author: Nicholls, O. J.

text:
    No. 12,794.
    Orleans and Jefferson Railway Co., Ltd., vs. The Jefferson and Lake Pontchartrain Railway Co.
    Syllabus.
    1. A corporation regularly organized does not lose its general character as such from the fact that it purchases a street railway franchise from a city through whose streets a portion of its route passes.

      2. A strip of land part of a larger tract which was acquired by a railroad company by purchase as far back as 1852, which it had at no time used, was not using and in all likelihood would never use for railroad purposes, is impressed with no immunity from the exercise of the power of Eminent Domain. If it is not needed by the owner for public use it is subject to be taken the same as that of any individual. (The Kansas City, Shreveport and Gulf Railway Co. vs. The Vicksburg, Shreveport and Texas Railroad Co., 49th Ann., 129.)
    In determining wliat a fair compensation shall be to the owner for a right of way for a railroad over his property, the improved condition of the land soughi to be utilized is a proper element in reaching conclusions. The owner is not entitled to recover what it would cost the expropriating company to bring other lands in the neighborhood up to a similar condition of improvement, but he is entitled to a reasonable remuneration in view of its condition having made it specially adapted and ready for railroad purposes. (Postal Company vs. Morgan’s Company, 49th Ann., 60 ; Postal Telegraph Company vs. Louisiana Western Railway Co., 49 Ann., 1271.)
    ON APPEAL from the Twenty-First Judicial District Court for the Parish of Jefferson. Bost, J.

      Carroll & Carroll, Bolert J. Perkins and L. L. Ldbatt for Plaintiff ■mid Appellee.

      Dart & Eernan for Defendant and Appellant.
    Argued and submitted March 22, 1899.
    Opinion handed down June 12, 1899.
   The opinion of the court was delivered by

Nicholls, O. J.

In the petition-filed by the plaintiff it'alleged itself to be a railroad corporation organized under the laws of Louisiana,, and its object to be “to lease, purchase, construct, operate, and maintain street railroads in the city of New Orleans and parishes of Orleans and Jefferson for the purpose of carrying passengers and freight.”

It averred that the defendant company was the owner of certain land lying in the parish of Jefferson, which it described. That petitioner was then engaged in the construction of its line of road in the parish of Jefferson in accordance with its charter. That a portion of the land mentioned as belonging to the defendant and which it described, was required by it (petitioner) and the right over the same actually necessary to it for the construction of said railroad and public roads, which they were then actively building according to a described route.

The whole area of the land so declared to be necessary for a right of way was averred to be about seven acres, to be unimproved, of little or no value to defendant, and had not been used by it for any purpose-for forty-five years.

Petitioner alleged that the Police Jury of Jefferson parish had granted to it a franchise to build and operate a railroad over its own portion of the desired route and, as far as it had the power as a political corporation to do so, had granted a franchise to build and operate a railroad over the property it was then seeking to expropriate-

That it had been unable to agree with the defendant for the purchase of the land or a right of way over the same, and expropriation proceedings were necessary.

In view of the premises, it prayed for a jury of free holders; for citation to defendant, and after due proceedings for judgment in its-favor condemning to it a right of way as described upon paying defendant such damages and compensation as by the verdict of the jury and the judgment of court it might be decreed to pay.

Defendant answered, first pleading the general issue.

It admitted it was the owner of the property described in plaintiff’s petition, but averred that it constituted a part of its road bed and right of way and was held and used under the railroad franchise conferred on it by the Legislature of Louisiana, and that if true it be that any franchise or right of way thereon had been conferred on the plaintiff by the Police Jury of Jefferson Parish, which, however, was not admitted but denied, the franchise or right of way was null and void, inasmuch as the parish of Jefferson was without power to interfere with the rights and privileges conferred on respondent by the Legislature and any such grant (if any existed), which was denied, was null and void, in violation of the Constitution of the United States and was an unwarranted interference with defendant’s contract and vested rights.

Defendant averred that it needed all of said land for the exercise of its rights and privileges and for the operation of the railway which it then had in contemplation. That the plaintiff had already ample room on the street for all its purposes or necessities and there was adjoining said street abundant private property not used or needed for railway purposes and there was in law and fact no reason why respondent’s road bed and right of way should be interfered with. That the plaintiff if suecoessful would shut respondent out of the use and enjoyment of its said road bed or a material part. Respondent specially denied that plaintiff had ever boon granted a right of way or franchise over respondent’s land, and averred on the contrary that no such right had ever been conferred on plaintiff by the Parish of Jefferson, but if any such right or franchise had been granted the same was void and ineffectual, and the road bed and franchise of defendant railroad company could not be expropriated in favor of plaintiff to the exclusion and destruction of respondent’s prior rights, grants and privileges.

