text:
    No. 11,196.
    Timothy Byrne vs. Parish of East Carroll.
    The condition of the contract was that the contractor would be paid from a special fund, if voted on favorably by the voters at a special election.
    The contractor can not recover judgment against the defendant parish and ignore the means agreed upon to secure his payment.
    The special election was ordered and held in contravention of a prohibitory law, and was null and void.
    A municipal corporation can not be estopped from pleading and showing that certain acts were not within the scope of its authority.
    The doctrine of estoppel in its application to municipal corporations is subject to restrictions and qualifications.
    The question being one of original power to hold a special election, and not one relating to the compilation of the votes and declaring the result, is not one exclusively within the discretion of the police jury. It is subject to judicial inquiry and decision.
    APPEAL from the Seventh District Court, Parish of East Carroll. Wyly, Judge ad hoe.

      Robert Whetstone for Plaintiff and Appellant.

      Jos. E. Bansdell for Defendant and Appellee.'
   The opinion of the court was delivered by

Breaux, J.

Plaintiff, on the 3d day of December 1880, entered into a contract with the Police Jury of the parish of East Carroll to build an embankment known as thej“Airlie protection levee,” in that parish, as laid out by the engineer of the State.

He was to receive as compensation for the work 11 cents per cubic yard from the parish, and as much from the State. The State authorities paid the amount they agreed to pay.

The defendant, by the terms of the contract, made the payment of 11 cents per cubic yard depend upon a proposed tax of 10 mills on the dollar, to be voted upon by the tax-payers on the 5th day of January, 1881.

An election was held at the time.

The defendant paid the sum of $1615.57 on account. The plaintiff sues to recover the balance of $4485.51.

A petition signed by fourteen tax-payers of the parish, dated November 14, 1880, was presented to the police jury on the 2d day of December, 1880, asking that they order a special election to raise funds “ for the payment of expense of building levees.”

All the witnesses testify that it was the petition upon which the police jury acted in calling the election to vote upon a special tax on January 5, 1881.

The ordinance calling the special election is dated the 2d day of December, 1880.

The day after its adoption by the police, jury that body contracted with the plaintiff to build the “Airlie protection levee.” The contract contains the following stipulation: “It is understood that the payment of said 11 cents per cubic yard is dependent upon the pro - posed tax of 10 mills on the dollar, to be voted on for levee purposes on the 5th day of January, 1881. If voted on favorably the police jury will proceed to have the proceeds collected for the purpose herein named, to-wit, the payment of the contract and other levee expenses, and the said T. Byrne, contractor, party of the second part, hereby accepts the foregoing contract with all its provisions.”

The election was held on the 5th of January, 1881. At the election 289 tax-payers voted for the tax and 10 against.

The amount they represented as owners of property is not proven. The amount of the total assessment of the property of the parish at the time is not shown.

The evidence discloses that there were then 800 property tax-payers in the parish. After the election an ordinance was adopted directing the assessor to extend statements of the tax upon the assessment roll as required, and ordering the tax collector to collect the tax. The amount of $1642.51 had been collected and paid to plaintiff, when the police jury adopted an ordinance declaring the tax illegal, and instructing the sheriff not to collect the tax.

The plaintiff in his petition “prays that the said police jury, through its president, be cited to answer hereto, and that on trial he recover judgment for said sum.”

The defendant denies all of plaintiff’s allegations, and avers that the ordinance authorizing the contract did not provide the means of paying the debt contracted, and that the provisions in regard to the levy of a special tax were unconstitutional, null and void.

The judgment dismisses the suit. Plaintiff appeals.

Plaintiff does not sue to have the ordinance setting aside the prior proceeding rescinded, and to be restored to any rights under the repealed ordinances.

He alleges that the police jury has made these repeals, and claims an unconditional judgment.

If an error has been committed, he argues that the defendants should not be .benefited by it, and that he should not be subjected to the loss of an amount to which he is entitled.

The plaintiff chose to make the payment dependent upon the proposed tax of 10 mills, and the special election of 5th of January, 1881.

The terms of the contract are positive and sufficiently clear.

Dealing with a municipal corporation, whose funds are purposely held separate to meet appropriations and current annual expenses, courts are without authority to reform the contract, change its terms and to direct that the creditor shall be paid out of other funds than those provided at the formation of the contract. Municipal corporations have no power to contract any debt or pecuniary liability without providing the means of payment. R. S. 2448.

The ordinance creating the debt should provide the means of paying the principal and interest. Wilson vs. City of Shreveport.

The pertinent question is whom did the creditor trust?

He knew the capacity of those with whom he contracted and looked to a special fund for payment. Trastour vs. Fallow, 12 An. 29.

The decision referred to by plaintiff from Oubre vs. Donaldsonvilie, 33 An. 390, did not support his contention. The town in that case was held bound in bonds to the extent of the provisions made for the payment of the same.

This is the only point decided, and which has entered into the body of precedents.

In Cole, Executor, vs. City, 41 An. 845, it is stated that a different conclusion has been reached than that reached in that case, when the “ rule has been applied to cases in which the contract expressly and in terms stipulated that the contractor agreed to restrict his right of payment to resources or revenues provided for in the contract.”

Plaintiff’s claim, by special agreement, was to be paid out of a ■special fund, and comes within the rule referred to in that case.

The decisions of the Supreme Court of the United States support a similar conclusion: “ A mandamus will not lie to compel the levy of taxes beyond the amount so authorized,” and after the payment of the special fund the creditor did not have “an increased right to a levy of taxes. United States vs. County of Macon, 99 U. S. 591. (Italics ours.)

Courts can only bring existing powers into operation. Supervisors vs. United States, 18 Wall. 81; see also Dillon on Municipal ■Corporations, Sec. 413, 2d Edition.

The plaintiff, if he can recover at all, is without right to recover an absolute judgment against the parish. His claim is subject to the limitation he has himself placed upon it, to be paid from the “ ten-mill levee tax,” which was submitted to a vote at a special election.

The conclusion just reached brings us to the second issue involved, that relating to a “special fund,” the right to which is disputed by the defendant on the ground of the unconstitutionality and illegality of the proceedings.

At the time the election was held, January 5,1881, no legislative act had been adopted as an enabling act to Art. 209 of the Constitution.

This court held in Surget vs. Chase, Tax Collector, 33 An, 842, that the Art. 209 is not self-acting, and said that the proposition that it is self-operating and confers upon the parishes the absolute power to levy unlimited taxes, upon the vote of a mere numerical majority of the tax-payers, without reference to the value of the assessable property of the parish, is startling.

The election, the legality of which is assailed in this case, was held under Act 84 of 1880, (since repealed) the enabling act, t.o Art. 242 of the Constitution, which article entrusts the General Assembly with the power of enacting general laws; authorizes the parishes to levy special taxes in aid of public improvements, on a vote of a majority of the property tax-payers in numbers and value; provided, the tax does not exceed five (5) mills per annum, nor extend for a longer period than ten years.

The act of 1880 empowered the police jury to order a special election and submit the rate of taxation to a vote of the property tax-payers, whenever one-third of the property tax-payers petitioned for the purpose.

In reference to the special election a majority of the property taxpayers, in number and in value, was required in order that it might be legally carried in favor of the tax. Sec. 3 of Act 84 of 1880.

The illegalities of this special election disclosed by the record are:

1. That the signers of the petition were less in number than one-third of the property tax-payers of the parish; also it is not proven that the number of votes cast represented a majority of the property tax-payers in number and in value.

In reference to the number who signed the petition:

It appears on the face of the papers that the law with reference to election, has not been followed.

The assessed value of the property in East Carroll not having been proven, it can not be said by reference to the record, that, the election was carried by a majority of the property tax-payers in number and value.

2. The purpose in submitting the tax to a vote was not stated in the ordinance to hold the special election.

That part of the ordinance reads: “That the following ordinance levying a special levee tax of 10 mills on the assessment roll of 1880' be and is submitted to a vote of the property tax-payers.”

“A special levee tax of 10 mills,” is hardly a statement of the purpose of the police jury in submitting the ordinance to a vote of the property tax-payers, if that purpose was to provide a fund for building a protection levee.

It can not be determined, with any certainty, whether it was a public levee forming part of the State system, and not a levee left to the police juries to devise means to build, under Act 188 of 1880.

3. The vote of the special tax was in excess of the constitutional limitation.

Article 242, the only article operative at the time upon the subject, is mandatory and is a prohibitive limitation against the imposition of a tax, of more than 5 mills per annum.

The plaintiff signed the contract after these proceedings of the police jury had been completed.

The plaintiff pleaded specially that the defendant having paid for part of the work is estopped from defending on the ground of illegality in the matter of the special election held, and he also argues that as the police jury had the authority to submit the matter to the voters and declare the result, the courts are without jurisdiction of the question. He relies in support of the last proposition upon the case of Davis, M yor. vs. Police Jury of Bossier, 43 An. 7009.

Though the illegalities disclosed by the record are not all in contravention of prohibitory laws, it is not possible, by the most liberal construction, to conclude that none of them contravene laws prohibitive in terms.

The acts done in contravention of prohibitory laws are null, and an ordinance conflicting with the Constitution is void.

The unauthorized contracts of a municipal corporation are void, and they may successfully plead ultra vires.

They are not estopped from pleading that a contract is ultra vires.

