

    ON APPEAL from the Criminal District Court for the Parish of Orleans. Moise, J.

      M. J. Gunningham, Attorney General, Robert II. Marr, District Attorney, and Jos. E. Generelly, Assistant District Attorney, for-Plaintiff and Appellee.

      Isaac F. Garter for Defendant and Appellant.
    Argued and submitted February 11, 1899.
    Opinion handed down February 20, 1899.
    Rehearing refused March 20, 1899.
   The opinion of the court was delivered by

Watkins, J.

The defendant was indicted, tried and convicted of the murder of ono Paul Valentine, and prosecutes an appeal from a death sentence.

He principally relies upon three bills of exceptions which his counsel reserved to the refusal of the trial judge to sustain his objections to the admission in evidence of the declarations of three witnesses who were introduced on behalf of the State.

The three bills being identical, and the three witnesses having testified to the same transaction, it will be necessary to discuss but one of them.

The recitals of the bills are, that the State sought to prove by Officer Felix Vauquelin, and two or three other persons “certain statements “made by the deceased after the defendant had been arrested and “ carried to the bedside of the deceased in the custody of the police “ force of the city of New Orleans, as t» whether or not the prisoner “ was the party who shot him.”

That to this testimony, defendant’s counsel tendered the objection “that the extent of the wound received by the deceased had not been “ ascertained, and was not known to be dangerous or mortal; and that “ no one had pat him on his guard as to the nature and character of “ the wound.

“That nothing but a dying declaration, properly executed in the “ manner presented by law, could or should be admitted as evidence.

“The proof, according to the coroner’s certificate, being to the effect “that the deceased lived three days after the shooting occurred, and “ no dying declaration was made, or taken.

“Inasmuch as dying declarations are made in view of the certainty “ of death, and the immediate facing of a Supreme Judge who knows “ all things, serious objection is raised to putting in evidence any “ statement made by him other than a dying declaration, properly “ executed in the manner and form required by law; and, especially, “ after having been fully advised of impending death.”

The trial judge prefaced his assignment of reasons for admitting the testimony objected to over the objections of defendant’s counsel, with the following extract from the statement of one witness, viz.:

“Q. — -Did Valentine (the deceased) make any statement in this man’s (the prisoner’s) presence; or did he identify him as the man who shot him?

“A. — He said, ‘Jim, you shot me for nothing!’

“Q. — -You are certain of that?

“A. — -Yes, sir.

“Q. — What did this man, the prisoner, say ?

"A.- — This man. said, ‘I never shot you, Paul’; and Paul said, ‘Yes, .■you shot me.’

“Q.- — He denied it?

■“A. — Yes, sir; he denied it.”

He, also, annexes the following extract from the statement from the testimony of another witness which was objected to, viz.:

“Q. — Were you present when this man was brought before Valentine?

“A. — Yes, sir.

“Q. — Did Paul Valentine identify him as the man who shot him ? “‘A. — Yes, sir.

'“Q. — Was Paul Valentine positive about it?

■“A. — Yes, sir; he repeated it several times.

“Q. — -This prisoner was present at the time?

“A. — Yes, sir; he repeated it two or three times, ‘Jim, you shot me." He (the prisoner) said: ‘No, Paul, I didn’t; you made a mistake.’ Paul said: ‘You are the one who shot me.’

“Q. — And he denied it?

“‘A. — Yes, sir.”

The judge states that there were three other persons who were pres•ent, and heard that conversation, and that all of them made their statements over the objection of defendant’s counsel.

He, also, made an extended extract from the testimony of the defendant as a witness in his own favor, and concludes his reasons, which are very brief, with this observation, viz.:

“The evidence was not offered as a dying declaration; nor was it an ■“ attempt to prove by silence, an acquiescence in statements made in his presence while under arrest. It was a conversation between tne ■“ deceased and the prisoner; a charge and a denial, beina its entirety.”

The objection to this testimony is, that the statements of the State’s ■witnesses is hearsay, the purport of same being a reputed recital of .statements made by the deceased in their presence.

The testimony was not admissible as the dying declaration of the ■deceased, because be was not, at the time, in articulo mortis.

He lived three days after the shooting occurred and was not ad■vised, at the time, that death was pending or inevitable, and, hence, the sanctity of an oath.can not attach to it.