It averred that it was not true that the land in question was valueless, but, on the contrary, it was a very valuable property, raised, well filled and graded, and plaintiff could not duplicate said road bed sought to be appropriated for less than twenty thousand dollars.

Defendant prayed for the rejection of plaintiff’s demand. Upon the trial of the cause the jury returned a verdict for plaintiff and assessed the value of the property to be expropriated at five hundred dollars.

The District Court thereupon rendered judgment in favor of the ¡plaintiff and against the defendant, condemning to plaintiff upon payment by it to the defendant of the sum of five hundred dollars a right ■of way through the property of the defendant, which the judgment described.

It decreed that the plaintiff should not enter upon or take possession of said land for railroad purposes until it should have paid the sum of five hundred dollars, or in case of appeal from the judgment by defendant, until it should have deposited the said sum in the hands ■of the sheriff of Jefferson Parish, subject to the order of the defendant company.

.Defendant appealed.

Opinion.

N either of the parties to this litigation denies the corporate capacity of the other.

The plaintiff company organized on the first of June, 1897, with over six incorporators, by notarial act before N. B. Trist, notary-public for the parish of Orleans.

The incorporators declared that in so doing they availed themselves of the privileges of the laws of Louisiana, relative to the organization of corporations, and particularly of the act of the General Assembly of Louisiana, No. 3G of the session of the year 1888.

The declared object and purpose of the corporation were to lease, purchase, construes, operate and maintain street railroads in the city of New Orleans and parishes of Orleans and Jefferson for the purposes of carrying passengers and freight and furnishing power and light when necessary.

The defendant company was chartered by the General Assembly of Louisiana by act No. 79 of 1840.

The plaintiff sought in this proceeding- to obtain by expropriation a right of way (fully described) over a part of a tract of land declared by it to belong to the defendant.

The defendant admits its ownership of the property. Plaintiff, in its petition, averred that the police jury of the parish of Jefferson, in which parish lies that portion of defendant’s property on which the right of way is sought herein, had granted to it a franchise to build and operate a railroad over its portion the desired route and also as far as it had the power as a political corporation to do so, had granted it a franchise .to build and operate a railroad over the property •which plaintiff was seeking to have expropriated from the defendant.

This allegation was made, we presume, in view of the fact that, adjoining on its upper line the property of the defendant on which the right of way was asked, was what was understood to be one of the .public roads of the parish of Jefferson, along and over a part of which road plaintiff witn the consent of the police jury contemplated placing one of its tracks.

The defendant insists in this court that plaintiff had failed to prove the existence of this franchise from the police jury or to show that it-had ever acquired a franchise which had been granted to any one else or a franchise assignable in character.

We do not understand plaintiff’s right to expropriate defendant’s property to rest upon any franchise granted to it by the authorities of the parish of Jefferson, but in right of its being a railroad corporation organized under the laws of the State. We do not think it any the less a railroad corporation because, its route leading partly through the city, it may have purchased a street franchise from the city authorities.

The parish of Jefferson has nothing to do with the expropriation of the property belonging to the defendant, while the existence or nonexistence of a franchise from the police jury of the parish of Jefferson to plaintiff to build and operate a railroad on one, or partly on one, of the public roads of that parish, would, in our opinion, not affect the situation at all, so far as the defendant is concerned.

If the plaintiff should attempt to build its road without legal authority or deflect in any way from the route assigned to it, the police jury will (we assume) see that it be made to keep within its rights.

Defendant complains that the plaintiff company should have selected the particular route it did over its property. It suggests that it might have gone further to the'west and beyond the public road, where the lands are of little value, swampy and uninhabited, and where no one would be specially injured or inconvenienced, whereas the property which it proposes to take, is extremely valuable and precisely that ■over which defendant itself would run a road bed should it hereafter determine to operate a road again.

This court referring, in Railway Company vs. Railroad Company (49 Ann. 32), to a similar claim set up by the defendant therein, said: “While we have examined this phase of the controversy, it must seem .difficult- to maintain as the test of the expropriation that lands of others than the proprietor should be taken. Expropriation in most instances is deemed a sacrifice by the proprietor called on to make the surrender.

“If one proprietor could defeat the expropriation on the ground that the call should be made on another, the supposed compulsion of the-law, requiring private property for the public good, would be of no efficacy.”

The defendant presses upon us that it is itself a public corporation, a railroad company and that its property should not be expropriated by another railroad unless in extreme cases.

If the defendant company has any legal existence (which under the pleadings has to be assumed), the evidence shows that it has for a great many years past ceased to exercise any of its rights and powers or to perform any of its duties.

