text:
    No. 9911.
    J. C. Egan vs. S. Russ.—B. C. Lee et al., Intervenors.
    Parties may, by their contraote, waive rights which they would he entitled to enforce under the general law.
    Plaintiff, being about to erect a dam across a watercourse, which defendant opposed, and was about to enjoin, entered into an agreement with the latter, that if he would not enjoin the wort, but permit its completion, defendant might remove the dam if, in the high-water season, it should prove injuriously to subject defendant’s land to overflow, on giving plain* tiff notice in time to close a ditch leading from the watercourse through liis plantation. Defendant having cut the ditch, held that plaintiff' was not entitled to damages on defendant’s showing that it did subject his land to overflow, and that the ditch was actually . closed.
    Plaintiff’s demand, however, for an injunction restraining defendant from further interfering with the reconstruction of the dam and from tearing it down when rebuilt, is sustained.

      The contract being fully executed, and iho status quo restored, defendant cannot take1, the law into bis own hands, but must resort to legal remedies for further vindication of his rights.
    The dam being authorised by tlie police jury for the purpose of carrying a public road across the watercourse, the police jury should ho a party to any proceedings to test the legality of its proceedings, and we decline to pass upon those questions in its absence.
    APPEAL from the Eleventh District Court, Parish of Red River. Hall, J.

      J. P. Pierson, for Plaintiff and Appellant.

      Pierson <& Hall, for Defendant and for Intervenors Appellees :
    1.A jury consisting of not less than six fine holders must be appointed to trace and lay out a new road proposed to be established, and they must take the oath prescribed by law. Sec. 3369 R. S. A road cannot be transferred to another place without the consent of the owners through or contiguous to whose land it runs. Ib. 34 Ann. 940.
    A failure to comply with an important requirement of the law in establishing a road nullifies the whole proceedings. 27 Ann. 204. More user does not make a rogd public. 37 Ann. 497.
    2.The. police jury made no provision for filling up Cross Bayou in accordance with law. The resolution as officially published appropriated money to build a bridge oven1 the bayou. The subsequent contract privately made with plaintiff for filling up the bayou was illegal and a violation of defendant’s and intervenors5 lights. 29 Ann. 510. Sec. 2743, bTo; 13 R. S.
    3.The proprietor of an estate has no right to change the fiow of water in such a way as to cause them to run in another direction beyond the boundaries of his estate. O. C. Arts. 660-661.
    4.It is not essential that estates should bo contiguous in order that one may derive benefit from the servitude on the other. C. C. Art. 051.
    5.Plaintiff has no right to close a bayou at its head in order that he may facilitate th e drainage from his fields, and more particularly to reclaim and redeem large areas of lakes and ponds. 13 La. 503; 15 Ann. 300; 13 Ann. 537; 15 Ann. 497; Ib. 681; 10 Ann. 689; 12 Ann. 554.
    C. A proprietor cannot erect any work which changes*or obstructs the servitude of drainage and running water to the injury of neighboring proprietors. Same authorities. 4 Ann. 165; 33 Ann. 796; 34 Ann. 935-568; R. S. Sec. 3026.
    7. There is no such thing as servitude of reclamation.
    8. Plaintiff, hy reason of his consent that defendant should destroy the dam when ho thought it was injuring him, is estopped from claiming damages for its destruction as well as asking for an injunction to aid him in rebuilding it.
   Motion to Dismiss.

The opinion of tlie Court was delivered by

Fenner, J.

Tlie motion is based on the ground tliat the amount in dispute does not exceed two thousand dollars.

Plaintiff claims $1065 damages, occasioned to bim by the cutting by defendant of a dirt bridge or dam, built across a bayou known as Cross Bayou, and also asks for an injunction restraining defendant from interfering with him in rebuilding said bridge or dam or from disturbing said dam when thus rebuilt.

Defendant not only disputes plaintiff’s claim for damages, but denies the right of plaintiff to build or maintain the dam, and avers that the maintenance thereof would subject his property to overflow and damage him more than five thousand dollars.

The interests involved are two-fold: First, the pecuniary damages claimed by plaintiff; second, the value to the parties of the right to close the Cross Bayou or to keep it open. State ex rel. Levet vs. Lapeyrollerie, 38 Ann. 913.

Plaintiff, against whom judgment was rendered, appealed to the Circuit Court. Defendant there moved, successfully, to dismiss the appeal on the ground that the amount in dispute exceeded $2000.

Plaintiff then appealed to this court, and the same defendant moves to dismiss his appeal here, on the ground that the amount in dispute does not exceed $2000.

We cannot recognize such contradictory proceedings, and considering that, from the face of defendant’s pleadings, as well as from plaintiff’s affidavit filed here, the value of the rights involved exceeds $2000, we must maintain the appeal. Motion to dismiss denied.

Merits.

It appears that, on June 23,1884, the police jury of the parish passed an ordinance changing the road No. 17 from Coushatta ferry to Greening’s ferry, in such manner as to run it across Cross Bayou.

On July 23d another ordinance was passed, which, as appears from the minutes, appropriated “the sum of forty dollars, or so much as may be necessary *• * to build a dirt bridge across Cross Bayou.”

But this ordinance, as published in the official journal, omitted the word dirt, and made it appear that the intention was only to build an ordinary bridge. Of course, this publication gave no notice of the purpose to build a dam closing the bayou.

Plaintiff, who was interested in having such dam built as a protection levee to his lands and plantation, made a contract to build it at the joint expense of himself and the parish.

Defendant wras not advised of this project until the construction of the woik was begun, when he and others interested called on the president of the police jury to protest against it. That officer informed him that he was not aware of any objections to the work, and referred him to plaintiff] by whom, he said, he had been informed that there were no objections.

Defendant and party then called on plaintiff and announced their intention to enjoin the work, by legal proceedings. Plaintiff dissuaded them from that course, insisting that their apprehensions of injury were without foundation, as would appear if the dam were built and submitted to the test of high water, assuring them that he had no wish to injure, his neighbors, and that, if they would let the work go oa, he would be perfectly willing, if, when high water came, the dam should prove injurious to defendant's lands, that they should remove it.

The conversation culminated in an agreement, about the exact terms of which there is some conflict, but the substance of which was undoubtedly that, so far as plaintiff was concerned, he would consent that they might cut the levee, if, in the high water season, they found that its effect was to increase the overflow of their lands, first giving him notice so that he might close his ditch running into the bayou. Under the inducement ©f this agreement, defendant abstained from legal proceedings, and permitted the work to go on.

In the high water of May, 1885, defendant, with others, cut and removed the dam, claiming that, in so doing, he acted under the terms of the foregoing agreement.

It is to be observed that ,we have no concern here with any questions of public law, so far, at least, as plaintiff’s action for damages is concerned. The police jury has not appeared in this suit, and, so far as the record advises us, neither that body, nor any otherpublic authority, makes any complaint of defendant’s conduct.

The controversy is simply and purely between plaintiff and defendant, and their rights and obligations aie tobe governed by the law which they have made for themselves, i. e., by their contract.

Conceding that defendant’s act in interfering with a public highway established under authority of the police jury was, in itself, illegal, and that any member of the general public might claim reparation for damages occasioned him by such act, yet plaintiff, as an individual member of the public, had the right, by contract, to waive his particular claim on that account, and to conclude it as fully as if he had been present consenting to, or participating in, the act. Under these views, we hold that plaintiff’s right to damages depends on the solution of two questions, viz:

1st. Did the dam across Cross Bayou operate to injure the lands of defendant, by increasing the overflow thereon 9

2d. Did defendant notify the plaintiff of the cuttiug in time to enable him to close his ditch, or did any injury result from want of-such notice 9

The evidence in the ease fully confirms the conclusion of the district judge that the dam unquestionably increased the rapidity and extent of the overflow on the lands of defendant.

It is equally clear, and is, indeed, substantially admitted in the petition that, before the effectual cutting, plaintiff’s ditch was actually closed, and no injury resulted from non-closing.

Hence, we consider that the judgment rejecting plaintiff’s demand for damages was correct.

I.

On the qiestion of the injunction, however, we are compelled to take'a different view from that- of the judge a quo.

The contract between plaintiff and defendant is completely executed and at an end. The dam has been removed.

The status quo before the contract is completely restored. The courts are open to defendant for the prosecution of all his legal remedies.

Plaintiff averring his intention to rebuild said levee, and that he has good reasons to fear, and does verily fear and believe, that said S. Russ will attempt to hinder and interfere with him in rebuilding the same, and that said Russ will pull down or destroy the same after it is repaired and rebuilt,” asks for an injunction simply restraining defendant from such action.

To this relief plaintiff is clearly entitled.

As has been said by this court in another case : Amongst the powers delegated to the police juries in this State, one of the most important is that to cause any water-course which is not navigable to be filled up for the purpose of carrying the public highways over the same, provided no injury be thereby occasioned to the neighboring-inhabitants. Rev. Stat., sec. 2743, No. 13,” Lalanne vs. Savoy, 29 Ann. 516.

The police jury, in this case, has assumed to establish a public road and to authorize the'filling of Cross Bayou in order to carry the road across it. Plaintiff claims the right, under his contract with the police jury, and by its authority, to .build this dam. Whatever may be the rights of defendant, it is clear that he cannot take the law in his own hands, and physically oppose plaintiff’s construction or tear it do-wn -when built.

If he denies the regularity of the proceedings of the police jury or its right to fill up this water-course to his injury as a neighboring inhabitant, ho must assert his pretensions contradictorily with the police jury as well as with plaintiff, who acts under its authority.

We must decline to settle these questions in this action, where they are not essential to the determination of any right allowed by us to plaintiff, and where defendant has not even formally propounded a re-conventional demand.

Nothing prevents defendant or intervenors from resorting to proper legal proceedings against the proper parties in order to determine these rights and, in the meantime, to preserve the status quo by injunction.

We do not, by this decision, affirm the right of plaintiff or of the police jury to close this water-course. We simply deuy the right of defendant, by extra judicial proceedings, to obstruct or destroy the work by physical force.

We note that since this suit was filed, defendant did bring an injunction suit against plaintiff, which was dismissed on the exception of Ks pendens, because he had asserted a like right in this suit. But that obstacle will be no longer in his way.