Mr. Dillon forcibly says: “The general principle of law is settled beyond controversy that the agents, officers, or even city council of a municipal corporation can not bind the corporation by any contract which is beyond the scope of its powers. * * * The opposite doctrine would be fraught with such danger, and accompanied with such abuse, that it would soon end in the ruin of municipalities, or be legislatively overthrown. These considerations indicate both the reasonableness and necessity of the rule that the corporation is bound only when its agents or officers, by whom alone it can act, if it acts at all, keep within the limits of the chartered authority of the-corporation.

“ The history of the workings of municipal bodies has demonstrated the salutary nature of this principle, and that it is the part of true wisdom to keep the corporate wings clipped down to the lawful standard.” Sees. 281, 382, 749.

We are concerned only with the doctrine of ultra vires as applied to municipal corporations, which differs greatly from the doctrine as applied to private corporations. La. State Bank vs. Orleans Nav. Co., 3 An. 314.

Any party contracting with a municipal corporation must take notice of any want of authority which the public records would show. Cooley on Constitutional Limitations, Sec. 196; Dillon, Sec. 55; March vs. Fulton Co. 10 Wall. 683.

The plea urged to the jurisdiction of the court can not be maintained, for the issue is not one arising from an election.

There is no question as to the mode adopted in holding the election, of unfairness in voting, or incorrectness of the returns.

It is a matter of original power, and of failure to observe the restrictions and limitations imposed, presenting legal questions within, our jurisdiction.

The judgment is therefore affirmed at appellant’s costs.


source: Caselaw Access Project

author: Nicholls, O. J.

license: Public Domain

text:
    NO. 11,088.
    Julia O. Rob, Widow of John Greene, vs. The Heirs and Executors of Louis F. Bundy.
    1» A vendor, until delivery to his vendee, occupies tlie position of a precarious possessor. His ‘‘detention” of the property sold is his vendee’s “ possession” of the same.
    2. If a vendor could before delivery by some act of his own, such as is termed by the French commentators an “ acte de contradiction,” place himseli m a position of hostility to his vendee and alter the character of his possession from that of its origin by an “ interversión of possession,” it would be required of him for the purpose of acquiring ownership of the property by the thirty years’ prescription that he should clearly establish that knowledge of this change of position had been brought home by him to his vendee.
    APPEAL from the Civil District Court for the Parish of Orleans. King¡ J.

      J. McConnell, Jr., for Plaintiff and Appellant.

      T. H. Thorpe and Gus A. Breaux for Defendants and Appellees.
    J.. The vendor of iand is estopped by his warranty of peaceable possession from doing any act in disturbance of the vendee’s possession, and hence can not plead against his vendee the prescription of thirty years acquirendi causa. R. C. C., Arts. 2479, 247G, 2504; Sedgwick & Waite on Trial of Title to Land, 543; 13 An. 13; 34 An. 648 ; 43 An. 849 ; 9 R. 3.
    2. The vendor’s warranty of peaceable possession m a deed is a continuing acknowledgment of his vendee’s possession and a perpetual interruption of the prescription of thirty years pleaded by the vendor arid based upon a hostile entry and adverse possession. it. C. C., Art. 3520.
    3. The possession on which this prescription is founded must be continuous, unequivocal and uninterrupted, and must be brought home to the knowledge of . the owner in order that the presumption of his acquiescence may bo created. R. C. C., Art. 3500; 11 An. 148; Sedgwick & Waite on Trial of Title to Land, 519, et seq.

    4. A possession which begins as permissive can only be changed into a hostile one as a basis of prescription by notice to the-owner of the occupant’s intention; such notice constitutes the owner’s cause of action and is the starting point of prescription, and the burden of proving such notice is upon him who claims the benefit of the prescription grounded upon it. 82 Mo. 317; 50 Mich. 115; 33 Ohio, 395.
   The opinion of the court was delivered by

Nicholls, O. J.

Plaintiff alleges that she is the owner and in possession of ten certain lots of ground situated in the sixth district of the city of New Orleans on the upper side of State street, designated according to the original plan of Bloomingdale drawn by N. B. Buisson on November 12, 1836, as lots Nos. 34 to 43 inclusive, and measuring, according to said plan, 300 feet on the upper side of State, street on a depth of 175 feetbetwéen parallel lines, the whole bounded by the upper side of State street, Saint Charles (late Dryades) street and the line of Barthez plantation.

That her husband, John Greene, by his last will and testament, duly probated, constituted her as his universal legatee, and that the possession and occupancy of said above described prope ity by her and her author, the said John Greene, "has been unequivocal, peaceable and uninterrupted as owner for a period of thirty years.

That there is of record in the office of the register of conveyances for the parish of Orleans an inscription of a sale purporting to be a transfer to one Louis P. Bundy by said John Greene of the said property — the said inscription being made in Jefferson parish under date of December 16, 1837.

That said inscription of said pretended transfer by said John Greene to Louis F. Bundy operates as a cloud upon her title to said property, and has prevented and continues to prevent her from disposing of the same.

That the heirs of said Bundy lay claim to the title of the property under said .pretended transfer by said John Greene, and that they have slandered her title to said property by said pretensions.

That the said heirs by thé said inscription of said pretended transfer, their refusal to authorize the erasure of the same, and by their repeated assertions of ownership of said property, thereby preventing the sale of said property by her, have slandered her title and cast a shadow thereon without any legal right so to do.

That she has notified the said above named heirs and the executor of the said L. F. Bundy, in writing, of the invalidity of their pretensions, and has called upon them to present their alleged rights to the court for adjudication, which they declined to do. That the heirs of said Bundy have never had possession of the property in question, nor did the said L. F. Bundy, or any other person ever hold a possession adverse to his or her said authors. In view of the premises, she prayed that the heirs and executor be cited and that in due course there be judgment ordering the erasure of their pretended title to said property and for all and general relief.

The heirs and executor, in their answer, “deny all ard singular the averments of the petition in any wise tending to disclose a cause of action in said plaintiff against them, and they aver they are the true and lawful owners of the said property by inheritance from their deceased father, Louis F. Bundy, who was the vendee thereof of John Greene, the deceased husband of plaintiff.” They pray that jfhere be judgment in their favor, rejecting the demand of the plaintiff and quieting them in their ownership of said property.

Upon the filing of this answer plaintiff came in with a supplemental amended petition, which seems never to have been served or put at issue, in which she prays that in addition to the judgment and relief originally prayed for she be declared to be the owner of the property mentioned and described in her petition.

The trial below resulted in a judgment in favor of the defendant against the plaintiff, and she has appealed.

We find that on the 16th day of December, 1837, by authentic act before Carlile Pollock, notary, John Greene “ granted,. bargained and sold, with all legal warranties, unto Louis F. Bundy, then present, acknowledging possession and accepting the sale,” a large quantity of land, of which it is conceded that that which forms the subject of this controversy forms a part, and that the sale was made for the price of $7500, which the vendor “ acknowledged to have received ” in promissory notes of the vendee, secured'by special mortgage.

The pleadings in the ease are peculiar. Whilst the plaintiff alleges ownership aod possession with the conditions exacted by law for the prescription of thirty years acquirendi causa she does not attempt to show the time, place or circumstances of the initial point of the adverse possession which she declares upon.

She brings affirmatively to our notice the existence of an authentic act passed on the 16th day of December, 1837, by which it appears that on that date her author, John Greene, sold the identical property which forms the subject of this litigation to Bundy, the ancestor of the defendants. She also brings to our notice the fact of the registry of that act in the conveyance office in the parish of Jefferson. She avers that the defendants have never had possession of the property mentioned, and that neither their ancestor, Bundy, nor any one else has ever had any possession hostile to that of Greene and herself. She refers to the act of 16th of December, 1837, as an act “purporting to convey the property, and as a pretended” act of sale, and declaring that the inscription of that act works a great injury to her, the only relief which she seeks at our hands is that the inscription of the act, which is an outward and visible sign so far as the public are concerned of the ownership of the property, and which inscription was presumably made at the suggestion of Greene himself, both for his own protection and the benefit of this vendee, should be erased from the public records. We say this is the only relief asked, for whilst the plaintiff prays in a supplemental petition that she be decreed the owner of the property, that petition has never been served on the defendants; as we have said.

The plaintiff designates this action as one of jactitation, but it is not strictly such, and the defendants have been exceedingly careful in their pleadings to avoid admitting it to be such, and exceedingly cautious in seeking to avoid occupying the position of plaintiffs in a petitory action.

The guarded allegation of the answer wherein, departing from the usual general denial, they declare that ‘1 they deny all and singular the allegations of plaintiff’s petition tending to disclose an action ■against them,” and the utter absence of any averment at all as to possession disclose defendant’s purpose very plainly.

Defendants pray to be adjudged owners of the property, but they are •absolutely silent, as we have just said, as to the possession. Neither side has disclosed to us the relations of the parties either before the sale or since, outside of the act of sale itself, and no explanation has been made as to how it has happened that plaintiff should have come to occupy the peculiar if not inconsistent and anomalous position which she does toward Bundy, her own vendee, or how or why the defendants should have allowed such a condition of affairs to occur as to give rise to this very formidable attack against them.

We are uninformed as to the situation of the property at the date -of the act of sale — we do not know whether it was then enclosed or unenclosed, whether there was or was not at that time any house upon it, and if there was, whether it was in the actual occupation or use of any one, and if so who that person was.

A careful examination of the pleadings impresses us with the belief that the plaintiff has gone as far toward a direct attack upon the act ■of the 16th day of December, 1857, and the title therein conveyed, as she thought it safe for her to do.

We can not help thinking that plaintiff in her averments has sought to convey to us, as a key to the situation, the idea that the act of sale was a mere simulation — that both parties being aware of its unreality, and plaintiff’s author in possession, he deemed himself safe without a counter letter until attempted sales of the property made manifest to her that such was not the fact, and that it was ■necessary that this mere apparent title be set aside.

