author: Pociié, J.

text:
    No. 9917.
    Succession of Mrs. Minerva Sparrow, On Opposition to Provisional Accounts of Administration and to Tableau of Debts. John W. Decker, Guardian, et al. vs. Christopher Chaffe, Jr., Administrator.
    [Consolidated.]
    A. commission merchant holding funds as the proceeds of products owned by a deceased, person, holds the same in trust, and cannot legally pay them to any other but the duly qualified representative of the succession.

      A payment to any other will not discharge him from his legal responsibility therefor.
    The opposition of one of these heirs to an account of administration is sufficient to submit the whole account to judicial test, although the other two heirs may have approved of the same. In such a case parties in interest, whose claims may be rejected, have their recourse against the heirs who have recognized their claim in due course of administration. It is no longer an open question in our jurisprudence that an executor or administrator cannot, at the risk of the succession, carry on planting operations and contract, in so doing, debts so as to bind the estate.
    .In such (jases the administrator, who has not tried to lease the succession property, will he held liable for the rental value of the same.
    Errors of judgment, not amounting to malfeasance, are not sufficient causes for the removal of an administration or to authorize one of his securities to withdraw from his bond,
    APPEAL from the Eighth District Court, Parish of East Carroll. Delony, J.

      Ohas. 8. Wyfy,F. F. Montgomery and W. (if. Wyly for Opponents and Appellants.

      J. W. Montgomery, O. J. <& J. 8. Boatner and J). B. TI. Ohaffe contra.

   The opinion of the Court was delivered by

Pociié, J.

This litigation involves the discussion of a first and of a second provisional accounts of administration, and of a tableau of debts, of tbe succession of Mrs. Minerva Sparrow, presented by Chris. Chaffe, Jr., the present administrator of said succession, and it is predicated on the following facts and judicial proceedings :

At her death in December, 1879, Mrs. Minerva Sparrow, who was separate in property by judgment from her surviving husband, Edward Sparrow, left an estate consisting of three cotton plantations, of some town lots, and of movable effects attached as appurtenances to the plantations, amounting altogether, as shown by the inventory, to 168,421 25.

She died intestate, and left as heirs at law two daughters, of age, Mrs. Kate Foster and Mrs. Fanny Ashbridge, and two orphan granddaughters, Mary and Kate Decker, issue of a predeceased daughter, Anna Sparrow, wife of John N. Decker.

Having been abandoned by their father shortly after their mother’s death and soon after their birth, the orphan twin sisters, Mary and Kate Decker, were taken in charge by their grandparents, Edward Sparrow being appointed as their tutor in August, 1881. In July, 1885, their father appeared and qualified as natural tutor, but he died shortly thereafter, and now they are represented in these proceedings by a tutor ad hoo, Chas. S. Wyly, Esq.

In July, 1880, seven months after the death of his wife, Edward Sparrow was qualified as administrator of her succession, the property of which, however, had been in his possession and under his control from the time of her death.

Beginning under his precarious possession and continuing under his administration, Edward Sparrow cultivated on a large scale the plantations belonging to the succession, and extended his operations to other and adjoining lands, which he rented, as well as to a plantation store from which he furnished supplies to the large force of laborers which he employed in his planting enterprise.

He died in July, 1883, without ever presenting an account of his administration.

He was succeeded as administrator by Chris. Chaffe, Jr., a resident of the city of New Orleans, a member of the commercial firm of John Chaffe & Sons, cotton factors, with whom the deceased administrator had cai’ried on all the financial operations of the succession, and who claimed to be creditors of the same in a large amount, as advances for the cultivation of the succession plantations, the correctness of whose account had been acknowledged in writing by Edward Sparrow a short time previous to his death. The new administrator, who was qualified on the 4th of August, 1883, continued to cultivate the plantations precisely as his predecessor had done, including the employment of the firm of John Chaffe & Sons as his commercial merchants, but he abandoned the plantation store which had been kept by the previous administrator.

On the 24th of April, 1885, lie presented his first provisional account of administration, covering the operations of the years 1883 and 1884, and showing to the credit side of the succession $54,590 68 and debits amounting to $45,265 50, striking as balance of assets in his hands the sum of $9325 18. On the same day he filed a tableau of debts due by the succession amounting to $40,719 73.