The judge corectly held that this evidence was not offered as a dying declaration.

Its introduction is nob attempted to be defended on the ground that .it was part of the res gestae, because that would have been manifestly incorrect, as neither of the witnesses were present, or heard or saw -any part of the transaction.

The proposition of the judge is, that the testimony of those police -officers was the mere recital of a conversation which occurred between :the deceased and the accused in their presence.

Evidently, the repetition by a witness of the statement of another, .is hearsay. He merely repeats what the other said in his hearing. And it is by this kind of evidence that it is proposed to prove the identity of the defendant as the assailant of Paul Valentine, in order to fasten the guilt of his homicide upon him.

This is all the more manifest when we consider the fact that the defendant is stated to have stoutly denied the accusation of Valentine 'in the course of the interview. For it was most certainly not the pur■pose of the State in introducing these witnesses, to prove the defend•ant’s denial of Valentine’s accusation.

This occurrence immediately succeeded the arrest of the defendant, who was found at his own house soon after the shooting of Valentine took place, and only one block distant therefrom.

The shooting took place at a late hour of a dark night, and therefore the question of identity was an important, and possibly a diffi-eult one to prove.

On this state of facts, the question is, whether the testimony was •.admissible.

We do not think it was.

There can be no doubt of the correctness of the proposition, that statements made by an accused person in the course of a conversation between him and the party he is charged to have assailed, is competent testimony, and that proof of such statements may be admitted against 'him as a confession; but we are aware of no rule, that will allow the 'introduction of parol testimony of third persons, to establish the fact •that the party assailed made accusations against the accused in the course of that conversation, which may be used as evidence against 'him.

And this case well illustrates the correctness and propriety of rejecting such testimony, because the defendant was charged with murder and is under a sentence of death; and the fact that the party assailed has since died, and could not give his own evidence, can not justify an alteration of the rule.

This testimony must be regarded as that of Paul Valentine; and if he were living and had been put on the stand as a witness for the State, he certainly could not have been permitted to relate what accusations he made against the accused, as proof of his identity.

In State vs. Diskin, 31 Ann. 919, it was distinctly held by our immediate predecessors, that the admission as evidence to be considered by the jury, of the statement of the deceased made in the presence of the accused, but not as a dying declaration, was illegal and vitiated the verdict.

-In that ease the court, speaking through Mr. Justice Fenner as its organ, said:

“The evidence was to the following effect:' After the accused was “ arrested on this charge, and while in custody, he was conveyed to “the bedside of John Driscoll, the man killed, who was then lying “ wounded at the Charity Hospital. A brother of the wounded man “was, also, present, who was a corporal of the police. The wounded “ man said to the prisoner, 'Myles, you hit me and shot me for noth“ing; own up.5 Whereupon, Corporal Driscoll immediately said to “the prisoner, ‘be quiet, keep still.5”

Upon this state of facts, the court made the following observation, viz.:

“It is not pretended that the declarations of the wounded man were “ made under a sense of impending dissolution. They were admitted “ solely on the ground that they were made in the presence of the ac“cused and to establish his implied-admission of the truth thereof, “because of his silence and failure to deny.

“Implied admissions from tacit acquiescence of the defendant in “the statements of others made in his presence, only result, when the “ circumstances are such, as afford him an opportunity to act or speak, “ and would naturally call for some action or reply from a person sim- " ilarly situated. Mere silence, while a party io held in custody under “ a criminal charge, affords no inference whatever of acquiescence in “ statements of others made in his presénce. He has the undoubted “ right to keep silence as to the crime with which he is charged, and is “ not called upon to reply to or contradict such statements.

“Under such circumstances, it is held that the statements so made “ are not admissible against tbe prisoner, because they do not even “ tend to support the hypothesis of acquiescence.

“Commonwealth vs. McDermott, 129 Mass., 440.

“Commonwealth vs. Kinney, 12 Metcalf, 235.

“Commonwealth vs. Walker, 13 Allen, 570.

“Bob vs. State, 32 Ala. 560.

“Wharton’s Crim. Law, Sec. 626.”

The facts of that ease are quite similar to those of the instant case, and the principle announced is of unquestionable correctness.

