text:
    No. 13,369.
    William B. Booth (R. S. Booth, Subrogated), vs. Cyprien Buras.
    Syllabus.
    1. Whilst, in an action of boundary, a party may be deprived, by reason of the exhibition of a stronger title, of some portion of the land claimed by him, he can, under no circumstances, demand, as the result of such action, that his boundaries be extended beyond the limits fixed by the only title upon which he declares.
    2. Where a Spanish grant describes the property, which lies upon the Mississippi and extends back to the sea marsh, as “about two leagues,” from one bayou, the name of which is given, to another bayou, the name of which Is also given, the grant is per cwersionem, and the boundaries thus named control the superficial and lineal measurement.
    3. Where in the course of the trial of an action of boundary the parties litigant fail to establish title to contiguous tracts, or bodies, of land, the action will be dismissed.
    APPEAL from the Twenty-Second Judicial District, Parish of Plaquemine — Single, J.

      John Dymond, Jr., for Plaintiff, Appellee.

      James Wilkinson and E. Soward McCuleb for Defendant, Appellant.
   The opinion of the court was delivered by Monroe, J.

Statement op the Case.

Monroe, J.

This action was brought in 1869 for the purpose of establishing the boundary between certain tracts of land owned by the plaintiff and defendants, respectively, and which were said to lie contiguous to eáeh other in the parish of Plaquemine. Since the filing of the suit, Wm. B. Booth has died, and is now represented herein by R. S. Booth, his universal legatee. Jean Pierre Buras, one of the original defendants, has also died, and his widow and heirs were made parties, but they have not appealed from the judgment which is here complained of, and are not now before the court. The present parties to the litigation are, therefore, R. S. Booth, plaintiff, and Cyprien Buras, defendant. It appears from the record, that, in December, 1794, Anthony de St. Maxent, formerly a captain in the Spanish service, presented a petition to Baron de Carondelet, the Spanish Governor General of Louisiana, setting forth that he wished to establish a plantation on the Mississippi river, and asking for a grant of “the land lying between Bayou Liards and the one called Carenero, two leagues apart from each other, but containing only three arpents in depth good for cultivation”, with a reservation to the government of the land “in the middle of tins space”, occupied by, and surrounding, Fort Bourbon. And the grant was made and the laud “about two leagues from Bayou Liard to that of Carenero” ordered to be surveyed, though the particular survey made pursuant to this order, if any there w¡as, has not been produced for the purposes of this case. After the acquisition of Louisiana by the United States, the grant thus made was confirmed by commissioners, pursuant to authority conferred by an Act of Congress of 1807, in the following terms, to-wit:

“James Smith and Harris Hove claim a tract of land situated in the “ county of Orleans on the right bank of the Mississippi river contain- ing 6624 superficial arpents, and 584 toises, bounded on the upper “ side by Bayou Liard, and on the lower, by the Bayou Carenero. It “ appears that an order of survey for said land was duly issued by the “ Baron de Carondelet, in favor of Anthony de St. Maxent, from whom “ the claimants derive their title, dated the 14th of January, 1795, “ which the Board do hereby confirm, agreeably to the terms and conditions specified in the petition, reserving to the United States, the “ ground within two hundred toises, of Fort Bourbon.” ,

Thereafter, in 1847, a patent was issued, which, after referring to the grant to de St. Maxent and the confirmation to Smith and Hove, proceeds to recite that the claim in question has been- surveyed as containing 5575 41-100 acres “and has been designated as section thirty-“five in township twenty, South, of Eange thirty, East; and Section “ four in township twenty-one, South, of Eange thirty East, lying west “ of the Mississippi river”, etc., and makes the grant of “the sections of land above described”, excepting that reserved for the fort, etc. And it is under this title that the plaintiff claims.

The title of the defendant, upon the other hand, to so much of the land claimed by him, as is said to lie contiguous to that claimed by the plaintiff, to-wit: fractional sections 32, 33 and 34 in township twenty, South, of Eange thirty, East, traces back to a patent issued by the State of Louisiana to Effingham Lawrence in 1855, based upon a warrant issued on the authority of an Act of the Legislature of March 17, 1852; whilst the title to the remaining lots claimed by the defendant traces back to a United States patent issued in 1844; the whole tract claimed by defendant having been acquired by him immediately from his co-deféndant, Jean Pierre Buras, by an act of sale, dated Eeb. 2, 1866, which describes, and undertakes to identify the property as follows, to-wit:

“ 1st. Lots, or fractional sections Nos. 32, 33 and 34 in township) “ No. twenty, South, of range No. thirty, East, in the South Eastern “land district of Louisiana, West of the Mississippi river, containing “ by estimation one hundred and twenty-two superficial acres, according “ to the official plat of the survey of said lands, returned in the State “Land Office of this State.”
“2nd. Lots, .or sections Two and Three in township twenty-one, “ West of the Mississippi river, of range thirty, East, in the district of “ land, subject to sale at New Orleans, La., containing 60 acres, and “ 84-100 of an acre, according to the official plat of the survey of the “ said lands, returned to the General Land Office by the Surveyor Gen- “ eral.”
“ 3rd. Lot No. One in township No. Twenty-one, of range thirty- “ one, East, in the district of land subject to sale at New Orleans, La., “ according to the official plat of the survey of the said lands, returned “ to the General Land Office by the Surveyor General, and which all “ said lots or sections herein conveyed form a front of forty arpents on the Mississippi river, as the whole is set down on the survey of said “ lands, made by Hawke, civil engineer, on the 2nd and 3rd of Novem- “ ber, 1866, and hereunto annexed for reference.”

In 1869, when Wm. B. Booth brought this action, the defendants, Jean Pierre, and Cyprien Buras, filed an answer, in which they denied the allegation that they had refused to allow the boundary to be established extra-judicially, and from which we make the following extract: “ They, on the contrary, positively aver as follows, to-wit':on the twenty- “ fourth day of October, 1866, and at the request of Jean Pierre Buras, “ a civil engineer and sworn surveyor of the State, to-wit, Maurice “ Hawke” (was employed, and) “the said Wm. B. Booth, plaintiff herein, “ was personally notified in writing that on Monday the 29th of October, “1866, the said surveyor would proceed to survey said lands, and fix “ the boundaries thereof. Pursuant to said notice, served as aforesaid “ on said Booth, and to said request of Jean Pierre Buras, the said “ surveyor on the 29th of October, 1866, repaired to said place, and “ then and there performed his work, which lasted five days, to-wit, the “ 29th, 30th and 31st of 'October, and the 2nd and 3rd days of Novem- “ ber, 1866. That the said Booth, although duly notified as aforesaid “ to be present, did not judge proper to appear, nor to send anybody “ then and there to represent him, to make opposition thereto, said sur- “ veyor consequently went on with his said operation in the presence “ of two witnesses, called for that purpose — made also in their presence “ his proces verbal thereof, which they signed with him, and made a “ record of his proceedings, and of the plan drawn by him, as more fully “ appears from a duly certified copy of said proces verbal, hereunto an- “ nexed and made a part of this petition, and of the plan deposited in “ the recorder’s office of this parish, which will be produced, if neces- “ sary, on the day of trial. Eespondents further aver, that under said “ circumstances, said plaintiff has no other course to pursue, except to “ask for a ratification of said operation, if he thinks it proper for his “ interest, but not to institute a suit to pray for a survey and fixing of “ boundaries which has' already been made, in accordance with the “ requisites of law. Wherefore, respondents pray that he- (plain- “ tiff) be cited to appear and show cause why the said survey and fixing “ of boundaries, should not be confirmed and made conclusive between “them and him,” etc.

The proces verbal thus referred to and made part of defendants’ pleadings, in so far as it is necessary to quote it, reads as follows, to-wit: “Mr. Jean Pierre Buras--wishing to have established the “ boundaries of a certain tract of land owned by him in township Nos. “ 20 and 21, South, range 31, East, as well as in township 21, South, *’ range 31, East, as well as in township 21, South, range 31, East, “ South-Eastern Land District of Tjouisiana, and below the claim of “ Smith and Hove (Old Board No. 362) he required my professional “services for that purpose.”

“ No traces existing on the ground of the lower line of the aforesaid “ claim of Smith and ITove, and the Bayou Carenero, given in the “grant as its lower boundary, being not contiguous to the Mississippi, “ it was necessary to establish that line, by surveying the whole front. “ from its upper boundary, the Petit Bayou Hards.”