That statement included a debt of $27,46.6 68 due to the firm of John Chaffe & Sons, which had accrued during the administration of Edward Sparrow, and an additional indebtedness composed of certain notes of over $4000, and others aggregating $7051 32 due by Mrs. Minerva Sparrow to said firm.

The account and the tableau were both opposed by Mrs. Fanny Ashbridge, one of the heirs of age. Before the trial of the opposition the administrator presented a second provisional account, which was filed in April, 1886, in which he covered portions of the years 1884 and of 1885, and in which he was made a creditor of the succession in the sum of $1682 49, exclusive of his commission as administrator.

That account was likewise opposed by Mrs. Ashbridge, who was joined by John N. Decker, guardian and natural tutor, and subsequently by Chas. S. Wyl.v, the tutor ad hoe of the minors, Mary and Kate Decker.

Engrafted on these oppositions is an action brought by them in July, 1885, for the destitution of Chris. Chaffe as administrator, on the ground of various acts of alleged malfeasance. This suit was consolidated with the main action involving the various accounts of administration. While the record shows that all the items of both accounts and of the tableau of debts were opposed,'it appears therefrom that the maiu ground of attack is the alleged want of legal authority of either of the two administrators to have undertaken large agricultural ventures with the plantations belonging to, and at the risk and expense of, the succession. Alleging that the cotton crop of 1879, left by Mrs. Minerva Sparrow, and shipped to, and sold by, John Chaffe & Sons, was more than sufficient to extinguish the debt which she owed to that firm, and that, therefore, the succession owed no debts, opponents seek to hold the administrator, Chaffe, judicially responsible for the rental value of the plantations belonging to the succession.

Under an order rendered by the court on an exception of accountant, opponents, under' protest, elected to claim the rents of the plantations, instead of discussing the accounts of the expenses of raising, and of tlie proceeds of, the crops. The district judge maintained both accounts and the tableau of debts, with some slight amendments. He dismissed the demand for the removal of the administrator, as well as the rule to compel him to furnish a new bond, but he enforced the demand of Mrs. Ashbridge to be discharged as one of the sureties on the administrator’s bond. Prom that judgment the opponents and the accountant have both appealed.

I.

From balance sheets rendered by the firm of John Chaffe & Sons, in February, 1880, it appears that on account of cotton sold by them on account of Mrs. Sparrow, she bad a balance to her credit in their hands amounting to $11,451 61, and that they held her notes aggregating $11,051 32. Instead of compensating their claim against the succession by the proceeds of the cotton received for its account, they erroneously attempted to charge against the succession and to the proceeds of its cotton a debt due to them by A. M. Ashbridge, the husband of one of the heirs, and also a personal debt which Edward Sparrow owed to them.

As the succession was then unrepresented, and as neither of the debts could, under any circumstances, be charged to Mrs. Sparrow, the settlement was entirely unauthorized, and was absolutely null.

The authority set up by John Chaffe & Sons, as coming- from Ed. Sparrow, is of no avail. He was not yet the administrator, and he was powerless to legally bind tlie succession.

In law John Chaffe & Sons must be held to have never parted with that fund, and in law it must be attributed to the indebtedness of Mrs. Sparrow to the firm.

Either their notes have been compensated by the proceeds, or tlie fund is yet in their hands. The most equitable born of tlie dilemma towards them is to compensate the one by the other, and thus avoid a discussion of the plea of prescription which opponents had set up against these notes due by Mrs. Sparrow. The amount of these notes must, therefore, be stricken oat of the tableau of debts due by tlie succession, as contended for by opponents, by which operation a debit of $401) 29 will staud agaiust John Chaffs & Sons as the difference between the proceeds of tlie succession cotton and the amount of tlie notes due by Mrs. Sparrow.

IL

As all the other items contained in the tableau of debts originate from the planting operations of both of the administrators indiscriminately, their validity turns upon the right of either or both of the said administrators to cultivate the plantations for the benefit, and at the expense, of the succession, and that discussion presents the crucial question in tbe case.