The allegations of the petition are such as would logically lead up to a prayer that the act of 16th December, 1837, be declared a simulation, and that it be adjudged that the original ownership had never be divested, but just at that point the plaintiff suddenly turns aside and predicates her ownership not on the original title, but upon a prescription of thirty years.

If Greene remained in continuous possession of the property after the act of sale, third persons might, under Article 2480 of the Civil Code, require that the parties should produce proof that they were acting in good faith, and establish the reality of the sale, but this rule does not extend to the parties contracting; as between them the authentic act is full proof of the agreement contained in it, unless it be declared and proved a forgery (0. O. 2236), ■or in the absence of any allegation of fraud or error by the production of a counter letter or something equivalent. Hennen’s Digest, Vol. 1, pp. 534, No. 4.

The character of the evidence required to break the force of such an act as between the contracting parties, is not altered by mere length of time, and long continued possession in the vendor of the property conveyed, does not lead up to the substitution of parol evidence for the written evidence originally required by the law to operate such a result. If any rights could enure to the vendor from that fact they would not arise from the setting aside of the title conierred by the act and the reinstatement of vendor to her original position, but by the substitution of a new title in the vendor for that which had been acquired by the vendee.

Plaintiff’s action can not be maintained from the standpoint of the Greene title, never having passed to Bundy. If it be sustainable at all it must be on the basis of a new title to Green under the operation ■of the law of the thirty years’ prescription.

. The position contended for by plaintiff is stated by her in her application to the district judge for a new trial, as follows:

1. “ That the possession of plaintiff has been such as the law requires for the acquisition of title by the prescription of thirty years.”

2. “ That the vendor of property is not precluded from acquiring title to the property sold by him to his vendee by the prescription of thirty years.”

3. “ That no obligation of warranty, either expressed or implied, precludes the plaintiff from acquiring the property by prescription of thirty years, under the facts disclosed by the evidence in this case.”

4. “ That the law in regard to the accountability of the vendor from what results from his personal acts can not legally be extended or interpreted so as to preclude him or his assigns from subsequently acquiring title to the property sold in any of the methods prescribed by law for the acquisition of property, such as by purchase, occupancy, prescription,” etc.

Before proceeding to examine into these claims it may be well to take notice of the statement made by plaintiff in her supplemental brief that we are authorized in this ease to presume that Greene repurchased the property from Bundy, or re-entered upon it under color of title. We do not think we are under the pleadings authorized to adopt any such presumption, and besides this the theory of an action based on thirty years’ prescription is that it rests on no title. Had plaintiff claimed under a title, it would certainly have been pleaded.

Coming to the consideration of the question, as to whether the vendor of property is absolutely precluded from acquiring title to the property conveyed by him to her vendee — adversely to that vendee by the prescription of thirty years, we find that the weight of authority, both under the civil and common law, is decidedly in favor of the proposition that he is not estopped from doing so, and that the differences among commentators and courts on this subject have been principally as to the time circumstances and conditions under which such acquisition can be made and claimed, and under and by what evidence it can be proven. The common law decisions will be found in the American and English Encyclopedia of Law, under the title of “Adverse Possession."

Laurent in his work on Prescription,” 32 Vol. p. 328, Section 314, has gone further in support of the position taken by the plaintiff than any writer we have met. He says: “ L’Application des principes que nous venons d’établir souléve une autre dificulté. On pose parfois comme régle que le possesseur ne prescrit point quand il est tenu de 1’obligation personnelle de rendre la chose á son véritable maítre. O’est une extension du principe formulé par 1’Article 2236 et en l’étendant onl’altére. La loi n’admet qu’une seule possession précaire, celle des détenteurs qui possédent pour autrui, c’est-ádire ceux qui en vertu de leur titre reconnaissent le droit du propriétaire á qui il est tenu de restituer la chose. Tout autre possesseur n’est pas détenteur précaire, et peut par conséquent prescrire. Je vends un héritage, l’acheteur me paie le prix avant la délivranee, je reste détenteur de l’immeuble et je le posséde pendant trente ans, aurai-je prescrit la propriété? L’affirmative nous paraít certaine. Je suis a la vérité obligé de faire la délivranee de la chose á l’acheteur, mais il ne résulte pas de la que je sois détenteur précaire, car je ne tiens pas en vertu d’un titre qui me donne le droit de détenir la chose en la possédant pour le propriétaire. Je posséde au contraire sans titre, ce qui excluí toute détention précaire — car les détenteurs précaires ont un titre, et des que je ne suis pas détenteur préeaire, ríen ne m’empéche de prescrire, pourvu que ma possession ait les caracteres exiges par 1’Article 2229.” (Oiting Mourlon Répétitions, Tome 3, p. 653, Nos. 1844 and 1845, but “En sens contraire,” Duranton, Tome 21, p. 384, No. 243.)

Baudry Lacantinerie adopts the same view, but not so unqualifiedly. He speaks of it as a controverted question. See Yol. 3, “ Precis du Droit Civil ” de la Prescription, No. 1611. Others are of the opinion that it is permissible when the vendor “re-enters upon the property,” going to show that they considered it necessary he had first absolutely severed and broken his contractual relations and connection with his vendor.

Laurent, as we have just seen, draws his conclusions from the premise that a vendor after the sale does not stand toward the property as a “precarious possessor” of the same.

He defines precarious possessors as “ ceux qui possedent en vertu d’uneontrat qui leur donne un droit contre le proprietaire.” 32 Vol., p. 313, Nos. 299 and 308.

The question as propounded by the plaintiff is a new one in this State, but it does not come squarely before us, for this case is affected by its pleadings, its evidence and its form of action.

We have already alluded to the fact that although this action is claimed by the plaintiff to be an action of jactitation, and based upon a cause of action subsequent to 16th December, 1837, that in the absence of any prayer for ownership of the property referred to, and in presence of the averments that the inscription of the act of 16th December, 1837, is a cloud upon his title, that the act itself “ purports to be” and “pretends to be” an act of conveyance, and that no adverse possession has ever been held hostile to her or her author, the suit seems to be rather a direct attack against the verity of the title conveyed by her to Bundy than one asserting the acquisition of a new one.

Again, instead of waiting for the heirs of Bundy to attack her, the plaintiff has taken the initiative and attacked them. One of the difficulties which the defendants would have met had positions been reversed, would have been to avoid a plea of prescription of thirty years leveled by Mrs. Greene against an action against her to deliver the property under the obligation of a vendor in an act of sale.

Mrs. Greene by acting on the offensive has given the defendants the vantage ground on this question under her pleadings, for, as representative of Greene, a party to the act of sale, the defendants are enabled to urge as against her pretensions put forward in that manner the maxim of quse temporalia sunt ad agendum, and eliminated that particular difficulty from this controversy.

As the plaintiff in this action, Mrs. Greene must establish her claim with certainty. The general rule on that subject should be vigorously applied where a party who presumptively has received the price of property, attempts to hold the property itself against her vendee and keep both price and property. But independently of these considerations we hold that under the facts of this case and the pleadings, plaintiff can not successfully -change the ownership of this property from her vendee to herself.

We do not agree with the proposition that the moment an act of sale is passed and the property has by effect of the sale been transferred to the purchaser, that the relations between the parties to the act are so broken and disconnected as to make the vendor necessarily stand toward her vendee in relation to the property as & third person

Whilst the law-makers, under their constitutional powers, have thought proper to define and regulate the contract of sale, and to-fix and determine the effect of that contract, they have at the same time, under a similar power, fixed, determined and regulated the status, relations and obligations of the parties to that contract, as accompanying, flowing and resulting from the same, and those provisions of law are read into the contract and form part of it, just as much as are the accidental, conventional stipulations of the same, subject as the latter are, of course, to be varied by express agreements from the general law. O. Ó. 2292, 1964.

The law-maker has declared in Art. 2456 that “the saléis considered to be perfect between the parties, and the property is of right acquired to the purchaser, with regard to the seller, as soon as there exists an agreement for the object and for the price thereof, although the object 7ias not yet been delivered nor the price paid,” and in Art. 2479 that “ the law considers the tradition or delivery of immovables as accompanying the public act which transfers the property. Every obstacle which the seller afterward interposes to prevent the taking of corporal possession by the buyer is considered as a trespass.”

There is no doubt that under the provisions of those articles, where there “ exists between two-persons an agreement for the object and the price therof,” the law takes hold of that agreement and declares, as its immediate and direct effect, the transfer from the vendor to the vendee of not only the ownership of the property, but of all the incidental rights resulting from ownership which the vendor himself had, and which were necessary to make the new ownership effective and operative. 13 La. 237.

The moment there was a contract it fulfilled completely and instantly all its functions and obligations merely as such, and as bringing about the legal results affixed by law to it as to ownership, with its accompanying incidental rights, but it by no means follows that because the contract thoroughly completed at its very birth these legal results, that the parties to the contract had fulfilled all their obligations under the contract, as affixed to it by the law.

Art. 2475 of the Code declares that the seller is bound to two-principal obligations — that of delivery and that of warranting the thing which he sells.

The obligation of delivering is inherent in and can not be separated-from the contract, and the law itself not only makes it the duty of the vendor to deliver, but it charges the vendor with affirmative duties and responsibilities toward his vendee, and in terms declares that until delivery he must act as an administrator of the property. Article 2468 of the Code declares that “ until the thing sold is delivered to the buyer the seller is obliged to guard it as a faithful administrator, and if through want of this care the thing is destroyed, or its value diminished, the seller is responsible for the loss.”