We find in different places in the record, statements of witnesses that it had long since died, deeply in debt, particularly to the Carroll-ton Railroad Company, and that this particular property in reality belongs to that company; that though it had at one time a road bed on the eastern portion of this property, and was a fully equipped railroad company, the ties and tracks had been taken up, the cars withdrawn, and every semblance of an actually living company had disappeared for over twenty years.

Not only has it held this real estate all this time, without it being necessary for its legitimate business or purposes, notwithstanding the' provisions of Art. 237 of the Constitution of 1879, and Article 265 of that of 1898, but we have no evidence before us that it has or will over have either the desire or the ability to resume operations.

The portion of defendant’s property over which plaintiff seeks to obtain a right of way was never occupied by it as a road bed. Its road bed was considerably to the east of where plaintiff desires to locate its tracks and there is now intervening a wide canal separating the two portions of the land.

Wo understand the whole of the property to have been acquired by the defendant by purchase and not by expropriation.

Counsel of defendant in their brief thus refer to the property: “It was originally 182 feet wide by 3 and 3-8 miles long. Up to 186d it was actually used by defendant, which operated a steam rail road thereon, chiefly built on trestles.”

About the year named the rails were taken up.

In the year 1871 the city of New Orleans dng a canal through the strip, and the defendant sued out an injunction, but was defeated, and the action for the damages was held to be prescribed. (See Jefferson and Lake Ponchartrain Railway Company vs. City of New Orleans, 31 Ann., 478.)

In digging the canal, which is fifty feet wide, the excavated earth was thrown on the side now in controversy (the west side,) forming thereby a sound and now well settled road bed from five to seven feet higher than the surrounding country, and the latter is low and swampy.

It is in every respect an ideal road bed and could not he duplicated for $20,000.

If the defendant resumes operations it is evidently the only spot they would occupy, as the remainder of its property on the New Orleans side of the canal is marshy and it could not be used without a road bed or trestle work, and it would cost at least the sum named to-put it in condition.”

They further say: “The proof in this case is that the road bed in' question (the new one) could not be duplicated for less than twenty thousand dollars.

The plaintiff did not attempt to disprove that this was so, but confined itself to the communistic argument that the road bed was-placed there by the city of New Orleans, and as the defendant paid nothing for it, it was worth nothing and defendant could recover nothing and the jury evidently took this view of the matter.

Now we submit that this was not the proper way of approaching the-question of value.

It is established that if this strip is taken from the defendant and it ever afterwards resumes operations, it will have to come to some-agreement with the plaintiff for joint use of its track or it, the defendant, will have to create a road bed in the low marshy ground owned' by it on the city side of the canal, and Major Harrod says it would cost the defendant at least twenty thousand dollars to put in a modern railroad for the use of modern cars. Therefore it is clear, aside from the value, per running foot, that the taking of this strip will damage the defendant in the exact sum which it will cost it to replace upon the-other side of the canal, a similar railroad.

The witnesses examined for the plaintiff all say that they estimated' the property purely as country property and because their own neighboring lands are assessed at so much an acre.

We submit that this is not the true criterion; that the question is •what does the property actually represent in value to a railroad corporation seeking to utilize it, and we are not able to comprehend how .any man can go astray on such a question. The taking of this strip of land by the plaintiff company for the insignificant sum of five hundred dollars would be simply transferring out of the defendant’s pocket into plaintiff’s pocket the difference between that sum and what it would cost to lay down a similar road bed on Orleans street, •or any vacant property in the neighborhood. (Telegraph Company vs. Railroad Company, 49 Ann., 1278)”

We think the defendant is justified by the evidence in saying that if the judgment of-the District Court be affirmed, plaintiff will have acquired for five hundred dollars a road bed such as it would probably •cost it fifteen or twenty thousand dollars to duplicate by one to be newly constructed on the soil adjacent to defendant’s property and Orleans street.

If the cost of such a new road bed to the plaintiffs were to be taken as the test of the amount of their liability to the defendant for the privileges of the right of way, there is no doubt that the judgment rendered would fall far short of what defendant would be entitled to.

Defendant presents the questions of its rights before us not simply from this standpoint and that of the value of the land, but from that •of the possible contingent damage to itself should it at any time hereafter elect or be able to resume business.

This last view of the situation would carry with it considerable force if there had been shown to us any likelihood of such a contingency happening, but as we have said, we have no reason to suppose that it will ever arise.