The proces verbal then recites the survey of the entire front, as claimed by both litigants, 'from the Bayou Liards, the upper boundary of plaintiffs’ land, to the “Jump,” which lies below that claimed by the defendants, and the establishment of the boundary between the two tracts. It does not appear that the surveyor actually saw the Bayou Carenero, but, referring to a point on the river front indicated in his proces verbal, he says, “the -Bayou Carenero is said to be in the rear oi that point."

The, plaintiff, however, objected to the survey thus tendered, upon several grounds, the main ground, upon the merits, being, that it did not give him all the land that he claimed, but deprived him of a mile front-on the river. He also urged that he was not bound by said survey for the reason that he had not received timely notice. And he prayed for a new survey, or, in the alternative, for the rectification of that tendered by the defendants.

No action was taken by the court upon the subject of the survey, the correctness and sufficiency of which were thus asserted by the defendant and denied by the plaintiff, but the parties litigant agreed each to name a surveyor, who, together with the surveyor named by the other, should make a new survey and designate the boundary. And, in the event of their non-concurrence, it was agreed that an umpire should be appointed by the court. The plaintiff thereupon named V. Sulakowski and the defendant named W. J. McCulloh, and those gentlemen made a survey and agreed upon a report, whereby they placed the boundary line between the respective estates at a point about five thirty-seconds of a mile further on the land of the defendants than Hawke, by whom the previous survey had been made, had placed it. In their proces verbal, however, these gentlemen say, among other things, “found no Bayou Carenero, nor anything resembling a bayou”. The plaintifi moved that this report be adopted, and the defendants opposed its adoption, and there was judgment, in April, 1872, sustaining the opposition and ordering a new survey to be made by O. E. Berens, surveyor. Mr. Berens, however, declined to serv'e, and O. Uncas Lewis was appointed in his place, and made a survey and report, the adoption of which was moved by the plaintiff and opposed by the defendant, with the result that the opposition was again sustained; and still another survey ordered. Upon May 10, 1876, the case, having been called for trial, was continued, upon plaintiff’s application, on the ground that the survey, as ordered, had not been made, with the condition, however, that the plaintiff should see that it was made before the next calling under penalty of being non-suited. Upon the following day, the plaintiff, through his counsel, ruled the defendant to show cause why O. Uncas Lewis should not be ordered to make a new survey and establish the boundary in accordance with the original survey of the grant to plaintiff’s author, which, it was alleged, was on file at the date of the grant subsequently made to defendant’s author. There was judgment dismissing this rule, the plaintiff appealed, and the judgment appealed from was reversed by this court. In the opinion upon which this decree is predicated, the court, through Chief Justice Bermudez, used the following language, to-wit: * * it is clear that as previous reports have not met with “ the approval of the court, it is proper that the officer to be appointed in future should be informed as to the course to be pursued by him in “ his researches, finding and return, which does not appear to have been done heretofore. We feel that it is our duty to say that the lands claimed by plaintiff on the right bank of the river, containing sixty- “ six hundred and twenty-four (6624) superficial arpents, and five hun- dred and eighty-four toises, must be found bounded by Bayou Liards, on the upper side, and by Bayou Carenero on the lower side.”

In view of this expression and of the fact that the location of Bayou Liards, the upper boundary of the plaintiffs land, has never been in dispute, it would appear ..that the only question to be investigated, after the rendition of the judgment thus referred to, Was the location of Bayou Carenero, as the lower boundary, separating plaintiff’s land from that of the defendant’s.

The original plaintiff, Wm. B. Booth, seemed indisposed, however, to prosecute this inquiry, and no further steps were taken in the cause until March, 1898 (about three years after his death), when Cyprien Buras, the surviving, original defendant, filed a petition praying that K. S. Booth, the universal legatee off the original plaintiff, be made party to the suit, and that, in conformity to the decree of this court, “ C. Uncas Lewis be appointed surveyor herein and directed to locate “ and find the land claimed by plaintiff on the right bank of the Mis- “ sippi river, containing 6623 superficial arpents, and 584 toises, bound- ‘‘ ed by Bayou Liards on the upper side and Bayou Carenero on the “ lower side, and that he be ordered to make a new survey and fix and “ establish the boundary line between plaintiff’s and defendants’ prop- erty”. The order was made as prayed for, March 5th, 1898, but it was not complied with by the surveyor, and the defendant took no further steps in the matter. Thereupon, in'November, 1898, the plaintiff, E. S. Booth, through his attorney, ruled the defendant and the surveyor to show cause .why the latter should not proceed as he had been directed. Upon the trial of this rule, it appeared that although Cyprien Buras had asked for the appointment of C. Uncas Lewis to make the survey, he was unwilling that he should do so, and refused to advance the money necessary for the actual expense thereof. The rule having been made absolute, and tlie necessary funds having been advanced by the plaintiff, the survey was made, and duly reported to the court.

Thereupon, the plaintiff moved that it be approved, the defendant opposed, and there was a trial, resulting in a judgment for the plaintiff sustaining the report of the survey and fixing the boundary as established by him. And, from that judgment the defendant, Cyprien Buras, has appealed.

Opinion.

Jean Pierre Buras, in 1896, employed Maurice Hawke, civil engineer and surveyor, to survey his property, including that now owned by the defendant, Cyprien Buras, and also that of the plaintiff, and to establish the boundary between them. Notice was given to Wm. B. Booth, the original plaintiff herein, who was invited to co-operate in the establishment of the boundary, but he failed to appear. Mr. Plawke, nevertheless, proceeded to make the survey, aided, presumably, by such suggestions and co-operation as Buras, who employed him, was able to afford, and he, eventually, reported his action by means of a map and proces verbal. The excerpt from this proces verbal already given, shows that the survey was begun at the Bayou Liard, the upper boundary of the Smith and Hove tract, and that the whole front of that tract and of the tract claimed by Buras were surveyed. The proces verbal further shows that the surveyor ascertained and established the desired boundary. It is hardly to be supposed that J. P. Buras, who employed Mr. Hawke to make this survey, was left in ignorance as to what was done. Even if he had'not subsequently produced Hawke’s map and proces verbal, it would have been reasonable to have assumed that Hawke showed him the boundary which he had been employed to establish. Upon the 2nd of February, 1861, the year following this survey, Jean Pierre, sold to Cyprien Buras a certain portion of the tract owned by him (as has been stated already), including that part which is supposed to lie contiguous to the Smith and Hove tract. The act of sale contains the following recital (referring to the lots which are sold) : “And which all said lots, or sections, herein conveyed form a front of “ forty arpents on the Mississippi river, as the whole is set down on the “survey of said lands made by M. Hawlce, civil engineer, on the 2nd “ and 3rd of November, 1866, and hereunto annexed for reference.” About two years later, in January, 1869, when William B. Booth brought the present action of boundary, Jean Pierre, and Cyprien Buras, who were made defendants, set up the Hawkes survey as correctly establishing the boundary and prayed that it be so decreed. The plaintiff, however, objected, claiming that he would thereby be deprived of a mile front on the river.

It seems probable that the defendants were of the opinion that the plaintiff had not been sufficiently notified to enable them to insist upon their pretensions, and the court was relieved of the necessity of acting upon the Hawke survey by the fact that the parties agreed that a new survey should be made, and it was made accordingly by Sulakowski and McCulloh, surveyors, selected by the parties, respectively.

The peculiarity of the present situation lies in this: that the plaintiff now insists that the Hawke survey is substantially correct and should be adopted, whilst the defendant, Oprien Buras, who bought the land, owned by him, according to that survey, and who, in this suit, set up that survey as correctly establishing the boundary between his property and that of the plaintiff, and prayed that it should be so decreed, now undertakes to repudiate it, denies that he is in any way bound by it, and prays that it be disregarded by the court.

If the survey in question had come before the court on its merits, propounded by the defendants, and opposed by the plaintiff, and the court had decided that it was incorrect, and, for that reason, that it should not be held binding, the position of defendants’ counsel might be tenable. But no such action was taken, and, whilst, in view of the fact that this survey was ignored by consent of the litigants, and others have been made, which it was contemplated should determine their rights, we are not disirosed to hold that the defendant should be bound by the Hawke survey, as a judicial admission, nevertheless, the facts remain that the defendant bought his property according to the Hawke survey, and, two years afterwards, set up that survey in this suit as correctly limiting1 the property so acquired; and, apart from any question of estoppel, we have yet to be informed of any circumstances which deprive those facts of their value as evidence, showing that the Hawke survey embraces all the land owned by Cyprien Buras which is involved in this controversy; that he has always known that to be a fact, and has asserted it, and now asserts it, by his pleadings in this case, and that if, in establishing the boundary between his land and that of the plaintiff, the court accords to him the land thus surveyed, he will get all that he has purchased and all that he is asserting title to by his pleadings herein, and ought to have no just cause of complaint.

