text:
    No. 10,957.
    Succession of Mrs. P. A. Delachaise vs. Charles B. Maginnis.
    1. This being a suit for slander of title, and defendant having answered pleading title in himself, based on the claim that the batture in controversy did not exist at date of purchase, the initial burden of proving its non-existence lay on defendant; but as this involves the proof of a negative, that burden is discharged when he produces evidence raising a strong presumption of the truth of the negative, and the burden is then shifted to the party holding the affirmative to destroy this by countervailing testimony.
    2. The principle underlying and usually determining the title to alluvion in our system is expressed in the equitable maxim Qui sentit onus, senttre debet et commodum.
    8. Another principle equally germinal is that title to alluvion is a purely accessory right attaching exclusively to the riparian estate, and incapable of existing without it.
    4. A party who sells the entire estate owned by him up to the line of a public road, or street bordering the river, and beyond which no property susceptible of private ownership exists at date of sale, retains no estate to which the accessory right to future alluvion could attach.
    5. The intervention of a public road or street does not prevent the owner of the estate adjacent thereto’from being considered as the front or riparious proprietor, when nothing susceptible of private ownership exists between the road or street and the river.
    6. Such adjacent estate must bear the whole loss resulting from any encroachment by the river, furnishing space for a new road or street if the old is washed away, and the law, as well as justice, awards him the corresponding benefit from accession.
    7. The vendor of the lots adjacent to the road is subject, on the other hand, to no risk of loss, and has, therefore, no legal or equitabie claim to any gain by future accretion.
    APPEAL from the Civil District Court for the Parish of Orleans. Rightor, J.

      Robert J. Rugué for Plaintiff and Appellee:
    A sale of property not fronting on tlio river, or the levee, but on Water street, does not convey title to the Mississippi river.
    When a deed mentions as the front boundary a certain street, or gives the depth from a fixed rear line, or the levee, the batture and right of accretion do not pass, but remain in the vendor. 85 An. 161,209 ; 26 An. 810.

      When an act is free from ambiguity parol evidence is not admissible to vary explain or contradict it. ál An. 18.
    Error, unless alleged, can not be proved.
    Accretion belongs to the owner of the soil situated on.the edge of the water. O. O. 509.
    Joint owners can not prescribe against each other. 42 An. 846.

      Gilmore & Baldwin for Defendant and Appellant:
    1. I-Ie, whose property is adjacent to or on the edge of the river, is a riparian proprietor. Art. 509, Rev. O. C.
    2. The question whether property is adjacent to or on the edge of the river is a question of fact to be decided by the actual situation and character of the land, and the mere words by which the deed describes the estate are not conclusive. The case of Attius, cited in 6 M. 63; Morgan vs. Livingston, 6 M. 237; Bass vs. State, 34 An. 490; Ruch vs. City, 43 An. 275.
    3. The levee and batture outside, which is not susceptible of private ownership, form part of the bank of the river, do not exist beyond it, and can not be viewed in law as intervening between the front property andtheriver. Heirs of Leonard vs. Baton Rouge, 30 An. 280; Morgan vs. Livingston, 6 M. 229; Art. 457, Rev. C. O.
    4. The intervention of a public x’oad between the front proprietor and the river does not deprive him of his right to the accretion, because the road is part of his property quoad commodum etincommodmn, and in a legal sense does not exist between him and the stream. Morgan vs. Livingston, 6M. 231; Municipality No. 2 vs. Orleans Cotton Press, 228, 229; The case of the Commune de Roques, Sirey, 1829, 2d part.
    5. The marking of a street upon a plan made by the proprietor of a faubourg, and the subsequent sale of property in accordance with that plan, and in reference to the street, constitutes a dedication of the street to public use. McDonogh vs. Callaway. 8R. 92; Burthe vs. Portier, 15 An. 9; Baton Rouge vs. Bird, 21 An. 245; Sarpy vs. Municipality No. 2, 9 An. 598; McNeill et al. vs. Hicks & Howell, 34 An. 1092; City of Lafayette vs. Holland, 18 La. 287; Heirs of Leonard vs. Baton Rouge, 39 An. 283.
    6. It is not^necessary, in order to make the dedication complete, that the public should immediately use the property dedicated. Ice Co. vs. City, 43 An. 224.
    7. No one can have any private.ownership in the public streets of the city. Pothier, Contract of Sale, 13; Daublin vs. Mayor, 1 M. 187; Judge Preston’s Opinion, Ñiques vs. Bujac, 7 An. 505; Police Jury vs. Foulhonze, 30 An. 66.
    8. The sovereign alone can change the destination of property dedicated to public use. Mayor vs. Hopkins, 13 La. 331.
    9. It is only where there exists at the date of the acquisition of property, separated from the river only by a public street or road, and the levee batture, susceptible of private ownership outside the levee, that the batture does not pass without special mention in the deed; if the batture be formed subsequently to the purchase it belongs to the owner of the front as an accessory to his land. Barré vs. City, 22 An. 612; Ferriere vs. City, 35 An. 209; Cochran vs. Fort, 7 N. S. 625; Livingston vs. Heerman, 9 M. 721; Cambre vs. Kohn, 8 N. S. 578; Cire vs. Rightor, 11 L. 140.

      10. Where one purchases a distinct and specified object, such as the Stock Landing property, any surplus over the land described in the deed by streets and measurements should belong-to the vendee. Innis vs. McCummin, 12 M. 428.
    11. The language used in an act oí sale must he construed against the vendors. Morgan vs. Livingston, 6 M. 613; Art. 2474, C. O.

      W. 8. Benedict on the same side.
   The opinion of the court was delivered by

Fenner, J.

This controversy presents for solution a question of the ownership of a piece of batture property lying on the Mississippi river in this city in front of Water street, which runs parallel to the river, and between Louisiana avenue and Delachaise street, which run at right angles to the river.

We shall simplify the case by excluding unnecessary details of successive derivative titles, and all other matters not essential.

The common authors of the conflicting titles were Mr. and Mrs. P. A. Delachaise, who owned a large riparian estate on the Mississippi river, and who died prior to 1855, leaving three children their sole heirs — Pierre Auguste, Louis Philippe and Elizabeth Aline Delachaise — to whom this real estate descended in equal undivided ownersnip.

About 1855 these three heirs, for the purpose of selling or partitioning this property, caused the same to be divided into lots, squares and streets, and had a plan thereof made and placed on record, which plan, according to the official copy produced in the evidence, exhibits Water street as the extreme front street parallel to the river, and also exhibits Louisiana avenue and Delachaise street running perpendicularly thereto.

On the 20th of April, 1855, a notarial act of partition was passed between the three co-heirs and joint owners for the purpose, as declared in the act, of making “a partition between the said three heirs of certain real estate situate in the parish of Jefferson, and belonging to the said succession” of their mother.

This act assigns to each of the heirs, in exclusive ownership, certain squares and portions of ground, described as bounded by streets as represented on the plan above referred to, and further contains the following statement: ‘ ‘ All which squares and portions of ground are more particularly described and delineated on the annexed plan of the said faubourg Delachaise and Plaisance, to which said parties refer as making part of this act.”

It appears, however, that accidentally, or for some undisclosed reasons two squares of ground, including the one with which we are presently concerned, were omitted from the partition.

At all events, by separate acts of sale, passed respectively on July 19 and August 18, 1855, Elizabeth Aline and Pierre Auguste Delachaise conveyed to their brother, Louis Philippe, their respective third interests in the property described as follows:

“All his right, title and interest, being one undivided third part of, in and to two squares of ground with the buildings thereon, and all the rights, ways, privileges and appurtenances thereto belonging, situate in the faubourg Plaisance, parish of Jefferson,' aforesaid, and known by the name of the Stock Landing. One of|said squares measures 330 feet 10 inches front on Water street, about 90 feet front on Delachaise street, 330 feet 10 inches front on Levee street, and about 90 feet front on Louisiana avenue, and the other square is designated by the No. 2, and measures 330 feet 10 inches front on Levee street, 92 feet front on Delachaise street, 320 feet front on Ohippewa street, and 177 feet 7 inches front on Louisiana avenue.

“ The said undivided third part of the said property belongs to the present vendor by inheritance from her mother, the late Madame Delachaise.”

The batture in question lies in front of Water street.

We need go no further in the chains of title, because the above brings us to the point at which the conflicting claims arise.

The plaintiff’s succession is the successor and legal representative of Pierre Auguste Delachaise, and claims, substantially, that the property above referred to, held in indivisión between Pierre Auguste and his brother and sister, was a riparious estate with all the rights and burdens appurtenant thereto; that the conveyance above recited, being restricted to the line of Water street, did not transfer a riparious estate, and, therefore, left him, Pierre Auguste, in full possession of all his antecedent riparian rights, including the [right to alluvion in front of Water street, then existing or thereafter formed.