And this duty is a continuing one, though with decreasing responsibility, for even when the buyer is in default the next article declares that the seller is released from this degree of care when the buyer delays obtaining the possession, but he is still liable for any injury which the thing sold may sustain through gross neglect on his part.

In view of these express articles of our Code, declaring that until delivery the seller must take charge of the property as a good administrator — provisions of law, which, as we have said, must be considered as part of the contract, we are bound to consider that in the interval of time between the sale and the delivery the seller-holds the property for the buyer. His “detention ” is his vendee’s “possession” (for it is impossible for two persons to possess the same property at the same time, each for himself), and charged as he is with a duty to his vendee by law, and in one sense, therefore, by contract, he falls squarely under what Laurent even considers the conditions necessary to constitute “precarious possession.” There is no evidence in this record to show that Greene ever performed his obligation of delivery. Under the pleadings we are bound to accept as true the very reverse.

Now, assuming that Greene before he had performed that duty could place himself in a position of hostility to his vendee, and could through some positive act of his own, which the French commentators speak of as an “ Acte de Contradiction,” change the character of his possession from that of its origin, and be entitled to alter it by an “ interversión of possession,” we would certainly require of him for the purpose of acquiring the property by the thirty years’ prescription that he should clearly establish that knowledge of this change of position had been brought home by him to his vendee. This proof, as we have said, has not been made.

It would be extremely difficult to find the starting point for the operation of the prescription liberandi causa of an action to deliver when a continuing affirmative duty to deliver exists contemporaneously with a precarious possession of the property, for as has been said “la détentionne peut éftre álafoispour soi et pour autrui — celui qui détient pour autrui perpétue et renouvelle á chaqué instant la possession de celui pour lequel il tient, et le temps pendant lequel il peut teñir pour autrui étant indéfini on ne saurait fixer l’époque oú celui pour lequel on tient serait dépossédé.”

This case is disembarrassed of that question. .

We have reached the conclusion that the judgment of the District Court was correct, and for the reasons herein assigned, it is hereby ordered and adjudged that the same be and it is hereby affirmed.


author: Nioholls, O. J.

text:
    No. 11,118.
    Charles Giesecke vs. Finlay & Brunswig.
    q'he decision of the judge of the first instance upon questions of fact always prevails unless manifestly erroneous.
    APPEAL from the Civil District Court for the Parish of Orleans. Ellis, J.

      A. B. Philips and Ker & Duvigneaud for Plaintiff and Appellant.

      B. R. Forman for Defendants and Appellees.
   The opinion of the court was delivered by

Nioholls, O. J.

The plaintiff alleges that G. R. Finlay & Oo., and Finlay & Brunswig, commercial firms in New Orleans, are indebted to him in the sum of $10,000, for real damages sustained by him through the acts and omissions of L. N. Brunswig, one of the members of said firm, acting for and on behalf of said firms.

That he was engaged under a positive and distinct verbal contract, entered into with said firms on or about the 1st of October, 1884, as the drayman of said firms, to do all its hauling of every character and description, under the express condition thai each and every parcel hauled by him, either from the establishment of said firms to the various railroad depots in this city or to other points of shipment, or from said railroad depots or other points of shipment to their establishment, for account of said firms, should be paid for in accordance with the usages which obtain in the commercial community of New Orleans with respect to drayage and hauling. That notwithstanding the specific contract, the said" firm of G. R. Finlay & Oo., and their immediate successors, the present firm of Finlay & Brunswig, have caused to be hauled by him freights for shipment to various points, and have received upon invoices from various points large shipments of freight upon which, under various pretences, no hauling has been charged for, or paid to him, from the said 1st of October, 1884, to the lObh of December, 1888, at which latter date, he having discovered that he had been systematically defrauded of his just dues for the services which he had rendered, through the machinations and evil practices of said Brunswig, left their service, and refused to further serve them as their drayman under said contract.

That he kept no books, and was dependent for the collection of all drayage and hauling done by him for the said firms upon the fidelity and correctness with which their books were kept, and more particularly of those books having reference to the matter of hauling and drayage. That within a year after his employment under said contract, having been apprised that the said firm in their invoices to sundry consignees of goods shipped, made no charge for drayage, and having been further- informed that where there were such omissions to charge drayage and hauling on goods shipped by said firm and hauled by him he would not receive the compensation provided for, as the contract called for such hauling and drayage, he complained to the said Brunswig of the fact that such omissions had been made, and protested then against the same; that said Brunswig then informed him that said omission to charge drayage and hauling upon invoices had been purposely made in order to offer inducements to the particular trade in which the firms were engaged as wholesale dealers to purchase their goods from said firm, but notwithstanding said omissions of said firm to charge upon the invoices for proper drayage and hauling done by him, he would be fully paid the entire amount of such drayage and hauling.

That notwithstanding said assurance and promise made, the said firms have not only failed to make good the promise and assurance by the payment of all drayage and hauling due him upon freight shipped, and upon which said invoices were issued and furnished,, but that the said firm continued to ship goods during the period above mentioned upon which no charge for drayage and hauling have been made, and for which hauling he has never received any compensation whatever.

That the total amount of losses sustained by him through the persistent and continued omission of said-firms to charge for drayage and hauling done by him, upon the invoices furnished by them to their consignees, and to pay him for such drayage and hauling, amounts to the sum of at least $10,000, which he is entitled to receive from said firms.

He prays that ‘ ‘ they be condemned to pay him the full sum of $10,000 for real damages.”

The defendants excepted to this petition:

1. For vagueness and uncertainty; that it was impossible for them to safely answer, inasmuch as the dates, number of packages or number of loads, from or to which places the hauling was done, nor the price or value of the alleged hauling done, are set forth, and

2. There was no cause of action alleged.

This exception was overruled by the court. The defendants then filed a general denial.

At the instance of the plaintiff experts were appointed to examine the books of defendants, containing account sales and invoices covering the transactions of the firms during the period in controversy, from October 1, 1884, to December 10, 1888, and report all such in which no charges for hauling or drayage had been made.

A report was made by experts under this order and submitted.

The case went to trial, a great deal of testimony was taken, and judgment finally rendered in favor of the defendants, and from this judgment the plaintiff has appealed.

In this court the defendants, in their brief, referring to their exceptions, say: “They should have been sustained. Plaintiff has mistaken his remedy. He should have sued for the amount due (if anything) for hauling, and not brought a suit sounding in damages. He should have set forth the number of loads, the place, the dates and the rate per load, and not brought a suit sounding in damages, but we do not ask that the case be remanded. We beg the court to-finally dispose of it.”

In the month of October, 1884, plaintiff entered the service of the defendants as a drayman. This employment continued until the 10th of December, 1888, when it came to an end on account of a disagreement having no reference to a question of indebtedness.

The plaintiff, in his testimony, states that at the commencement of his engagement he examined the books of the defendants, and from them found that the whole amount of their expenses for dray-age from all quarters — goods received and goods shipped — was about $60 a week.

His present contention is that at the end of four years the defendants were indebted to him in the sum of $10,000 on account of their having omitted to charge themselves and give credit to him for drayage upon certain class of hauling done for them. Plaintiff seems to have entered upon this litigation and to have conducted it throughout with great uncertainty as to what his own claims and pretensions were. At one time he seems to have proceeded upon the theory of a concession that defendant had the right to exclude from liability for payment a certain kind of hauling, coupled, however, with the claim that this right had been abused, and that, as resulting from this abuse, he was entitled to damages; at another time, that he was entitled to payment for every kind of hauling, and that the defendants had been systematically for the whole time making out incorrect statements as to the extent of the hauling done, and that the items omitted amounted to §10,000 more than he had received. Deeming it necessary to offer some explanation of the fact that he had .so long remained in defendant’s employment, he took the position that from the time he commenced until he ceased working, matters had taken the shape of a “running account,” which still remained open at the time of the institution of the suit; and although he called for no account, very soon after the proceedings were instituted he called for the production of defendants’ hooks and the appointment of experts to examine and report upon them.

In his testimony he several times denied positively that there had been any settlement between himself and his employers, and declared that he kept no books himself, and did not have access to those of the firm. The only basis upon which he grounds his idea that there was a running account between himself and Finlay & Brunswig are certain receipts in his own possession, which, varying as to dates and amounts, are identical in form. These receipts are signed by himself, and reading, “Received from Finlay & Brunswig $- on account of drayage,” are attempted to be construed as synonymous with “ in account with Finlay & Brunswig for drayage.” If there were any necessity for going dehors the papers themselves for an explanation of the terms used, it would be found in plaintiff’s own testimony, to which reference will hereafter be specially made, as furnishing a fair specimen of its character throughout.

The plaintiff, whilst declaring upon what he says was a positive, distinct and specific verbal contract, sometimes rests his demand upon drayage at so much per load of 1600 pounds, sometimes upon the number of articles in each load, without regard to weight, and sometimes upon the number of consignees to whom the articles were sent. Relatively to the last pretension he claims that, assuming a single load consisting of small packages for 100 consignees to be sent to one single depot for shipment, he would be entitled to 20 cents and upward for each consiguee.

The defendants having waived objections to the form of the action, the matters before us for adjudication are matters simply of fact.

As far back as the case of Labat vs. Rabat’s Syndics, 2 N. S. 653, this court announced as being even then the well settled rule of the Supreme Court “that the decision of the judge of the first instance always prevails in questions of fact unless manifestly erroneons.”

We have examined the testimony in this case with great care, and so far from finding the judgment below “ clearly erroneous,” we are surprised that any expectation of its reversal should have been entertained.