There is no inconsistency between these views and our reference to the right to build this dam as an element of the cause of action on the motion to dismiss. The right was asserted in this suit, and litigated between the parties. We simply decline to decide it in this proceeding.

It is, therefore, ordered, adjudged and decreed, that the judgment appealed from be affirmed in so far as it rejects plaintiff’s demand for damages; that, in all other respects it be annulled, avoided and reversed; that the injunction issued in favor of plaintiff be now reinstated and perpetuated; that intervenors’ demands be rejected, appellees, defendant and intervenors to pay the costs of their respective proceedings in the lower court and the costs of this appeal.

Watkins, J. recuses himself, having been of counsel.


source: Caselaw Access Project

author: Watkins, J.

license: Public Domain

text:
    No. 9899.
    William S. Benedict vs. John Bonnot et al.
    Though an heir accept a succession that has fallen to him, with the benefit of inventory, yet, if he treats the property as liis own, and offer it for sale, or make sale thereof, ho makes liimself an unconditional heir, and binds himself for the payment of the debts of the deceased.
    An heir, having only a residuary interest in the succession of an ancestor, has no just cause of objection to a probate sale made to pay debts, if the same is insolvent. He should have paid the debts before making complaint.
    If lieirs and creditors remain silent and inactive, and permit the property to pass by a public sale into the hands of strangers, purchasers and third persons accepting title from them are fully protected.
    APPEAL from the Civil District Court for the Parish of Orleans. Houston, J.

      A. Mivrplii/, for Plaintiff and Appellee.

      Sambola & Diteros, Brauglm, Buelc Dinlcelsgjiel & JETart and B. JB, Theard & Sons, for Defendants and Appellants :
    1. By taking possession of tlie estate of liis wife, and continuing tlie same business for two years after lior death, without causing an inventory to be made, James Darcy became personally responsible for all the debts of the community. The share of his minor children was not liable for these debts. B. C. C. 988, 1010.
    2. There being no administrator ai>pointed, and James Darcy acting simply as tutor, he could only administer the succession as {l an effect, a thing belonging to his wards,” and was governed by the rules appertaining to the administration of tutors. The holding of a family meeting to fix the terms of the sale of tlie minorfe’ share was indispensable. 16 Ann. 420; 34 Ann. 38.
    3. An acknowledged creditor, whose claim is allowed on the tableau of distribution, but who has not been paid has his remedy against the tutor ex-officio administrator personally ; but he cannot ask that the sale of the succession proporty be annulled. O. P. 993; B. C. 0.1063 et seq.
    4. LTo such thing as a u putting in possession under the benefit of inventory ” is known to our jurisprudence. The heir may accept unconditionally, in which case he is put in possession; or he may accept under benefit of inventory, in which case the administrator must proceed to liquidate the estate and pay the residuum^ if any, to the heir. B. C. C. 1032, 1051, 1054, 1058, 1062, 1073; 27 Ann. 351; 21 Ann. 365; 19 Ann. 293.
    5. Charles A. Benedict having acquired nothing from the succession of Susan Darcy, could convoy nothing to William S. Benedict, who inherited from him; hence iffaintiff’s title is not good, and the defendants have justly refused to take the property adjudicated to them. '
   Tlie opinion of the Court was delivered by

Watkins, J.

At a public auction sale, made on the 21st óf June, 1884, by Nicholas J. Hoey, auctioneer of tlie city of New Orleans, John Bonnot, the sole appellant, became tlie adjudicateo of a certain lot of ground and improvements, situated in tlie Third District, for the price of $3100, one-fourth cash and the remainder upon terms of one, two and three years’ credit, with the security of mortgage and vendor’s lien retained, the purchaser to assume the payment of all taxes o 1884. Thereupon a title in due form was tendered him, and compliance demanded, which he refused, anu this proceeding was instituted to compel him to accept same in pursuance of the adjudication.

The grounds of the appellant’s refusal are the following, viz :

1st. That the plaintiff is not the absolute owner of the property adjudicated, but that same is succession propertjr, and under administration in the probate court for the benefit of the creditor's of the late Charles A. Benedict.

2d. That the sheriff’s sale of this property, as that of the community theretofore existing between James and Susan Darcy, should have been preceded by the convocation of a family meeting, and their recommendation of the terms of sale, in the interest of the minors of the deceased mother.

3d. That the sale by James Darcy, tutor, with due formality, and without opposition, could not be subsequently set aside, at the suit of a single creditor, and without notice to the major heir.

4th. That there are recorded against the property various liens, privileges and mortgages, to an amount in excess of the piice of adjudication.

Therefore he prays that same be annulled and avoided.

I. <S

The plaintiff claims to have derived title from the succession of his deceased brother, Charles A. Benedict, to which he was an heir, his (plaintiff’s) brothers and sisters having renounced, and he having accepted same with the benefit of inventory.

The record discloses this state of facts, and that the plaintiff was placed in possession, of the property of the estate of the deceased by the judgment of a competent court, upon due proof of the renunciation of all other heirs.

Since that time he has acted and treated the property as his own; has paid the debts of his brother’s estate; and, finally, caused the same to be sold to defendant, as his.

Pretermitting any expression of opinion with regard to plaintiff’s right to accept the succession with the benefit of inventory, and terminate his own administration, his taking the property into possession and treating it as his own, and making a sale thereof, constitutes him an unconditional heir, and subjects him to the payment of the debts of the deceased.

This obligation plaintiff acknowledges and assumes. Under this state of facts the title he offers defendantis as good as that of the deceased.

II.

The property originally belonged to James and Susan Darcy in community. At the death of the latter, in 1874, James Darry survived; and there also survived one major and three minor children. The succession of Susan remained without administration until 1877, when the surviving husband qualified as tutor, and caused an inventory to be made. The community assets aggregated $12,440, and its indebtedness $16,722 11.

The succession of the deceased was insolvent.

The tutor obtained an order of court for the sale of the property, and procured an adjudication of it to himself at'the nominal price of $9550 — though nothing was paid. Prior to this adjudication, though subsequent to the order of sale, James Darcy, in his personal capacity executed and caused to be recorded two special mortgages against the property, then advertised for sale, in favor of two of the creditors of the late community, and, of course, his purchase was subject to them. Subsequently, another community creditor brought suit against James Darcy alone, without making the mortgagees parties, and upon appropriate allegations and proof of fraud, obtained a judgment by default, revoking and annulling his title, and decreeing- that the succession of Susan Darcy had not been divested thereby, and that it was subject to the debts thereof. This property was again ordered sold to pay debts of her succession, and the same was adjudicated to Charles A. Benedict.

The defendant’s objections to the validity of the proceedings and judgment setting aside the sale to James Darcy are of no force.

The major heir of Susan Darcy was in no way affected by them. When his father assumed to purchase the share of his deceased mother he retained in his hands the share of said heir; and when the sale was revoked the property was left in his hands. In the absence of any complaint by other creditors, defendants cannot be heard. The succession and community were insolvent. On the trial the plaintiff testified that he had paid all the known debts of both, and that if any others there were, same would be paid on presentation.

He claims to have paid all the attorneys’ fees and court costs, and has discharged all the mortgages against the x>roperty.

There is in the record no countervailing evidence. The heirs of Susan. Darcy had only a residuary interest in her succession, which was defeated by the probate sale to xmy debts, there being no resid/wum after the same were satisfied.

. The objections urged by the defendant to the title offered him are unfounded, but we think- the reservation made by the district judge, requiring the plaintiff to cause the inscriptions of all mortgages, liens and privileges that were of record against said property at date of sale, to be canceled and erased, with the exception of the taxes of 1881, was correct.

Judgment affirmed.


author: Fenner, J.

text:
    No. 10,069.
    Heirs of Philip Hoggatt vs. A. W. Crandall, Administrator, et al.
    Xho principle that, in an action of nullify, the judgment attacked as null cannot ho pleaded as res adjudteata, does not apply whore the grounds of nullity assorted had been considered and validlykloterniincd by that .judgment itself.
    In this case,’not only were the grounds of nullity now charged considered and determined in the original judgment, but the same grounds were afterwards presented on an exception of nullity on which issue was joined, and which was again determined adversely to the exception. Xhis operates res adjudicata against tlio present action, which is brought by the sameparlies (in law), against the same judgment, and on the same grounds.
    VPPEAL from the Eighth District Court, Parish of Madisou. Belong, J.

      G. J. JBoatner, for Plaintiffs and Appellants.

      Stone & Murphy and W. B. Young, for Defendants and Appellees:
   The opinion of the court was delivered by

Fenner, J.

In the suit of Thos. J. Martin vs. Thos. W. Watts and Philip Hoggatt, No. 8556 on the docket of this court, a final decree was rendered in 1882, condemning the succession of Hoggatt to pay to plaintiff a certain amount of money. Watts vs. Martin et al. N. R., Op. B. 56, fo. 321.

After the return of this mandate to the lower court, plaintiff sought to enforce the same by a proceeding in the succession of Hoggatt for a sale of property to pay it. The administratrix of Hoggatt’s succession appeared and opposed the application by an answer setting up that the judgment of this court was, as to said succession, an absolute nullity.”

On this distinct issue of nullity vel non, the case vas tried and the district judge sustained the plea of nullity, and rendered judgment rejecting paiutiff’s demand for the execution of his judgment.

An appeal was taken to this court and, after hearing, we rendered our decree reversing the judgment and remanding the case “for further proceedings according to law and to the views herein expressed.” Suc. Martin vs. Suc. Hoggatt, 37 Ann. 340.

On return of this mandate to the lower couil, there being no other defense to the proceeding for satisfaction of .the first judgment, a judgment was entered to that effect.

Thereafter the legal representatives of the succession of Hoggatt brought the piesent action, the object of which is to enjoin perpetually the execution of the last-nair ed j adgment and to annul both the above-named mandate of this court.

Amongst other defenses, the defendant interposed the plea of res judicata.

Prom a judgment in favor of defendant, rejecting plaintiffs’ demaud and dissolving the injunction, t.he present appeal is taken.

If there is the slightest force in the time-honored maxims, “ res ad¡uñicata pro veritate accipitur,''' and “ nemo debit bis vexari pro una et eadem causa," surely defendant is entitled to their protection in this case.