Defendant is the assignee, by successive titles, of Louis Philippe Delachaise, and, while conceding that the sale from Pierre Auguste would not have conveyed the latter’s interest in any alluvion already existing and susceptible of private ownership beyond Water street at date of sale, he claims that the batture now in controversy did not exist at said date, but was formed thereafter, and that there being nothing between the property conveyed and the river, except a public street or road, the property so conveyed was in law a riparious estate, entitling the vendee to any alluvion thereafter accruing in its front.

Under'the above statement of the conflicting claims, it is apparent that there are two pivotal questions, viz.:

1. The question of fact, whether or not, at date of sale, in 1855, there did exist in front of Water street any alluvion then susceptible of private ownership.

2. The question of law, whether, if there existed no such alluvion, the conveyance from Pierre Auguste to Louis Philippe operated the transfer of the riparious estate with its accessory rights.

I.

As to the question of fact, plaintiff invokes the rule that the action is one for slander of title, and that defendant, in his answer, having pleaded title in himself, assumes the position of plaintiff in a petitory action, and is bound to prove his title.

The rule is undoubtedly sound and well established, and threw upon defendant the initial burden of making proof going to show that no batture susceptible of private ownership existed at date of sale; but, inasmuch as this involves the proof of a negative and is an exception to the general rule that the party holding the affirmative must prove it, demonstrative evidence is not required, and the burden- of proof may be shifted when sufficient facts are established to raise a strong presumption in favor of the truth of the negative.

As stated by text writers the burden of proof in any proceeding lies at first on that party against whom judgment would be given if no evidence at all were produced on either side. As the proceeding goes on, the burden of proof may be shifted from the party on whom it rested at first, by his proving facts which raise a presumption in his favor.” 7 Am. and Eng. Encyc. of Law, p. 95; 1 Phillips on Ev. 552.

In a ease precisely similar, Judge Martin used the following language: The plaintiff alleged in his petition that at the time of the sale to Poeyfarré, there existed no batture before the trapezium, or that if one existed, it was a batture under water, and the onus probandi lay on him as to the height of it at least; and perhaps, as negative propositions are not susceptible of proof, the defendants were bound to prove that there was a batture.” Morgan vs. Livingston, 6 Mart. O. S. 113.

The defendant here has introduced two witnesses who prove that in 1855, and even as late as 1889, the levee was immediately in front of Water street, and even partially encroached on the street, and that but for the protection of the levee, Water street itself would have been under water. It is further proved that when in 1889 the present defendant undertook to advance the levee, the batture which had been forming was still below the surface of the water, and had to be artificially filled several feet before it became susceptible of private ownership.

The plaintiff has offered no evidence whatever on this point, and, while he now criticises the sufficiency of defendant’s evidence, we think it at least sufficient to discharge the initiatory burden resting on defendant, and to throw on plaintiff the onus of countervailing testimony. We might go further and say that it fully convinces us that in 1855 there existed no batture in front of Water street susceptible of private ownership, and that between the line of the property conveyed and the water of the river there was nothing except the street and levee.

II.

The principle underlying and determining the title to alluvion in our system is the equitable one expressed in the maxim, Qui sentit onus, sentiré debet et eommodum. As Portalis, in his “Exposé des Motifs” of the Napoleon Oode, quaintly states it, “There exists, so to speaÉ, an aleatory contract between the riparious owner and nature, whose action may at any moment despoil or increase his estate, in which sense it may be said that rivers give or take away like chance or fortune.” If it takes away, the owner must bear the loss; if it gives, justice accords him the gain.

Another principle is that title to alluvion is a purely accessory right, attaching exclusively to riparian proprietorship, and incapable of existing without it. This is implied in the very name given to the right as a right of accession; and the chapter of the code under which the provisions relative to alluvion are found is headed thus: “ Of the Right of Accession to What Unites or Incorporates Itself the Thing.” As strongly stated by this court ,in the leading case on the subject, riparian ownership is “ of the essence of the right of alluvion; the alluvion is but the accessory; the front tract is the principal; the former can not exist without the latter.” Municipality vs. Cotton Press, 18 La. 219.

When these two germinal principles are applied to the facts of the instant case they at once annihilate the title asserted by plaintiff.

When Pierre Auguste Delachaise sold his interest up to the line of Water street he sold all that he owned or could sell. Nothing intervened between that line and the river except the street and the levee, both of which were public things (O. C., Art. 454), hors de commerce, and which he did not own and could not sell. He thus stripped himself of his whole ownership, and retained no estate, riparious or other, to which the right of future accession could possibly attach; and as the accessory can not exist independently of the principal thing, his conveyance of the latter necessarily carried with it the accessory.

The other principle is equally fatal, because after that sale he had no longer any interest in the aleatory contract between nature and the riparian owner. He could suffer no harm from any encroachments the river might make. If it swept away the levee and the street he suffered no loss thereby because he owned neither, and would be under no obligation to replace them; and if the river ate into the land beyond the street evidently that lobs would fall, not on him, but on his vendee. It would be a strange perversion of the maxim, qui sentit onus, etc., if he could thus cast the whole risk of loss on his vendee, while retaining for himself the whole chance of gain.

The earlier decisions of this court on the subject of alluvion are the brightest jewels in the diadem of Louisiana jurisprudence. Taken in connection with the remarkable briefs of counsel they may be said to exhaust the learning and science bearing on the subject, and they leave to succeeding judges little more than the humble task of faithfully applying them. In these decisions we find authority ample to solve every question involved in this ease.

The first case that arose was that of Jean Gravier vs. The Mayor and Aldermen of New Orleans, which was decided by the Superior Oourt of the Territory of Orleans in 1807, and is not included in our published reports, which only began with the year 1809. We find a statement of the case, and the opinion and decree in full, in a note contained in the first volume, page 451, of Harrison’s Condensed Reports of Louisiana, a work published in 1839, which never acquired any circulation, and is now out of print or very rare. The case is very similar to the instant one.

It appear that Gravier owned a riparious estate contiguous to the city, with a public road along the river -in its front. He laid out that part within the road into lots, forming a suburb. He sold the lots which fronted the road by- fixed boundaries, according to a map on which the lots are delineated, and none of the boundaries passed beyond the road.

In 1804, after the suburb had been incorporated into the city, his successor, Jean Gravier, claimed the alluvion formed in front of these lots, and advanced the levee so as to take in the batture. The corporation resisted his appropriation of this batture, and Gravier brought his suit to be quieted in his possession and for an injunction against disturbance. So far as Gravier’s title was concerned, it will be seen, the case presents the precise issues involved in this case, as heretofore stated by us, viz.: (1) The question of fact whether or not at date of sale of the lots there existed in front of them any batture susceptible of private ownership; and (2) the question of law whether, if no such alluvion then existed, the conveyance of lots fronting the road divested Gravier of his riparious rights.

The court in its opinion reversed the order which we have pursued, and decided, first, the question of law in the following language, every word of which is fatally applicable to plaintiff’s claim: “ If Bertrand Gravier had continued proprietor of the whole tract on which the faubourg had been established there would be no difficulty in determining his title to the alluvion; but Bertrand Gravier had divested himself of all title to that part of the tract on which the faubourg is established by selling the lots fronting and adjoining the highway. It is therefore important to inquire what was the situation of the batture or alluvion in question at the time when the faubourg was established, or at least when the front lots were sold, for if no alluvion had existed at that time, when Gravier ceased to be the owner of the land adjoining the high road, then it is the opinion of the court that an alluvion subsequently formed would not become the property of Gravier. The reason of this opinion is that, if Gravier, could be considered as the proprietor of the road after selling the adjacent land, or of the levee lying between this road and a public river, he would, nevertheless, not possess that title of property which gives the right of alluvion, for the destruction of this property by the encroachment of the river would be a public and not a private loss, since it could not be appropriated to the use of any individual, and the said road and levee would have become necessarily liable to be kept in repair at the public expense.”

After thus determining the question of law the court proceeded to consider the question of fact, and finding that alluvion susceptible of private ownership did exist at date of sale the alluvion was awarded to Gravier.

In the succeeding great ease of Morgan vs. Livingston, 6 Mart. O. S., while the conveyance used the words frente al rio or front to the river, and while the court discusses the effect of these words as evidence of intention, yet the court distinctly says: “ If the parties to the deed to Poeyfarré meant that a riparious estate should pass, their intention might be carried into effect by conveying as far as the river in express words or by conveying everything susceptible of absolute private ownership between the line of the trapezium most distant from the front and parallel to the river, till the bank.” P. 234.

In point of fact the trapezium concerned was sold by defined boundaries, one of which was the public road; and the intervention of that public road and of the levee beyond it, between the line of the trapezium and the water, was assigned and discussed as a ground for denying the purchaser the benefit of a riparious estate.

In summing up the case the court announces the following as one of the final conclusions reached: “That the land sold by Gravier de facto extended to the river; * * that the batture existing then as batture under surface of the water was, as well as the levee, a part of the bank, and the bank being a part of the river, neither can be said to be without it or between it and another object; that the intervention of a public road does not prevent the owner of an estate, which it separates from the river, from having an interest in the bank and enjoying the alluvion as well as he whose estate is washed by the river.” Morgan vs. Livingston, 6 Mart. O. S. 251.