But, for a much stronger reason, should the rule there stated be-applied in this case, because the statements of third persons were admitted as evidence for the purpose of showing what the wounded man said to the defendant whilst he was under arrest and in his presence.

This statement was used as positive, affirmative evidence against the defendant; and, notwithstanding he did not remain silent, but made an earnest and vigorous protest against the accusations of the-wounded man- — not once only, but repeatedly, and in the presence and hearing of several witnesses.

Our conviction is clear, and quite decided, that the testimony of those several witnesses was incompetent and inadmissible, and was-erroneously permitted by the trial judge, to be heard by the jury; and' that the overruling of the objections of defendant’s counsel thereto,, was and is reversible error.

It is therefore ordered and decreed, that the verdict of the jury, and' the sentence and judgment thereon based be set aside and annulled; and it is further ordered and decreed, that the cause be reinstated' and remanded to the court below for a new trial in accordance with’ law, and the views herein expressed.


text:
    No. 13,063
    State ex rel. National Broadway Bank vs. City of New Orleans.
    Syllabus.
    City improvement certificates issued to contractors for street paving, block by block, as ike work progresses, are payable in cask upon appropriatlonswken made by tke city; and their payment does not, in any manner, depend' upon tke contractor’s fulfillment of tke maintenance clause of kis contract" In bekalf of tke city.

      0ÜST APPEAL from tlie Civil District Court for the Parish of Orleans. King, J.

      Farrar, Jonas, Kruitschniti & Gurley for Plaintiff and Appellee.

      Samuel L. Gilmore, City Attorney, and W. B. Sommerville, Assistant City Attorney, for Defendant, Appellant.
    Argued and submitted February 21, 1899.
    Opinion handed down March 7, 1899.
    Rehearing refused March 20, 1899.
   The. opinion of the court was delivered by

Watkins, J.

This is a proceeding by mandamus directed to the ■ city of New Orleans, commanding it through its proper disbursing officers, the mayor, comptroller and treasurer, forthwith to pay over ■to petitioner, out of funds appropriated therefor, in cash on the surrender and delivery thereof, the amount of certificates Nos. 1 and 2, . as set out and particularly described in its petition, bearing date September 10th, 1895, issued to the Eosetta Gravel, Paving and Improvement Company, amounting in the aggregate to $5,477.14 with six per cent, per annum interest from date.

On the trial there was a judgment mailing the mandamus peremptory, and the respondent city prosecutes this appeal therefrom.

The substantial representation of the relator is as follows, viz.:

That by virtue of a notarial contract made and entered into between the city of New Orleans and the Eosetta Gravel, Paving and Improvement Company, bearing date May 10th, 1895, the latter contracted and agreed to do certain paving work on Poland street, to be done at prices therein specified, partly by the front or abutting proprietors, and partly for certificates due on demand by the city.

That said paving and other work was duly performed by the gravel • company, the same was accepted by the city, and certificates were duly issued for the city’s portion of said work; and same were signed by the commissioner of public works, the city engineer, and the mayor of the city and delivered to the gravel company.

That among these so issued were certificates Nos. 1 and 2, each dated September 10th, 1895, one for $2,170.67 and the other for '$3,256.52.

That on. the 9th of April, 1896, for value received, the gravel company transferred and assigned said certificates to relator, and, upon the same day, said transfer was registered in the office of the comptroller of the city in pursuance of ordinance No. 2066, Administration Series; and that, ever since, the city of New Orleans has recognized relator as the owner and holder of same.

That by ordinance No. 11,347, O. S., adopted since said assignment, the city made due and’proper appropriations to pay said certificates in their respective order and rank, under which there are, at this time, ample funds in the city treasury applicable to the payment and satisfaction thereof, capital and interest.

That relator presented said certificates to the city comptroller for such payment, and he “refused to make such payment until (itj had “ presented him the certificate required by ordinance No. 13,338, O. S; “ and, that thereupon, its counsel addressed a letter to the comptroller “making a formal demand of him for payment of said certificates, “ and to which he replied that he was prepared to pay same when re- “ lator complied with the requirements of said ordinance No. 13,338,. “0. S.”