Tie opposes the last survey made, however, upon various grounds, and among them the following, to-wit:

“Fourth. That said survey is almost entirely based upon the former “ survey of one Ilawke, which survey was rejected by the court, has no “ force and effect whatever, and no trace of which exists or could then “ be located upon the property recently surveyed by the said O. Uncas “ Lewis, surveyor.”

The counsel for the defendant has fallen into an error in saying that the Hawke survey was rejected by the court, as appears from the statement of the case heretofore made. The court has never yet acted or been called upon to act upon it for the reason that it was regarded as ex parte and ignored by consent. The survey which is the subject of the opposition now under consideration is not obnoxious to that objection, and the mere fact, if fact it be, that it is a reproduction of the Ilawke survey can afford no reason for its rejection.

The learned counsel has also fallen into an error in stating that no trace of the Hawke survey exists or could be located on the property at the date of the survey now under consideration. Waiving the testimony as to the present existence of certain posts, which are mentioned by the surveyor and one or more other witnesses as indicating the boundary as established by Mr. Hawke, we have the explicit testimony of the defendant, himself, given some twenty-three years ago, at a time when his memory had been kept refreshed by reason of the fact that this suit had not been allowed to drop, as was afterwards the case, and before his faculties had become impaired, as they axe said now to be, by extreme old age. His testimony, so far as it is material to this point, reads as follows:

“Cyprien Buras, sworn for defendant, says: “I am sixty years of age, “ was born in this parish and lived -here all my life. I have been living “ where I now reside for the last seventeen years. The line claimed by “ the plaintiffs would take in my house and orange grove, according to “ Sulacoski & McCulloh's survey. Mr. Hawke put the two posts on my "upper line. I don’t recollect (the date); it was when he made that " survey,” etc.

Turning, now, to the proces verbal of Mr. Hawke in order to ascertain what he has to say about the “two posts” thus mentioned by the defendant, we find the following:

“ * * * Set a cypress post for the lower line of Smith and Iloves’ " claim. On this line, $.54 W. set a second cypress post at 1. ch. 98 of " the first, to correspond to the lower front corner of said claim, as given " by Mr. Bighior, the tabling of my survey to this point being the same, “south 194-49, and east 432.23, this line is the upper boundary of J. P. " Buras land, and bears 8. 54- W."

As to the suggestion that the survey in question has no force and effect, we have already called attention to the fact that it is part of the only title which the plaintiff sets up, and that with full and accurate knowledge of the boundary established by it, quoad his property, and at a time when the-matter was fresh in his memory, he solemnly asserted its correctness for the purposes of this case. It certainly is no fault of the defendant’s that the plaintiff and the court did not, at that time, take him at his word, and if the position then assumed by him was correct, there is no reason why it should not constitute the basis of the judgment to be rendered now, since the most that we can hope to accomplish is to rest our conclusions upon correct premises.

As the boundary established by Hawke may, then, be considered as ascertained; and as the boundary thus established and ascertained forms an essential part of the title which the defendant exhibits, and by virtue of which he claims; and as it would be impossible, legally, to establish a boundary for defendant’s property beyond the limits of that upon which his title is founded, it follows that, whilst the defendant’s boundary might be established within the limits of Hawke’s survey, it can, by no possibility, be established outside of those limits.

It will be observed that the title of the defendant does not call for plaintiff’s tract as his upper boundary. He bought certain lots or sections, which are described as having together “a front of forty arpents “ on the Mississippi river, as the whole is set down in the survey of said " lands made by M. Hawke, civil engineer, on the 2nd and 3rd of “ November, 1866, and hereunto annexed for reference.” Irrespective, therefore, of possible conflict with other titles, he cannot go beyond the limit of forty arpents front, within the Hawke survey, though if a stronger title were presented the forty arpents, to which he is thris apparently entitled, might be reduced or taken away entirely. In conclusion, upon this point, it may be said, however, that the defendant’s title to the property claimed by him within the Hawke survey is not now assailed, and we find nothing in the record to impeach it. The assertion contained in the brief of the defendant’s counsel that the defendant has only nineteen arpents front, undisputed, out of forty arpents purchased by him, we do not understand. There are some inconclusive admissions in the record as to the frontage sold and owned by the defendant, and it also appears that a good deal of testimony, offered for the purpose of showing that within the boundary fixed by Hawke he has all the land purchased by him, was ruled out, on the objection of his counsel. We should certainly be unable to understand how the defendant could lose anything' if his boundaries are established according to the survey by which he acquired.

Another question which presents itself is as to the boundary of the plaintiff’s property, for it may happen, and in this case it does happen, that it is developed in an action of boundary that the property of the litigants is not contiguous. If, in such an action, the boundary of the defendant’s land cannot be established beyond the limits called for by his title, the proposition is, at least, equally true as to the plaintiff. The question, then, is, where is the boundary of the plaintiff’s land, as established by his title? It is understood that the northern, or upper, boundary is the Bayou Liard, which is well known; that the eastern boundary is the Mississippi river; that the western boundary is the prairie tremblante (the distance back from the river not being in controversy), and that the disputed question is as to the lower, or southern boundary.

The original order of the Governor General, the Baron de Carondelet, in favor of the plaintiff’s author, Captain de St. Maxent, ordered the Surveyor General of the province to establish Captain de St. Maxent on certain lands fronting on the Mississippi river for “about two leagues, from Bayou Liards to that of Carenero.” Under our law and jurisprudence, this was a grant per aversionem. C. C. 854, 2495; Nichols vs. Adams, 9 Ann. 117. The grantee was, therefore, entitled to take the land between the two bayous named as boundaries without regard to the lineal, or to the superficial, measurement, but he could take no more. And the confirmation, by the government of the United States, of the grant thus made by the Spanish Governor General, added nothing to that which had already been conferred. Nor did the subsequent issue of a patent for the fractional sections embraced in the original grant change the character of such grant, since the purpose, presumably, was to make the fractional sections conform to the original boundaries per aversionem. This seems to have been the view taken by this court when the case was before it in 1888, and we find no reason for adopting a different view at this time, since no reason has been suggested why this government should confirm the grantees in the ownership of more land than had been granted to them. And the maps which have been offered do not carry the conviction that the fractional sections delineated were intended to have any other boundaries than those designated in the original grants, in confirmation of which patents for such sections were issued. ■ '

Upon the question of the identity, or location, of Bayou Carenero, named in the grant to plaintiff’s author as the lower boundary of that grant, we find ourselves unable to concur in the conclusions reached by the surveyor and by our learned brother of the District court. A careful study of the record has convinced us that the bayou contemplated by the gránt is that which appears upon the map as running 1'rom a point near the river directly into Bay Carenero (or Bay Carrion Crow, as on the U.-S. Coast Chart), rather than that, further south, which, starting from a point somewhát further from the river, divides into two branches, one of which runs into Bay Carenero, and the other into Bay Hospital.- We think that by far the preponderance of the oral testimony supports this view, that it is sustained by probability, considering the question from the point of view afforded by the maps (and particularly the government charts) when compared With the grant and the conditions surrounding it; and' that it is sustained by circumstantial evidence indicating that the original plaintiff recognized the fact that the Bayou Carenero intended in the grant-was the upper and not the lower bayou to which that name is now ascribed. We are satisfied that the upper bayou was at- one time within an arpent or an arpent and a half of the river, and, at the date of the grant, was, no doubt, plainly visible from, if not connected with, the river; whereas, it does not appear that the lower'bayou has ever been nearer than perhaps within eight or ten arpents of the river, and cannot, therefore, be supposed to have been considered a boundary for a tract of land fronting on the river and having- only about three arpents in depth sufficiently out of water to be fit for cultivation.

We find that more than twenty years ago, upon the trial of the opposition to the Sulakowski' & MeCulloh survey, the original plaintiff and the surveyor1 testified that no Bayou Carenero could be found at the point at which they made their observations, and the survey then under consideration was apparently made upon the theory that the plaintiff would have all the superficial acreage and the mileage called for by his title. But we also find from a preponderance of testimony, and from ’ circumstantial evidence, that a Bayou Carenero was in existence, as i t had been in existence, fropr the date of the grant to de St. Maxent; that it might have been found by 'a person deeply interested in finding1 it: and that an offer was made to point it out to the surveyors, who did not accept the offer.