In the great ease of Municipality No. 2 vs. Orleans Cotton Press, a new question presented itself, which divided the court and placed Judge Martin as a dissenter. The question was whether the same rules governing alluvion applied to urban or rural estates, Judge Martin holding that they did not, but that the front streets and quays in front of private property in cities where loci publici of such a nature that the property thereof was absolutely vested in the public, and alluvion formed subsequently to the incorporation enured to the public.

But the majority of the court held otherwise, and announced, in summing up, the following propositions: “That urban property fronting on a water course is entitled to alluvion as well as rural estates, and that cities can acquire jure alluvionis only in virtue of a title which would constitute them front proprietors. That the defendants must be considered as owning down to the road last laid out, and that the intervention of the road does not prevent them from being regarded as front proprietors and entitled to any alluvion which now exists or may hereafter be formed between the levee and the water, subject to the public use under the administration of the municipal authorities.”

We consider that the quotations we have made from the opinions in these cases are decisive of this case.

It is not denied that the defendants are owners to the line of Water street, and we have found, as matter of fact, that between that line and the river there was at the date of sale no batture susceptible of private ownership, and nothing but the street and levee. If, as repeatedly held, in the quotations we have made, the intervention of such street and levee “does not prevent them from being regarded as front proprietors,” and if such intervention “ does not prevent the owner of an estate, which it separates from the river, from having an interest in the bank and enjoying the alluvion as well as he whose estate is washed by the river,” it is difficult to imagine any ground on which the riparian rights of defendants can be resisted. These rights are strongly[emphasized by our recent decision that the owneriof property bounded by a street running along the river is bound to furnish new ground for a street when the river eats away the former street.” Ruch vs. City, 43 An. 275.

This conclusively establishes that such an owner bears the whole loss which may ensue from encroachments of the river, and should, therefore, acquire any benefit from alluvions.

We have considered the eases strongly relied on by plaintiff of Winter vs. City, 26 An. 310, and Donovan vs. City, 35 An. 461. The first is obscure and ill considered. It does not clearly indicate whether or not the alluvion in controversy existed at the date of plaintiff’s purchase. If it had been formed since her purchase, the decision was erroneous, and we could give it no weight to overrule the well-considered authorities we have quoted or the sound principles on which they rest.

The dictum, in Donovan’s case, suggesting that the mere “hope” of future batture might be property resting in a riparious proprietor after he had. sold the whole estate which he owned, was purely obiter, because the court held that the alluvion existed at time of sale. It is, moreover, unsound, as we have heretofore shown, both in reason and on authority, unless, at least, as the result of an express and unambiguous contract.

It is therefore, ordered, adjudged and decreed that the judgment appealed from be annulled and reversed, and it is now adjudged and decreed that there be judgment in favor of defendant, rejecting the demand of plaintiff and recognizing defendant as owner of the property in dispute, plaintiff to pay costs in both courts.

Judgment affirmed.


source: Caselaw Access Project

author: Breaux, J.

license: Public Domain

text:
    No. 11.047.
    New Orleans City & Lake Railroad Company vs. City of New Orleans and Board of Assessors.
    The Board of Assessors were bound to give effect to the words of the statute.
    The earning capacity shall form a basis of estimating the values. Sec. 28 of Revenue Act of 1890.
    This requirement was observed, and a proper assessment was made.
    PPEAL from the Civil District Court for the Parish of Orleans. Ellis, J.

      John M. Bonner for Plaintiffs and Appellants.

      E. A. O’ Sullivan, City Attorney, and R. Lyons and Wynne Rogers for Defendants and Appellees.
   The opinion of the court was delivered by

Breaux, J.

The plaintiff company; through its secretary, made its return to the Board of Assessors of its property.

The franchise of the road was returned at its original cost, less seven years which had elapsed; in other words, the franchise haying been granted for twenty-five years, the original cost was divided by that'number, and the plaintiff, assuming that the quotient was the value of each year, deducted the value for the years elapsed, and returned the remainder as the value of the franchise unexpired.

On this theory there was eighteen-twenty-fifths of the original value remaining subject to taxation.

' The Board of Assessors declined to accept that basis.

It was proven that the dividends of the company were $4.2,000 per annum during the time for which the tax in controversy was levied.

The plaintiff, having protested, sued on an injunction, and avers that it took, in making its return, the original cost of its franchise to operate its street railway for a period of twenty-five years, from the 10th day of February, 1883, to-wit:

The sum of $284,750, and deducting therefrom the sum of $79,730 for the seven years that had elapsed, making the remainder the assessable value.

The defendants state that the Board of Assessors, in order to establish a uniform value, adopted 6 per cent, as the earning capacity of the road.

The annual dividend of the road was $42,000.

On that basis ($700,000 by 6 per cent.), the plant was worth the first amount.

From a judgment for defendant the plaintiff appeals.

The legislative intent as to the value of these franchises is expressed in the Act of 1890, No. 106, Sections 28 and 29.

There had been considerable litigation between the corporations and the assessors with regard to the old methods of making these assessments.

The law was therefore amended. It directs that the company shall furnish a sworn statement of its earning capacity, which shall form a basis for estimating the value of the franchise.

This was complied with by the company, and its statement was adopted as a. basis.

The law-making power having determined that the. earning capacity shall be a basis oí estimating the value of its charter or franchise, the board had no authority to disregard the plain terms of the act and follow the old method.

The statute directs a particular mode that does not embrace exclusively the determination of values by that which the plaintiff contends should .be observed.

Revenue is an element of value not to be overlooked in assessing such property as that of the plaintiff, even were the statute silent upon the subject. The Legislature has made it a basis; while it should not be followed arbitrarily, exclusively andfinjuriously, the records do not disclose injury or any unjust discrimination.

In conformity with the act the assessors proceeded to fix an estimate proven fair by the evidence of the plaintiff.

The amount as fixed can not be reduced on the ground that part of the franchise is of the past, particularly, as it is not made evident that it was of less value at the time of the assessment than it was when granted.

Judgment affirmed at appellants’ costs.


author: Watkins, J.

text:
    No. 11,050.
    New Orleans City & Lake Railroad Company vs. City of New Orleans et als.
    The earning- capacity oí the franchises of a New Orleans city railroad corporation is the true and statutory basis of their assessment for taxation.
    APPEAL from the Civil District Court for the Parish of Orleans. King, J.

      Buck, Dinkelspiel & Hart for Plaintiffs and Appellants.

      E. A. O’Sullivan, City Attorney, R. Lyons and Wynne Rogers for Defendants and Appellees.
   The opinion of the court was delivered by

Watkins, J.

This suit is to obtain a reduction of an assessment made for the year 1891, upon the franchises of plaintiff company, that is to say, of its right to maintain and operate its street railways in the city of New Orleans.

The subjoined statement in plaintiff’s brief puts the question for decision quite plainly, viz. (p. 3) :

“The petition declares that an assessment of $650,000 placed upon said franchises for the purpose of taxation for the year 1891 is excessive ; that it had without avail entered its protests both before the Board of Assessors and the ‘ Committee on Revision ’ of the City Council, all in full compliance with the requirements of law on which the right to contest the assessment, judicially, is based. It contends that it,purchased said franchises to operate street railways for a period of twenty-five years from the city of New Orleans, as evidenced by a contract with said city, of October 2, 1879, for a cash price of $630,000 then and there paid; that said period of twenty-five years commenced to run on the 1st of January, 1880, and will expire on the 1st of January, 1906, and that therefore the correct value of said franchises for the unexpired fourteen years should be fourteen-twenty-fifths (14-25) of said original cost price, say $367,500.”

And the further quotation from plaintiff’s brief gives the theory on which the Board of Assessors proceeded in making the assessment very clearly.

Vide p. 5, to-wit:

“As the question involved is the valuation of the franchise, we can not, perhaps, place both the substance and the form of the controversy more clearly before your honors than by repeating the testimony of Mr. Renshaw, one of the assessors, showing the manner in which the valuation fixed by the Board of Assessors was ascertained.

“A. ‘We therefore reached, from the returns, from the valuations of theseveral pieces of real estate, etc., $812,308, as the value of the tangible property of that railroad company. Now, the law of 1890 reads that the franchises shall be assessed at the earning capacity — that the earning capacity of the railroad shall be the basis of the assessment of the franchise, and arguing that 6 per cent, net, over and above all expenses, taxes, and so on, was a very fair return on the money; and as they had declared $90,000 a year dividend, and capitalizing that at 6 per cent., would have given a gross amount of $1,500,000; consequently, as the holdings in tangible shape only footed about $800,000, the intangible must makeup the difference to produce that much in dividends.

“ ‘Consequently, we put the assessment on the franchise in round figures at $650,000.’ ”

Thus it seems to be clear that the single question of law presented jor decision is whether plaintiff’s franchises should be valued, for purposes of their assessment, at their actual money value to the corporation, and proportionally to the length of time for their duration, according to plaintiff’s theory, or at the earning capacity of plaintiff’s railroad quoad the operation and use of said franchises, according to the theory of defendants.