But an incidental question, which affords the most harrassing complication in the whole controversy, must first be disposed of, and tliat is tbe authority which the administrator holds up from the two heirs of age, conferring to him the right to cultivate the plantations. The record contains two instruments executed by Mrs. Foster and Mrs. Ashbridge, who therein recognize the indebtedness of the succession of Chaffe & Sons, resulting from their father’s planting operations as administrator of their mother’s succession, and other evidence added thereto might justify the conclusion that these two heirs had concurred in their father’s plan for a large agricultural enterprise. But they were not the only heirs of the succession, and surely their consent cannot be invoked as binding tbe whole succession. Without discussing now tbe ultimate legal consequences which may result to them from the acts in question, it is both rational and legal to hold that, as the minor heirs could not he bound otherwise than by operation of judicial proceedings regularly carried on in their behalf, the consent of the heirs of age cannot bind tbe succession as a legal entity.

It is elementary in our practice that all parties who are cited to show cause why an account of administration should not be approved and homologated, are defendants, and tliat an opposition is an answer. Succession of Romero, 28 Ann. 607. It follows, therefore, that the pleadings of one party in interest cannot he binding on another.

In this case the minor heirs, through their tutor ad hoc, fully authorized to represent them, have filed an answer which contests the legality of the debts charged to the succession, and their right of urging tliat defense cannot be impaired by the petition of intervention of Mrs. Foster, who alleges the regularity of all the proceedings which are assailed by lier co-heirs. No more can their position be affected by any acts or contracts of either or of both of the heirs of age, by which they might eventually he held liable for their virile or respective shares-in the debts which are resisted in these oppositions. The question which tlieir pleadings present is one of law and of right which reaches the whole succession, and it cannot he divided or parceled into fragments for the purpose of discussion.

We shall, therefore, treat the question as affecting the succession as an entirety, irrespective of the special attitude of any particular heir in the premises.

After arguing that there was no necessity for the sale of any of the immovable property of the succession, under the provisions of Articles 1163, 1164 and 1165 of the Civil Code, counsel for the accountant contend that it then became the bounden duty of the administrator to cultivate the plantations, and that, therefore, the heirs are bound for the debts which he may have contracted in furtherance of that duty.

His main reliance, is on Article 1168 of the Code, which reads as follows:

“ If it is not necessary to sell the property engaged in agriculture, belonging to the succession, in order to pay the debts, it must be preserved and administered by the curator for the account of the absent heirs for one year after his appointment.”

But uothing in the record even suggests the slightest pretence that the cultivation of these plantations was undertaken under the authority of that article.

It is in full'proof throughout the record that the object of Edward Sparrow was far from the idea of preserving and administering the property on account of the heirs and for a limited time. It appears, on the contrary, that his was a deep-laid programme and a foregone conclusion to undertake an extensive and risky planting venture, as though he was the owner of the entire estate, and for an unlimited time. Hence, he undertook the crops of 1880, 1881, 1882 and 1883, and undismayed by the losses which he encountered, he persevered in his honest intention to work the estate out of debt, for the benefit of his children and grandchildren, up to the very moment of his death. And such was his solicitude that his plan should not be defeated even by death, that in anticipation of an approaching end of his longlife, he took great pains to select the present administrator as his successor, and to specially charge him with the execution of his programme. He seemed, indeed, to have entirely lost sight of his connection with the property as an administrator. His convictions on the subject are thus described by counsel for the accountant herein : “ It must be borne in mine that Gen. Sparrow had himself, by talent and industry, made all this property, and, morally, was the owner of it.”

It was that same misconception of the true conditions of things which has superinduced all the errors which have continued to swell the great complications which beset ns on all sides in this controversy. It was manifestly the same misconception which .subsequently shaped the course of the jiresent administrator, and, therefore, the record shows him honestly, faithfully, but erroneously, following the footsteps of liis predecessor in the administration of this large estate.

Far from making any effort to lease the plantations of the succession, Gen. Sparrow actually rented adjoining lauds to which he extended his hazardous agricultural enterprise, and no effort was ever made by either of the administrators to lease any one of the plantations. The only letting which was done or e/en tried was to laborers, known in the cotton regions as “tenants,” who pay their rent in cotton or lint, and who are supplied for all their needs by the planter himself, and in this case by the administrator, by and through the, plantation store hereinabove referred to. During Chaffe’s administration the store has been kept and run by his overseer or manager on his own account. The current of authority in our jurisprudence is to the effect that executors and other succession representatives cannot at the risk of the succession carry on plantation operations, and contract, in so doing, debts, so as to bind the estate.”