As a claimant it was plaintiff’s duty to have made his case at least reasonably certain. He not only has not done this, but as a witness on his own behalf he has 'satisfied us that his demand is not well founded. Not only on all important points has he been contradicted by other witnesses who have no interest in the questions involved, but he has repeatedly contradicted himself.

Being on the stand as a witness and under examination by his own counsel, we find the following questions asked with the answers thereto attached:

Q. Did they ever during the time you remained with them make any settlement with you of the amounts due to you for doing the hauling of the house?

A. No, sir.

Q,. How were you paid?

A. The clerks made up the drayage, and omitted as many as they pleased. I took it for granted they were acting honestly.

Q. Did you ever give a receipt for what you got?

A. Yes, sir.

Q. How did those receipts read, do you remember?

A. I used to draw on Saturday - night — for instance this Saturday night — may be $25 or $30 coming to me, or $15, and of course it would not be money enough for me to pay off, and I would draw $50 or $60, or $75.

Q,. Have you any of those receipts?

A. You mean on the receipt book?

Q. Yes.

A. “ Received on account of drayage.”

Q,. Do any of those receipts that you gave during that time show there had been any settlement between you and the firm for the hauling that had been done?

A. No, sir.

Q,. Then, if I understand you, they were all receipts on account?

A. Yes, sir.

Q. And they paid you on account all the time?

A. Yes, sir.

Q. And there never was any settlement between you and the firm during the whole time you stayed there?

A. No, sir.

Q. What did these purport to be?

A. Due bills.

Q. Under what circumstances and in what manner were they given by you to the firm?

A. I would draw money on Saturday night and my drayage would come to §20 or §25, and that would not be money enough to pay my hands off, and I would ask Mr. Lastrappes, the cashier, to advance me §75 on my following week and I would take those due bills up— simply due bills — one to pay for the other.

Q,. How did they read?

A. Here is one: “ New Orleans, March 31, 1888. — Received from Finlay & Brunswig $75 on account of drayage.” That is, drawn one week in advance. The settlement will show by the books what was owing by me and what they owed to me.

Q,. They are all the same?

A. All the same.

Q. How many years back?

A. Well, I did not go through them. There were a great many I destroyed. There are some there — those of 1887 and 1888.

Q. Now what I want to know is, when you got your money at the end of the week — the money coming to you for that week — what kind of a receipt did you give them?

A. Well, suppose I had drawn $75 and they gave me credit for only $60, I would have to give another due bill for $10 or $15 to carry me over to the end of the week.

Q. I asked you what kind of a receipt did you give when they gave you at the end of the week the drayage that was coming to you?

A. On account of drayage.

Q. Just like that?

A. Just like that.

At a later stage of the proceedings — on cross-examination of the plaintiff — these receipts were again made the subject of examination, as will appear by the following questions and answers.

Q. They were receipts for money paid which you received?

A. They were due bills.

Q. They do not so read — “Received from Finlay & Brunswig, on account of drayage, $25. Charles Geisecke.” How do you call that receipt a due bill-?

A. Because on Saturday night suppose one of those due bills were outstanding against me for $50 or $60, and I would have $10 coming to me, I would turn around and ask the book-keeper to advance me $50 or $75 for the following week.

It seems never to have occurred to the plaintiff that each time that being in arrears to the defendants for the amount of one of these so-called due bills, he took it up — that fact of itself evidenced a settlement of accounts by and through compensation up to the date ■of the withdrawal of the same.

We have entered minutely — perhaps unnecessarily so, into the testimony of this ease.

It is shown by the testimony of several witnesses that the amount due to the plaintiff for each week was regularly made out and shown him at the end of the same, and as he himself states — when the amount coming to him at that time was insufficient to meethis present necessities, the firm would advance him for the next week— he giving a due bill for the excess which he would withdraw, when the accounts between the two would balance.

One of these receipts mentioned in this opinion was as late a date as March 31, 1888.

The plaintiff says in his pleadings, and in some places in his testimony, that he kept no books and relied on the statements of the defendants, but in other places he admits he kept them for a time, though declaring he gave up doing so, and the fact stands out clearly that every article received or shipped each day, passed into his own hands, and afforded him a constant opportunity for knowing precisely and accurately what he was entitled to. With this squaring of accounts” taking place at the end of each week, as we have seen, he remained with the defendants for four-years. His course of conduct is inconsistent with any claim against defendants independently of the positive evidence produced by the latter negativing his pretensions. For the reason herein assigned, it is hereby ordered, adjudged and decreed, that the judgment of the District Oourt be and the same is hereby affirmed.


text:
    No. 11,233.
    The State of Louisiana vs. Phillip Wiggins.
    1. It is not sufficient for an accused to object to what occurs in the trial court — he must state the grounds of his objections and embody them in his bill of exceptions.
    2. The verdict of a jury and the judgment therein will not be set aside for every error which may have been committed — there must be error (either proved or legally inferable) to the predjudice of the accused.
    3. When accused complaining of the action of the district judge in permitting one of his witnesses to be recalled after both sides had closed their case, and a basis to be then laid for his impeachment, assigns as his ground of exception that the State in recalling the witness made him its own witness and could not legally impeach him, he must show that when impeaching testimony was offered under the basis so laid, he had objected for the reason assigned, and the testimony was allowed over his own exception. The action of the court only became prejudicial through testimony received without objection, which on his own theory he could have legally resisted.
    APPEAL from the Ninth District Court, Parish of De Soto. Hall, J.

      M. J. Cunningham, Attorney General, for the State, Appellee.

      H. T. Liverman for Defendant and Appellant.
   The opinion of the court was delivered by

Nicholls, O. J.

The defendant in this ease complains that the district judge permitted the district attorney, after both sides had closed their case, to recall one of his witnesses who had been discharged, and on such recall to propound to him, for the first time, questions to serve as a basis for impeaching his testimony.

It would appear that the trial judge, not being able to remember as a fact whether such questions had been asked, allowed the witness to be again placed on the stand and a foundation for impeachment to be then laid. The bill of exception on which this complaint is urged is silent as to whether impeaching evidence was in point of fact introduced under the foundation so laid.

What occurred subsequently is recited in a second bill, in which defendant declares “that the recalled witness having been re-examined by the State only, and having been again dismissed, the district attorney, after contradicting and impeaching him on facts brought out in the examination in chief on the part of defendant, was impeaching and contradicting him on facts outside of the examination in chief, when defendant’s counsel objected, which objection was sustained, but defendant’s counsel insisted on noting same, as the jury had been thereby impressed by said illegal testimony.”

Referring to this statement the district judge says: “The defendant called Hardy Wiggins as a witness, and he was cross-examined by the district attorney and dismissed.

“The defence closed their evidence, and the State called Young-blood, the constable, to impeach and contradict the witness Hardy Wiggins by showing that his testimony at the preliminary trial was different from his testimony now given.

“ Counsel for defendant objected that no basis was laid by calling witness’ attention to his former testimony while he was under cross-examination. The district attorney insisted that such basis was laid, but the court could not remember it and was uncertain about it, and to give the witness Hardy Wiggins a chance to admit, deny or explain what was proposed to be proved, the court, recalled the witness Hardy Wiggins against the objection, and allowed the district attorney to lay the basis, which he claimed he had already done. The witness Youngblood was then called again by the State, and began to relate the evidence given by Hardy Wiggins at the preliminary trial, when the defendant objected that the matters testified in the preliminary trial, and about which he was being contradicted, was upon a branch of the case about which he had asked the witness Hardy Wiggins no questions, to-wit: ownership of the alleged stolen property, which objection the court sustained, and the witness Youngblood was withdrawn, but defendant objected that the testimony had already gone to the jury and had its effect, and reserved this bill of exceptions, which was read, signed and filed in open court. The court simply signs this bill at request of counsel, but can’t well see how he could except to the ruling of the court sustaining his objection.”

The district judge having sustained the objection raised by the accused as soon as made, he is clearly right in saying that there was no foundation for this last bill. The object of the second bill seems to have been to place on record the fact omitted from the first, that the district attorney after having under the circumstances mentioned laid a foundation for impeaching the witness had actually introduced evidence to impeach him and had contradicted him “ on-facts brought out upon the examination in chief on the part of defendant.”

Whilst in both bills certain circumstances are stated and certain acts are mentioned as having been done under those circumstances- and that objection thereto was made, yet the grounds of objection are given in neither as should have been.

In his brief defendant urges that in permitting one of his witnesses-to be recalled after he had discharged him and closed his case, “ he was powerless to offer other testimony to substantiate the facts sworn to by his impeached witness,” and that whilst the Supreme Court has frequently held that a party even after cross-examination can recall his own witness, there is nowhere in the jurisprudence of this or any other State a single precedent corroborating or substantiating the ruling of the trial judge, for the very moment that the State in rebuttal called one of the defendant’s witnesses, that witness became a witness for the State, and a party can not impeach, his own witness. If not, the State had no right to call him.”

In order to have brought the correctness of the lafctpr proposition-before the court the defence should have made that point when the State after having laid the foundation had sought thereafter to introduce impeaching testimony; but he did not do so, but allowed what he concedes would have been proper testimony (had it been brought forward under other conditions) to be introduced, neither objecting to the same at the time nor attempting to have it struck out afterward.

Had the accused objected that the State having under the circumstances stated made the witness its own could not be heard to contradict him and had the judge ruled otherwise and permitted the evidence to be received, a bill of exceptions taken to such ruling would have brought the question before us; but this was not done. The only real and single issue before us is the action itself of the trial judge permitting the witness under the state of facts brought to our notice to be recalled and examined so as to serve as the basis for Ms future impeachment.