The grounds of nullity urged against our original judgment between these parties (Op. Book 56, fo. 321), are substantially: 1st. Thatthe succession of Hoggatt was not a party to the proceedings resulting in the judgment appealed from. 2d. That it was not a party to the appeal. 3d. That no judgment having been rendered for or against the succession in the lower court, the judgment of this court was an exorcise of original jurisdiction prohibited by the Constitution.

Reference to our first opinion will show that we fully considered these objections to our decree ; that we recited correctly every fact upon which they were based, and that we overruled them, holding substantially, in terms or by necessary legal inference: 1st. That the new trial granted by consent of parties vacated the entire former judgment of the court. 2d. That the default subsequently taken against the succession of Hoggatt created a new issue. 3d. That the trial had involved the issue raised by tiie default against the succession as well as that raised by the answer of Martin. 4th. That the judgment rendered, in failing to confirm the default against the succession, was error, remediable by appeal j and, finally, that the succession being a party to the proceedings and the issue tried, was a party to the appeal by reason of the latter having been taken by motion in open court at the same term at which the judgment was rendered.

Such was the plain theory of our opinion, and it should have been a bar to any action to annul it upon the grounds thus considered and disposed of.

Nevertheless, in the second suit above referred to, the succession of Hoggatt was permitted to raise the issue of the nullity of our mandate upon the identical grounds above stated and disposed of in our first opinion. This issue was tried in the lower court, appealed to this court, and was decreed adversely to the succession'on the ground that the grounds of nullity alleged, having been considered and disposed of in the case in which the judgment was rendered, could not again be agitated. We call attention to the fact that the first-opinion of the court, in this last case, was reconsidered, and that our decree was made to rest on the reasons given in the opinion rendered on the rehearing.

The present action presents the same demand, founded on the same cause of action, between the same parties. C. C. 2286.

The petition charges that our proceedings violate various provisions of the Federal Constitution, and an attempt was made to remove the cause to the Federal court; but the Supreme Court of the United States remanded the cause, with these remarks: “If the administratrix of the succession of Hoggatt was not a party to the proceedings after the first judgment in her favor, no one can claim that the succession she represents was bound by what was afterwards done in the suit. All depends on whether she continued to be in fact and in law a party ; and this is to be determined by the effect of the original judgment in her favor, and the form of the proceedings thereafter. This may involve a consideration of the law and practice in Louisiana, but it is not,, so far as anything now appears on the record, at all dependent for its solution on any construction of the Constitution or laws of the United States.”

The very thing decided by us was that under “ the law and practice in Louisiana;” the original judgment was vacated by the new trial granted, and that the administratrix did “ continue to be, in law and fact, a party ” to the subsequent proceedings.

Assaults upon the correctness of these judgments, even if they had merit, would be of no avail.

We do not claim that our judgments are infallible; but, when they have become final, they are certainly irreversible- by inferior courts and even by ourselves, on mere grounds of error.

In thus deciding we do not forget, nor do we violate, the principle that in an action to annul a judgment, the j udgment so assailed cannot be pleaded as res adjudicata. That principle only applies to grounds of nullity which were not considered and validly determined in the j udgment itself.

But it is sufficient to say that our decree on the former plea of nullity against the original judgment is unquestionably valid, and subject to no charge of nullity on any ground; and it is clearly res adjudicata against any further action of nullity by the same parties, against the same judgment, and on the same grounds.

Judgment affirmed.


author: Todd, J. Poché, J.

text:
    No. 9821.
    The State ex rel. Josiah Fisk vs. Police Jury, Parish of Jefferson.
    A mandamus made peremptory against the police jury of a division .of a parish, may be enforced after a consolidation of the divisions of the same parish, against the police jury of the parish thins formed.
    APPEAL from the Twenty-sixth District Court, Parisli of Jefferson. Host, J.

      Olías. Lauque, for the Relator and Appellee.

      James D. Ooleman, for the Respondent and Appellant. .
   The opinion of the Court was delivered by

Todd, J.

The police jury of the parish of Jefferson is appellant from a judgment dismissing a rule to quash and set aside a peremptory mandamus issued against it at the instance of the relator.

The relator, a judgment creditor of the parish of Jefferson, (left bank), obtained a writ of mandamus for the enforcement of his claims, which was maintained by a judgment of the Supreme Court of the United States on a writ of error from this court, which judgment directed this court to frame a decree conformable to the judgment and opinion of the court.

Accordingly a motion was made in this court to execute the judgment of the Supreme Court of the United States, and notice of such motion was directed to be served on the police jury of the parish of Jefferson and the district attorney for said parish, which was done, and contradictorily with said parties, a decree was rendered by this court on the 10th of May, 1886, to the end and for the purpose aforesaid.

Shortly thereafter a rule was taken by the police jury of Jefferson to vacate said decree, and have its nullity, as also that of the judgment of the United States Supreme Court declared, on the ground that the said police jury of Jefferson was not a party to the proceeding in which said judgment was rendered, that said proceeding was instituted and conducted against the police jury of the parish of Jefferson (left bank), and that said judgment could not, therefore, embrace or affect the parish of Jefferson, or its present police jury.

It appears that during the pendency of this proceeding in the courts, the divisions of the parish of Jefferson known as right and left bank, by an act of the Legislature of the State, known as act 92 of 1884, were united, constituting the one parish of Jefferson, with one police jury, and this act is cited and relied on by the said police jury of Jefferson as the ground of contention and resistance to the said judgment and to the decree of this court providing for its enforcement.

We note that when the mandate of the Supreme Court of the United States under said judgment, was filed in this court, and the decree of this court for its execution asked for, the police jury of Jefferson, after notice given as above stated, filed an answer to the motion, in which several grounds of opposition to the proposed decree were set up, and among others the special contention urged in the rule before us, viz: That the police jury of the parish of Jefferson was not a party to the said proceeding, in which the judgment was rendered, and that, therefore, the said judgment as to the said parish of Jefferson and its police jury, was an absolute nullity ; and, again, referring to act 92 of 1884, as the ground of the resistance thus urged. The decree of this court made the mandamus peremptory, and in the language of that decree (quoting) j The defendant police jury ” is ordered to levy the tax to pay relator’s judgment.

Considering that there was no other defendant before this court opposing the proposed decree, and that the legislative act referred to was specially cited and relied on by this defendant in the pleadings stated, and that by the express terms of that act the police jury of Jefferson was made the successor of the police juries of Jefferson (right and left bank), abolished by the act, there can be no doubt that the decree aforesaid was directed against the present police jury of the parish of Jefferson. Nor can there be any less doubt of the correctness of the decree in this respect, inasmuch as this body is, as stated, the legal successor of the original defendant in the proceeding, and is directed by the act cited to adjust the indebtedness contracted by the police juries of Jefferson (right and left bank). Furthermore, it appears that the judgment appealed from, in exact conformity to said act, whilst directing the police jury of Jefferson to levy the required tax, limited the levy to the property embraced in the former political division of the parish as now constituted, known as Jefferson (left bank). We find no error in the judgment appealed from, and it is therefore affirmed with costs.

Poché, J.

I dissent from the opinion and decree of the majority in this case, and will file my reasons later.


text:
    No. 9897.
    Creole Steam Fire Engine Company No. 9 vs. The City of New Orleans.
    The suit being upon certificates of appropriation evidencing claims for current municipal expenses during years from 1874 to 1877 exclusive, the judgment should have been restricted to payment out of the revenues of the several years in which the claims arose.
    The certificates declared upon carrying on their face an express stipulation they “ bear no interest,” none can be recovered except from judicial demand.
    The right to fund under acts 133 of 1880 and 67 of 1884, cannot be determined judicially except contradictorily with the Board of Liquidation.
    APPEAL from the Civil District Court, Parish of Orleans. Monroe, J.

      J. JDuvigneaud, for Plaintiff and Appellee.

      Walter H. Rogers, City Attorney, and Branch E. Miller, Assistant City Attorney, for Defendant and Appellee.
   The opinion of the court was delivered by

Fenner, J.

The suit is brought upon sundry “ certificates of appropriation,” issued in pursuance of an ordinance of the city, passed April 5th, 1881, No. 6968, Administration series. The certificates represent part of tlie floating debt of the city, created prior to the year 1879.’ .

The judgment appealed from was in favor of the plaintiff for the amount of the certificates with legal interest on their respective amounts from the date of the several ordinances under which they were issued, and further ordering that, upon the surrender thereof, bonds be issued to plaintiff in exchange, as directed by act No. 67 of 1884.

The city complains of the judgment in two respects only, viz :

1st. That the judgment against the city should not have been absolute, but should have been restricted to the revenues of the years in which the claim arose.

From the face of the certificates it appears that they represent claims for current municipal expenses during the years from 1874 to 1877 inclusive, and, under our repeated precedents, the judgment must be restricted, as claimed by the city, to payment out of the revenues of those years. This may not interfere with their funding under the act No. 67 of 1884, which grants the right to fund all judgments, whether “absolute or rendered against the revenues of any particular year or years, previous to the year 1879.” '

But lire right to fund clearly cannot be determined in this controversy, which is one between plaintiff and the city of New Orleans alone. Under the funding acts, No. 133 of 1880, and No. 67 of 1884, it is plain that the right to fund can only be judicially determined con ■ tradictorily with the Board of Liquidation of the city debt. Therefore the judgment, in so far as it recognizes such right, is' inoperative and erroneous.

2d. The other complaint of the judgment is that it allows interest from a date beyond that of judicial demand.

This was error. The certificates carry on their face the stipulation that they shall bear no interest.’’ The ordinance under which they were issued, makes the same express provision. The record does not .disclose the reasons of the judge a quo for his judgment; and the only one assigned by plaintiff’s counsel is the provision of law that debts bear interest from the time when they are due. Even if debts payable only out of particular revenues when collected fell under this provision in absence of proof the revenues applicable are in the treasuiy, and demand for payment out of same has been made, the provision can, in no event, apply to this case, where the evidences of obligation declared upon expressly exclude interest.

The judgment must be amended in the respects indicated.