The rule is not absolutely inflexible to the extent of annulling or defeating- a debt inclined by an administrator in meeting the expenses necessary to save and harvest a crop already begun, or hanging- by the root at the date of his appointment. But it is manifestly sufficient, in scope to amply cover the case now under discussion. Miltenberger vs. Elam, 11 Ann. 668; Succession of Décuir, 22 Ann. 372; Miltenberger vs. Taylor, 23 Ann. 189; Carroll et al. vs. Davidson, 23 Ann. 428; Forsheim vs. Holt, 32 Ann. 133.

In the case of Carroll et al. vs. Davidson, just quoted, the Court described the very effect which would, in this case, eventually seal the fate of the heirs of Mrs. Sparrow, if the administrator were allowed to go unbridled in the planting venture, so inauspiciously inaugurated by Geu. Sparrow, when it said: To permit an administrator, indefinitely, to carry ou the plantation business and annually increase the indebtedness of the estate, would give him the power to ruin the estate irretrievably.”

That utterance is characterized by couusel for Chaffe & Sons as erroneous and inconsistent with previous, as well as with subsequent, rulings of this Court on the same subject. But our researches in this case, which have been long, tedious and thorough, have led us to the same conclusions as ars therein announced.

• The same rule was clearly recognized and firmly applied by our immediate predecessors, the successors of the bench which rendered the decision so earnestly assailed by counsel.

In the case of Forsheim vs. Holt, 32 Ann. 133, the Court, used the following language: “Now, we take it that it is no longer an open question that an executor cannot, at the risk of the succession, carry on planting operations and contract in so doing debts, so as to hind the estate; at all events, certainly not without previous authoiity obtained.’' And the opinion theu proceeds to demonstrate that the question is not touched by two cases on which counsel for accountant herein place great reliance. Succession of Wederstrandt, 19 Ann. 494; Succession of Brown, 27 Ann. 331.

The case in hand is a fair illustration of the wisdom of the rule. A succession without debts was run into debt exceeding $35,000 by means of planting operations wbieb lasted three years and a half.

The recent opinion of this Court in the case of the Succession of Myrick, 38 Ann. 611, is in vain invoked by counsel for accountant in support of their contention. The issue in that case involved the light of the heirs to claim of the administrator the value of working animals on the ground that he should have sold them and not have allowed them to die away on the plantation, and to enforce the liability of the administrator for five years’ rent of the place.

The court exonerated the administrator from both claims, on the ground that he could not have sold the working animals separately from the plantation to which they were attached ; and on the additional ground that, having tried without success to lease the plantation, the administrator was legally justified to cultivate it so as to save it from waste. It must also he noted that the administrator in that case did not seek to bind the succession for debts incurred in his planting operations.

Our- conclusion is, therefore, that the accountant was not authorized to carry on planting operations on the account, and at the expense of the succession, and that we have, therefore, no concern with his accounts coveriug his operations in that line.

And we hold further that., having made no effort to lease the plantations under his administration, he is liable for the rental value of the same during the time that he cultivated them for his own account under the law. We note in this connection the contention of counsel that “ there is no law authorizing or recognizing the property of a sue cession to be leased,” and that they support their position by referring to two decisions of this Court. The first is the case in 35 Ann. 858, Succession of Richmond; but the authority of that case doubly conflicts with their argument. In the first place the opinion directly recognizes the authoiity of the administrator to lease succession property; and in the second place the court said, in answer to a claim, that the property should have been leased at public auction : “We know of no law and we have been referred to none, which compels the administrator of a succession to lease property at auction.'''1 (Italics ours.)

The second is the case of the Succession of Myrick, 38 Ann. 611 — but the following quotation from it is a sufficient answer to counsel’s contention : “ It was his duty to have leased the plantation if lie could, but we are satisfied from the testimony of the administrator and of Ed. Myrick, the tutor of the opposing heirs, that this was impossible.”

As to the value of the rental of the three plantations wre find the testimony very conflicting. But in consideration of the depreciated value of that kind of property and of the low prices which cotton commands on the market, we have adopted a low estimate and we conclude to fix the rent of the three plantations together at the sum of four thousand dollars per annum subject to deduction for taxes levied thereon, and to the administrator’s commissions on the rental.

As to the demand for the destitution of the administrator, we find no evidence to justify that measure. It was the firm of John Chaffe & Sons and not the administrator personally who asked a respite from creditors.