We do not see in that act in itself any reversible error, assuming that there was error (Oargill vs. Commonwealth, 20 S. W. 782), for standing alone we do not see whereby any injury could result to-the accused.

We are bound to assume that the answers given by the witness on being recalled were not unfavorable to himself, but would only become such in the event and contingency of their being successfully controverted; and if the position of the accused be true that the answers to the questions propounded, bound and concluded the State, the course adopted by it of seeking to impeach the witness in the manner it did, instead (as it could have done) of doing so at an earlier stage of the proceedings, and in a different manner, would, (had timely objections been interposed) have prejudiced the prosecution and not the accused.

To justify us in reversing the verdict of a jury and a judgment thereon, there must not only be error, but prejudicial error. None such has been shown us under the bills as reserved and taken. If the accused has suffered from the introduction of any impeaching testimony offered by the prosecution under the judge’s action, it has resulted not directly from the same, but because the impeaching testimony was subsequently allowed to be received without objection.

Judgment affirmed.


author: Fenner, J.

text:
    No. 11,188.
    Marie Monnier vs. Pierre Henri Contejean.
    1. The facts being established: (1) That, at the date of the marriage between plaintiff and defendant, the latter was already lawfully married to another; and (2) that plaintiff was fully cognizant of that fact, the legal conclusions follow: (1) That plaintiff is entitled to the decree prayed for by her in this suit, declaring the nullity of the marriage; and (2) that the marriage produced no civil effects either as to the parties or their offspring.
    2. A judgment rejecting plaintiff’s demand of nullity, and granting a decree of nullity in favor of the husband on his reconventionai demand, must be reversed and rendered in favor of the plaintiff.
    APPEAL from the Fourteenth District Court, Parish of Iberville. Talbot, J.

      P. L. Fourehy and Albert Voorhies for Plaintiff and Appellant.

      Alex. Hebert for Defendant and Appellee.
   The opinion of the eburt was delivered by

Fenner, J.

The plaintiff claims the nullity of a marriage be tween herself and defendant on the ground of a prior marriage of the latter subsisting at the date when he married plaintiff.

Plaintiff further alleges that her marriage with defendant was contracted in good faith, on her part, in ignorance of his subsisting marriage, and, therefore, produced its civil effects as to her and as to the child born of the connection, and prays for appropriate relief, awarding her the custody of the child and recognizing and enforcing her community rights.

The defendant responds, admitting the fact of the prior undissolved marriage, alleged that plaintiff was fully cognizant thereof before and at the time of her contract with him, and prayed that her demands be rejected and for judgment in reconvention in his own favor decreeing the nullity of the marriage.

The foregoing sufficiently presents the substantial issues, eliminating other superfluous matters set forth in defendant’s answer.

We will not comment on the evidence further than to say that it fully establishes the two pivotal facts, viz.:

1. That at the date of the marriage with plaintiff, defendant was the lawful husband of another woman by valid marriage.

2. That plaintiff was fully cognizant qf„ that-fact at and before the time of her marriage.

From these facts the legal conclusions inevitably flow, (1) that plaintiff is entitled to the decree prayed for by her, declaiming the nullity of the marriage. C. O. 113. Lutenbacher vs. Losher, 37 An., 832. (2) The marriage between these parties was null and void, and, neither party being in good faith, produced no civil effects either as to them or their offspring. Rev. C. C., Arts. 117, 118; Succession of Taylor, 39 An. 823.

We are left in the dark as to the reasons which influenced the judge to reject plaintiff’s demand of nullity and to grant the reconventional demand of the defendant to the same effect, and we can discover no legal ground for such action. We are bound bo reverse the judgment, and render one conforming to the rights of the parties under their pleadings.

It is, therefore, adjudged and decreed that the judgment appealed from be avoided and reversed; and it is now adjudged and decreed "that there be judgment in favor of plaintiff, decreeing the nullity of the marriage contracted between her and the defendant on December 17, 1866, and that, in all other respects, the plaintiff’s demands be rejected, and that the reconventional demand of defendant be rejected, except in so far as it prays for judgment declaring that the said marriage produced no civil effects, in which respect it is sustained; defendant and appellee to pay costs of both courts.


text:
    No., 11,200.
    Elizabeth Peart and Husband vs. Jos. H. Meeker, President of the Red River, Atchaealaya and Bayou Boeuf Levee District.
    1. Repeated decisions have settled the law of Louisiana to the following effect: that under Art. 665 of the Civil Code, riparian property on navigable rivers is subject to a servitude or easement imposed by law for the public utility, authorizing the State, under proper laws, to appropriate the space required for the making of levees and roads; that, in locating and building levees, the State does not expropriate property, but lawfully appropriates it to a use to which it is subject under the title itself; that in so doing she acts, not under the power of eminent domain, but in the exercise of her police power; that laws, constitutional or statutory, concerning expropriation of property and requiring compensation therefor, have no application to property legitimately taken for levee purposes; and that private injury resulting therefrom is damnum absque injuria.

    2. The statute constituting the defendant levee district expressly dedicates all its funds exclusively to drainage and levee construction; authorizes it to construct only such levees as arc approved by the State Board of Engineers, devolves on the State Engineers the exclusive authority and duty to locate levees, and ehai'ges them with all the responsibility for such location.
    3. The defendant commissioners, having built its levee on the lino located by the State Engineers, have only performed the plain duty imposed on them by law, and can not be held in damages by a citizen claiming to be injured thereby. If there has been fault it was committed by the State Engineers. The corporate funds could, in no event, bo diverted from the public purposes to which they are exclusively dedicated by law. The commissioners, if desirous to do so, could not appropriate them to payment of such damages without violating the law, and judicial power cannot be invoked to compel them to violate the law.
    1. The law being valid, no acts of officers within the authority conferred can give rise to any legal damage; and if they have acted without and beyond such authority, their acts are not binding on their principal, which is a mere functionary of the State, and any liability incurred must be personal.
    5. Whatever remedy the plaintiff may have had to prevent unlawful action by these officers it can not take the shape of an action for damages against this corporation, which is the only question here involved.
    APPEAL from the Tenth District Court, Parish of Rapides. J.

      B. J. Bowman for Plaintiffs and Appellees.

      White & Thornton for Defendants and Appellants.
   The opinion of the court was delivered by

Fenner, J.

This is a suit to recover damages resulting to plaintiff from the act of the defendant corporation in locating and constructing a line of levee on R.ed river in such manner as to leave her property outside of the levee, exposed to overflow and rendered unfit for cultivation by reason not only of such exposure but also by the consequent obstruction of her drainage.

She alleges that the levee might have been otherwise located with equal protection to the public safety, without the sacrifice of her property, along a different line which she pointed out to defendant, but that, notwithstanding her timely protest, the defendant persisted in adhering to the line adopted, and inflicted upon her unnecessary damage, for which it should be held responsible.

The defendant answers by general denial, coupled with the special defence that the levee was constructed on the line surveyed and located by the State Board of Engineers, and that defendant is not responsible for any resulting damage.

The plaintiff did not apply for any preliminary injunction, but asked for a final judgment enjoining the defendant from building the levee as located, and, in ease the levee should be built before trial of the case, then for a judgment in damages. The case was tried by a jury, which rendered a verdict in favor of plaintiff for $2750 damages, from which the defendant appeals.

The quantum of damages is admitted between the parties, and the sole question before us is the legal liability of defendant.

Whatever may be the law elsewhere, we consider the law of Louisiana too well settled to admit of further dispute to the following effect: that under Art. 665 of our Oivil Code riparian property on navigable rivers in this State is subject to a servitude or easement imposed by law for the public or common utility, authorizing the appropriation by the government, under proper laws, of the space required for the making and repairing of levees, roads and other public works; that the State is charged with the administration of this public servitude; that in locating and building levees she does not expropriate the property of the citizens, but lawfully appropriates it to a use to which it is subject under the title itself; that in so doing she acts, not under the power of eminent domain, but in the exerc-se of the police power; that laws, constitutional or statutory, concerning the expropriation of private property for public use and requiring adequate compensation therefor, have no application to property legitimately required for levee purposes, and.that private injury resulting from the legitimate exercise of this legal right is damnum absque injuria, to which the individual must submit as a sacrifice to the public safety and welfare. Ruch vs. City, 43 An. 275; Bass vs. State, 34 An. 494; State vs. Maginnis, 26 An. 558; Cash vs. Whitmore, 13 An. 401; Dubose vs. Commissioners, 11 An. 165; Police Jury vs. Bozeman, 11 An. 94; Zenor vs. Concordia, 7 An. 150.

It is useless to quote from these decisions. They are familiar to the profession, and their tenor, as above stated, is unambiguous, harmonious and emphatic.

They were rendered under the regime of constitutions which prohibited the taking of private property for public purposes without compensation, and however broad and emphatic may be the same prohibition in our existing Constitution, it had not either the intention or effect to repeal Article 665 of the Civil Code or to bring within its grasp the lawful appropriation of property for levee purposes. On the contrary, the Constitution itself charges the General Assembly with the duty of maintaining a levee system, authorizes the creation of levee districts under the administration of commissioners to be appointed or elected, and grants specified powers of taxation for this purpose. Const., Arts. 213, 214, 215, 216.

In the execution of these- powers and duties the Red River, Atehafalaya and Bayou Boeuf Levee District was created by Act 79 of 1890, amended and re-enacted by Act 46 of 1892, and the defendant commissioners were appointed.