Relator specially avers that said ordinance was adopted by the city council long subsequent to the execution and fulfillment of the aforesaid contract by the gravel company; long after the passage of ordinance No. 11,347, C. S., making appropriation for the payment of said certificates; and long after said certificates had been by the gravel company assigned to the relator, and to the knowledge of said city and its officers.

The following is a copy of the provision of said ordinance No.-13,338, to which relator refers, viz.:

“That no certificate for the city’s portion of the cost of any street “ or banquette; paving of streets or banquettes, in which there is a “ clause requiring the contractor to maintain the street or banquette “ in good condition for any term, shall be paid to any beneficiary or “ assign until the beneficiary shall file with the comptroller a eertifi- “ cate signed by the commissioner of public works that the mainten- “ anee clause in the contract under which said paving certificate is “ issued has been fully complied with.”

The relator, thereupon, represents and avers, that said ordinance is-null and void, and of no effect as against it, because:

1st. It imposes upon the assignee or beneficiary of such certificates .as those upon which its demand is founded as a prerequisite to their payment a burden not imposed on the contractor itself, thereby making the position of an assignee worse than that of its assignor, and is, therefore, discriminative and unreasonable.

2nd. It imposes upon the payment of those certificates onerous terms and conditions which did not exist at the time the original contract out of which said certificates originated, was made, and after same had been assigned to relator with the küowledge and consent of the city, and is, therefore, violative of the obligation of the contract and divests vested rights, in contravention of the constitutions of the State and United States.

Finally, the relator avers, “that the sole and only reason why the “ city authorities refuse to pay said certificates in cash out of the “ funds now in the city treasury appropriated and applicable thereto, “ is the fact that (it) has declined to submit to the provisions of said “ ordinance No. 13,338 ,C. S.;” and that said pretension is illegal and unconstitutional.

The following are extracts from the return of the respondents, viz.:

“1. That certificates Nos. 1 and 2, held by relator and described in “ its petition, are certificates issued by the municipality of New Or- “ leans, for work done for said municipality, and, under the laws gov- “ erning the issuance of such certificates or scrip.

“That said scrip is non-negotiable in its character, and that, on their “ faces, said certificates bore notice to relator that they were subject “to all the equities between the city of New Orleans and the person “ to whom they were originally issued.

“2. That the Rosetta Gravel, Paving and Improvement Company, * to whose order said certificates were issued, agreed in the contract, “ which is referred to in relator’s petition, and made a part thereof, to “ maintain Poland street in good order and condition for the term of “five years after said company had finished paving said street; that “ said five years have not yet elapsed; that the Rosetta Gravel, Paving “ and Improvement Company has failed to comply with the terms of “its contract to maintain Poland street in good condition, and that “ the money is not due under said contract, and on the certificates here “sued upon, until the said contract is complied with and the street “ maintained in good order and condition.

* * " * * * * * *

“4. That ordinance' No. 13,338, C. S., is not burdensome, illegal, “ unauthorized, null or void. That the certificates therein provided “ for are issued by city officials without cost or charge. That said “ ordinance is merely administrative in its nature and authorized by “ the city charter, and is useful in the expedition of the business of “ the city with private contractors.”

The purport of the return appears to be, that the gravel company has engaged with the city, as a part of its contract “to maintain Po- “ land street in good order and condition for a term of five years, “ after it had finished paving said street;” and that said time has not elapsed, and said company “has failed to comply with the terms of its u contract to maintain Poland street in good order and condition, and “ that the money is not due under said contract on the certificate sued “ on, until the said contract is complied with and the street main- " tained in good order and condition.” (Our italics.)

That, notwithstanding the gravel company has been duly notified “to repair Poland street,” it has failed to do so.

That ordinance No. 13,338, C. S., is neither “burdensome, illegal, “ unauthorized, null nor void;” but that it is “merely administrative " in its nature and authorized by the city charter and is useful in the •“ expedition of the business of the city with private contractors, etc.”

From the foregoing it appears, that the respondents do not contest the fact that the gravel company hadcoTOpZeZecZitseontractwith the city to do certain paving work on Poland street, and that same had been performed satisfactorily to, and accepted by the city; but that they do contest relator’s right to have its certificates paid until the maintenance clause of the gravel company’s contract with the city has been ■carried'to its final, and complete termination; or, in other words, the relator’s demand for the payment of its certificates is premature, the maturity thereof being postponed by the aforesaid suspensive condition of the contract to maintain Poland street in good order and •condition.