And we are satisfied that the faults committed by the administrator do not amount to malfeasance, but at most to errors and honest errors of judgment. It is well settled that the enforcement of the penalties provided for this and similar defaults of executors and administrators, is a matter within the sound discretion of the court.” Congregation of St. Mary vs. Farrelly et al., 34 Ann. 533; Dickson vs. Dickson, 23 Ann. 583.

Nor is there such mismanagement in the conduct of this administrator as would justify the withdrawal of any of bis sureties under the provisions of Sections 3737 and 3738 of the Revised Statutes.

In conclusion we note the apparently meritorious contention of John Chaffe & Sons, in urging the legal liability of the two heirs of age for their respective shares of the indebtedness acknowledged to be due to that firm by the present administrator, in reimbursement of their advances of money and supplies used in the cultivation of the plantations by Edward Sparrow, the previous administrator.

That liability is alleged to grow out of the written consent of these two heirs to the planting operations of their father, under which they are estopped from repudiating the consequences of the acts which they authorized and sanctioned.

On inspection, these documents which were executed in November, 1882, some time after the written acknowledgment by Edward Sparrow of the correctness of the firm’s account, have the legal effect of a ratification of the father’s administration and of his management of the plantations belonging to the succession.

The instruments signed respectively by Mrs. Foster and by Mrs. Ashbridge contain the following very significant declaration': That the said estate is indebted to the commercial firm of John Chaffe & Sons for supplies furnished and advances made by them to enable the administrator to carry on the plantations. Now, therefore, we, the said heirs, declare that we hold our respective shares in the said estate liable for all just demands of the said John Chaffe & Sons incurred as stated, and for such supplies or advances as may be made hereafter to enable the administrator to cultivate and make crops on said plantations.” * * *

■ It requires no argument to show that snch an agreement contains both a ratification of the previous acts and an authorization in the way of the management of the succession plantations, for cultivation of the same in the future. It cannot therefore be denied that such a declaration must have created the legal obligation on these two heirs, to respond to the indebtedness thus incurred under their own authorization, in so far as their respective shares of .the estate are concerned.

That obligation is not resisted by Mrs. Foster, who judicially recognizes it to its fullest extent, by means of a petition of intervention filed herein as above stated.

But it is strenuously repudiated by her co-heir Mrs. Ashbridge, who contends in substance that she was not informed of the condition of affairs at or previous to the time at which her signature was obtained, and that she signed the instruments, while she was sick in bed, without reading or taking cognizance of the same.

The tenor of her declaration shows that the intention was to give general and full power to the administrator to carry on planting operations at the expense of her share or interest in the estate,’ and it follows that the amount of indebtedness thus existing or already incurred, was not a condition precedent of her signature, but that it was' a matter of merely secondary consideration. No more can she escape liability through her alleged ignorance of .the contents and purport of- the /instrument before signing it; '-She states herself that it -was sent-by mail by her brother-in-law, Major’Foster, at-the request of her father, to iler husband who presented it to her for her signature. She does not set up the slightest pretense, or even intimate that any attempt or effort was made to deceive or to misguide her in the premises.' “ If she failed to read it, it was her own fault and plaintiffs (John Chaffe & Sons) cannot be affected by any error resulting from her own gross negligence.” Allen, West & Bush vs. Whetstone et al., 35 Ann. 850. See also Allison & Co. vs. Watson, 36 Ann. 620.

Her subsequent conduct in receiving a monthly allowance of one hundred dollars from the present administrator out of the revenues of the crops made on the plantations; and her judicial demand for such an allowance after it had ceased, as a result of her attitude in this litigation, are circumstances which speak louder than words in explanation of her understanding of matters, and of her intention when she executed the agreement in question. It appears from the record that since his appointment the present administrator has also furnished the.means necessary for the maintenance and for the schooling of the minors, Mary and Kate Decker, and that, as they were without a tutor from August, 1883, to the latter part of 1885, the funds were intrusted to Mrs. Foster, who had kindly taken charge of the two minors. All these proceedings were irregular and were carried on outside of the law, but they were manifestly prompted by laudable feelings and;considerations of fairness and of humanity, for which the administrator should not be made to suffer if by any legal means he can obtain reimbursement.