It is, therefore, adj udged and decreed, that the j udgment appealed from be amended by restricting the same to the revenues of the several yéars in which the respective claims arose; by allowing legal interest only from judicial demand, and by striking out that portion thereof which orders the funding, without prejudice to the rights of relator as against the Board of Liquidation of the city debt, and that, as thus amended, it be now affirmed, plaintiff and appellee to pay costs of appeal.


text:
    No. 9942.
    Mrs. Elizabeth Schmitt, tutrix, vs. Widow R. B. Schmitt.
    If the person whose duty it is to furnish alimony shall prove that he is unahle to pay the sum demanded out of his revenues, the judge may order that such person shall receive in Ms own house, and their maintain and support the person to whom the alimony is due.
    APPEAL from the Civil District Court, Parish of Orleans. Tissot, J.

      H. O. Cage & W. 8. Benedict, for Plaintiff and Appellant.

      Chas. F. Claiborne, for Defendant and Appellee.
   The opinion of the Court was delivered by

Watkins, J.

The plaintiff, in her capacity of tutrix of her minor child, prosecutes this suit against the defendant, its paternal grandmother, for alimony, claiming- $20 per month, until the child shall have arrived at the age of majority, or at an age that she will be able to maintain herself.”

She represents that Peter Schmitt, Jr., the father of the child, died on the 20th of July, 1882, and it was born on the 23d of February following, and is consequently about six years old. That the father was one of six children, issue of the marriage of Peter Schmitt, Sr., and Rosina Bolder, and that the former died on the 23d October, 1880, leavingan estate of about $12,000 in value, to one-twelftli of which the child became an heir, at the death of its father. That this property being that of the matrimonial community theretofore existing between said spouses, the defendant, as the survivor, retained the share of the heirs, as the legal usufructuary, and still so retains it, including the share of the minor.

Petitioner represents herself as being entirely without means of support, and without property, and that it is the duty of the grandmother, under the state of facts presented, to furnish alimony to said child, in proportion to her means and the child’s condition in life, and that she has repeatedly demanded it of her without avail.

It appears from the evidence that, at the date of the demise of Peter Schmitt, Jr., he and his wife and two small children, were living in a house that belonged to the dissolved community, for which he had been paying his mother a small rent, and that, immediately thereafter his widow removed to the house of her brother, where she has since abided with her children, one of whom has since died.

Peter Schmitt, Sr., and the defendant were the owners of, and cultivated several small market gardens, and from the sale of vegetables realized something above a competency, which they had invested in small properties in their neighborhood.

After the death of her husband, the defendant and her sons and daughters continued the business, but not with profit. All the children have become of age, except one daughter of nineteen years, and, in the main, they live together somewhat after the manner of a community.

The proof shows that the property subject to the defendant’s usufruct consists of real estate worth $5500, and $1625 95 in money. That the plaintiff is thirty-four years of age, and absolutely impecunious. That defendant is sixty-two years of age, and works daily in her garden for a living, the annual rents of her property, when collected, only amounting to about forty dollars.

We do not think that it is defendant’s duty to furnish the alimony demanded, as she is evidently unable to pay the same out of her revenues ; but we are of the opinion that the defendant should receive in her house and there support aDd maintain the minor, and furnish her what is necessary for her nourishment, lodging, support and education suited to her condition and station in life; and that she retain her until she attains her majority, or becomes sufficiently able to maintain and support herself. R. C. C. 230, 231, 233, 234.

This'the defendant expresses a willingness to do.

Judgment affirmed.


author: Bermudez, C. J.

text:
    No. 10,033.
    The State ex rel. Police Jury, Parish of Plaquemines vs. A. E. Livaudais, Judge, et al.
    A District Court is incompetent lo enforce the execution of a judgment rendered by a Justice of the Peace, the more so where the existence and validity thereof are put at issue.
    Objections to the jurisdiction of that court, in such a case, ought not to have been overruled.
    A prohibition lies to such court to prevent the execution of the judgment rendered by it to enforce the judgment thus assailed.
    APPLICATION for Prohibition and Certiorari.

      James Wilkinson, District Attorney, for the Relator:
    Justices of the Peace have a right to grant new trials within three days after service on defendant of a valid notice of judgment, where the judgment was rendered out of his presence. Art. 1152/ Code of Practice; “Louisiana Magistrate,” p. 53; Knoblocb’s Civil and Grim. Justice, p. 74; Act 45, 1880, sec. 7; Hule XI, City Courts, New Orleans; Slate ex rel. Broussard vs. Koenig, 39 Ann. C. P., 1085, 1131.
    An attorney-at-law requires a special power to accept service of notice of judgment; 32 Ann. 803, and other authorities there cited.
    An agreement to accept service of notice of judgment presupposes a valid notice of judgment shall be served, La. Magistrate, p. 39.
    No valid notice was served in this cause.
    The motion for a new trial was in time, irrespective of the time when the judgment was signed; 5 N. S. 224; 4 Ann. 561; 6 Ann 251; 20 Ann. 168; 23 Ann., 110.
    Where a court has jurisdiction of tliesubject matter and theparfcies are before it, its orders and decrees, though perhaps voidable, are not void; IToldane vs. Sumner, 15 Wallace, 60 L; Baylii vs. Bay hi, 35 Aun. 529.
    The District Court has no supervisory power over Justice of the Peace Courts; State vs. Judge Nineteenth Judicial District; 39 Ann. and cases there cited ; Arts. 617, 618 and 629 of the Code of Practice.
    In mandamus proceedings the officer whose duty it is to perform the act must be cited ; Dillon onMun, Corporation “Mandamus; C. P. Art. 834 ; 29 Ann. 262; C. P. Art. 844.
    The President of the Police Jury has no greater power than any other member to provide for the payment of a judgment; 38 Ann, 630.
    The facts at bar entitle us to tbe writs of prohibition and certiorari.

      P. Leonard aná Sambola and Lucros :

    MALITIIS HOH JEST IHDTJXGOEHDTJM.
    1. The writ of certiorart is allowa.le only in case of a relator complaining of tbe want either of citation or of the jurisdiction of an inferior judge, or of proceedings absolutely void or not cured by the action of the party complaining ; O. P. 845, 846, 855, 856, 857, 864, S65.
    2. Country district courts have jurisdiction of all cases involving more than §50 in value or amount, as well as of cases brought by mandamus to enforce tbe payment of a judgment rendered by a justice’s court cgainst a parish or police jury. Const. 1879, Art. 109; C. P. 81, 829,r836, 844; 1 JR. 496; 13 Ann. 291; 4 Ann. 84*30 Ann. 65; 1 Ann. 438; Boone, § 313, 168 . 2 Billon, § 850; High, § 365.
    3. In a suit brought against a parish or police jury eo nomine, citation issued and served on the president of the police jnry legally brings tbe police jury into court, without citing the individual members thereof; C. P. 112, 119, 198, 206, 829, 844; 35 Ann. 70; High, §§ 337, 442, 443, 444; 2 Dillon, § 700, etc.: Boone, §§ 75,160 ; 21 Ann. 439; 23 Ann. 803; 27 Ann. 542,
    4. An exception of any kind, other than one founded on the absolute incompetency of the court ratione materice, is legally waived by an answer to the merits, without a previous decision of the exception. C. P. 94, 353, 334, 335, 344; 23 Ann. 255; 26 Ann. 312; 18 Ann. 66; 14 Ann. 798; 4L. 482; 12 Ann. 198; 10 Ann. 20; 17 L. 499; 4 Ann. 350: 1 H. S. 201, 704; 11 B. 80, 430; 2 L. 226 ; 18 Ann. 340 ; 2 L. 226 * 30 Ann. 705.
    5. On a writ of certiorari the court is not permitted by law to pass upon the intrinsic correctness of the judgment or proceeding complained of. 33 Ann. 16 ; 32 Ann. 1223 ; 38 Ann. 378, 922; 39 Ann. 621.
    6. An attorney of record may legally accept service of a notice of a judgment, or agree on behalf of his client to a certain mode of taking or trying suspensively an appeal, and by so doing be waives none of bis client’s rights. 1 Ann. 398; 32 Ann. 8Ó3; 12 L. 603; C. P. 197,206,1090, 1129, 1131,1133,1139; 2 Arn. 917; 3 Ann. 543.
    7. A country justice of the peace in this State is without jurisdictional power to grant a new trial by reason of an error of fact or of law committed in his former final judgment. Bev. Stat., §§ 2047, 2052; C. P. 124, 557 to563, 912, 913, 914, 1043, 1074, 1090, 1129, 1131,1132; 16 Merlin Bep., verbo judgment, § 3, Ho. 4; 29 Merlin, verbis requéte civile, § 3, Ho. 11; verbis révision de procbs, § 1, Nos. 1, 2, 5, 7; Carré, Ho. 604 and notes; 4 Pavard, Bep., verbis revision de procés, Hos. 1, 2; Curia pbilipica, part 1, § 18, Hos. 17 and 18 ; part 5, § 4, Ho, 1; 7 Pobrero, p. 184, appendix, chap. 2, § 1; 1 Solon. §§ 165, 168, 170, 2 L. 139 ; 2 Ann. 493; 2 B. 512.
   The opinion of the Court was delivered by

Bermudez, C. J.

This is an application for a prohibition and certiorari. The complaint is: That tbe district judge lias undertaken, over tbe objection made to bis jurisdiction, to issue a mandamus to tbe police jury to compel them to make provision for tbe payment of a judgment for $75, rendered by tbe third justice of tbe peace in tbe parish.

Tbe grounds of tbe complaint are: That tbe district court is incompetent to enforce a judgment of a justice of tbe peace, and that, in tbe case in which tbe judgment was rendered, the justice of the peace bad granted a new trial, thus leaving' matters as though no judgment bad been rendered.

The objection to the jurisdiction of the district couriin the premises was overruled and the court reudered judgment simultaneously on the merits.

The district judge returns, maintaining his jurisdiction in the premises.

It is unnecessary to inquire whether the judgmont alleged to have been rendered by the justice and sought to be enforced before the district court is or not in existence and valid.

It suffices to say, even if it be a valid judgment, that it does not appertain to the district court to see to its execution.

The Code of Practice, Article 629, provides : It is for the Court, whether appellate or inferior, which has rendered the judgment, to take cognizance of the manner of its execution, when the proper manner of executing it is to be determined.”