This identical question was raised and decided adversely to plaintiff’s contention recently in New Orleans & Carrollton Railroad Co. vs. City of New Orleans and Board of Assessors.

That opinion was predicated upon Secs. 28 and 29 of Act 106 of 1890, and its provisions are controlling.

We find no occasion to alter or modify the views therein expressed.

Judgment affirmed.


text:
    No. 11,052.
    Crescent City Railroad Company vs. City of New Orleans and Board of Assessors.
    The assessment of the value of a franchise measured chiefly by the earning capacity of the corporation is a proper assessment.
    APPEAL from the Civil District Court for the Parish of Orleans. Ellis, J.

      John M. Bonner for Plaintiff and Appellant.

      E. A. O’Sullivan, City Attorney, R. Lyons and Wynne Rogers for Defendants and Appellees.
   The opinion of the court was delivered by

Breaux, J.

The plaintiff appeals from a judgment rejecting its demand to have its assessment reduced on its franchise for operating its railroad.

The Board of Assessors assessed this franchise for the year 1891.

The plaintiff, in due time, applied to have the assessment reduced to $250,000.

In making the assessment the board regarded the earning capacity of the company as required by Act 106 of 1890, Sec. 28.

In reference to the corporations: within the terms of the section, a safeguard is provided, so as to enable the assessing officers to fairly estimate the value of their franchises.

The corporations are required to furnish within twenty days from the 1st of January, of each year, a sworn statement of their condition and a sworn statement of the costs of their property, real and personal, and the value at which it is carried on the books. In determining the “ assessment these valuations shall be considered.”

They are required also to furnish a sworn statement of their earning capacity, which said earning capacity shall form a basis in estimating their respective franchises.

The earning capacity of property, without regard to its nature, is not always a criterion of value.

There is property of which it is not an element of value at all, such as jewels and other articles of mere ornament.

But generally the earning capacity is the element of value.

The franchise of plaintiff, if it had no earning capacity whatever, would receive no consideration as property.

The statute commands that the earning capacity shall be a basis, without, however, excluding consideration of any other element of value it may possess.

The assessors contended that the earning capacity was a fair criterion of its value and therefore properly acted upon that theory.

To break the force of the act, plaintiff proves that a large amount was borrowed to make improvements, and that if this loan had not been made, the dividends could not have been declared.

The fact remains that a dividend was declared. ■

When the loan will be paid or returned, it may well be that the plaintiff company will not declare dividends.

The effect upon the value of the franchise will, at the time, be a fair subject for consideration.

It is also in evidence that the Electric Traction Company guaranteed to the plaintiff company a 5 per cent, dividend for a number of years; that the Electric Company failed to carry out its contract, but that the Crescent City Railroad Company, on the guarantee, paid the 5 per cent, dividends.

The company is bound by its statement that in earned a dividend.

On the face of the books and returns it was its earning capacity for 1891.

It is not shown that plaintiff was remediless; that a loss had been incurred for which there is no remedy; or that there was an absolute failure of compliance on the part of the Electric Company.

If a loss did subsequently arise and a consequent inability to declare dividends, the question may come up in the matter of the assessment of another year.

At this time the proof does not establish the incorrectness of the company’s statement that the dividends declared were 5 per cent. Upon that basis, we think that the estimate is fair, and that the Board of Assessors complied with the statute and made a proper assessment.

Judgment affirmed at appellant’s costs.


author: Fenner, J.

text:
    No. 11,012.
    Frederic A. Ober vs. Crescent City Railroad Co.
    l. A street railroad company which has contracted with a city, as a consideration for its franchise, to keep a portion of its streets in good order and repair is responsible in direct action by any person who suffers special damage resulting from its unlawful failure to do so.
    2. Reason and authority support a broad and just distinction between the rules of n^ligence applicable to steam and to horse railways. What might be undó'ubted negligence as respects the former might not be so as respects the latter.
    3. It is well settled that it is not negligence in sé, or as a matter of law, for a person to get on or off a horse-car while it is in motion, but the question of negligence vel non depends upon the circumstances of each particular case, such as the speed of the car, the activity or infirmity of the person and the like.

      i. A petition claiming daragages from a railroad company bound to keep its streets in repair, resulting from plaintiff’s stepping into a hole in the crossing, dangerous and negligently left by t,hc company notwithstanding full notice, is not amenable to an exception of no cause of action, because it recites that the injury resulted while plaintiff was alighting from the car moving slowly and with slackening speed preparatory to stopping, and also that plaintiff was an active and vigorous person accustomed to alight in this way, and showing no unfavorable conditions tending to render the act exceptionally rash or hazardous. Such act is not negligence in se, and can only be properly estimated after all the conditions and circumstances surrounding it, and notnecessary to be detailed in the pleadings, have been established by contradictory proof between the parties.
    APPEAL from the Civil District Court for the Parish of Orleans. King7 J.

      Carroll & Carroll for Plaintiff and Appellant:
    It is not, under all circumstances, negligence as matter of law for a person to get upon or leap from a street car, while in motion; ordinarily, it is a proper case for a jury. Boone on Corporations, Sec. 266, and cases there cited.
    It is well settled that it is not negligence per se for a person to get on or off a street car drawn by horses,-while it is in motion. It depends upon the circumstances surrounding eac,h case. The question is ordinarily one of fact to be submitted to a jury. 47 N. W. (Minn.) 8S7. Same doctrine laid down in 137 Mass. 210; 69 N. Y. (Court of Appeals) 195, See also 105 Ind. 62 (4 N. E. 440); 49 N. Y. 177: 56 N. Y. 302; 4 Robt. 377; 63 N. Y. 556,
    There is a difference between alighting from moving steam cars and from moving street cars; and, as to the latter, the prevailing doctrine is that the act is negligent or not, according to the circumstances of each case. Many of the cases reported are those in which the passenger attempted to leave by the front platform, which are obviously different from cases where the step is taken from the rear platform. Hutchinson on Carriers, Sec. 645a, and cases there cited.
    It is a well recognized custom in New Orleans for street car passengers to alight while the car is in motion. It can not be presumed that the course pursued by an entire community is negligent or imprudent. The doctrine as to established custom in matters of this kind is laid down in Summers vs. C. C. R. R. Co., 34 An. 139; and that doctrine is applicable to the case at bar.
    In order that the plea of contributory negligence may avail the defendant, it is necessary that a causal connection be established between the alleged contributory.negligence and the damage suffered. See Wharton on Negligence, Secs. 1, 3, 73, p. 1147; Gerhard vs. Bates, 2 Ell. and Bl., 490; Summers vs. C. C. R. R. Co., 34 An. 140.
    In the case at bar plaintiff’s injuries resulted, not from the fact that he stepped off the moving car, but from the fact that defendant had negligently, and in violation of its positive contract, left a hole in its crossing, whereby plaintiff’s foot being caught, he was thrown violently to the ground and seriously injured.

      John M. Bonner for Defendant and Appellee:
    1. In actions to recover damages for personal injuries ¡the plaintiff should be entirely free from fault.
    Any degree of negligence on his part contributing proximately to the injury defeats his recovery therefor. Thompson on Neg., p, 1147; 34 An. 144; 24 Am, St. R. 398, and note.

      2, It is negligence for a passenger to jump from either a steam train or horse car, in motion, unless expressly or impliedly invited to do so by the employes of the company. 41 An. 795; 47 Mich. 470 ; 88 N. Y. 131; 86 Mich. 236; S. O. 24 Am. St. R. 120; 100 Mo. 194; 232 Pa. St. 154.
    3. Cities are not insurers of the safety of their streets. Elliott;Roads and Streets, p. 448; Bill. Mun. Corp., Sec. 1019.
    To recover for injuries on account of defects in the street, it must appear that the defect was the sole cause of the injury. 77 Me. 287; 119 Mass. 573. No recovery can be had unless the party njured was in the exercise of due and reasonable care. 99 Ind, 10; Bill, on Mun. Corp., Sec. 1020; 42 An. 541.
   The opinion of the court was delivered by

Fenner, J.

The substantial allegations of the petition are, that it is the duty of the city of New Orleans to keep her streets in good order and condition, and that by contract this duty, as to Annunciation street, was devolved on the defendant; that a certain plank crossing on Annunciation street got out of repair, and had a long, narrow crack in it that was caused by the decay of one of the planks; that the defendant grossly neglected to cover up or repair this crack, although it had been notified so to do; that plaintiff entered one of the cars on the Annunciation line about 5 o’clock, on the afternoon of October 2, 1890, and proceeded up town as a passenger, having paid his fare, and not being a trespasser, and alighted from said car at the lower crossing of St. Andrew street, said car moving slowly, and at a slackening rate of speed, preparatory to stopping at the upper crossing; that petitioner was guilty of no negligence in so alighting from said car, being physically strong at the time, and being skilledi’and an adept in so alighting; that it had been his custom and habit to alight from street cars in motion for a number of years; that it is the well established custom in New Orleans for able-bodied men to so alight from street cars in motion, and petitioner had a right to so alight; that he alighted from said car in the safest manner, with his face toward the front of the ear, getting off backward, suspecting no danger, and relying upon the said railroad company’s having fulfilled its duty to the city and the public, in keeping the street and the crossing in safe condition and repair; that in alighting, petitioner, after releasing his hold on said car, placed his right foot, being the foot that first touched the ground, firmly and squarely on the crossing, but that when he planted his other foot upon the crossing, the heel of his shoe was caught and firmly held in the hole in the said crossing; that the momentum which the motion of the ear had imparted to his body impelled him forward, and his left foot being caught and firmly held, petitioner was not free, but was checked and thrown violently to the ground, etc.