We find further, in this connection, that the fact that the original plaintiff dropped the proceeding after the decision of this court upon the case as presented, in 1883, and upon the intimation that his acreage should be found between Bayou Liard and Bayou Carenero, and that he took no further steps in the matter during his life, though he lived for twelve years afterwards, is an indication that he had no good reason to suppose that the Bayou Carenero in question would be found as far down the river as he had been endeavoring to establish his lower boundary. And we think that as plaintiff was a resident of the neighborhood and owner of possibly the only tract of land in the world officially bounded on one side by Bayou Carenero, his opinion as to the probable location of that bayou is entitled to some consideration. We, therefore, conclude that the Bayou Carenero which constitutes the lower boundary of plaintiff’s land is that bayou between Bay Carenero and the Mississippi river, which lies upon the line “I. E.” upon the map drawn by C. Uncas Lewis, surveyor, June 9, 1899, and designated as map No. I, in the book of maps forming part of the transcript in this case; that the land of the defendant does not lie contiguous to said bayou and boundary, and hence that no proper parties for the maintenance of an action of boundary are before the court.

It is, therefore, ordered, adjudged and decreed that the judgment appealed from be annulled, avoided and reversed, and that there now be judgment rejecting the demands of both plaintiff and defendant, the costs of the appeal to be paid by the plaintiff, and the costs of the District Court to be borne by the parties in equal proportions.

Rehearing refused.


source: Caselaw Access Project

author: Blanchard, J.

license: Public Domain

text:
    No. 13,711.
    State of Louisiana vs. Pierre Duggan, et als.
    Syllabus.
    Í. acl 72 of 1898 amends R. S. 832 and prescribes the punishment for receiving stolen goods, knowing the same to be stolen, to be imprisonment, with or without hard labor, not exceeding two years.
    2. A case, therefore, charging this offence is one of those that may, under Article 116 of the Constitution, be tried by a jury of five.
    APPEAL from the Sixteenth Judicial District, Parish of St. Landry Lewis, J.

      Walter Guión, Attorney General, and R. Lee Garland, District Attorney (Lewis Guión, of counsel), for Plaintiff, Appellee.

      Pavy & Ogden for Defendants, Appellants.
   The opinion of the court was delivered by

Blanchard, J.

In October, 1900, the district attorney filed a bill of information against Pierre Duggan, Poline Young, Joe Young, Theogene Eontenot and Willie Gray charging them, in one count, with the larceny of three hogs; in another count with feloniously receiving three hogs knowing the same to have been stolen.

The time of the commission of the offenses is laid in May 1900.

The first four of the parties named were jointly tried and the two Youngs convicted. The other two were acquitted.

It appears that the case was tried by a jury of five.

After the trial judge had commenced to deliver his charge to the jury, his attention was called to the fact that there were two counts in the information.

On examination of the second count, charging reception of the stolen goods, and Section 832 of the Revised Statutes relating to that offense, he reached the conclusion that, under the statute, the penalty denounced for same was necessarily imprisonment at hard labor, and, therefore, as to that count tiré accused could not be tried by a jury of five, but must be tried by a jury of twelve.

Constitution of 1898, Art. 116.

Calling this to the notice of the district attorney, that official thereupon entered a nolle prosequi as to the second count.

The judge then charged the jury to disregard the evidence adduced in support of the second count and confine themselves in their consideration of the case to the first count and to the testimony applicable thereto.

The jury retired and shortly returned with a verdict of guilty as against the two Youngs and of acquittal as to Duggan and Eontenot.

A motion for new trial followed, setting out irregularities and grievances — all based on the theory that the charge embodied in the second count could not be tried except by a jury of twelve.

The motion was overruled and a bill of exception taken.

Ruling — The defense not objecting, it was permissible for the Slate» to enter a nolle prosequi as to the second count at the time it was done. This left in the ease only the offense charged in the first count, and the verdict returned by the jury was responsive to and is held applicable only to that count.

But the judge and district attorney were in error in supposing that the offense charged in the second count is one where necessarily the punishment is imprisonment at hard labor.

They, at the time, overlooked the amendment of Section 832 of R. S. as contained in Act No. 72 of the Acts of 1898, approved July 11th of that year.' This act prescribes the punishment for receiving stolen goods, knowing the same to be stolen, to be imprisonment, with or without hard labor, not exceeding two years.

So that the whole case against the accused — -the offense charged in the second count as well as that charged in the first count — was one that could be tried before a jury of five, pursuant to the authority of Art. 116 of the Constitution.

There was, therefore, no necessity for the district attorney to have entered the nolle prosequi as -to the second count in order to render the jury of five competent to sit on the case.

That entry having been made, however, it has resulted to the benefit and not the injury of the accused, and there is, hence, no ground for complaint on their part.

No sufficient reason appearing why the verdict and sentence should be .set aside, the judgment appealed from is affirmed.


author: Nicholls, C. J.

text:
    No. 13,874.
    State ex rel. J. A. Conway vs. Hon. Charles V. Porter, Judge Eleventh Judicial District et als.
    Q N APPLICATION for Writ of Certiorari.

      Egan & Bcheen and Nettles & Teer for Relators.
   On Application for Writ op Certiorari.

The opinion of the court was 'delivered by

Nicholls, C. J.

It is not considered that a case is herein presented .for the proper exercise of the’power vested in this court in the matter 'of its supervisory control over inferior judicial tribunals, and, accordingly, the application herein made for the writ of certiorari is refused.


text:
    No. 13,634.
    State of Louisiana vs. Jim Collins.
    Syllabus.
    1. it is a requirement of the Constitution that a person charged with crime shall have “the assistance of counsel.”
    2. To make this right effective, counsel appointed to defend the accused should be accorded a reasonable time to prepare for the defence.
    o. In a murder case, where the indictment was returned, the accused assigned counsel, arraigned and the case set for trial, all done on the first day of tho term, which was Monday, and the day fixed for trial was the Thursday-following and actually tried on Friday, a postponement applied for by the accused and his counsel on the ground that the latter, engrossed with other business before the court, had not had time to prepare the defence, should have been granted.
    4. “The law travels with a leaden heel, but strikes with an iron' hand,” is a maxim pregnant with obvious meaning.
    APPEAL from the Fifth Judicial District, Parish of Winn — ■ Machen, J.

      Walter Guión, Attorney General, and A. B. Hundley, District Attorney (Lexuis Guión, of counsel) for Plaintiff, Appellee.

      W. M. Wallace and Earl E. Kidd for Defendant, Appellant.
   The opinion of the court was delivered by

Blanchard, J.

Defendant appeals from a death sentence.

The District Court convened in regular session at Winniield on July 16, 1900. The grand jury was empaneled and proceeded with the discharge of its duties. It returned into court an indictment for murder against the accused. He was brought into court from the parish jail, an attorney appointed to represent him (he being without counsel), was arraigned, jileaded not guilty and his case set for trial the following Thursday, July 19, 1900.

All of this was done on the first day of the term.

On Wednesday, July 18th, on motion of E. E. Kidd, the attorney appointed to represent him,’ W. M. Wallace, attorney at law, was appointed as associate counsel in the case.

The next day, Thursday, the day assigned for the trial, the court seems to have been occupied with other business, and the case went over to Friday.

On Friday it was called for trial, whereupon counsel appointed to the prisoner presented a motion for continuance, setting forth, inter alia, that the bill against him had been found and presented on Monday evening preceding, which was the first day of the term; that he had been unable to employ counsel for the reason that he had no means at his immediate command; that counsel had been appointed to him at once upon the presentation of the indictment; that he had been unable, on account of the rapidity of the proceedings in his case, to make arrangements for counsel of his choice to defend him; that he had even been unable to fully explain his case to the counsel appointed to him so that they might prepare for his defence; that the reason he had been unable to confer with them was because they had been continuously engaged in other business before the court; that he had used all due diligence to communicate and confer with them without avail; and that the application was not made for delay but that justice might be done.

This was signed by the attorneys and sworn to by the accused.

The motion for continuance was overruled and the case ordered to trial, with the result that the accused was convicted.

A bill of exceptions was reserved to this ruling, and it is urged here that the undue haste and precipitancy with which this trial was pushed through entitles the accused to a reversal of the verdict and sentence and another trial in the court a qua.