An anterior article, 617, declares that the execution of judgments belongs to the courts by which the causes have been tried, and the jurisprudence on the subject is that it belongs to the court which has reudered the judgment to regulate the mode of its execution, aud that the Supreme Court will not interfere except in clear cases of injustice or oppression. Compton vs. Aireal, 9 Ann. 496; Donnell vs. Parrott, 13 Ann. 253; 7 N. S. 658; 8 M. 63.

It appears from the pleadings here that the existence and validity of the judgment sought to be enforced are°denied. This is an issue which the district court was incompetent to deteimine, and which belongs exclusively to the justice’s court, by which it is claimed to have been rendered.

It is clear that the objection to the jurisdiction of the district court ought not to have been overruled, and that the district court cannot proceed to execute the judgment rendered, making the mandamus peremptory on the police jury.

It is therefore ordered and decreed that the judgment rendered by the district court be declared invalid and that the prohibition asked be made peremptory.


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    No. 10,048.
    The State of Louisiana vs. W. F. Eames.
    Ab indictment for a statutory crime need not follow the exact words of the statute in setting forth the offense, it is sufficient if the words employed are of equivalent import \ and. clearly convey the true and complete meaning of the language used in the statute.
    |Au indictment under sec. 903 for the embezzlement of moneys of the ‘"Board of School Directors of the parish of Bed Biver, which said money had been then and there entrusted to him as treasurer of the public schoolrfunds of said parish, etc.,” sufficiently embodies all the elements of the offense denounced in the statute, viz: 1st. That the money was public money, being school funds. 2d. That defendant was a public officer, being treasurer of the public school fund, an office created by law. 3d. That the entrusting to him, “as treasurer, n was an entrusting for “ safe keeping or disbursement,” as required by the statute. On the last point, the law creating the function of treasurer of the school funds, defines his duties to be exclusively those of “ safe keeping or disbursement,” and, moreover, the term treasurer, as denoting a public or privaiejjoffice, has a well-settled signification as “ the title of an officer to whom funds are committed to be kept or disbursed.”
    Attention of prosecuting officers is called to the “ practical hints ” as to drawing of indictments, contained in Bishop on Statutory Crimes, § 386, an observance of which would obviate the frequent questions as to the validity of indictments.
    APPEAL from the Tenth District Court, Parish of Red River. Mall, J.
    ilí. J. Cunningham, Attorney General, and J. C. Pugh, District Attorney, for the State, Appellant:
    1.Indictments for statutory offenses need only describe the offense in the language of the statute, or words of similar import. State vs. Pratt, 10 Ann. 1915 State vs. Henry, 10 Ann. 207; State vs. Batman, 15 Ann. 156 ; Arch. Grim., P. and P., p. 14; Bishop on Grim. Prac , sec. 478; State vs. Williams, 37 Ann. 776 ; 33 Ann. 312; 36 Ann. 923.
    2.If the statement of the real facts constitute a substantial violation of the statute, the indictment is sufficient. State vs. Hood, 6 Ann. 179.
    3.It is a rule of criminal pleadings well setiled, that presumption of law need not be stated, nor conclusions of law resulting from the facts of a case. It suffices to state the facts, and leave the court and jury to draw the inferences. 1 Chitty231; 4 Manic 105; 2 Wilson 147; 5 Leach 591; see also dissenting opinion of Judge Preston in Stale vs. Stiles, 5 Ann. 329.
    4.The principal object of pleadings in criminal cases is to inform the defendant of the nature, cause and character of the charge preferred against him, to the end that he may shape his proof accordingly.
    5.The policy of criminal jurisprudence is to give a liberal construction to indictments and statutes. State vs. Stiles, 5 Ann. 329 ; State vs. Humphries, 35 A nn. 969; 38 Anu. 564 ; lb. 567.
    6.In criminal matters technicalities are not to be disregarded; but they must be subjected to reasonable restraints, and cannot be allowed to reduce the law to a more “ rhapsody of words.”

      J. C. JSgan, for Defendant and Appellee.
   The opinion of the Court was delivered by

Fenner, J.

The State is appellant from a judgment of tlie district court quashing the indictment in this case.

The indictment charges that the defendant did feloniously, wrongfully use and convert to his own use, and conceal and embezzle eight hundred dollars, lawful money of the value of eight hundred dollars, of the property of the Board of School Directors of the parish of Red River, which said money had been then and there entrusted to said W. F. Eames, as treasurer of tlie public school funds of the said parish of Red River,” etc.

The statute under which the prosecution is based provides:'

“ Any officer of this State, or any other person who shall convert to his own use, in any way whatever, or shall use by way of investment in any kind of property, or merchandise, or shall loan, with or without interest, or use in any other manner than as directed, by the law, any portion of public money which he is authorized to collect, or which may be entrusted to his safe keeping or disbursement, or for any other purpose, shall be guilty of an embezzlement of the same.” R. S., Sec. 903.

Various defects are charged against the indictment, which may be summarized as follows:

1st. That it does not charge that the funds embezzled were public money.

A sufficient answer is, that the “ Board of School Directors ” in each parish is constituted by law a public corporation, charged with the control, administration and disbursement of the school funds; that such funds are public money, and that the allegation that the funds embezzled were those of said board sufficiently characterizes them as “public money.”

2d. That it does not charge that Eames was “ treasurer of the school fund,” or occupied any fiduciary relation to the Board of School Directors.

The indictment charges that the funds were entrusted to him “ as treasurer of the public school funds of the parish.” The law establishes the office of “ treasurer of the public school funds,” makes him the custodian of said funds, to be disbursed exclusively on the warrants of the Board of School Directors, and requires his semi-annual •accounting to said board, or “ as often as required.” Act No. 23 of 1877, §§ 8, 11, 13; act No. 70 of 1882, § 2, No. 12.

Thus, it conclusively appears that the indictment does allege that defendant is treasurer, and the law establishes the fiduciary relation between that officer and the board.

3d. The remaining ground of the motion to quash is that the indictment does not, in its terms, set out the offense denounced by the statute, in that it does not allege that the money converted was entrusted to defendant for “ safe keeping or disbursement ” or any other fiduciary purpose.

It is undoubtedly true that the statute makes the purpose of the trust an essential element of the crime, and equally true that the indictment, in order to be valid, must set forth such purpose.

But it is not essential that the offense should be described in the language of the statute. It is sufficient if all the elements of the offense are set forth in words of similar import to those employed in the statute — that is, in such words as clearly convey the real meaning of the language used in the statute. State vs. Williams, 37 Ann. 776; State vs. Humphries, 35 Ann. 966; State vs. Hood, 6 Ann. 179.

The question is simply whether the allegation that the funds embezzled had been entrusted to defendant “ as treasurer of the public school funds,” does not necessarily, ex vi termini, clearly and unequivocally import an entrusting “ to his safe keeping and disbursement,’ as set forth in the statute.

The office of treasurer of the school funds is one created by a public statute which defines its powers and duties, and these last are solely to receive and safely keep the school funds, to disburse them “only on warrants drawn ” by the Board of School Directors, and to account to that body for his “ receipts and disbursements as often as required ” by-it. Act No. 23 of 1877, §§ 8 to 13.

The entrusting of school funds to him “ as treasurer of the school funds” was necessarily an entrusting for the purpose of “ safe keepr ing or disbursement,” because, under the law, they could have been entrusted to him, as treasurer, for no other purpose.

Indeed, aside from the clear, express definition of the functions of his office in the law- creating it, the very word “ treasurer,” as denoting either a public or private office, has a fixed, general and legal signification of the same character.

Thus Worcester defines it as one having charge of the money, funds' or revenues of a society, corporation, State or nation.” ■

And Mr. Abbott, in his Law Dictionary, yet more pointedly defines it as the style or title of an officer to whom funds are committed to be kept or disbursed,” adding, “the function is much the same in all cases, to take charge of the funds or revenues as they come in, to keep them safely, and make payments from them, as required from time to time.”

It is not, therefore, a mere inference from the words used in the indictment, but an integral part of their essential meaning, that school funds entrusted to defendant “ as treasurer,” were so entrusted for “ safe-keeping or disbursement,” within the purview" of the statute.

Thus, in Humphries’ case, an indictment under sec. 790 R. S., which provides :

“If any person lying-in wait, etc., shall shoot, etc., any person, with a dangerous weapou, with the intent to commit murder,” etc., was held good, though the words “ with a dangerous weapon ” were omitted, the court saying: “Shooting a person wilfully, while lying in wait, with intent to kill him, cannot he done without a dangerous weapon.” 35 Ann. 966.

This precedent more than covers the instant case.

The public service, however, would be much benefited if prosecuting officers, in drawing indictments for statutory offenses, would perform tbe simple and easy task of embodying tlie words of the statute, following the “practical hints” of Mr. Bishop on this subject, wliich should be tbe vade meeum of every district attorney, amongst which are mentioned the following sensible injunctions : “ Never draw an indictment except with the statute spread out before you. Always employ tbe exact statutory words, and do not experiment with other words which you may deem to be sufficient as substitutes.” Bishop on Statutory Crimes, sec. 386.

But, being satisfied in this case that words used in the indictmeut.iuclude the full meaning of those of the statute, and advise the defendant perfectly of the nature and cause of the offense with which he is charged, we think our brother of the district court erred in quashing it-

It is, therefore, ordered, adjudged and decreed, that the judgment appealed from be annulled and set aside, and that the case be remanded for further proceedings according to law.

Poché and Todd, J. J., having been absent at argument, take no part.


text:
    No. 10,020.
    The State ex rel. New Orleans and Northeastern Railroad Company vs. C. F. Huft, Justice of the Peace for the Ninth Ward, Parish of St. Tammany.
    The provision of Art. 165, No. 9 C. P., making corporations committing trespass or doing damage “ liable to be sued in the parish where such damage is done or trespass com mitted,” does not confer jurisdiction of such, action upon justices of the peace away from tbe corporate domicile. The Art. 165 is found under a particular titie of the C. P.
    f tbe first article of which restricts tbe application of tbe provisions under said title to district courts, and declares that “special rules are hereafter established for justices of the peace.” Such special rules are found in the following TitleIV of said code, articles 1069 and 1070, of which expressly forbid them from exercising jurisdiction over defendants domiciled in the State outside of their territorial limits.