Two sections of the act require special attention.

“Sec. 11. That all moneys arising, or that shall accrue to said district, by taxation or otherwise, shall be held and used exclusively for the necessary drainage, and the construction, repair and maintenance of any and all public levees in said district, which, in the opinion of the Board of State Engineers, will protect said district from overflow and for payment of salaries,” etc.

“Sec. 23. That it shall be the duty of the Stale Board of Engineers to designate one of their number to attend each meeting of the levee board, when previously notified of such meeting, and to report to and advise the board as to the location, construction and repair of all levees, drainage necessary for the protection of the district, and are hereby authorized to survey and locate, repair or remove or change all levees or canals for drainage in the district, and are charged with the responsibility of all such location, and they shall furnish to the board a detailed report showing the proper location of all levee lines and canals,” etc.

The Constitution itself (Art. 214), in authorizing the appointment of commissioners for levee districts, expressly declares that they “ shall, in the method and mamner to be provided by law, have supervision of the erection, repairs and maintenance of the levees-in said districts.”

These commissioners were therefore bound under an express constitutional mandate to exercise their functions exclusively “ in the method and manner” prescribed by law.

The law confined their powers to the construction, maintenance and repair of such levees only as “in the opinion of the Board of State Engineers will protect said levee district from overflow,” and further devolves upon the State engineers the exclusive authority and duty “ to survey and locate, repair or remove and change all levees,” and further charges said engineers with the full “ responsibility of all such location.” The evidence in the case fully establishes that the levee complained of' is built on the line surveyed, located and approved by the State engineers. The defendants did not act hastily or inconsiderately. On the contrary, after being notified of plaintiff’s complaint, the president and the State engineer, together, as the latter tells us, “went carefully over the line again, and at the same time went over the line which the plaintiff desired located. “My object,” he says, “in doing this, was to see if I could make any modification of my location which would be of benefit to plaintiff and at the same time consistent with safety.” The result was that the engineer, for reasons given, adhered to the line adopted and refused to change it.

What was the board to do? The levee was an important one, involving the protection of an extensive region from overflow. Under the mandates of law above referred to, its duty was clear and manifest to build the levee on the line located by the State engineers,. who are charged with the authority, duty and responsibility of making such location.

It is difficult to understand how this corporation can incur liability for performing the plain duty imposed on it by law; or how, in any event, the corporate funds could be used in satisfaction of such liability. It is clear that the commissioners, even if they desired to do so, could not, under Sec. 11, devote the corporate funds to the satisfaction of plaintiff’s claim, without violating the law, and the judicial power could not be invoked to compel them to violate the law.

To hold otherwise would be to authorize such officers to create unwarranted debts against this corporation, which is a mere functionary. of the State, and, for their payment, to divert public funds from the purposes to which they are lawfully and exclusively dedicated.

Whatever be the rights of plaintiff and whatever be her remedies for their vindication, the latter can not possibly take the shape of an action of damages against this corporation.

The law under which the officers of this corporation and the State engineers have acted is a valid law, and nothing done in the proper execution of its mandates can give rise to any action of damages. If such an action exists it must arise from acts of these officers in violation of the authority conferred upon them. This brings the case within the dilemma propounded in Bass’ case, where we said: “ The dilemma seems irresistible; either the Board of Engineers, the public agents of the State, have acted within the scope of their mandate and authority, or they have not. If they have, then, as they have carried out a valid law, neither they nor the State can be held responsible. If they have acted beyond that scope,'their principal can not be made responsible for their unauthorized act, and they alone are chargeable.” Bass vs. State, 34 An. 494.

For the reasons heretofore indicated, we think the corporate liability of this levee district is governed by the same rules which apply to the State herself. If there is any liability for damages, it rests on the officers individually who have acted in excess of their authority, and under the law in this case, which we have heretofore quoted, it seems quite clear that, as between these commissioners and the State engineers, the latter alone would be charged with whatever responsibility might result from the improper location of levees.

We need not advert to the strong shield of protection which the law extends over public officers charged with discretionary duties and which exempts them from liability for honest errors, and except in clear cases of oppression and injustice; and it is only proper to say that nothing in this record indicates any but honest motives and conscientious action on the part of all the public officers concerned.

It is undoubtedly the duty of public officers charged by the State with the execution of its police power to make no greater sacrifice of private rights than the public welfare demands. In several cases this court has said that the power so conferred is not arbitrary, and that the citizen is not without remedy to subject it to judicial control in proper eases. We are not called upon in this case to consider this question further than to say that the present action of damages against this levee district is not an appropriate remedy, and can not be sustained.

It is therefore decreed that the judgment appealed from be reversed, and that plaintiff’s demands be rejected, at her costs in both courts.


author: Eennbr, J.

text:
    No. 11,244.
    William N. Bradley et al. vs. John N. Pharr.
    1. Public roads in Louisiana are established in three ways: (1) by dedication; (2) by expropriation; (8) by the exorcise of a public servitude imposed by law.
    2. The soil of public roads belongs to the owner of the land on which they arc made, and in case of roads bordering navigable streams that ownership is unimpaired, except to the extent of the servitude imposed and defined by Art. 665, Rev C. C., and that definition clearly confines the servitude to uses and works of a public character.
    8. The construction of a private railroad for exclusive private use is entirely beyond the servitude imposed by law, and can no more be made on that portion of an owner’s land occupied by a;publicroad than on any other portion of his estate.
    4. Statutes and decisions referring to the construction of railroads on public stre.ets and roads embrace only railroads which act as public carriers and arc of a public character. No law and no decision ever recognized the right to construct or operate a private railroad on a public highway.

      i). The rights of the abutting owner are of a different character from those of other members of the general public and where his rights as owner are unwarrantably invaded by the unlawful construction of private works on his property entirely outside of any servitude duethereby, he is entitled to the ordinary remedies of an owner without the necessity of proving special and immediate injury.

      A PPEAL fro'm the Seventeenth District Court, Parish of St. Mary. iY Allen, J.

      D. Gaffery <& Son for Plaintiffs anil Appellees:
    1. The title to the soil of public roads vests in the proprietors of the lands over which they run. The public owns nothing but a servitude o£ way. O. O. 638; 3 An. 382.
    2. A use of a road different from that originally intended at the time of the dedication to the public service, or inconsistent with it, is not permissible. Cooley on Con. Him., Sec. 556; 33 An. 624.
    3. Any permanent construction on a public place is inconsistent with the easement of the public over that part of the public place occupied by the construction. 4 O. S. 3; 6 It. 349 ; 3 L 563; 18 L. 295.
    4. Public places, such as roads and streets, can not be appropriated to private use. 3 O. S. 303, 296; 2 An. 770; C. O. 454, 458, 863, 296. Dillon oil Mun. Corp., Secs. Gl, 518: 27 X. Y. 611; 70 Pa. St. 210
    5. The grant of the use of a public place for private purposes is ultra fires of a police jury or of any other political corporation in Louisiana. Const, of 1879, Arts. 47 and 56; 27 An. 415; 32 An. 268.
    6. A private grant must be construed against the grantee, and any violation of its conditions works the annulment of the grant.
    7. The construction of a tramway upon a public road, under a violated permission from a police jury powerless to give such permission, is an unauthorized construction, and a nuisance which the proprietor of the soil of the road and of the adjacent land may have abated, as inflicting an injury to himself. 37 An. 475; 3 L. 566; 6 K. 349; 6 Hast. 427; 35 An. 1062; 4 An. SO.
    8. The construction for private purposes of a tramway upon soil the title to which is in a private person, is a trespass upon the pioperty of that person, on which lie may base an action for damages. 14 An. 283 ; 39 An. 996.
    9. Even when there is no proof of actual damages they are allowed in cases of trespass. Where there is proof of actual injury, they must be allowed. There can be no trespass without damage. Cooley on Torts, Sees. 63, 64; Sutherland on Damages, Vol. 3, p. 364, 374, 385, 398, 469; it. C. O. 1934; 11 An. 39; 20 Ail. 500; 29 An. 172; 8 L. 26; 13 An. 445; 39 An. 996 ; 14 An. 2S3.

      Philip H. Mente for Defendant and Appellant:
    A private action for a public nuisance is maintained by one who suffers therefrom some particular loss or damage beyond that suffered by him in common with all others affected by the nuisance. Eng. and Amer. Enc. of Law, Vol. 16, p. 971, verbo Nuisance. Brivate action.
    Interference with a common right does not of itself afford a cause of action by an individual. Id.
    Special or particular damage consequent on its interference does. Id.
    To support an action the damage must differ in kind as well as in degree from that suffered in common. That the plaintiff suffers more inconvenience than others from his proximity to the nuisance is not enough. Id., p. 976
    The plaintiff must show actual damage sustained and not damage resting in contemplation merely. It is not enough, for example, that the obstruction to a highway or river would have resulted in damage to him had he attempted to use it so long as he did not make the attempt, or that could he have used it, he-would have saved money; though, in one sense, here is damage, it is not such-damage as gives a right of action. Id., p. 975.
    The ordinary powers of municipal corporations are ample enough, in the absence of express or other legislation on the subject indicating a different intent, fcoauthorize them to permit or refuse to permit the use of highways for railways-operated by animal power. Dillon’s Mun. Cor., Secs. 724, Ed. 1890; 14La. An. 842.
    .Railways operated by horses, which do not exclude the free passage of ordinary vehicles, do not create a new burden (or servitude) upon the land. Id., Secs. 725- and 722; C. O. 729-737.
    The abutting proprietor must be taken to contemplate all improved and more convenient modes of use which are reasonably consistent with the use of thestreet by ordinary vehicles, and in the usual modes. Id., Sec. 722.
    It is submitted that an examination of Louisiana eases anterior to 1855 will show that the question of the right of private action to remove an obstruction from the public highway was confused with the right of private action to demolish a house or other edifice erected in a public place, which last right was given to every individual corporator by a law of the Partidas, hut that in cases arising since that time this confusion does not exist, and the right of private action to abate an obstruction on the highways is treated from the same standpoint as in sister States.
    It is submitted that this right is not predicated upon the obstruction itself, but upon some damage arising therefrom which ispeculiarto the complainant and not suffered in common with the public.
    These latter cases are discussed in this brief.
    It is submitted that an examination of the many cases quoted in notes to pp. 971, 972, 973,974, Vol. 16, Eng. and Amer. iEne. of Law, being the same cases as are quoted in approved text writers, will show, as Í21 the later Louisiana cases, that the right of private action to abate a nuisance in the highway does not depend on the existence of the nuisance or obstruction, but upon some injury resulting therefrom which is peculiar to the plaintiff, such as cutting off access to property, compelling plaintiff to travel by more circuitous routes, loss of trade or custom, damage to goods, noise, smoke, bad odors, etc.
   The opinion of the court was delivered by

Eennbr, J.