As matters stand we have before us a plaintiff very desirous of getting hold of what to it would be unquestionably an extremely valuable piece of property at a very small price, the property to be applied, 'however, to a quasi public use, and for presumptive public as well as private benefit, and a defendant, a substantially non-existent corporation holding this same property with no probability of ever using it itself for the purpose for which it was purchased and for which that •company was organized.

It is our duty to make law and justice and right meet as far as it is within our power to do so.

We are forced to concede the right of the plaintiff to have this property expropriated.

The case falls directly under the principles announced by us in the ease of the Kansas City, Shreveport and Gulf Railway Company vs. The Vicksburg, Shreveport and Pacific Railroad Company, reported in 49 Ann., page 29.

There, as here, the property sought to be expropriated by the plaintiff had been purchased by the defendant company and not acquired by it under expropriation proceedings; there, as here, the defendant company had not used, was not using and would not probably Use the property sought to be appropriated for railroad purposes; certainly not in the near future.

Referring to this condition of things we said: “The question then is whether the land, the subject of this controversy, is in public use. If not, it is subject to be taken as -feat of any individual. If a corporation acquires more land than it requires for its uses the land not needed is impressed with no immunity from the exercise of that power to which it must submit. The land involved in this case (part and a small part only of a larger space) was acquired by purchase in 1858. In all that long period the defendant has had but one single track. They added another when the plaintiffs manifested their intention to lay its tracks alongside of defendant’s. With neither track of defendants does this expropriation propose the least interference. The land proposed to be taken is further east and devoted to no use whatever by defendant nor has it ever been in the half century of defendant’s ownership.

“We appreciate that in estimating the land of defendant liable to expropriation, that in actual use should not be the rigid limit, but there should be a reasonable regard for probable increased wants of the owner.

“But in this case we are confronted with the fact that one track has amply served defendant for years; that it has laid another, and has space left reasonably sufficient, if there- is any force in testimony, for additional tracks or other purposes.

“There is here no use nor any reasonable probability of future use if testimony is to guide us, or if possible uses can be invoked at all.”

If one road, by a judicious purchase beyond its present or probable ..necessities of property favorably situated for railroad rights of way ■could successfully prevent the whole of the same from coming under .the operation of the expropriation laws, it would be enabled more or less to shut out future competition with itself, and bar legitimate pro- . gress. The fact that a railroad company should have selected a particular piece of property for its purposes by reason of its being able from its peculiar condition to be made use of for that purpose at small -expense, while the selection of other properties would have carried with it large outlays, is one which we ought to consider in estimating how much the company should pay for the property, but we should not permit the owners of such desirable properties to carry their prehensions by reason of such fact too far.

If they do not need the property themselves and it is needed for • public use, they should not be allowed to force the company requiring . such property to a useless expenditure of money by driving them to the expropriation of unsuitable property or exacting from it an amount exactly equivalent to what would have been such outlay on its part. They should be made to surrender the property for public .use for a fair and reasonable compensation. ■ On the other hand we should not ignore in this matter as a factor the element of private advantage which after all underlies the creation of these railroad corporations.

Their purpose is not so exclusively public (Art. 428 Civil Code) as to justify their obtaining this gain without taking into consideration to some extent the corresponding right of other parties to advance their own interests.

In Postal Co. vs. Morgan’s Co., 49 Ann., 60, and Postal Telegraph Company vs. Louisiana Western Railway Company, 49 Ann., 1279, we had occasion to examine this matter. In the former case we said: “The lands along defendant’s right of way may be of peculiar or particular value for specific purposes, but we do not understand that they .arc now devoted to those uses. The plaintiff must, however, make ■compensation proportionately for the cost and expense of defendant putting in condition the right of way.. It can not avail itself of improved conditions without compensation;” and in the latter, citing the opinion just referred to and quoting from Griswold vs. St. Louis, etc., R. R. Co., to the effect that “when the use made of the land is simply temporary, the measure of value is not the full value of the land, but .only a fair recompense to the owner for the use made of it and for any injury done to it” we said: “We think the standard there adopted a just one, which can well bo taken for cases like the present.”

“In determining' what a fair compensation would be, the improved condition of the land sought to be used is a proper element in reaching conclusions. The defendants are not entitled to recover the original costs of improvements, but are entitled to reasonable remuneration in view of the same (Am. and Eng. Ency. of Law, Yol. 6, p. 558).”