We gather from the brief of his counsel that following the murder, which the indictment avers was committed on June 4, 1900 — the victim being a white man — the accused, a colored man, was arrested and incarcerated in the parish jail; that a few days subsequently an attenrpt was made to lynch him; that this was only prevented by the efforts of the district judge and sheriff; that following this attempt at lynching, the judge, for the better security of the prisoner, directed the sheriff to carry him to the jail in Ouachita Parish, which was done; and that he was kept confined there until Sunday night, July 15th, the day before the court convened in Winn Parish, when he was brought back to the jail in the latter parish.

The point is made that while in jail in Ouachita Parish he was far . removed from relatives and friends and could not there make preparations for his defence.

Also that the trial of the case was assigned by the prosecution for' a date as early as possible under the law, which requires two days’ service of copies of the venire and indictment. Indicted on Monday, set for trial on Thursday — Tuesday and Wednesday only intervening.

The further point is made that the senior counsel appointed to defend him was employed in all the cases that came before the court at that term and hence his time was too much engrossed to prepare the instant case for trial in the short time intervening between indictment and trial, and while, as the judge a quo states in his reasons for overruling the motion for continuance, he (the counsel) argued no cases up to Wednesday of the first week of court, the fact remains that he devoted his time and attention to the cases, did not argue those that were tried because not considered necessary since the same were argued by his associate counsel, but was present and took part in the several trials.

With regard to the junior counsel appointed to the accused, it is urged that he became connected with the case only on Wednesday, the day before the case was set for trial — too late to be of any service in preparing the ease for trial. Besides, it is stated that he, too, was employed in all the cases which came up for trial and were tried on Wednesday, the day of his appointment herein, and the next day, Thursday.

While the zeal displayed by our learned brother of the District Uourt in the prompt vindication and enforcement of the law merits commendation, we are yet constrained to hold that, in this instance, he carried it a little too far. We differ from him in his ruling' denying the continuance sought.

This was a capital case. The life of a human being was at stake and for the time being it was sheltered by the presumption of innocence. Great deliberation — an utter absence of precipitancy — should have characterized every movement of the court leading up to the conviction.

“The law travels with a leaden heel, but strikes with an iron hand”— ■ is a maxim pregnant with obvious meaning.

In this instance it doffed the “leaden heel” yet struck with the iron hand.

It is not unlikely that the previous attempt at lynching and the apprehension felt by the officers of the law of a second attempt being made in case of delay in bringing the accused to trial, may have influenced the situation to his detriment and caused the undue haste complained of.

But this cannot be accorded the weight of justifying’ departure from the rule of calm deliberation. The right “to have the assistance of counsel” is one conferred by the Constitution itself.

Reasonable time to prepare for his defense should have been allowed the counsel who had by direction of the court undertaken its responsibility. Only in this way could their “assistance” be made effective. Theirs was a task to be discharged without recompense. They had other duties to perform in connection with the court, growing out of employment in other cases bringing them professional fees. It was not to be expected they would lay these aside and devote themselves solely to preparation for the defense of the instant case which brought them no reward. It does not seem to us that time enough was allowed for both.

In State vs. Rose Simpson, 38 La. Ann. 23, which was a murder trial, the indictment was returned into court on the 5th of October. The accused was arraigned and counsel assigned her the same day, and the case fixed for trial on the 9th of the same month. On that day the counsel asked a continuance on the ground that he had been assigned as counsel only four days before and had not had time to prepare to try the case because occupied with a mass of other business. He stated he believed there was a valid defense and that a reasonable time should be given to prepare it. He made affidavit himself to the averment of his motion.

The continuance was refused. This court, on appeal, held it was error and reversed the verdict and sentence. In doing so this language was used:—

“Considering that the offence charged was murder, that the indictment had only been filed at the- same term of court, that the counsel assigned for the defense was a non-resident of the parish where the court was held, and had no sufficient opportunity to confer with the witnesses, and that the defense to be made required great research of authorities on a question of much difficulty and intricacy, we think the judge a quo erred in overruling the motion.”

Further along in its opinion, the court, speaking of the constitutional guaranty to persons charged with crime the right to be heard by counsel, said :—

“It would be a barren right if the counsel were not allowed a reasonable time to prepare for the defense, time to investigate the facts and to examine the law applicable to the case.”

And concluding its opinion the court said:—

“A review of the entire record satisfies us that the prosecution was characterized by undue haste, scarcely compatible with the guarantee of a fair and, impartial trial.”

It is true, in that ease, it was the counsel himself who swore to the inadequacy of the time which had been at his disposal to prepare for the defense. Here, the motion for continuance on the same ground was prepared and signed by the counsel appointed to the prisoner, but it was the latter who made the affidavit to the truth of its averments. The attorney should have made this affidavit and it was error not to have done so, but, under the circumstances of this case, we are constrained to hold that it is not sufficiently grave to warrant sustaining this verdict on that ground alone.

In State vs. Brooks, 39 La. Ann. 241, the homicide was committed on September 29th. The accused was indicted and arraigned on the 4th of October following and his trial fixed for the 9th — five days later. Definite arrangements for counsel to defend him were not made until the day before the one assigned for the trial. Application for continuance was made on the ground of lack of time to prepare the defense. It was refused. This court held it was error, laying stress upon the fact that it appeared the accused was convicted on the ninth day following the commission of the offence for which he was indicted, ana that the application for continuance was made on the first calling of the case for trial.

In State vs. Deschamps, 43 La. Ann. 1051, this court reviewed the question at length and collated the authorities bearing thereon. Application for continuance was there made under oath by counsel assigned to the accused. He had been appointed only forty-eight hours previous to the calling of the case for trial. He had had no sufficient time u. prepare the defense. He asked the indulgence of the court for time ti prepare it. It was refused. On appeal here, held reversible error.

See also State vs. Boyd, 37 La. Ann. 781, and State vs. Horn, 34 La. Ann. 100.

These authorities establish the rule that counsel appointed to defend persons charged with crime should be allowed a reasonable time in which to prepare for trial, and this without being forced to a showing as to witnesses, and what is expected to be proven by them. Also that what is a reasonable time will not be left entirely to the discretion of the judge, but the same is reviewable here.

Under the circumstances of this case, the two or three days intervening between the assignment of counsel and the day of trial was not sufficient time in which to prepare to try a murder case. The case should have been allowed to go over, at least, to the second week of the term.

Eor the reasons assigned it is ordered, adjudged and decreed that the verdict and sentence be annulled, avoided and reversed and that the cause be remanded to the court a qua to be proceeded with according to law.

Rehearing refused.


author: Monroe, J.

text:
    No. 13,273.
    Leon Joseph, for the Use of His Minor Daughter, Eva Joseph, vs. Edison Electric Company and People's Telephone Company, in solido.
    Syllabus.
    1. Each case involving the allowance of damages for personal injuries has its own peculiar features, and an allowance in one ease is not necessarily a precedent which should control the allowance to be made in another.
    2. Where a young- girl is knocked prostrate and senseless' upon the public streets, unable to remove herself from public view, by the falling of a pole, and as a result of the gross negligence of two corporations, the one of which owned, and the other of which had excavated about, for the purpose of removing such pole ; and suffers great pain and nervous rigors during two weeks, and, thereafter, at the expiration of more than two months, is still a sufferer, the conclusion of the trial judge that $1000.00 is not an excessive amount to allow, even though the evidence does not show that her injuries are permanent, will not be disturbed.
    3. In such case, it is gross negligence for the company owning the pole to allow it to become so rotten as to threaten danger to the passers by, and it is equally gross negligence for a company, which in preparing to remove such pole, makes an excavation alongside of it, and so leaves it, thus increasing the danger of its breaking and falling. The two companies are, therefore, properly held liable in solido to the passer-by on the public street upon whom the pole falls.
    APPEAL from the Civil District Court, Parish of Orleans — - Bilis, J.

      Dinkelspiel & Hart (Ediuard Dinkelspiel of counsel) for Plaintiff, Appellee.

      Saunders & Gurley for Edison Electric Company, Defendant, Appellant.

      Cage, Baldwin & Qrabites' for the Peoples Telephone Company, Defendant, Appellant.
   The opinion of the court was delivered by

Monroe, J.

Leon Joseph brings this suit on behalf of his minor child, a daughter eighteen years old, and on his own account, to recover damages for personal injuries sustained by her, and resulting loss and expense to him, by reason of the alleged negligence of the defendant companies, as a consequence of which (it is said) a certain pole, used for holding on electric lamp and wires, fell upon his daughter while she was passing on the public street. It is virtually admitted that some injury was sustained by the minor as the result of the negligence of one, or the other, or both, of the companies made defendant, but they each insist that the negligence which was the proximate cause of the injury was that of the other, and they both insist that the amount allowed by the judge a quo is excessive.