To this petition the defendant filed the exception of no cause of action, which was sustained in the lower court.

The exception rests exclusively on the ground that the petition, on its face, exhibits such contributory negligence on the part of plaintiff as destroys his right of action.

We shall, for the purpose of this decision, eliminate the question as to whether the defendant was bound, as a carrier, to keep the part of the streets occupied by its track in good order and repair, and shall treat defendant exclusively as the contractual subrogee to the duties of the city in that respect, and as sued in that capacity alone.

The case will thus be considered precisely as if, in absence of its particular contract with defendant, the suit were against the city itself for an injury resulting from a defect in the highway, and we shall so treat it.

There can be no question that in such a.case the petition would set forth a complete case of gross fault and negligence in leaving a “ dangerous hole ” in a street crossing, and failing to repair the same, “although notified, advised and warned of the dangerous condition of the crossing.”

The facts alleged further show that this negligence was a cause of the injury, without which it would not have happened.

The rule is now settled that a municipal corporation vested with the powers usually conferred is bound to make and keep its streets reasonably safe and convenient, and, if it fails to do so, is liable for injury occasioned by its neglect to any person using the street lawfully, and in the exercise of ordinary care. Elliott on Roads and Streets, p. 446.

“If In consideration of the grant of a license to construct and operate its road on a public street, a railroad company agrees with the city to keep a portion of the street in repair, it thereby becomes responsible to any person who suffers special damage in consequence of a breach of this contract, and a right of action enures to such person thereon.” 1 Thompson on Neg., p. 359, Sec. 25.

It follows that the petition sets forth a good cause of action unless the statement therein contained of the plaintiff’s own acts in connection with the injury exhibits such a case of contributory negligence as deprives him of any claim for redress.

The only act stated in the petition to which such a consequence could be attached is charged in the following terms: “That he was a passenger upon a street car of defendants; that when the car reached the corner of Annunciation and St. Andrew streets plaintiff alighted therefrom, while the same was moving slowly at a slackening rate of speed, preparatory to stopping on the further side of the street; that he was guilty of no negligence, being physically strong and skilled in so alighting; that he alighted from the car in the safest manner, with his face toward the front of the car, suspecting no danger and relying upon defendants having fulfilled its duty in regard to keeping the crossings in good condition and repair; that in alighting, plaintiff, after releasing his hold upon the car, placed his right foot squarely and firmly on the crossing, but that when he placed his other foot upon said crossing, the heel of his shoe went into the hole above mentioned,” etc.

The last statement strongly intimates that the hole was in advance of the point at which plaintiff alighted and was probably covered by the car step, so that no exercise of ordinary care in looking where he was stepping would have revealed the danger, thus shutting out the imputation of negligence in performing the act, if the act itself was not necessarily negligent.

The maintenance of the exception of no cause of action involves the assertion of two legal propositions, viz.: first, that the act of alighting from a street horse car while moving, under the circumstances stated, is negligence in se — i. e., necessarily and as matter of law; second, that the particular injury was in such “ordinary, natural sequence” to the negligence as excludes redress. Wharton on Neg., Secs. 1, 3, 73; Fairbanks vs. Carr, 70 Penn. St. 86; Gerhard vs. Bates, 2 Ell & Bl. 490; Summers vs. R. R., 34 An. 144.

The diligent counsel for defendant cites numerous cases holding it to be negligence to jump from a moving steam train, and notably our own recent decision in the case of Walker vs. R. R., 41 An. 795.

He also cites a few cases which apparently apply the same principle to horse cars, though some of these indicate particular circumstances going to constitute the negligence, such as, in one case, that the person attempting to board a moving car “was encumbered with his coat and dinner bucket.” Reddington vs. R. R., 132 Penn. St. 154. But both reason and authority indicate the just and broad distinction between the rules applicable to steam and horse ears.

As Mr..Beach says: “ What might be gross negligence as respects a steam railway might be perfectly prudent and proper to be done in dealing with street cars. We must not, therefore, attempt to apply to street railways the rules of law applicable to steam railways. The cases are different and the reason for the rule ceasing, the rule itself must also cease.” And he further says: “It is well [settled that it is not contributory negligence in se for one to alight from or to board a moving street ear.” Beach on Cont. Neg., Secs. 89 and 90.

The New York Court of Appeals states the rule as follows: “Ordinarily, it is perfectly safe to get upon a street car moving slowly, and thousands of persons do it every day with perfect safety. There may be exceptional cases when the car is moving rapidly, or when the person is infirm or clumsy, or is incumbered with children, packages, or other hinderanees, or when there are other unfavorable conditions, when it would be reckless to do so; and a court might, upon undisputed evidence, hold, as matter of law, that there was negligence in doing so. But in most cases it must be a question for the jury.” Eppendorf vs. Brooklyn, 69 N. Y. 195.

Says the Minnesota court:

“ It is well settled that it is not negligence, per se, for a person to get on or off a street car drawn by horses, while it is in motion. It depends upon the circumstances surrounding each case. The question is ordinarily one of fact to be submitted to a jury.” Shackerl vs. St. Paul City R. R. Co., 43 N. W. (Minn.) ; see also to same effect, McDonough vs. R. R., 137 Mass. 210; Boone on Corporations, Sec. 266; Hutchinson on Carriers, Sec. 645a.

The statements in this petition certainly exclude every exceptional circumstance which imputes any peculiar recklessness to the act. They assert that the car was moving slowly and with slackening speed; that the plaintiff was not “ clumsy or infirm,” but strong and active; they exhibit no “incumbrances or hinderanees” of any kind, and no other “ unfavorable conditions.”

We are called upon to hold that the simple act of voluntarily alighting from a horse car while moving, even under the most favorable conditions, is per se negligence which disables the party from asking redress for any injury resulting from the negligence of another, however gross, concurring with such an act.

Reason and authority preclude such a doctrine.

Finding, therefore, that the petition sets forth a clear ease of fault and negligence on the part of defendant, and that the facts alleged do not, necessarily and as matter of law, establish contributory negligence on the part of plaintiff, we are of opinion that the case should go to trial on the merits, when many surrounding and accompanying circumstances, not necessary to be alleged on the face of the pleadings, may be shown by either party, and when we have the whole case before us we will be better able to balance the scales of fault, and determine the causal results so as to reach a conclusion satisfactory to justice.

It is therefore adjudged and decreed that the judgment appealed from be annulled and reversed; that the exception be overruled, and that the case be remanded for further proceedings according to law.


author: McEnery, J.

text:
    No. 11,060.
    The State ex rel. A. G. Hootsell vs. L. F. Mason, Secretary of State.
    The duties of the Secretary of State in promulgating the returns of election are purely and exclusively ministerial under the election laws of this State.
    The consolidated return of votes, certified to as correct by the clerk of court and forwarded to the Secretary of State by the returning officer, is the official retarn, and the secretary must promulgate from the face of the returns, although it is unaccompanied by the tally sheets.
    He has no discretion whatever to question the accuracy of the clerk’s certificate, to vary or to contradict it, but must promulgate from the official consolidated return, certified to as correct by the clerk, just as the returning officer certifies as correct in his return from the tally sheets, taking them as they come from the commissioners of election, without authority to change a name or a figure, or in any way to change the result.
    APPEAL from the Seventeenth District Oourt, Parish of East Baton Ronge. Buchner, J.

      John S. Boatner, O. C. Bird and Henderson, Spencer & Fenner for Plaintiff and Appellee
    cited: 38 Ohio 603; 32 An. 584; 32 An. 177; Amer. and Eng. Enc. Law, Yol. 6, pp. 311, 312; 20 Pick. 495; 10 Pick. 244; 65 Mo. 480; High Ex. Remedies, p. 60, 2d ed., Sec. 56; McCreary on Elections, 3d ed-, p. 251 Sec. 377; Wait’s Actions and Defences, Vol 4, p. 369.

      M. J. Cunningham, Attorney General, and Kernan & Laycook for Defendant and Appellant:
    1. Each oí the three departments of government are distinct, co-ordinate and of equal dignity; and the executive department, of -which the Secretary of State is a part, is independent of the control of the judiciary. Constitution, Arts. 14, 15 and 58; State ex rel., etc., vs. Doherty, 25 An. 120.
    3. The Secretary of State has the discretion to determine what constitutes a valid return; or, at least, whether a return is in due form and made by the proper officer, and whether the same is entitled to full faith and credit. Act No. 58 of 1877, Sec. 39, amended by Act No. 101 of 1882, Sec. 6; State ex rel., etc., Water Works Co. vs. Deslonde, 27 An. 73; State ex rel. Blackman vs. Strong, 32 An. 177; State ex rel. Barbin vs. Strong, 32 An. 585.
   On Motion to Dismiss.