In order to determine the validity, and applicability of ordinance 13,338, O. S., to relator’s certificates, and the relief it demands, an examination must be made of the paving contract which the gravel company made with the city, which is the foundation of its rights; and it was conceded in the argument at bar, that relator possessed the same and no greater rights than the gravel company, its assignor, had •originally — said certificates being now-negotiable in form.

On the 10th of May, 1895, the mayor of the city, duly empowered by Ordinance No. 10,450, C. S., made and entered into a contract withfhe Rosetta Gravel, Paving and Improvement Company for the paving, of Poland street with concrete gravel- — specifying all details of the work.

The following are the terms of what .is known as “the maintenance clause,” viz:

“The entire work shall be maintained in good order by the contractor for and during a period of five years from date of the final, acceptance. This good order being understood to mean that whenever so directed in writing by the commissioner of public works, all decayed, broken, or injured wood or other material in any part of the street shall be removed and replaced by the contractor within ten days,, with sound materials, according to those specifications, or whenever so directed, etc.”

The contract, also, provides for a bond which is of the following tenor, viz:

“The successful bidder will furnish bond with good and solvent security, approved by the mayor and comptroller of the city of New Orleans, in an amount equal to twenty per cent of the estimated value of the contract for the construction and maintenance of the work, according to the foregoing specifications.”

In addition to the foregoing clauses, the contract concludes with the following clause with regard to certificates, viz:

“Certificates will be issued for every two blocks when completed by the contractor and approved by the city engineer and commissioner of' public works.”

From the foregoing it is manifest that the issuance of thé certificates did not depend upon the contractor’s compliance with the maintenance clause, but solely and alone upon his completion of the two-blocks, the price of which they purported to represent.

That stipulation was re-iterated in the bid of the gravel company; and, it provides further, that that “portion of the cost of such paving is to be paid by the city of New Orleans in cash out of item two (2) of the reserve fund of the year 1895, and all deferred payments shall bear interest at the rate of six (6) per cent per annum> to run from the date of issuance of the joint certificates of payment of the city engineer, and commissioner of public works.”

This contract was duly signed by both of the contracting parties.

The two certificates which are declared upon, are in exact eonformity to the contract, and the assignment thereof was in due form, and, in compliance with the provisions of ordinance No. 2066, A. S., and each endorsement bears the certificate of the city comptroller that it has been duly filed in his department.

By ordinance No. 11,347, C. S., bearing date September 26th, 1895, an appropriation was made in favor of the gravel company to pay the two certificates of relator, out of the reserve fund of 1895; but the comptroller declined to pay the said certificates to relator until ordinance No. 13,338, C. S., had been complied with.

The question of importance is, whether the city council possessed the power to enact ordinance No. 13,338, and give same a retroactive effect with respect to the rights of relator, so as to oblige it to see to it, that the maintenance clause of the paving contract had been fully complied with by the contractor as a sine qua non to the payment of its certificates by the city.

In our appreciation, the city had no such power. The terms of the paving contract did not warrant it. The maintenance clause of the contract has exclusive reference to the repair of paving once perfect, and complete, and is a condition subsequent thereto. The issuance of the cash certificates had nothing whatever to- do, with the maintenance-of the street-paving; and to attempt to give to it the retrospective effect its terms would imply, would render it both burdensome and unreasonable, and operate an impairment of the relator’s contract in the sense of the federal constitution.

We do not regard this as a mandamus proceeding to enforce the-obligation of a contract; and it is not a suit to compel the specific performance of a contract.

The object of this suit is to compel the disbursing officers of the city to comply with the terms of specified city ordinances by paying the certificates the relator holds in cash, from a fund which had already been raised and appropriated for that purpose.

Such a proceeding as this is a well-recognized remedy in such a case. Indeed, it is the only one of which such a demand for relief is sus-cptible.

The certificates are mere choses in action, and non-negotiable in form, consequently the relator occupies the same place as the gravel company; but that in no manner alters the situation, or applicability of mandamus as a remedy.

We are entirely satisfied that the relator’s demand is well grounded and that ordinance 13,338 has no application to the certificates itholds.

Judgment affirmed.