It appears from the record that the Edison Electric Company consented to yield the site of one of its poles (situated on the southeast comer of Rampart and Clio streets) to the People’s Telephone Company. Something was said, in the course of the interviews upon the subject between the officers of the two companies, about written consent, but the evidence satisfies us that it was not intended that the Telephone Company should wait upon that, in so far, at all events, as concerned the preparations which were to be made for the erection of its pole. Upon January 21, 1899, therefore, one of the Telephone Company’s employees made an excavation, seven feet deep and four or five feet wide, alongside of the pole of the Edison Company which was to be removed; and, finishing the work at two o’clock in the afternoon, covered the excavation with planks in order to keep wayfarers from falling in. Exactly why the Telephone Company did not at once erect its polo does not appear, but it is likely that it was because it needed the cooperation of the Edison Company, whose lamp and wires were to be removed to the corner diagonally opposite. However, that may be, after two o’clock in the afternoon, the squared pole, by the side of which the hole had been dug, was left supported on the north and east sides by the curb stones, in the angle of which it was planted, whilst on the south and west sides there was no support, the earth having been excavated. The evidence, including the broken off stump, which has been brought up as an exhibit, shows conclusively that this pole was rotten, at, and above, and below, a point on a level with the surface of the earth. It is also shown that there was rather a high wind during the afternoon and evening- in question. It is not, therefore, surprising, that, as a result of the lateral strain produced by the wind, taken in connection with the removal of the supporting earth from the two sides of the pole, which afforded room for movement, followed by concussion against the curb stones, the pole should have broken off at the weak point. This occurred at about half-past six o’clock, and at the moment when the minor, Eva Joseph, who was employed in a Canal street dry goods store, was passing on the opposite side of Clio street, returning from her work to her home. The street is narrow, and the pole, in falling, brought down with it the street lamp and iron arm to which the lamp was suspended, as also the wires which were strung on the pole, and Miss Joséph was struck on the head by the lamp, and on the body and limbs by other portions of the falling wreckage, with the result that she was knocked senseless to the sidewalk. Two young men who were passing at the moment came to her assistance and supported her by either arm to her home, about half a square distant on Olio street. She was unable to walk, but limped upon one foot only, and was entirely unable to answer questions. When she reached the residence of her parents, she was received by her mother, who after some delay succeeded in getting-her into bed, and in securing the attendance of a physician. During the greater part of the night she was incoherent and restless, and frequently screamed with pain, and it was not until towards morning that she was able to give an account of her mishap. She was confined to her bed for twelve days, during which time her mother was obliged to attend to her wants; and as the mother had been doing the domestic work of the family it was necessary to employ a servant to do that work in her stead. Upon the second or third day after the accident, a physician called upon her, at tire instance of the Telephone Company, and saw her in the presence of her attending physician. ITe found her in bed, complaining that she was suffering, but he made no examination, and his testimony as to the extent of her injuries is based upon what he learned from the attending- physician, and is negative in-character, save that he says that her pulse and temperature were normal, which probably would not have been the case had there been any serious internal injury. Some ten or twelve days later, that is to say, on Eebruary 4th, fourteen days after the accident, another physician, with the consent of the attending physician, called upon her, at the instance of the Edison Company. He found her up, and hopeful that she would soon be entirely well, and complaining of little except loss of appetite. She remained at home for a little more than four weeks, and then returned to the store. But it does not appear that she was free from pain, or in a proper condition to resume work as a sales woman, since she states in her testimony that she suffered from pain in her head and back while so engaged. The family was, however,- large and by no means affluent and, though only eighteen, she was the- eldest of seven children, and her wages, amounting to five dollars a week, were, no doubt, much needed, later still, during the last days of March, when she testified in the lower court, she .was still suffering from her head and back, and still complained of some swelling of her neck. The attending physician was not accessible when' the case was tried, and a certificate from him was introduced in lieu of his testimony. It reads, in part, as follows, to-wit: “Found the patient suffering severely in “ different parts of the body, particularly lower limbs and abdomen, “ extra, and intra, and about the head generally. Patient was slowly “ recovering from the usual signs of shock, developed fever, which ran “ from 100 to 103 for several days, which I attributed to the course of “ the inflammation in the different parts of the body which had suffered “from the accident. Pain was an incessant feature for almost two “ weeks, and patient is not yet free from soreness. * * * I now “believe Miss Eva Joseph to be about completely restored to her “former state of health, with the exception of the soreness about the “ right wrist and back, lumbar region, which I presume will be removed “ shortly by local treatment; constitutionally, I believe she is otherwise “well.”

The judge of the District Court, in a most carefully prepared opinion, reviews the evidence and the circumstances of the case, and reaches the conclusion that the plaintiff ought to recover $106.00 for expenses, etc., incurred by him, and $1000.00 for the use and benefit of the minor, in speaking of whom, and of the accident of which she was a victim, he says:

“Two young men * * * saw her thus knocked down, and ran to ■ “ assist her. She was prone upon the sidewalk on her back, speechless, “ her eyes wide open and staring, and she unconscious. They tried to assist her, but she could not rise. They pulled her up, and one sup- “ porting her on either side, got her to her father’s door step, she step- “ ping along on one foot only, unable to walk upon the other. * * * “ She could give no answer to questions, and was shivering. When she “ could speak she complained of her head. Iler eyes were swollen and “ her face puffed up and black. She was so nervous that she could not “be put in bed for more than one hour. During the night and until near daylight the next morning, she was in great pain, screaming and “ complaining of her back, legs and head.” Speaking of her appearance on the witness stand, he says: “She had in her face, and in its “expression, the appearance of one who had suffered from severe nerv- “ ous shock. * * * She did not exaggerate her injuries to Dr. “ Parham, for that gentleman so testifies though produced as a witness “ for the defendant, nor do I bdlieve that she exaggerated when on the “ witness stand. Soon after she began testifying, the discrepancies as “to times and dates made me doubtful, and I confess to a feeling of “ incredulity in consequence as to the extent of her injuries, but I soon, “upon careful observation, formed the fixed belief that the girl was “ unassuming, artless, candid, and truthful.”
* -x * * -x- * -x-
“I do not know how to estimate in money all that this child suffered “ —acute pain, nervous rigors, aching head and limbs, sleepless nights, “ worrisome hours; how can this be measured in money ? For a young “girl to be knocked prostrate and senseless upon the public streets, “powerless to remove herself from the sight of strangers, and depend- “ art alone for assistance upon stranger hands, this alone is a fearful “ ordeal for a lady.”

The case which is thus presented is that which is made out by the evidence, and whilst the amount allowed seems high when compared with the amounts allowed in many other cases, each ease has its own peculiar features, and in view of those which are here disclosed, we are not prepared to disturb the findings of the district judge, whose opportunities for reaching a correct conclusion as to the most important particulars were much better than ours are.

Nor can we find any sufficient reason for disagreeing with him on the subject of the distribution of the liability. The pole which inflicted the injury belonged to the Edison Company, and, by the gross negligence of that corporation, was in a condition threatening danger to all who passed near, even though upon the opposite side of the street. But it had stood, up to the time that the Telephone Company caused the excavation to be made about its base, and we think that the evidence justifies the belief that the making of this excavation was not only the occasion, but a contributing cause of the falling of the pole at that time. True the pole fell in the direction of the side upon which it was still supported by the curb stones. True, also, the stump remained in the socket in which it had been originally placed and was taken out with some difficulty. Nevertheless, upon two sides of the stump was the hole, four or five feet in diameter, which the Telephone Company had caused to be dug. And with a high wind blowing, the tall pole most likely swayed in the direction of no resistance and coming back against the curb stone produced a shock, or concussion which was all that was needed to break it at the rotten place near the surface of the ground. Even if the pole had been sound, it would have been grossly careless to have left it, as it was left after the digging of the hole alongside of it; but, being, as it was, a rotten pole, the condition of which was known, or partly known, to the superintendent of the Telephone Company, according to his own testimony, the conduct of the company in the premises, was little short of criminal negligence.

The judgment appealed from is, therefore, affirmed.