The opinion of the Court was delivered by

McEnery, J.

The appellee moves to dismiss the appeal on the ground that the transcript is incomplete; that documents marked ABO and P were offered, received and filed in evidence; that by agreement of counsel said documents were to come up in the original as part of the transcript, and were not to be copied in it; that the record was made without the said documentary evidence being included therein, but attached thereto in accordance with said agreement, which is copied in the transcript; that the said papers were thus delivered by the clerk of the court to the attorney representing appellant, and not filed with the transcript, but in this court. The agreement is as follows:

“ It is agreed between counsel that in case of appeal all documents offered either by defendant or relator shall not be copied in the record, but the same shall be attached to the record in the original, and shall go up in that form.”

The documents referred to were a part of the public archives of the office of Secretary of State. They were, we presume, returned to their proper place of deposit in his office after the trial in the lower court by the clerk of court. They were filed in this court, accompanied by an official statement of the Secretary of State, that they had remained in his office, as he understood, by consent of both parties.

The failure to file them is not attributable to appellant..

The motion to dismiss is denied.

On the Merits.

This is a proceeding by mandamus to compel the respondent Secretary of State “to canvass and compile and promulgate the returns of election of the parish of Ooncordia from the legal returns of said returning officer and the official legal tally sheets in his office, and that he be commanded to leave out and disregard in his canvass and promulgation the pretended votes as appears by the certificates, affidavits, etc., of the commissioners to have been cast at wards 8, 8 and 10 in said parish.”

It appears from the record that at the recent' general election the boxes and tally sheets in these wards were destroyed, and never reached the returning officer, and were not deposited, as the law directs, with the clerk of court.

The returning officer, however, made up his return and forwarded the same to the Secretary of State. From these wards the returns were undoubtedly tabulated from affidavits of the commissioners of election, showing what was the real and actual vote cast.

If the Secretary of State should intend to make these affidavits,, certificate 'and statements of the commissioners the return upon which he based his promulgation of the election, there is no doubt but that this action would be unwarranted and illegal, and the writ-of mandamus would issue peremptorily confining him within the limits of his duty to promulgate the returns as forwarded by the-returning officer.

The duties of the Secretary of State under the election law of this. State are purely and exclusively ministerial, and he has no power, authority or discretion to go outside of, beyond or behind the official returns, properly certified to as being correct by the clerk of court. State ex rel. Barbin vs. Secretary of State, 32 An. 584.

What is the return from which he promulgates the result of the-election ?

This, we think, is answered in the plain textual provisions of Sec-2 of Act 99 of 1878, which is as follows:

“ That it shall be the duty of the returning officer of each parish to make out triplicate returns, to be certified by the clerk of court in whose office the ballot boxes are deposited to be correct.

“ He will forward one of the returns, and the tally list from which it is made, immediately by mail to the Secretary of State; he shall deliver the other two to the clerk of the court, who will immediately forward one of them to the Secretary of State, and shall file and preserve the other one in his office.”

The tally sheet which accompanies the return is evidently intended as a check upon the returning officer, and to contradict him if he makes a false return. The two returns, which he is required to forward to the clerk of the court, are not accompanied by the tally sheets, as the clerk already has them in his office and can readily verify the tabulated statement of the returning officer.

The return forwarded by the clerk to the Secretary of State is also intended as an additional safeguard against the corrupt conduct of the returning officer, and to preserve evidence against him, in case it is necessary to question the accuracy of his official statement to the Secretary af State.

The return ” is the consolidated statement of votes made by the returning officer to the Secretary of State. From this consolidated statement it is the duty of the Secretary of State to make his official promulgation of the election. He has no discretion whatever to question the return, to vary or contradict it, but must promulgate from the official consolidated return, certified to as correct by the clerk, just as the returning officer must make his consolidated returns from the tally sheets, taking them as they come to him, without the power or authority to change a name or a figure, or in any way to change the result. Sec. 6, Act 101 of 1882.

In the record there is a complete consolidated return certified to by the clerk of court, as being correct, forwarded by the returning officer to the Secretary of State. It was unaccompanied by the tally sheets, but this did not destroy its effect, as the official return of the returning officer of Concordia parish. The tally sheets are vouchers or evidence of its correctness, but in the absence of these the Secretary of State must take the return as correct, when certified to by th clerk.

This certificate is essential to its completeness, without which there could be no official return, as it is a part of it.

The certificate accompanying and attached to the consolidated statement of votes is as follows:

“ State of Louisiana, \ “Parish of Concordia./

“ I do hereby certify that the above and foregoing is a true and correct- compilation of the votes cast at the general election of April 19, 1892, as appears from the commissioners’ returns filed in my office.

“ In testimony whereof witness my official signature and seal of office this 5th day of May, 1892.

“ W. E. Shields, Clerk Ninth District Court.”

This return was first received without the above certificate, but was forwarded to Concordia parish by the Secretary of State, and returned with the clerk’s certificate and thus completed.

The respondent secretary has no authority to go behind this return and inquire into the truth or falsity of the certificate.

His promulgation must be made from the face of the return.

“All irregularities in election, resulting from fraud, violence or other cause are to be corrected, not by the Secretary of State, but by the proper proceeding before the court.” State ex rel. Babin vs. Secretary of State, 32 An. 584.

It is therefore ordered, adjudged and decreed that the judgment appealed from be annulled, avoided and reversed, and it is now ordered that the rule granted herein be discharged, and the relief prayed for by relator be denied, the relator to pay all costs.


author: Nicholls, C. J.

text:
    No. 11,048.
    The Canal & Claiborne Railroad Company vs. The St. Charles Street Railroad Company.
    The St. Charles Screet Railroad Company and the Canal & Claiborne Streets Railroad Company, two corporations organized under the general laws of the State, each holding assignable street railway franchises, entered into a contract (each acting for itself, its successors and assigns) by which the first agreed to pay to the second, as a consideration for authorizingjit to run its cars over its track, four cents per mile for each and every mile traveled by each and every car run over its track, said agreement to last during the term of the charters granted to the said respective corporations, or of any extension of said charter, provided that in case the first company shall cease to use the privileges granted to it in the contract, then and in that case the agreement shall be ended.
    Held:
    1. That where the first company is in undisturbed possession of the right, exercising and enjoying it every day, it can not release itself from its contract obligations on the claim that the agreement was ultra vires of the powers of its officers.
    If there be any legal objections to the contract they must be set up under other conditions, and in a different manner.
    2. Where, under such a contract, the Canal & Claiborne Streets Railroad Company conveys all its rights, property and franchises, specially including therein its rights under the agreement mentioned, to the Canal & Claiborne Company, which assumes all the obligations of the former under the agreement, there is nothing in the assignment of which the first company can complain.
    3. The Canal & Claiborne Railroad Company having been organized by the stockholders of the Canal & Claiborne Streets Railroad Company, and for the express purpose of acquiring all the rights, property and franchises of the old company, and assuming all its obligations, and the old company having postponed its dissolution until after such transfer and assumpsit should have been made the new company, for the purpose of the contract declared on in this case, was mereiy the old company reorganized under a new name.

      4. The city of New Orleans has at all times recognized the right of the Canal & Claiborne Streets Railroad Company to remuneration for the use of its tracks by other companies, and the right of the companies inter se to fix the value of that right, and the dealings between the City and the St. Charles Street Railroad Company have all been subordinated to that right, and by way of affirmance, not destruction thereof.
    APPEAL from the Civil District Court for the Parish of Orleans. Voorhies, J.
    J. R. Beckwith tor Plaintiff and Appellee:
    1. Under the Constitution of 1879, private property can not be taken or damaged for any public use until full compensation is made. Constitution 1879, Article 156; Griffin vs. R. R. Co., 41 An. 808; Cooley, Const. lam. 680, 681 (note); Chicago vs. Taylor; 125 U. S. 161,170; Railroad Co. vs. Ayers, 106 Oll. 518.
    2. When any individual or corporation is to be divested of property for any public use, against the will of the party to be divested, a strict compliance with the law providing for expropriation, and the conditions precedent to taking the property, must be strictly complied with, or title and rights are not divested, and the party claiming to have divested any one of property and right must affirmatively show full compliance. Cooley on Const. Lim., 528; Gillen vs. R. R. Co., 113111.1; Stanford vs. Warn, 27 Cal. 171; Nicholls vs. Bridgeport, 23 Conn. 189; Judson vs. Bridgeport, 25 Conn. 428; People vs. Brighton, 20 Mich. 57; Canal & Claiborne R. R. Co. vs. The Orleans R. R. Co., 44 An. 54.
    3. The grant of street railway franchise under which the plaintiff, the Canal & Claiborne Railroad Company, is now operating its road on Canal street, contains no condition or limitation of the grant, by which the city of New Orleans can grant other railway companies lawful right to run their cars on that company’s track on Canal street, without the consent of the Canal and Claiborne Railway Company first given and. obtained.