We, therefore, deem it our duty to reserve the rights of John' Chaffe & Sons and of the present administrator to enforce their respective claims against the two heirs of age, on account of the latter’s liability for expenses incurred in the cultivation of the plantations'of the succession, by proper proceedings in due course of administration,' and we also reserve the rights of the administrator to demand reimbursement of all sums advanced by him to the two heirs aforesaid, as well as for similar advances made to the minors, Mary and Kate Decker. As we took occasion to state in the early portion of this opinion, our investigation of the issues presented in this case has been addressed to the rights and obligations of the succession as a legal entity; hence, our decree herein is intended and binding in that sense only, and not as finally adjusting the adverse rights and obligations of creditors and heirs inter sese as growing out of their respective personal actions aind contracts.

Tt is, therefore, ordered, adjudged and decreed that the judgment .appealed from be annulled, avoided and reversed, and proceeding to render such a judgment as should have been rendered below: it is ordered, adjudged and decreed that the two provisional accounts of administration herein rendered and filed by Chris. Chaffe, Jr., administrator, and the tableau of debts charged against said succession, also presented by said administrator, be and the same are hereby, each and all, annulled, cancelled and rejected, under and subject to the rights hereinabove reserved in favor of said administrator and of the firm of John Chaffe Sons touching their claims against tlie two heirs of age for moneys advanced and for expenses of cultivating the succession plantations and in favor of the administrator for moneys advanced for tlie maintenance of the minor heirs, Mary and Kate Decker. It is further ordered that Chris, Chaffe, Jr., administrator, be required to present forthwith a provisional account of administration and a tableau of debts which may be due by said succession, from which he shall exclude, as debts due by said succession, all expenses incurred in the cultivation of succession plantations, either by himself or by Edward Sparrow, former administrator of said succession, aud all items of indebtedness due to John Chaffe & Sons, either by A. M. Ashbridge or by Edward Sparrow, personally.

It is further ordered that, in his account, the administrator shall enter the claim of J. M. Kennedy for the sum of forty-eight dollars, as a privileged debt; that he shall charge himself with rent for the three plantations and their appurtenances, belonging to said succession, during the whole time that he cultivated them, at the rate of four thousand dollars per annum for the whole, subject to deduction of taxes aud administrator’s commissions.

It is further ordered that the demand for the destitution of .said Chris. Chaffe, Jr., as administrator aforesaid, the demand to compel him to furnish a new bond, and the demand of Mrs. Fanny Ashbridge for her withdrawal from his bond as administrator, he and the same are-hereby rejected and dismissed, and that all costs in both courts be taxed against the succession.


source: Caselaw Access Project

author: Todd, J.

license: Public Domain

text:
    No. 9838.
    New Orleans and Gulf Railroad Company vs. Michael Frank.
    Where tlie charter of a railroad company requires that the stock shall he paid for in -cash, and that no certificate shall issue until such payment is made, it is a sufficient compliance with the statute prescribing that the chai ter of such companies must set forth “ the time 'when, and-the manner in which ” the stock shall be paid for.
    In au expropriation proceeding for a right of way the verdict of a jury of the vicinage, composed of land-owners, and presumed to he familiar with the value of the land sought to he expropriated, will nob be disturbed by this Court, unless it is found to he inconsistent with the proof in the record, or entirely unsupported by evidence.

      APPEAL from the Twenty-fourth District Court, Parish of Plaque-mines. Livaudais, J.

      JS. Howard MoOaleb and White & Saunders for Plaintiff and Appellee: ■
    1. Tli© existence of a corporation or its riglit to exercise corporate powers, can only bo questioned by the State in a direct action. Rev. Stats., sec. 2593; 5 Ann. 179; 18 Aim. 677 j 24 How. 278; Field on Corporations, sec. 493.
    2. The general lawsW the State enter into and form a part of tho charter. Abbott’s Dig. of Corporations, vol. 1, p, 445, No. 6.
    3. When no term for tho performance of an obligation is fixed it may be executed immediately. Rev. C. C.2050.
    4. The jury of freeholders in expropriation cases are regarded as experts. 12 Ann. 503. They may rely on their own opinions. Mill’s Eminent Domain, sec. 248. 3 Yerg. 423.
    5. Tn an appeal from a judgment founded on a verdict of a jury, failure to make application for a new trial is good reason for affirming tho judgment. 15 L. 456; 10 Ann. 91; 17 Ann. 78. J
    6. Damages may ho compensated by benefits and advantages to be derived from tho construction of the railway. N. O. Pacific R. R. vs. Murrell, 34 Ann, 536; N. O. Paoifio R, R. vs. Gray, 31 Ann. 430; V. S- & T. R. R. vs, Calderwoocl, 15 Ann. 481; Opelousas R. R. vs. Lagardc, 10 Ann. 150.