Eehearing refused.


text:
    No. 13,821.
    State ex rel. Charles F. Collom & Company vs. Hon. Walter B. Sommerville, Judge Division “D,” Civil District Court.
    Syllabus.
    District judge having refused application for writ of injunction to prevent paving of a street as ordered by the proper authorities, the applicants became relators in a proceeding taken here to obtain a writ of mcmdamus to compel granting of the order of injunction. Held: This court will direct the issuance of the writ, or deny it, in its discretion according to the exceptional features of each case submitted, and that no sufficient cause is herein shown justifying the mandamus sought.
    ^PPLICATION for Writ of Mandamus and Certiorari.

      Solomon Wolff for Eelator.
    Eespondent Judge pro se.

      (McCloshey & Benedict of counsel).
   The opinion of the court was delivered by

Blanchard, J.

Under contract made with the Drainage Commission of the City of New Orleans, relators constructed a covered canal along Third street in the Fourth District of said city.

It seems that this canal had been completed, but the Drainage Commission has not yet definitely accepted the same because of the fact that the Third Street Canal is only part of a system of covered canals whicli relators contracted to construct, and under the terms of the contract the commission may withhold acceptance of any part of the system until the whole is completed. As relators have not yet completed the whole system they are not in a position to demand the definite acceptance of the Third Street Canal and the payment of the full contract price therefor.

It, nevertheless, appears that the canal as constructed along Third street has been inspected by the engineers of the Drainage Commission and, as set forth in relator’s petition, “passed, as being well constructed according to the specifications, and 80% of the cost thereof has been paid and 20% retained for certain purposes, all in accordance with the contract.”

When the contract was let for the Third Street Canal it had not been decided by the authorities that that street should be paved. But during the construction of the canal, perhaps subsequent to its construction, it was decided to pave the street with asphaltum, and after due proceedings had the contract for this paving was let to the Louisiana Improvement. Company, Limited.

Before the latter company was awarded the contract, relators, ascer1 taining that it had been decided to pave the street with asphalt, claimed that the right to do this work fell to them under the terms of their contract relating to the construction and covering of the canal along ■the' street, and expressed to the Commission their readiness to undertake the same. '' ■

The Commission denied that the paving of the street came within their contract and proceeded to make public offer of the same with the' result that the contract for paving was, as stated, let to the Louisiana Improvement Company.

Following this, relators brought suit in the Civil District Court for the Parish of Orleans against the company, the object of which was to obtain an order and writ of injunction preventing and staying said company from entering upon the work of paving the street under this contract.

In their petition for this injunction, relators set forth their contract for the construction of the canal along Third street, and averred that the canal had been constructed and the same had been covered in the manner and method prescribed by the plans and specifications of the Drainage Commission.

They represented that the covering of the canal is formed of large slabs of concrete laid between iron beams extending across the canal, and that these slabs were not intended to and would not carry the weight of ponderous machinery which, it was alleged, the Improvement Company would use in the work of putting down the asphalt pavement.

It was set forth that this pavement would have to be laid, necessarily, on top of the concrete slabs covering the canal, and to do this the Improvement Company would enter upon and take possession of the work of relators, in which they have a property interest inasmuch as the same had not been finally accepted and fully paid for by the Drainage Commission.

It was averred that if the Improvement Company were thus permitted to enter upon the canal and carry out their contract t>o lay asphalt pavement on or along the street and on and over the canal, they would greatly damage the covering and walls of the canal, that such damage would be irreparable, would give rise to much litigation as to the responsibility therefor, without relators knowing to whom to look for reimbursement, or without knowing whether the party finally cast would be able to respond. That the proposed work is so intimately connected with the work done by relators it would be difficult if not impossible to determine whether any resulting damage was attributable to possible defects in the work done by relators, or to the heavy burdens imposed upon the canal by the Improvement Company — a contractor over whom relators have no control whatever.

There was an allegation of denial of the right of the Drainage Commission, or the -Improvement Company, to enter upon the canal until its final acceptance, and the payment therefor in full had been made.

The district judge declined to grant the order of injunction on this ex parte showing, and, instead, issued a rule on the Improvement Company to show cause why the same should not be granted.

Eesponding, the Improvement Company averred, among other things, that the petition for injunction set forth no right or cause of action. It denied that the pavement it proposed to lay on Third street, or the process of laying same, would injure the work done by those seeking the injunction, if such work had been substantially and properly constructed; that this had been demonstrated upon other streets in the city similarly conditioned. It averred the right and authority of the Drainage Commission to enter upon Third street, which was a street in use for ordinary traffic, and pave the same by contract or otherwise.

On the trial of the rule, testimony was adduced pro and con, and on consideration thereof, and of the law applicable to the case, the judge declined to issue the injunction.

Whereupon the present application was filed here for a writ of mandamus to compel the granting of the order of injunction.

The application sets forth the grounds upon which the writ is demanded — the same, with much amplification, as. hereinbefore noted.

While the right of appeal from, the order of refusal is not denied, relators urge that to appeal therefrom in the ordinary manner provided by law would not afford relief and would, in effect, amount to a denial of justice, for, pending the -appeal, the Improvement Company would prosecute its work, and the injury apprehended would be inflicted before final decision could be had, etc.

To the rule nisi the respondent "judge sends up all the papers in the original cause, and, inter alia, sets forth that upon the trial had in his court as to the right of relators to the writ sought, counsel for plaintiffs, in open court, stated, as the sole and only ground upon which he relied and upon which he based his demand for the injunction, was, that in laying the asphalt the Imx)rovement Company would use a heavy roller; that the same would damage the canal covering; that, later, when relators came to a settlement with the Drainage Commission for the balance due them for the canal, this injury appearing, a question would be raised as to whether it was caused by original defects in relators’ -work or by the ponderous machinery which the Improvement Company would use; that the true cause of the damage would be rendered impossible of ascertainment, and thát the Drainage Commission might refuse to pay the balance remaining due his clients.

Ruling — The pavement proposed to be laid upon Third street is a work of public necessity. This is shown by the testimony.

- Third street is an important local thoroughfare of the city, and by reason of the work of canal construction done there, the street has now been practically closed to traffic for more than twelve months.

To render it again available for use as a public street it is necessary that some kind of pavement be laid there, and on and over the canal covering.

The proper authorities deemed it advisable to pave the street with asphalt and so ordered. They had the power to do this.

Because there has been no final acceptance of the canal constructed by relators and no final settlement with them for its contract price in full, is not sufficient ground to justify the stoppage of the work of paving.

The Drainage Commission is not shown to be in default in the matter of the acceptance of the canal and settlement therefor. On the contrary, there is in the record a sufficiency of evidence to warrant the statement that it is the relators, themselves, who are in default, if any one be in default. They have not completed other portions of the canal system embraced in their contract, and until the whole is completed are not in a position, under the terms of their contract, to demand acceptance of and full settlement for the Third street canal.

The city in the work of paving its streets cannot be thus delayed.

Relators have been paid 80% of what is due them on the Third street canal; the other 20% is legitimately held back under their contract to await completión of the whole system of canals, and acceptance thereof.

To pay them the 80% it was necessary, it seems, to inspect and “pass” the canal as constructed. This was done by the engineers of the Drainage Commission.

Thus, the condition in which the canal was when completed has been ascertained, and if injury now results to it or its covering from the work of paving proposed to be done by the Improvement Company under its contract, the same ought not to be a matter of much difficulty of ascertainment in the event dispute and controversy with the Drainage Commission should develop on the question of the final acceptance of the canal and payment of the remainder due therefor.

Certainly, whatever small doubt as to this there may be, should not be given the force of preventing or delaying the much needed paving of a public street.

Relators, by the course pursued, have emphasized a protest against the action of the Drainage Commission in entering upon the canal and laying asphalt on and over it before its final acceptance. Notwithstanding', the Commission elect to do so, and this, it would seem, is quite sufficient to fix the responsibility therefor on the Drainage Commission, should injury ensue as the result of laying the pavement. It is not intimated that the Commission may not be able to respond to such liability.

Furthermore, the evidence adduced does not satisfy us that relators’ apprehensions as to injury resulting to the canal covering by reason of the work of paving Third street with asphalt are altogether well founded.

Their case in this regard is hardly sufficiently made out. The chief engineer of the Drainage Commission gives testimony to the effect that no injury will result, and while there is evidence contrary to this it Is not from engineering sources.

Running through this whole case is the conceded fact that relators, themselves, desired to do the work of paving Third street with asphalt; claimed the right to do it under their contract for the canal construction ; demanded to be permitted to do it; and being denied, make special reservation of their rights for damages against the Commission.