      Harry H. Hall for Defendant and Appellant:
    1. A contract made by its express provisions to endure during the term of the charters of the contracting parties ends with the expiration of one of said charters.
    2. Where one company uses the line of another company, made a trunk line by municipal Older and its contract with the city, and this use is ordered by the city, and where, under a contract to pay wheelage, the company thus authorized used said trunk line, upon the termination of its contract it does not become a trespasser, but may continue the use of said trank line upon paying the compensation provided by the franchises of the original occupant. 41 An. 563.
   The opinion of the court was delivered by

Nicholls, C. J.

Plaintiff’s petition is to the effect that on and before the 26th of July, 1870, the Canal & Claiborne Street Railroad Company, a Louisiana corporation, was the owner of a street railway on Canal street in the city of New Orleans, with full right to have, maintain and operate the same, granted to and confirmed to said company by the city of New Orleans.

That the defendant at that time was in possession of a grant or right to maintain and operate a street railway on other streets, particularly on St. Charles, Carondelet, Dryades, Rampart and other streets, and claims to have and possess such right down to the present time under divers grants from the city of New Orleans and has continuously operated the same.

That on the 26th of July, 1870, the defendant, desiring to connect its several lines of railwav or the service on its various lines on different streets, made application to the Canal & Claiborne Streets Railroad Company for permission to use or employ a portion of the railway track of that company on Canal street for that purpose, so that defendant’s track connected with said tracks on Canal street by proper connections would enable defendant to run its cars from its lines on the various streets over its system of tracks above Canal street, passing up one line and down another of its lines, a matter of great convenience and economy to the defendant.

That to accomplish that object the defendant entered into a negotiation with the owner of said tracks on Canal street, resulting in the execution of a notarial act of agreement between the said railroad companies.

That in said contract the defendant, for itself, it successors and assigns, entered into an obligation with the Canal & Claiborne Street Railroad Company and its successors and assigns to pay 4 cents per mile for each and every mile traveled by each and every car run by the defendant on said track on Canal street from Rampart to St. Charles street.

That it was stipulated and agreed that the contract should continue and be in force and effect during the term of the charter granted to said respective companies, and for and during any extension thereof and while the defendant continued to run its cars on said track on Canal street.

That, as soon as said contract was entered into, defendant commenced running its cars on said track and made payment up to the month of June, 1887, but from that date has refused to pay any sum whatever for the use of said track, and although still running its cars over the same has refused to pay therefor, and has in all respects made default on said contract.

That there is due to the plaintiff, under the contract, the sum of $60 for each and every one of the months that elapsed from the end of June, 1887, up to the end of April,' 1890, soon after which time the present suit was instituted.

That on the 8th of May, 1887, the grano of franchise to construct and operate its street railway, before that time vested in the Canal & Claiborne Streets Railway Company, expired by limitation, but the said company still owned the tracks, roadway and structure of said railway, the city of New Orleans never having acquired the same by purchase or payment of the appraised value thereof; but on the 18 th December, 1887, the city of New Orleans for a valuable consideration again granted the said company further right to have and operate its said street railways for the additional term of twenty-five years, said term commencing to run from the date of the expiration of the former grant (8th May, 1887), so that the two grants make continuous right without interval.

That after said grant had vested in and become the property of the said corporation it sold and transferred to the ■ plaintiff corporation, the Canal & Claiborne Railroad Company, all of its right, title and interest in and to said franchise railway and all of its property and assets whatsoever, and all demands under and by virtue of said contract with the defendant, and thereby the plaintiff became entitled to enforce the same.

That the defendant has no right to run its cars over the track of plaintiff, except under and by the terms of said contract, and by reason thereof and that in the premises it has become indebted to plaintiff in the sum of $2040 up to the end of April, 1890, for which sum with interest from judicial demand it prayed judgment, reserving its right of action for all sums of money that may become due under said contract after the end of April, 1890.

The defendant’s answer admits the contract of 26th July, 1870, but avers that said contract, in so far as it purported to impose for an indefinite t'me upon it the obligation of paying the excessive charges as therein set out, was beyond the power of defendant’s officers and ultra -vires.

It admits that if it be liable as set out in plaintiff’s petition, the amount stated of $2040 is a correct statement of the same, but it denies that defendant is so liable.

It avers that prior to the 26th July, 1870, Louis Surgi, city surveyor, under instructions of the Oouncil of New Orleans, prepared a plan for a trunk railroad for the line of street cars onOanal street; that the line of plaintiff (for the use of which it sues the defendant herein) was a part of said trunk railroad, as designated by said plan; that in the contracts for right of way made between the city of New Orleans and plaintiff it was expressly stipulated that said line of plaintiff’s road should be used for trunk lines of the various street railroads running on Oanal street upon payment by the railroad companies so using plaintiff’s line of a just and reasonable compensation therefor.

That under its police power the city had the unqualified right to compel defendant to use said trunk lines and did so compel it; that therefore the stipulation in said contract for four cents per mile for each car, in so far as it exceeds defendant’s proportionate part of the construction and operation of said road, was without consideration.

That on April 11, 1881, by virtue of Ordinance 6971 (A. S.), the city of New Orleans granted defendant a new franchise and right to pass over said line on Canal street.

That in 1886 the charter of the Canal & Claiborne Streets Railroad Company expired, thereby putting an end to said contract.

That on July 22, 1887, defendant notified plaintiff that it would no longer pay 4 cents per mile provided in said contract but expressed its readiness to pay a fair proportion of the cost of construction and operation of said line, in maintaining the same, and that it is liable for no more.

It prayed that plaintiff’s demand be rejected and that defendant be condemned to pay only such just and proportionate part of the cost of construction and maintenance of said road as might be determined by the court.

The court had occasion recently, in the matter of the Canal & Claiborne Railroad Company (the plaintiff herein) vs. the Orleans Railroad Company, reported in 44 An. 55, to examine and pass upon a contract between those parties which, save in a few unimportant particulars, is identical with that declared upon in this suit.

Under such circumstances it would be naturally expected that the construction placed upon that contract would be adopted for the present one, but the defendant most strenuously urges that in the former case the distinction between the charter of acorporation and the franchises acquired by it after organization was not sufficiently sharply drawn nor the point'sufficiently pressed, that when the Canal & Claiborne Street Railroad Company went, as it did, into liquidation on July 2, 1887, the contract between the parties of July 26, 1870, terminated under its express terms.

The positions taken by the present defendant were taken in the first case and evidently considered by the court, but as original propositions submitted to us we hold them to be not tenable.

When the contracting parties to the contract of July 26,1870, met, they met to deal with an assignable transmissible right — each of the parties was expressly contracting for itself, its successors and assigns — neither corporation owed its origin to a charter granted to it, but both were created by notarial act under the authority of a general law for the formation of corporations.

The defendant was anxious to acquire the right to run its cars over the track owned and operated by the Canal & Claiborne Streets Railroad Company. That company was willing to grant the right and to bind itself, its successors and its assigns that it should be held to the defendant so long as it should think proper to avail itself of the same.

The minds of both united, not only on that point but also as to the value of the right so conveyed and acquired. The contracting parties, as they had the legal right to do, as between themselves, settled the consideration to be paid.

The defendant entered at once upon the enjoyment of the right which it has ever since possessed and exercised undisturbed.

The plaintiff company, which is the present owner of the track on Canal street, is not only bound by law to acknowledge and maintain the right of the defendant but its action in bringing this suit, would estop it from contesting it.

The city of New Orleans, in whom, according to defendant, is vested control over the whole matter under its inherent police powers and under a reservation in its contract with the Canal & Claiborne Streets Railroad Company, has not only not manifested a disposition to interfere with the rights of these partiés inter se, but everything it has done since has been by way of affirmance, not destruction.

The city has at all times recognized the right of the railroad company to remuneration for the use of its road; it stands perfectly indifferent as to what the amount of the same might be, and has never assumed the right or put forward a claim to determine that matter, where the companies have between themselves agreed upon what a fair value was.

We see no ground upon which defendant can be relieved from carrying out the contract which ib has made.

In the actual undisturbed possession of the right conveyed by the contract — exercising it every day — it is difficult bo see how the defendant can plead that the contract was ultra vires; besides this the contract was not for an indefinite time — its duration was expressly provided for. If there be any legal objection to the contract it must be set up under ¿other conditions and in other manner than it has been here.

The views we have expressed cover the whole grounds, we thick, of the controversy in this case; but as the defendant places special reliance upon the fact already alluded to, that the Oanal & Olaiborne Streets Railroad Company went into liquidation and was dissolved on the 2d day of July, 1888, and claims that that fact terminated the contract of 26th July, 1870, we think it right to make a special reference to that contention and to say that in our opinion, for the purposes of this contract, the Canal & Claiborne Railroad Co. is nothing more than the Canal & Claiborne Streets Railroad Co., re-organized under a new name. The former company has acquired all the property, rights and franchises of the latter and has assumed all its obligations.