      The case is not affected by the fact that the provision of Art. 165, No. 9, is also embodied in section 725 R. S. The same Legislature adopted both the Revised Statutes and the Code of Practice, and in oases of conflict, gave precedence to the latter. By embodying the provision as an amendment to Ait. 165 and by leaving Arts. 1069 and 1070 unchanged-the legislative intont was fully indicated to maintain the latter in full force. Moreover, said articles are in direct conflict with Sec. 725 R. S., and under Art. 3990 R. S. the code must be ‘-held and taken as the law governing,”
    ^PPLICATION for Prohibition.

      Bobert Mott, for the Relator.
   The opinion of the Court was delivered by

Fenner, J.

Relator, a corporation domiciled in the parish of Orleans, having been sued before the respondent, a justice of the peace of St. Tammany parish, excepted to the latter’s jurisdiction on the ground of its domicile.

The exceptions having been overruled, relator seeks relief in the present application for prohibition.

The claim of respondent to jurisdiction rests upon Art. 165, No. 9, of the Code of Practice, which provides that “ in all cases where any corporation shall commit trespass or do anything for which an action for damage lies, it shall be liable to be sued in the parish where such dainage is done or trespass committed.”

But this article is found under Title I of Pait II of the Code, the first article of which declares: “ The rules of proceedings contained in the present title relate only to the district and parish courts of the State. * * Special rules are hereafter established for courts of probate and justices of the peace.”

The special rules referred to respecting justices of the peace are found in the following, Title IV, “of proceedings before justice of the peace,” and articles 1069 and 1070 there found, clearly preclude the jurisdiction here claimed over a defendant domiciled in the State and outside of the ward and parish of the respondent justice by the following emphatic provisions : “ In civil cases within their competence justices of the peace can only cite before them such persons as are domiciliated or residing within the limits of their jurisdiction, or strangers who may chance to be there. In this case the term strangers applies to such as have no domiciled or fixed place of residence in the State. * * * Justices of the peace shall not hold, exercise or entertain jurisdiction in any civil matter where the defendant does not reside within the limits of his ward.”

It is true that the provision of No. 9 of Art. 165 C. P. is also embodied in Sec. 725 of the Revised Statutes, but the act No. 341 of 1855, from which it was taken, expressly reserved the above articles of the Code of practice from repeal, and the same Legislature which adopted the Revised Statutes also adopted the existing Code of Practice, and in cases of conflict gave the latter precedence over the former. We consider that by embodying the provision as an amendment or addition to Art. 165, and by leaving articles 1069 and 1070 unchanged, the legislative intent was clearly indicated to maintain the hitter in their original force. Moreover, the said articles are in irreconcilable conflict with Sec. 725 R. S., if interpreted to apply to justices of the peace, and under Sec. 3990 R. S., the code must be “held and taken as the law governing,”

The jurisdiction asserted by the respondent justice is denied to him by the law.

It is, therefore, ordered that the provisional writ of prohibition herein issued be now made peremptory.


text:
    No. 10,026.
    The State ex rel. N. E. May vs. R. C. Davey, Recorder.
    If no complaint is made of the legality of a city ordinance alleged to have been violated, nor of the regularity of a judgment pronounced thereuuder, and there is nothing on.the face of the papers showing that tbe charge preferred is not an offense against said ordinance, an application for a writ of certiorari will be refused.
    PPLICATION for Oertiorari.

      Walter 1). Denegre, Farrar & Kruttsclmitt and Henry Dufilho, for the Relator.

      Thomas J. Semines and Hornor '& Lee, for the Respondent.
   The opinion of the Court was delivered by

Watkins, J.

The relator was arrested on the charge of having violated ordinance 92, Council Series, of the city of New Orleans, and brought before the respondent’s court for trial; and, upon hearing, was condemned, and sentenced to pay a fine of $25, or, in default thereof, to thirty days’ imprisonment in the parish prisou.

His complaint of the proceedings in the respondent’s court is that the charge presented did not constitute an -offense that is punishable by said ordinance; and that his sentence is, therefore, illegal.

He represents that the sentence complained of is an unappealable judgment, from which he has in vain sought relief by petition to the Civil and Criminal District Courts of the parish of Orleans, for writs of habeas corpus, and that certiorari is his sole remaining remedy.

The ordinal:ce alleged to have been violated reads as follows, viz :

11 That it,shall be unlawful for any person or persons to sell, barter, exchange or otherwise dispose of any lottery tickets, or token, policy, combination, device or certificate, or fiactional part thereof, in any lottery drawn, or to be drawn, in or out of the city of New Orleans, unless the same be duly authorized by the laws of the State of Louisana.”

The affidavit simply charges “ that on the 29th of June, 1887, at No. 26 Commercial Alley, in this district and city, one N. E. May did then and there violate ordinance 92, C. S.”

The following ticket is annexed to the affidavits filed in this court, as a part of the respondent’s return :

But there is nothing discoverable on the face of the record to connect it with the charge made against the relator, or to constitute it an essential and integral part thereof; aud the respondent denies in his answer that the relator was charged with the sale of any ticket the sale of which was not authorized by the law of the State.

As there is no complaint made of the legality of the ordinance, none of the regularity of the judgment pronounced thereunder, and there is nothing to show that the sale of the ticket annexed was the violation of the ordinance complained of, there is nothing on the face of the record to bring this application within the scope of the supervisory power of this court.

It is, therefore, ordered, adjudged and decreed, that the relator’s prayer for the issuance of a writ of certiorari be refused at bis cost.

Bermudez, C. J. and Poehé, J. concur in the decree.


text:
    No. 10,030.
    The State ex rel. J. T. Nolan et al. vs. The Judge of the Twenty-Second Judicial District et als.
    A judge who has been recused has no rishfc to take any judicial aciion in the case in which the recusation has been made
    lb does not appertain to him to say that the recusation is not well founded.
    Ho must, immediately, where he does not acknowledge, proprio motu, that tho recusation rests on good reason, call in another judge, or lawyer, as the case may he, to determine the question on that issue.
    It is not until after the question has been decided adversely to the party raising it, that Ihe judge can resume and exercise jurisdiction over the controversy.
    It ought to be well known that, under article 90 of the Constitution, this court has a general supervision and control over inferior courts, regardless of amount, in all oases, otherwise proper.
    ^^PPLICATION for Prohibition.

      G. A. Goudran & B. JV. Sinns, for the Relators.
   The opinion of the Court was delivered by

Bermudez, C. J.

This is an application for a prohibition, to prevent the district judge from passing upon a suit in which he was recused, and for a mandamus to compel him to call on a judge to determine the question of recusation.

It appears that the relators brought suit before the Twenty-second Judicial District Court, setting up certain rights to the ownership aud administration of a local newspaper, claiming a sequestration of its apparatus, and praying that certain parties be enjoined from using the same.

In tlieir petition the plaintiffs recused the judge of that court on the ground of relationship.

The clerk issued the sequestration and the injunction, which were executed.

The district judge afterwards, on an application to bond, dissolved the writs.

The plaintiff, now the relators, complain that the district judge had no authority to take any action; that he ought to have called in a judge to pass upon the recusation, and that, having failed to do so, a mandaimis should issue to compel compliance with that duty.

The district judge returns, that this court has no jurisdiction over this cause, the matter in dispute in the suit before him not exceeding $2000; that the clerk had no light to issue the writs ; that the recusation is unjustifiable; that he had the right to dissolve the writs on bond, etc.

It is, indeed, surprising and incredible that, at this late day, article 90 of the constitution, which vests this couit with general supervision and control over all inferior courts, to be exercised by the usual remedial writs, and that the jurisprudence expounding it, which has settled that this power may be exercised in all oases, regardless of amount or matter in dispute — remain ignored by any member of the judiciary or bar.

The objection that the matter involved does not exceed $2000 must be at once dismissed, with the hope that it will not be repeated as long as the article sliall not have been revoked.

It may well be that the order of the clerk is illegal, that the recusation is groundless, but it is unquestionable that it did not lie in the mouth of the respondent so to say, under the circumstances.

It was the undeniable duty of the judge to have stood aside and at once called upon a judge ad hoe to pass upon the validity of the recusation, and it was not until after the recusation had been declared without foundation that he could take any action in the case.

The adjudications of this court are quite numerous, and rest on solid and conservative considerations. State ex rel. Tyrrell vs. Judge, 33 Ann. 1293; Wardens vs. Perche, 36 Ann. 160; State ex rel. Segura vs. Judge, 37 Ann. 253; State ex rel. Trimble vs. Judge, 38 Ann. 247; Amaker vs. Vernado, 19 Ann. 381; Hunter vs. Blackmar, Manning’s U. C. 427.

As the district judge had no authority to act in the case as he did, it follows that the order which he made to dissolve the writs on bond was unwarranted, and so is an absolute nullity,

The rights of the defendants to ask the dissolution on bond, or otherwise, must, however, remain unaffected, provided it be asserted after the recusation shall have been finally passed upon.

The case presented is a clear one for the relief asked.

It is, therefore, ordered and decreed, that the respondent judge do at once withdraw from the case, and call upon a lawyer, having the qualifications of a judge, to hear and determine the question of recusation, and that said respondent judge be prohibited from exercising any jurisdiction over the cause, until after said recusation shall have been finally determined adversely to the plaintiffs in the case.

It is further decreed that the dissolving order, made by the respondent judge, be declared null and set aside, reserving to the defendants in the case to urge a demand for a dissolution, in due course, and before a proper authority, and that relators recover their costs.


text:
    No. 9947.
    Widow J. L. Tissot et al. vs. Great Southern Telegraph and Telephone Company.
    There is no authority in any one to treat as a nuisance that which is not so, and whoever assumes to abate, as a nuisance, that which is not so, acts at his risks and perils.
    A company which undertakes, under a contract with a municipal corporation, to do a work of public improvement, such as lading a fire alarm telegraph, has no right to invade the premises of an abutting proprietor and cut off limbs of trees overhanging the sidewalk, and which do not obstruct the use '*f the sidewalk, or when the posts and wires could have been, with less or no inconvenience, located elsewhere.
    Even then, it has not the right to cut off branches so as to leave in the foliage an open space ranging in circumference from 25 to 40 feet, for the purpose of passiug an almost imperceptible wire.
    The city with whom the contract was made did not grant to the company the right of committing the acts complained. While the rights of corporations will be recognized, the obligations under which they are to respect those of others must be enforced.
    The damage done cannot be said to be irreparable. Time will surely restore the original condition of things.
    APPEAL from tbs Civil District Court for the Parish of Orleans. Monroe, J.