      James Wilkinson and II. O. Oacje for Defendant and Appellant
   The opinion of tho Court was delivered by

Todd, J.

Prom a judgment granting the right of way to the plaintiff company through defendant’s plantation, and awardiug $200 for the value of the same, the defendant has appealed.

There was an exception filed to the proceeding to the effect:

“That the charter of the company does not comply with the law, as it does dot set forth ‘tlio time when and the manner in which the stock shall bo paid for.’ ”

The charter is before us, and it does require that the stock shall be paid for in cash, and that no certificate of stock shall issue until this payment is made.

In our view, this is strict compliance with the statutory requirements. B. and O. Telegraph Co. vs. Morgan’s L. and T. R. R. Co., 37 Ann. 883.

The exception was properly overruled.

In expropriation proceedings we place great reliance upon the verdict of the jury. Being taken from tho vicinage, and land-owners themselves, and presumed to be thoroughly acquainted with the character of the land and its value, a court should not disturb, the estimate of value fixed by the verdict, unless it is found inconsistent with or entirely unsupported by the evidence.

We have examined the record carefully and find the .usual conflict that characterizes cases of this kind, but this review satisfies us that the verdict wns justified by the proof.

Judgment affirmed.


author: Fenner, J.

text:
    No. 10006
    Canal & Claiborne Street Railroad Company vs. City of New Orleans et al.
    The original grantee from the eifc.v of Now Orlóme of a franchise or privilege of a right of ■ way over certain streets for railroads, fur a term of twenty years, cannot, after the ex piration of said term, enjoin Uio city from advertising and selling the samo franchise, on the ground that the city has failed to comply with its alleged contract obligation to take and pay'for its “railroads, rolling-stock, equipments and fixtures.'”
    Such failure, even if the obligation existed, could not operate to prolong the franchise, or to restrain the city in the oxorciso. of its sovereign authority over its streets for the benefit of the people to whom they belong in common.
    The specifications of the proposed sale cover only the franchise of the right of way, and do not propose to sell any property of plaintiff, all of whose legal rights are expressly reserved under a clause requiting the purchaser to respect and equitably settle for them $ and under the same clause plaintiff’may compete at the sale without waiving any rights.
    PPEAL from the Civil District Court for the Parish of Orleans. Righior, J. '

      H. D. Ogdon for Plaintiff and Appellant.

      Walter E. Rogers, City Attorney, and Wynne Rogers, Assistant City Attorney, fo.r Defendants and Appellees.
   The opinion of the Court was delivered by

Fenner, J.

In 1867 the City of New Orleans sold to C. A. Labuzan & Co. (who subsequently transferred to plaintiff) the “ right of way,” or the “privilege of the right of way to establish railroads on Claiborne and other streets for passengers only,” which right and privilege was awarded and transferred for the term of twenty years.

The contract contains the usual specifications as to routes, method and material of construction and various other matters not necessary to detail, and also.the following stipulation :

“The said railroads, rolling' stock, equipments and fixtures to revert to the City of New Orleans at the expiration of said twenty, years’ privilege, on a valuation to be ascertained by two disinterested persons, one to be appointed by the purchaser and the other by the city ; and in the event of a disagreement as to sa.id valuation between said persons thus appointed, a third person or umpire shall be appointed by one of the district courts of and in the city of New Orleans, the decision thereby had to be final and binding.”

The twenty years, for which the privilege or right of way was sold, having expired, the city proposed to sell, and advertised for sale, the same privilege and right, with certain extensions and modifications, upon specifications adopted and published by the city.

Plaintiff brings the present suit to enjoin this sale, on various grounds, and brings up the present appeal from a judgment of the court a qua maintaining an exception of no cause of action interposed by the city, and dismissing the suit.