Plaintiffs aver that they are the owners of a plantation fronting on the Atchafalaya river, which is a navigable stream; that their said property is, by law, subject to a servitude of way in favor of the public; that in the exercise of said servitude a public road has been established from the earliest settlement of the country running along or near the front of said plantation; that defendant had begun and was then engaged in constructing on said public road a private railway for his own exclusive use, and that his occupation of said public road in this manner is a trespass and a nuisance, injurious to plaintiffs and in violation of their legal rights. They ask judgment for damages and ordering removal of the railway.

The defendant filed an exception of no cause of action, and after this was overruled he answered, setting up that in constructing said railway he acted under permission granted by the police jury of the parish, which had lawful authority to grant the same.

He further averred that he was engaged in the cultivation and manufacture of sugar, owning one plantation above and another below that of the plaintiffs; that this public road, like all others in this parish, was at its worst in winter, when it was most needed, owing to the climate, season and soil and the heavy hauling of cane on it in winter; that the hauling that he did upon this public road in winter, in transporting his crops from the lower to upper place was about 90 per cent, of the whole of the public traffic on this road, and that he had the legal right to so haul upon the public road; but that this hauling, done in winter, made this road almost impassable for the public; that the tramway removed this heavy hauling from the public road and left it in good condition for the public use; that it was the condition of the grant made to him that he should keep in good order the public road through which this tramway passed, which condition has been fully complied with; that the laying of the tramway has been of benefit to the plaintiffs and the public; and he prayed that the suit be dismissed.

The case was submitted to a jury', who rendered a verdict against the defendant, ordering him to remove the tramway, but without allowing any damages; the defendant has appealed.

Under the view we take of the law applicable to this case, we do not find it necessary to discuss the conflicting testimony on the subjects of damage to plaintiffs and inconvenience to the public.

It is not disputed that the railway is purely private, intended for, and restricted to, the exclusive use of defendant; that it occupies about one-third of the public road, and occupies that portion in such manner as to prevent its use for purposes of a highway by other than pedestrians. It is also admitted that defendant acted under the following resolution of the police jury:

“ Be it ordained, that the right of way given John N. Pharr to lay a narrow-gauge railroad track on the public road leading from his Glenwild plantation sugar house to the upper line of his Eairview be granted; provided said Pharr shall make sufficient openings along the line of said railway to drain the public road, and keep said road along the line of his railroad in good repair, and said railroad not to extend over ten feet from the line fence.”

Public roads are established in Louisiana in three ways: 1st, by dedication; 2d, by expropriation; 3d, by the exercise of a public servitude imposed by law.

The latter method is confined to roads bordering the banks of navigable streams, and is governed by the Article 665 of the Revised Oivil Code: 1 ‘ Servitudes imposed for the public or common utility relate to the space which is to be left for the public use by the adjacent proprietors on the shores of navigable rivers, and for the making and repairing of levees, roads and other public or common works.”

Article 658 of the Revised Civil Code provides: “ The part of an estate upon which a servitude is exercised does not cease to belong to the owner of the estate; he who has the servitude has no right of ownership in the part, but only the right of using it. Hence the soil of public roads belongs to the owner of the land on which they are made, though the public has the use of them.”

The public road with which we are here concerned runs along the bank of the Atchafalaya river, and was evidently established in the exercise of the public servitude imposed by Art. 665. It follows, under the plain precepts of the Jaw above quoted, that plaintiff’s ownership of that portion of his land over which the road runs remains unimpaired, save that it is burdened with the public servitude imposed and defined by that article, and that definition very clearly confines the servitude to purposes of “public or common utility,” to “public use,” and to “the making and repairing of levees, roads and other public or common works.”

The railroad constructed by defendant is not “ for the public or common utility,” or for “ public use,” and is not a “ public or common work.” It is a purely private work, for exclusive private use; and we can discover in the law no broader warrant for the construction of such a work on that portion of plaintiff’s land occupied by the public road than on any other portion thereof. Whatever incidental benefits may arise to the public from such a construction on the public road would be conferred in greater degree by a like construction on plaintiff’s land adjoining the road, and such benefits can no more sustain the construction, in violation of his legal rights, in one case than in the other. The rules applicable to the establishment of public railways on streets and roads need not be here discussed very largely, because they are governed by entirely different principles. So far as ordinary street railways are concerned, as Mr. Elliott says, “they are not regarded as a new and different nse of the street, but are considered as an improved means of travel in furtherance of the ordinary use of the highway, and not as an impediment thereto.” Elliott, Roads and Streets, p. 529. Or, as Mr. Cooley says: “ When land is taken or dedicated for a town street, it is unquestionably appropriated for all the ordinary purposes of a town street; not merely the purposes to which such streets were formerly applied, but those demanded by new improvements and new wants. Among these purposes is the use for carriages which run on a grooved track,” etc. Cooley on Const. Lim. 556.

As regards ordinary steam railways, while they may be lawfully established by the municipal authorities on the streets of cities where the fee of the street is in the city, subject to claims of citizens for special injuries, the overwhelming weight of authority is against the right of placing them on public highways of which the fee is in the abutting proprietors, without compensation to the latter. Elliott, Roads and Streets, p. 528; Cooley, Const. Lim., p. 663.

But no text writer and no decision has been found intimating the exisfence of any power to authorize the construction of a private railroad for exclusive individual use on a public street or highway under any circumstances.

Mr. Elliott very emphatically says:

‘ A municipal corporation can not grant a right to construct a railroad in a street for private use. We suppose it to be indispensable to the validity of a direct legislative grant that in every instance the use should be public, for highways are held in trust for the public for public purposes and for no other. This rule is clearly the legitimate sequence of fundamental principles.” Elliott, Roads and Streets, p. 565.

We have discovered only a single case in which such a pretension was ever directly advanced, in which the city of Port Scott, Kansas, granted permission to the owners of an elevator to construct a railroad on a public street for their private use in carrying grain to and from their elevator, and, on injunction by an abuttor on the street, the Kansas Supreme Court said: “We think it maybe laid down broadly and upon general principles that no city has any right or authority to give permission to any individual or corporation to construct or operate a purely private railroad upon any public street, and that all the statutes which have reference to railroad companies or others constructing- or operating railroads through or upon the public streets simply have reference to such railroad companies or others as perform the duties of common or public carriers, and to such railroads as are public or guasi-public in their character. * * * No private excavations can be allowed in a public street, no laying down of a private railroad track, and indeed no use of a public street can be allowed, except its use for public travel and transportation. And we further think that whenever any person or corporation attempts to construct a purely private railroad on a public street, any abutting lot owner whose property is or may be injured by it may maintain his action to enjoin. By such action he is merely protecting his own private interests, and interests which differ from those possessed by the public in general. In support of such right of action we would refer to the following cases: Milhau vs. Sharp, 27 N. Y. 611; White vs. Flannigan, 1 Md. 525; Ewell vs. Greenwood, 26 Iowa, 377; Wilson vs. City, 39 Wis. 160.” Mikesell vs. Durkee, 34 Kan. 509.

We thoroughly agree with the Kansas court in the foregoing exposition of the law.

The authorities as to the rights of abutting proprietors are collated by Mr. Elliott and they'fully recognize the broader character of their rights than those accorded to the mere citizen and accord to him, or owner of the fee, subject only to the public easement, all the ordinary remedies of an owner, including trespass, ejectment and injunction in cases where his rights are unwarrantably invaded. Elliott on Streets and R., pp. 536, 308, 310; see also 3 Kent’s Com., 11th Ed., p. 548; Angel on Highways, Sec. 319.

The law of Louisiana is even more liberal on this subject. Bell vs. Edwards, 37 An. 475; Dudley vs. Tilton, 14 An. 281; Allard vs. Lebeau, 2 N. S. 319; Mayor vs. Gravier, 11 O. S. 621.

Indeed our Code of Practice specially authorizes an injunction in the case when the defendant is in the act of building or constructing some work tending to obstruct a place of 'which the public has the use.” Art. 298. And the previous article authorizes any plaintiff to invoke such remedy to prohibit ah act which he contends may be injurious to him, or impair a right which he claims.”

We are not called upon to investigate the particular measure of injury or damage inflicted on plaintiff in this case. It is sufficient to say that the act of defendant violates his clear legal rights, as we have above expounded them.

Judgment affirmed.