The impression made by this is that, in relators’ estimation, it is all right and safe for them to enter upon the canal and lay the asphalt pavement, but all wrong and prejudicial to the canal covering for an independent contractor to do so.

True, they assert they would do the work in a way different from that the Improvement Company proposes to do it, and without the use of heavy machinery; but the specifications prescribed for the work by the Drainage Commission would have to be met whether done by relators or by the Improvement Company, and the proposition advanced by relators of their right to do it in their own way without regard to the requirements of the Commission is so unreasonable as to detract from the sincerity or seriousness of the demand they put forward to be allowed to do the work.

Nor can we admit the contention as to any proprietary interest in the canal remaining or vesting in the relators until final acceptance and payment. No such interest results from that clause in the general specifications of their contract, cited by them, and which is as follows;—

“The contractor will be responsible for the work until completed and accepted by the contractee.”

Responsibility for it, as used here, does not imply proprietorship.

No, the street and the canal constructed in the center thereof are the property of the city of New Orleans. Eighty per cent, of the contract' price of the canal has been paid by the Drainage Commission, and the rights of relators are confined to demanding in due time and receiving the remaining 20%.

The taking possession of the street by the city and paving the same with asphalt is not such an invasion of the rights of relators as justifies them in invoking the writ of injunction. Considerations of policy and expediency alike forbid a resort to this prohibitive remedy.

There is here no such incompleteness and inadequacy of legal remedy which is held by the authorities to be determinative of the right to the equitable remedy of injunction.

This court will direct the issuance of the writ, or deny it, “in its discretion, according to the exceptional features of each case submitted.” State ex tel. Murray vs. Judge, 36th L. Ann. 582; State ex rel. Nicholson vs. Judge, 3Tth La. Ann. 843.

It is ordered and decreed that the application herein made for the peremptory writ of mandamus be denied at the cost of relators.


author: Breaux, J.

text:
    No. 13,703.
    Isaiah D. Norwood vs. Thomas Wimby.
    Syllabus.
    Motion to Dismiss.
    In a suit for the possession of property, the value of the possession controls in matter of jurisdiction.
    The judgment was signed and appeal taken after the Constitution of 1898 had become the organic law of the State. The main demand was for less than the lower limit of the Supreme Court’s jurisdiction. The íeconventiona! demand was for an amount above that limit. The judgment rejected the main demand, and, in part, sustained the reconventional demand. The appeal was from the judgment allowing an amount on the reconventional demand. The Constitution of 1898 governs. The Court of Appeal has jurisdiction over the main demand and it follows that it also has of the reconventional demand. The appeal should have been taken to that court and not to the Supreme Court.
    A question of jurisdiction ratione matcriae may be considered at any time previous to judgment, and if the court is without jurisdiction, the case will be dismissed.
    APPEAL from the Tenth Judicial District, Parish of Avoyelles— Coco, J., ad hoc.

      Isaac D. Wall for Plaintiff, Appellant.

      Wm. II. Peterman, A. J. Lafargue, W. B. Howard for Defendant, Appellee.
   On Motion to Dismiss the Appeal.

The opinion of the court was delivered by

Breaux, J.

Defendant, before this court, moves to dismiss the appeal, on the ground that this court is without jurisdiction rations materias.

The issue presented by this motion renders it necessary to make a summary of the pleadings and the facts.

Plaintiff, appellant here, asks for judgment, in his petition, decreeing him the owner of a plantation known as the Bank Place, and that the defendant be ordered to vacate and deliver the property to the petititioner. He avers in his petition that the defendant was his lessee and that by his possession deprived him of the rents and revenues of the property for the year 1897, amounting to four bundled dollars. Plaintiff also avers that the defendant agreed to buy the property and to pay six thousand dollars for it, payable in stated amounts. The vendee, Wimby, bound himself, in the event of his failure to buy and ■pay the first amount, to deliver possession of the place to plaintiff, Norwood, on the first of February, 1897.

lie, Norwood, obtained a writ of sequestration and the property was sequestered. The defendant having failed to furnish bond to obtain the release of the property, the right was, thereafter, exercised by the plaintiff who furnished bond and went into possession of the property. The defendant, in his answer, denied the averments of the plaintiff and alleged that he was in lawful possession of the property and entitled to retain possession as lessee during the year.

In 1898 plaintiff and defendant entered into an agreement to dispose of all differences and disagreements by submitting them for decision to three amicable compounders. They failed to act. Afterwards, other compounders were appointed. They acted and found that an amount was due to the defendant on his reconventional demand. Their award, on motion of defendant’s counsel, was homologated and became the judgment of the court. From the judgment, plaintiff prosecutes this appeal.

The attack on the award of the Board of Compounders as being null and the asserted illegality of their acts, is not before us for decision. We are concerned only with the question of jurisdiction. The prayer of plaintiff is broader and extends further than the allegations of his petition warrant. He alleges, in substance, that the defendant did not become the purchaser and pay the price, and that, in consequence, he was obliged to deliver the property in accordance with the terms of the agreement. The petition does not aver that any title is claimed; the body of the petition, different from, the prayer, limits the action to one for possession. The proceeding's filed by plaintiff, or defendant, do not set forth any fact going to show that the ownership of the property is at all at issue between the parties. On the contrary, their troubles and differences begin with the lease and with defendant’s promise to buy, and are all more or less connected therewith. All the allegations are confined to the one issue, i. e., whether plaintiff was entitled to the possession he claimed. Plaintiff’s claim is not one that he be decreed the owner. The defendant does not deny that he is the owner. It follows that the prayer, which can serve no purpose in the litigation, is not to be taken into account in matter of jurisdiction.

The suit being one for possession, its value, and not the value of the property, is the test of jurisdiction. State ex rel. Humphreys et al. vs. Richardson et als., 46 Ann. 133; Lea vs. Orleans, Ib. 1444; Baptist Church vs. Dickinson, 52 Ann. 704; Immanuel Presbyterian Church vs. Riedy, 52 Ann. 1353. From that point of view, it is not contended that •the amount involved is within the jurisdiction of this court.

This brings us to a consideration of the argument of plaintiff’s counsel at bar in support of the position that this court has jurisdiction.

The judgment from which plaintiff appealed is dated March 26th, 1900. The order of appeal is dated June 25th, 1900. The appeal was granted, returnable to the court on the second Monday of November of the current year. On the part of plaintiff and appellant, the contention is that the provisions of the Constitution of 1898 did not govern in the matter of this appeal; that, as relates to jurisdiction, all appeals, up to July, 1900, were governed by the Constitution of 1879. We can only say, in answer: If the Court of Appeal was limited as to the time when the article in question was to go into operation, it follows that the limit would necessarily also include the Supreme Court within its terms. We do not take it that, by the most liberal construction, it is possible to arrive at the conclusion that the articles relating to the courts of appeal show an intention on the part of the convention to suspend the operative effect of Article 95 relating to jurisdiction.

The provisions of the Constitution, 1898, Article 99, ordained a time for a change in the court, as then constituted. This bore no reference to the jurisdiction of the court. One is independent of the other. The word “constituted,” as used, relates to the officers who presided over the court, and not to its jurisdiction. They were the “constituted” officers, under the prior Constitution, and remained in office by special provision after the new Constitution had been adopted. This had no reference to the court’s jurisdiction, a separate matter provided for in other articles than the one making provisions for the judges to remain in office to a date named. The Article 95, conferring jurisdiction on the appellate court when it has jurisdiction of the main demand, and necessarily under the article, of the reeonventional demand, must be held under the terms of the article to have become operative immediately after the adoption of the Constitution, for it contained no provision for any delay. Other articles of the Constitution are equally as silent regarding any delay on this point. All these articles considered with reference to each other, give rise to no inference that one of the articles regarding jurisdiction, that is, Article 95, was to remain inoperative for a time. As to effect, the language is as direct that it was to be operative immediately after adoption as it is in any other article of the Constitution, which went into immediate operation.

The change in matter of appeal is not one of which plaintiff can have any right to complain on the ground that it impairs his rights. Remedy may be changed if the right be not impaired. A change in matter of jurisdiction, as relates to ajipeal, was held to have no retrospective operation, although it conferred jurisdiction to review a decree rendered prior to the passage of the act. Sutherland on Statutory Construction, sec. 464. Cassard vs. Tracy, 52 Ann. 852.

The court being without jurisdiction, the appeal may be dismissed after three days have elapsed within which appeals may be dismissed on motion.

For reasons assigned, it is ordered, adjudged and decreed that the appeal be and it is hereby dismissed at appellant’s costs.

Rehearing refused.