The avowed purpose of the old company in going into liquidation was to turn over all its assets and rights, and also all its obligations to the new one, and its dissolution was intentionally postponed to a period subsequent to the accomplishment of that object — the avowed purpose of the creation of the new company was to acquire those rights and that property and to assume these obligations.

The members of the Canal & Claiborne Railroad Company were the stockholders of the Canal & Claiborne Streets Railroad Company. There is no claim or pretension that the defendant has suffered or will suffer financially or otherwise by the change, and it would be subordinating substance to technicality were we to hold that defendant has been released from its contract obligations by reason of it. We say this upon the assumption that the continued existence of the old company entered as a factor in determining the rights of the parties in this case. See Day et al. vs. Worcester & N. R. R. Co., 23 N. E. Rep. 824; 21 N. E. Rep. 364; 25 N. E. Rep. 975.

For the reasons herein assigned it is hereby ordered, adjudged and decreed that the judgment of the lower court be and the same is hereby affirmed.

Judgment affirmed.


text:
    No. 11,031.
    Succession of Henry T. Vennard.
    1. The law fixes the domicil of minors and attaches it to the domicil of their father, or mother, or tutor, and, in case of the death of these, to the place of their last domicil.
    2. Minors are incapable, by their own acts to change their legal domicil.
    3. The appointment of tutors belongs to courts of the minor’s domicil, and courts of this State can attach no validity to appointments made by courts of other States of guardians to minors domiciled in this State.

      4. The appellant in this case having appeared in no other capacity than as alleged foreign guardian, and having asked no other relief than to be recognized as such, the decision denying that capacity obliterates him as a party, and exhausts all his rights or interest as appellant. He can not be heard to urge objections to a judgment appointing a tutor in a proceeding to which he was not a party and in which he raised no issue. If, as an individual and third person, he could claim the right to appeal, he must comply with the rules regulating appeals by third persons not parties, which he has not done.
    APPEAL from the CíyíI District Court for the Parish of Orleans. King, J,

    J. L. Spearing for the Tutor, Appellee:
    A minor, whose parents had their last place of domicil in this State, retains his domicil here after their death, notwithstanding the removal of the minor to another State. 19 An. 499.
    Only the court of the domicil of the minor can appoint a tutor to the minor. 13 An. 265; B. C. O. 307; 19 An. 499
    A minor can not, of his own accord, change his domicil. Story on Conflict of Laws, Sec. 46; American and English Encyc. of Law, Yol. 5, p. 866, and authorities; B. C. C. 38, etseq.

    Courts of this State will not recognizethe appointment of a guardian, by thé courts of another State, to a minor who has his domicile in this State, but will treat such an appointment as a nullity. 19 An. 499; 13 An. 265.
    The appointment of a tutor to a minor, both of whose parents are dead, wili be made by the judge of probate of their last place of domicil, if they had one, or if they had no domicil, of that of the minor’s nearest relations. C. P. 944 and 945; 19 An. 499; 13 An. 265.

      W. S. Benedict and H. G. Gage contra:

    1. Under Art. 130 of the Constitution of 1879 the division seized of jurisdiction by allotment has sole and exclusive jurisdiction to the final ending of the case.
    2. When a succession involving a'tutorship is allotted to a division, no other division has any right or jurisdiction to appoint a dative tutor. 19 An. 499.
   The opinion of the court was delivered by

Fenner, J.

This is a controversy as to the tutorship of the minor,Henry V. Smith, the son of Francis C. and Alice M. Smith, residents •of the city .of New Orleans.

Francis O. Smith died in 1884, leaving this minor son as his sole heir. His succession was opened in the Civil District Court, and was allotted to Division O, and in.that proceeding, the mother Alice ■C. Smith, appeared and was qualified as natural tutrix, with Henry T. Vennard, grandfather of the minor, as under-tutor, under an inventory showing a small estate appraised at $877.80.

The natural tutrix subsequently died, and the minor was then sent to an aunt in Melrose, Mass., “ for the purpose” (as stated in the admitted facts) “ of receiving a proper education, and being undér proper moral training.”

No new tutor was appointed to the minor.

In 1862 the grandfather and under-tutor, Henry T. Vennard, died, leaving a large estate, in which the interest of the minor, as one of his heirs, was appraised at $55,049.68.

The succession of the grandfather was opened in the Oivil District Oourt, and was allotted to Division B of that court. *

The minor-was thus left without either a tutor or under-tutor, and the bulk of his estate was embraced in the succession of his grandfather, under administration in Division B.

No proceedings were taken to fill the vacancy in Division 0, where the original tutorship vras opened; but George H. Vennard, maternal uncle of the minor, filed an application for dative tutorship’ in the succession of the grandfather before Division B.

The usual formalities were fulfilled, an inventory of the minor’s estate was taken, and a family meetingwas held, which recommended the appointment of the applicant.

While this application was pending, Dr. Julius S. Olark, of Massachusetts, presented a petition in the same proceeding and before the same Division B, exhibiting letters of guardianship which had been issued by the Probate Oourt of Middlesex county, Mass., where the minor remained under charge of his aunt, and praying to be recognized as such under the law of this State relative to foreign guardians.

Dr. Olark did not appear by way of opposition to the application of Geo. H. Vennard for tutorship, but the latter did appear and file an exception to the petition of the guardian, on the grounds that it exhibited no cause of action, and no legal authority to represent the minor.

The matters seem to have been tried and submitted together on evidence adduced by both parties, and judgment was rendered refusing to recognize the Massachusetts guardian, and appointing George H. Vennard as tutor, from which judgment the guardian appeals.

The eorrectness of the judgment on the merits of Clark’s application does not admit of serious controversy.

The textual provisions of our codes fix the domicil of the minor at the domicil of his father, mother or tutor. R. C. O., Art. 39. The father, mother and tutor of this minor never had any other domicil than this city. These provisions further direct that the appointment of tutors belongs to the judge of the domicil of the father or mother, if either is living, or if dead, to the judge of their last place of domicil. Rev. O. C., Art. 307; O. P., Arts. 944, 945.

The law fixes the domicil of minors and attaches it to that of their parents or tutors. Minors are incapable, by any act of their own, to change their domicil.

The instant case runs on all fours with that of Succession of Stephens, 19 An. 499, where after the death of the parents who were domiciled here, and after the death of the tutor who had been appointed here, the minors were removed to another State by their nearest relations, who had themselves appointed guardians in said State, and then applied to the court here to be recognized as such. This court rejected the application on the grounds that the removal of the minors did not change their domicil, and that no court other than that of the domicil had power to appoint a tutor or guardian. See also Sue. Shaw, 13 An. 265; Story’s Conf. of Laws, Sec. 46; 5. Am. and Eng. Ency. of Law, p. 866.

In the succession of Shaw, just cited, the court weightily said:

*c With all the respect which we entertain for the acts of the authorities in our sister States, we ean never admit the least validity in the appointment of a guardian by the courts of another State to a. minor whose domicil is here. As a consequence, in virtue of such foreign appointment, such supposed guardian can not stand in judgment nor exercise any right in our courts in reference to the minor which any other stranger could not exercise.”

The judgment appealed from is a double one: first, rejecting the application of the foreign guardian; second, appointing Yennard as tutor.

On the firsr branch we consider that the correctness of the judgment is conclusively demonstrated, and this conclusion, as we think,, puts an end to the rights and interest of the appellant in this appeal.

He undertakes, in this court, to attack the judgment appointing the tutor, on the ground that Division B of th’e Oivil District Court was without jurisdiction to appoint the tutor.

He urged no such objection in the lower court. Not only so, but he never made any issue of any kind on that application, and can not be properly considered as even a party thereto. The applicant for tutorship had complied with all the requirements of the law; no opposition had been or was ever filed thereto, and, on the face of the papers, nothing stood in the way of his appointment in due course, except the pendency of the separate and independent application by the foreign guardian. When that was rejected, under the issues before the court, every apparent obstacle to the appointment of the tutor disappeared, and, naturally, the appointment followed.

Clark never appeared in any other capacity than as foreign guardian, and never claimed any other relief than to be recognized as such. When the existence of that capacity was negated by the decision of the court he disappeared as a party to the cause, unless, by appeal, he could reverse that judgment; and now, that decision having been affirmed, his obliteration as a party must stand good.

His right as appellant is exhausted when the only issue tendered by him, or in which, in the capacity in which he appeared, he had any interest, is determined adversely to him.

If, as an individual or third person, he has any right or interest to appeal from the judgment appointing the tutor, he must conform to the rules prescribed for appeals by third persons not parties, which he has not done.

While not meaning to cast any reflection upon the validity of the judgment appointing the tutor, the above views indicate the logical necessity that we should abstain from passing thereon on the present appeal.

It is therefore adjudged and decreed that the judgment appealed from, in so far as it rejects the application of appellant as guardian, be and the same is hereby affirmed, and that, in other respects, the appeal be dismissed.

Rehearing refused.