The grounds of plaintiff’s claim are substantially :

1st. That, under the reversion clause of the original contract heretofore quoted, appraisers had been appointed to value “the railroads, rolling stock, equipments and fixtures “and that they had agreed upon a valuation of $223,664 74, which, it alleges, was binding, and had the effect of res adjudícala; that the city was bound, by its contract, to take the property at this valuation, and to pay for the same; and that it has no right to sell the right of way heretofore enjoyed by plaintiff, W'ithout first, paying for its property as aforesaid, or at least, that it can only sell it subject to a condition imposed on the purchaser to take and pay for said property.

The city responds that the reversion clause imposed no obligation whatever on the city to take or pay for plaintiff’s property, but merely gave it the privilege of taking it at the appraised value, if it should desire to do so. Irrespective of this controversy, which we find it unnecessary to decide, we do not see how the failure of the city to comply with such obligation, even if it existed, could give to the plaintiff any other right than to claim its judicial enforcement by ordinary legal remedies. It is impossible that such failure should operate to prolong plaintiff’s right to exercise the right of way by a railroad over the public streets, after the expiration of the term for which that privilege was granted; or to prevent the sovereign power of the city, delegated by the State, over the public streets, from immediately attaching free from such privilege; or to restrain the city, in the exercise of the same sovereign power, from again granting the right of way, on such terms and conditions as it may choose, consistent with the general rights of the public.

We have heretofore held that, as stated in the Code itself, the “.streets, public walks and quays, are things which belong in common to all the inhabitants of cities and other places, to the use of which all the inhabitants and even strangers are entitled in common that the rights of the city in regulating them and in granting proper rights of way over them for railroad purposes and the like, “ emanate from the State, which, in the exercise of its sovereignty) has delegated them ; ” that “ the power to dispose of a franchise (right of way), being an attribute of sovereignty, is one which no extrinsic power can set in motion, and which requires, as a primnm mobile, the volition of the being in whom it was vested, which is, in the present instance, the city of New Orleans.” Board of Liquidation vs. City, 32 Ann. 915.

In the exercise of her sovereign right and volition, the city sold to plaintiff the privilege of this right of way for twenty years and no longer. The term has expired. The plaintiff has no longer any such right or privilege. The sovereign rights of the city have re-attached, absolutely free from any privilege of plaintiff. Her sovereign power over her streets, delegated for the convenience and welfare of her people, cannot be restrained in its exercise to await the settlement of controversies touching rights and obligations, not concerning the franchise or privilege itself, but other private property.

2d. It is claimed that the specifications, under which the sale is proposed, violate plaintiff’s rights of property, because they locate the routes precisely where plaintiff’s tracks now are, and also because they contain the clause, “ the existing tracks in the above enumerated routes may be used.”

Under the views heretofore expressed, plaintiff’s right to occupy the streets w'ith railroads or to use the right of way over them, has absolutely expired, and the city has the power to sell and locate the right of way thereafter to be granted according to its will.

So far as the grant of the right to “use existing tracks,” contemplates the use of plaintiff’s cross-ties, iron and other severable property, it would be mere brutum fulmen, not binding on plaintiff and which it could resist, or exact compensation therefor. We find, however-, another clause in the specifications which robs this grant of all significance, viz: “If anything in these specifications are in conflict with any rights or privileges granted to any person or company prior to this grant, the purchaser must equitably settle all such conflicts and hold the city harmless from all consequent damages.”

This evidently operates ns a reserve of all plaintiff’s existing rights, whatever they may be, and warns the purchaser that they mast be respected or settled equitably.

3d. The same clause destroys tho last contention of plaintiff, viz: that it lias a right to be a bidder at any public sale of the franchise, but that it. is excluded from bidding, under the proposed specifications, because it cannot do so without abandoning its rights of property, and of insisting on the payment by the city of its appraised value.

Whether or not this would be a ground for injunction it is obvious that, under the clause above quoted, no such obstacle exists to its becoming a bidder, and that it may purchase, if it should be the adjudicatee, .without waiving any of its legal rights, and that any other purchaser, who should seek to use ‘‘ existing tracks,” could not use plaintiff’s property situated on said tracks, without an equitable settlement therefor. Indeed, the city does not propose to sell or transfer any property of plaintiff, but only the privilege or franchise of the right of way, plaintiff’s interest in which has absolutely terminated.

Judgment affirmed.