      Henry P. Dart, for Plaintiffs and Appellees:
    1. Defendant’s employes entered plaintiffs’ premises (in their absence and without their knowledge or consent), by climbing the boundary fence, and destroyed the outer limbs of two ornamental magnolia trees. This is a trespass, and plaintiffs have their action for it, though no other damage be proved. Sutherland Damages, 3, pp, 364, 385, 869, 469 , Cooley on Torts, pp. 63-4.
    8. The wanton destruction of shade trees may be an irreparable injury. Delacaux vs. Villero, XI Ann. 39; Sutherland Damages, p 374. See also Wire’s; case, 20 Ann. 500. In assessing damages, in such oa«es, the injury to the feeling; the conduct of the trespassers; its wanfonness, etc., are to be regarded. Byrne vs. Gardner, 33 Ann, 9; Cooley; Sutherland; above cited. Wanton trespass implies malice, lb.

    3. Negligence of the employes of a corporation acting within the scope of their employment, and in the discharge of their ordinary duties, which amounts to trespass, will be imputed as trespass to the corporation. State ex rel. vs. Judge, 38 Ann. 956; Salt Lake City vs. Hollister, 118 U, S. 256; also, 21 How. 202.’ “ It is too late to discuss the question, once much debated, whether a corporation can commit a trespass.” Beed vs. Bank, 13 Mass. 443; also, 2 Woods, 494.
    4. The rule is, “ that the employer or principal shall be responsible in all cases where the injury to the third person might have resulted from the negligence or unskilfulness of the servant whilst in the immediate pursuit of his master’s business; although in fact it did not, but was occasioned by the wilfulness or maliciousness of the servant whilst so employed.” American Law Begister, Oct. 1887, p. 609, et seqand authorities there cited; Heath vs. Wilson, 9 C. and P. 607.

      Bayne, Deri&gre ób Bayne, for Defendant and Appellant:
    The city of Now Orleans employed defendant to construct a fire alarm telegraph through its streets, over a designated route, under the supervision of its commissioner of police and public buildings, and in executing this contract, the limbs of two trees which proM jected over and into the street were cut and the foliage trimmed for the passage of the wires, and for this plaintiffs claim damages. The streets are for public use, and nnder the administration of the city government. O.O. 454-458 ; 14 Ann. 842 827; 12 Ann. 747. City Charter, Acts of 1882, Nov. 20, Sec. 7 and 8, p. 20 and21.
    Branches of trees extending into the street may he out or trimmed, when they prevent or impair a public use, aud the fire alarm telegraph is constructed by the city for public use. C. C. 691; Herbert vs, Benson, 2 Ann. Bep. 271; 12 Ann. Bep. 343-746; Young vs. Inhabitants of Yarmouth, 9 Gray 386; Diilon on Municipal Corporations. Sec. 688; Irwin Telephone Company, 37 Ann. Bep. 67; Hill vs. Illinois Central B. B. Co., 38 Ann- Bep. 606; Wood on Nuisances, Secs. 111-256.
    The line of the telegraph was constructed under the authority of the city in the exercise of power specially given by its charter and its police power, and in the construction no more of the limbs were cut or trimmed than was necessary, and the presumption of the law is that it was properly done. 28 Ann. Bep. 131; 9 Gray 386 ; Eranz et als. vs. S.C. & P. B. B. Co., and city of Sioux City, 7 Northwestern Bep. 472.
    Neither malice nor negligence is in any manner imputable to any of the general officers of the corporation. There is no basis for the claim made for punitory damages, and there is no proof of any actual damage.
    The general rule, under the law of Louisiana, is that only actual and compensatory damages are recoverable for an alleged illegal act, and any exception to this rule involves malice. C. C. 2320; Biohoux vs. Mayer Bro., Manning’s Unroported Cases, p. 5 0; Boulardvs. Calhoun, 13 Ann. 447; Keene vs. Lizardi, 8 La. Bep, 33; Woodenware Co. vs. United States, 106 U. S. 435; The State vs. Chapman, 38 Ann. 348.
    If there is any malice shown or outrage committed by the employee in which the employer did not participate, and which he did not authorize, the employer is not responsible • therefor, and this is especially true as to a corporation. 11 Ann. Bep. 294; 13 Ann. Bep. 447; 6 Ann. Bep. 495; 29 Ann. Bep. 792; 38 Ann. Bep. 606, 348; 34 California, 594; 19 Michigan. 3; 47 New York, 122; 4 Indiana, 260 ; 52Illinois, 256 ; 106 U. S. 435; Green-leaf Ev., sec. 253, vol. 2; 4 Exchequer Bep. 580-586; McManus vs, Crickett, 1 East. 106; Wright vs. Wilcox, 19 Wendell, 345. The two last are leading cases on this subject.
    The public are entitled to the use of the whole traveled street as a public highway, and the location of the poles for the fire alarm eight or nine feet from the hank of the bayou, out if’to the public road, would obst.i ucfc and endanger (he lives of persons driving or riding upon it. The location was made under the direction of the city officers in accoi dance with the city ordinance, and there is no legal claim for damages. Wood on Nuisances, sec. 256 5 Dickey vs. Maine Tel. Co , 46 Maine Hep. 483 ; 37 Wisconsin, 84; 61 New York, 448.
    There is so proof of any actual damage, and neither the law nor the facts proved in this case authorize any judgment for vindictive or punitory damages.
   Tlie opinion of tlie Court was delivered by

Bermudez, C. J.

This is an action to recover $2500 damages for trespass on plaintiffs’ premises, injury done to valuable trees thereon, etc., by employees of the defendant company, whose action is characterized as wanton, malicious and violative of the rights of petitioners.

After issue joined by a general denial, the case was tried and' a judgment rendered for $750 damages, from which the defendant company appeals.

The facts do not appear to be disputed : wirh the district judge, we find them to be the following :

Tiie plaintiffs are the owners of the property, which cost $12,000 years ago, and has been continually since improved.

At a distance of between one and two feet within the front line rail" ing, there were four full-grown magnolia trees,'planted more than twenty years ago, which had been carefully nurtured and trimmed, and which presented an imposing appearance. They were planted two on each side.of the entrance gate, at a distance of between twelve and fifteen feet apart.

During the summer of 1886, employees of the defendant company entered the premises and climbing the trees to some twenty-five feet from the ground, actually did cut off from two of them a number of limbs projecting ou the street, so as to leave an open space in the foliage varying from 25 to 40 feet in circumference.

In justification the company urges that permission for the cutting of the limbs had been previously obtained ; that the branches projected over and into the street and were an obstruction operatiug as a nuisance, which the city ofNew Orleans had the right to remove; that the cutting complained of was done in execution of a contract between the company and the corporation for the latter’s benefit, or public improvement, namely : the construction of a fire alarm telegraph through its streets, over a designated route, under the supervision of the commissioner of police and public buildings; that the trees in question were on that route and the limbs cut off were an impediment to the execution of the contract; that no more limbs were cut than was necessary, and the legal presnmption is that it was done properly.

The, company repels the charges of malice and negligence, lidding - that, in the absence of such, only actual and compensatory damages can be claimed; that there is no proof of real damage, and that punitory damages cannot be allowed.

Hence, error is charged in the judgment below, and its re versal is asked.

The evidence shows that when the acts complained of were consummated, the plaintiffs were away from the State, and that there lived on the premises a female servant who had a daughter some twelve years old. A gardener occasionally would come merely to keep the garden in good condition.

There is nothing to show that any authority was obtained from either of the occupants; but even if there was proof to that effect, it could not be considered, for the plain reason that the keepers of the property had been placed upon it for its protection and not for its destruction, to any extent, and that any permission from them to the contrary was bound to be violative of their trust, and so of no value and protection.

Granting the contract for the building of the fire alarm telegraph, with the city, it by no means follows that under that contract, which is absolutely reticent on the subject, the defendant company acquired from the city the right to do that which is charged against it.

There is no doubt that the streets and sidewalks of a city are not subject' to any proprietary right or interest on the part of abutting proprietors. 37 Ann. 67; 38 Ann. 606.

They are things which belong in common to the inhabitants of cities and to the use of which all the inhabitants of the place, and even strangers, are in common entitled. R. C. C. 455, 458; 32 Ann. 915.

Neither can the right of the city to regulate the use of streets and sidewalks be disputed, for it has that privilege not only as an inherent power to its corporate existence, but also because its charter specially vests it with the prerogative. 32 Ann. 915, charter 1882, secs. 7 and 8, p. 20 and 21.

It is well settled that, whether the municipal corporation holds the fee of the street or not, the true doctrine is that it can do all acts appropriate or incidental to a beneficial i se by the public, only where it acts in a proper and careful manner, for it is then only that the adjoining proprietor cannot complain.

It is perfectly true t-liat a municipal corporation may, when authorized, expropriate for the purpose of opening streets and making sidewalks, and that it may cut down trees, dig up the earth, and may make culverts, drains and sewers upon or under the surface, grade and level ; in fine, do any proper act which may improve the use of the thoroughfare and enhance public convenience; but that cutting of trees, digging up of earth and the other acts must be confined within the limits of the street which extends over the space between the front lines of property-holders, on both sides, sidewalks included. It follows, therefore, the city could not enter the premises of the abutting proprietors, cut down their trees or dig up the earth on their premises. Dillon on Municipal Corp., 3d Ed. § 688 (544), p, 684.

It is true that under its charter, already cited, the city is expressly vested with the power “to suppress all nuisances?1 but this must be construed so as to apply to cases of nuisances clearly so, to the detriment of public health and public convenience; for otherwise the removal or abatement would be unlawful.

Woods, in his treatise on the subject of nuisances, substantially uses the following language(Sec. 740.)

Where the Legislature confers upon the city the power to remove nuisances, this power confers authority, provided the thing be .a nuisance and produces such an injury that an individual injured thereby might remove, but not otherwise, and if the authorities abate a nuisance, they are subject to the same perils and liabilities as an indi-. vidual, if the nuisance is not in fact a nuisance. * * * It would indeed be a dangerous power to repose in municipal corporations to permit them to declare, by ordinance or otherwise, anything a nuisance which the caprice or interests of those having control of its government might see fit to outlaw, without being responsible for all the consequences; and even if such power is expressly given, it is utterly inoperative and .void, unless tlie thing is in fact a nuisance, or was created or erected after the passage of the ordinance, and in defiance of it.

The fact that a particular use of property is declared a nuisance by an ordinance of the city does not make that use a nuisance, unless it is in fact so and comes within the idea of a nuisance.- Hence authority conferred by an ordinance of the city is no protection against liability, unless its unlawful character is clearly established. Therefore (except in cases of great public emergency, when the emergency may be safely regarded as so strong as to justify extraordinary measures upon the ground of paramount necessity, or when the use of property complained of is so clearly a nuisance as to leave no room for doubt outlie subject.) it is the better course to secure an adjudication from the conrts before proceeding to abate it.

The author next proceeds, enumerating the recognized cases in which municipal corporations may abate nuisances.

In the present instance there is nothing to show that the overhanging of limbs of trees, on the sidewalks from within the property, has ever been declared by law or ordinance, or even considered as a nuisance.

In a case in which it was claimed that a verandah extending over a sidewalk was a nuisance, as being an obstruction of light and view, which ought to be abated, a previous court said that, as to verandahs of the kind erected by the defendant, which the evidence shows to have become so common of late years, they are obviously, so far as the public is concerned, a great improvement as compared with the hanging galleries and wooden sheds which extend only to the half or the third of the width of a sidewalk and from which the drip in rainy weather is so great an annoyance to foot passengers. These modern verandahs, on the contrary, afford a perfect shelter from the sun and weather to passers by the front of the houses to which they are attached. In sultry climates, the necessity of shade from the sun, to health and comfort, has universally introduced the custom of balconies, or verandahs, which, in this respect, are equally beneficial to the inmates of the houses and to way-farers. Durant vs. Riddell, 12 Ann. 747.

It is to be noted that the property in the instant case is situate in the suburban or rural part of the city, in front of a water-course known as a “6(W/om,” and that right next to the trees, on the street side, there exists a small sidewalk of between two or three feet in width.

To those who live in this climate, particularly during the hot summer months, when the thermometer points to about 100, when not more, it would be needless to argue that the overhanging of branches of magnolia trees on such sidewalks is no nuisauce, but on the contrary, actnally proves of great relief not only against the heat, but also sometimes even against the rain itself.

The court can take judicial notice of the fact that, on many sidewalks in the city and its “suburbs or outskirts, there has been planted a number of trees, and it knows that this is done with the formal sanction of the municipal authorities, though subject to its good pleasure only. Jewell’s Dig. 519.

The principles announced by Wood were expressly recognized in this State, in Kennedy vs. Phelps, 10 Ann. 227, and were enforced in the case of Pontchartrain R. R. Co. vs. New Orleans, 27 Ann. 162, in which the city was condemned to pay $30,000 damages for having pulled down the depot of the company, which had been considered a nuisance and which was not in fact such.

The same views were entertained in the case of City vs. Wire, 20 Ann. 500, in which a contractor in laying the pavement on a banquette on one of the streets, took up or destroyed common shade trees which had been planted there, was held liable in damages and condemned accordingly, although he claimed not to have acted with malice.

The defendants have called our attention to what was said in the case of the Earl of Lonsdale, 2 B. and C. 311, by Mr. Justice Bert, and which is to the effect that the permitting the branches of trees t'o extend so far beyond the soil of the owner of the trees is an unequivocal act of negligence which the injured party may abate without notice; but the learned justice adds, that the .security of lives and property may sometimes require so speedy a remedy as not to allow time to call on the person on whose property has arisen to remedy it and that, in all other cases, persons should not take the law into their own hands, but follow the advice of Lord Hale and appeal to a court of justice.

It may well be that, under the circumstances from which the litigation arose, the learned justice thought himself authorized to announce what he deemed to be a principle; but, from his own language, this course could be justified only where security to life aud property would require a speedy remedy.

In France^ whose system derives from the Roman law, from which we have borrowed the great bulk of our legislation, the code provides, with more regard to the rights of ownership, that he, on whose property the branches of the trees of the neighbor overhang, may compel the latter to cut those branches. C. N. 672.

It further declares, however, that if it be the roots that have encroached, he has the right to cut them himself. Same article, newline.

Our code, art. 691, on the subject, is to the effect that, if the neighbor suffers any damage from the trees he can oblige the owner to have them torn up, or have their branches cut off, which extend over his estate. It makes the same provision as the French code when the roots invade his estate.

Had, by some accident, the limbs of the trees on plaintiffs’ property been detached therefrom and fallen across the sidewalk,“remaining there, so as to prevent the use of it by wayfarers, there is no doubt that the city, or any person injured, could have had the right — the obstruction proving a nuisance, the necessary remedy having to be applied at once — to remove it some way or other, without any notice to the proprietor of the trees, even had it been necessary to enter upon the premises, as an indispensable means to accomplish the removal, but doing no more damage than would be essential to effect the object, remaining liable foi any wanton and uncalled for injury. The existence of the emergency alone would justify the interference. U. S. Dig. Vol. IX, vs. Nuisance, p. 649, Nos. 62, 63, 67 and 68; Cooley on Torts, 47.

It is upon this principle that, while recognizing the rights of the defendant to put up poles and run wires thereon this court has, in the Irwin case, 37 Ann. 67, relieved the defendant, because the right had been exercised with as little inconvenience as possible to the plaintiff and to the public.

The argument is fallacious and a begging of the question, that in this case, although the limbs were not strictly a nuisance, they were obstacles in the way of a public necessary improvement, which had to be instantly removed, for it is not found that it was actually impossible to put up the posts and ruu the wires at any other place or otherwise than through the space occupied by the branches and the foliage.

It is apparent from an inspection of the map or plat in evidence that it would have been easy to have planted the telegraph posts and run the wires on them, on the other side of the street, on the embaukment of the bayou, without interfering with the tow path used for cordelling schooners and other craft up and down the water course.

It is likewise manifest that, even if che posts could not have been erected elsewhere, there existed no reason whatever to cut the limbs of the trees so as to leave in the foliage an open space ranging from 25 to 40feet in circumference, or 8 to 13 feet in diameter, for the mere purpose of running through that space an almost imperceptible wire.

It remains to be known how long it will take for other limbs and other foliage to grow which will All up the large opening thus unnecessarily made.

In the m '.antime the inj iry done has surely not been fully repaired.

While treating of the right which a party may have of removing, himself., and without notice, a nuisance ieally so, Cooley on his work on Torts, says: The fact that he is taking the law into his own hands imposes upon himself a special obligation to keep clearly within the necessity which justifies it, and if he is guilty of wanton or unnecessary violence, he is liable for the excess.

Prom the premises, it clearly follows that, as the overhanging of the limbs cut by the employees of the defendant company was not a nuisance, and surely not such as required or authorized an immediate removal by the city, the company or any other person, the entry on the premises and the cutting were wanton acts which constitute a trespass and an infliction of injury to property and feelings which demands the allowance of compensation to the injured party.

That party in default is surely not the city, for it never expressly or impliedly, directly or indirectly, authorized any one of its officials, or even the defendant company, to commit the trespass or inflict the damage. So that the responsibility rests upon the defendant company alone, whose employees represented it and did the acts complained of in the performance of service assigned to them in the ordinary cause of their employment, and which acts the company could have prevented by giving proper instructions or pursuing some different course.

While the rights of corporations will be recognized, the obligations under which they are placed, to respect those of others, must be enforced.

It is hardly necessary to refer to authorities to show, that the acts dono constitute a trespass and entitle the plaintiffs to an indemnity _ Attention, however, is called to Sutherland on Damages, vol. 3, p. 364, 374. 385, 398, 469; Cooley on Torts, p. 63, 64, R. C. C. 1934; Delacroix vs. Villeré, XI Ann. 39; City vs. Wire, 20 Ann. 500; Hardy vs. Stevenson, 29 Ann. 172; Keene vs. Lizardi, 8 L. 26; Brulard vs. Calhoun, 13 Ann. 445; Salt Lake City vs. Hollister, 118 U. S. 256, and authorities therein, all referred to in the elaborate opinion of our learned brother of the district court.

It is evident that the plaintiffs have sustained injury in the wanton invasion of their premises, in the unjustified destruction of their property, in the deprivation of material, physical and moral enjoyment, in the endurance of aggrieved feelings and in the apprehension of a possibly irremediable wrong, for all of which they are entitled to compensatory damages.

The law on the subject of assessment of damages in cases of offenses and quasi offenses leaves much discretion to the judge or jury. R. C. C. 1928.

The evidence shows the value of the trees, what it would cost to replace them, how long it would take for the newly-planted trees to acquire the size of those mutilated. It establishes that these were ornaments of the property planted by Mr. Tissot.

It does not put a value on the disappointment, mortification and other suffering's of the plaintiffs, as such things cannot be said to be measurable and appreciable in dollars, though, where there has been a mental endurance, some adequate pecuniary compensation must be made.

The Code provides that, in cases of unlawful deprivation of some legitimate gratification, although the same are not appreciated in money, yet damages are due. R. C. C. 1934; 4 Ann. 440; 10 Ann. 33.

We deem that, under the circumstances, the damage donéis daily being repaired and that, in the course of time, it will hardly be perceptible, so that the original condition of things will be fully restored.

We do not think, however, in the absence of any fixed rule for'the allowance of such damages, that the plaintiffs are entitled to recover the amounts allowed below.

It is, therefore, adjudged and. decreed, that the judgment of the lower court be amended so as to allow the plaintiffs four hundred dollars ($400), instead of seven hundred and fifty dollars ($750), and thus amended, it be affirmed, appellees to costs of appeal.