We also said that it would be difficult to ascertain the “market value” of the land taken up for the erection of a telephone line over a rail road’s right of way, even if the railroad company held the fee; that “when once the land which is included in such a right of way has become separated from the different tracts of which it originally formed part it has practically become hors de commerce as land. The value of the lands from which they have become detached under the decree of right of way furnishes a poor basis for determining that of the land within the right of way, as the latter has ceased to be available for general purposes.” It appears from the testimony in this ease that the land sought to be appropriated by the plaintiff would to-day, had it been left in its original condition, be of no great value for farming or other general purposes, and that for such purposes it has not been at all improved by having been raised for several feet by the earth thrown from the excavation of the canal, but to the contrary. Simply as land it must have obviously lost in value, as it can no longer be reached for cultivation and can only be utilized longitudinally. While it had in its existing condition a large or dormant value for particular purposes, it required some particular occasion or call to bring this out, but when such occasion did arise, then the very fact which had lessened its immediate availability for other purposes and relatively to other portions of the same property, caused it to exhibit an'intrinsic value so far in excess of those lands as to make them cease to serve as any proper basis of comparison.

It is no unusual circumstance for owners of lands deemed almost valueless to become men of immense fortunes by reason of advancing civilization and modern wants carrying with them industries for which they are specially appropriate and adapted; and not only this, but it is frequently due to the situation of some particular spot upon those places through which has been developed the fact of this intrinsic -value. Section 1842 of the'Revised Statutes declares that “in -estimating the value of the property to be expropriated the basis of ■assessment shall he the true value of the land before the contemplated improvement was proposed and without deducting therefrom any amount for the contemplated improvement.”

Lewis on Eminent Domain, section 478, referring to the general, principles bearing upon the subject of estimating values, says: “In estimating the value of property taken for public use it is the market value of the property which is to be considered. The market value of property is the price which it will bring when it is offered for sale by one who desires hut is not obliged to sell it and is bought by one who is under no necessity of having it.

“In estimating its value all the capabilities of the property and all the uses to which it may he applied or for which it is adapted are to he considered and not merely the condition it is in at the time a,nd the use to which it is then applied by the owner. (Section 49.) The market value of property includes its value for any use to which it may he put. If by reason of its surroundings or its natural advantages or its artificial improvements or its intrinsic character it is peculiarly adapted to some particular use, all the circumstances which make up this adaptability may he shown and the fact of such adaptation may be taken into account in estimating the compensation.”

“Some of the authorities hold that its value for a particular use may he proved, hut the proper inquiry is, what is its market value? in view of any use to which it may be applied and of all the uses to which it is adapted. In Boom Co. vs. Patterson, the defendant owned the greater part of three islands in the Mississippi river above the falls of St. Anthony, which were so situated with reference to the west shore as to be admirably adapted for boom purposes. In a proceeding to condemn those islands by a boom company the jury found a general verdict for $9858, and also found specially that the value of the land taken aside from any consideration of its value for boom purposes was $300, and in view of its adaptability for those purposes was worth the further sum-of $9058. The Supreme Court of the United States sustained the general verdict and in giving their decision say: ‘In determining the value of land appropriated for public use the same considerations are to be regarded as in a sale between private parties.f

“The inquiry in such cases must be, what is the property worth in the market, viewed not merely with reference to the uses to which it is at the time applied, hut with reference to the uses to which it is plainly adapted; that is to say, what is it worth from its availability for valuable uses. Property is not to be deemed worthless because the owner allows it,to go to waste or to be regarded as valueless'because he is unable to put it to any use. Others may be able to use it and make it subserve the necessities or conveniences of life. Its capability of being thus available gives it a market value which can be readily estimated.”

“So many and varied are the circumstances to he considered in determining' the value of property condemned for public purposes that it is perhaps impossible to formulate a rule to govern its appraisement in all cases. Exceptional circumstances will modify the most carefully guarded rule; but as a general thing we should say that the compensation to the owner is to he estimated by reference to the uses for which the property is suitable, having regard to the existing business or wants of the community or such as may he reasonably expected in the immediate future. The position of the three islands in the Mississippi fitting them to form in connection with the west hank of the river a boom of immense dimensions, capable of holding over twenty millions of logs, adds largely to the value of those lands.”

“The boom company would greatly prefer them to more valuable agricultural lands or to lands situated elsewhere on the river; as by utilizing them in the manner proposed they would save heavy expenditures of money in constructing a boom of equal capacity. Their-adaptability for boom purposes was a circumstance therefore which the owner had a right to insist upon as an element in estimating the value of his land.”

“So 'it is proper to show that property possesses a peculiar value for railroad purposes, for market gardening, for raising cranberries, for warehouse purposes or for a bridge site. It is proper to show that the property is suitable for division into city lots and that it is valuable for that purpose.”

The author citing the ease of Matter of New York L. & W. R. RCo., 27 Hun., 116, says:

“The latter ease was a proceeding to condemn a strip of land about thirty miles long belonging to the Junction Canal and R. R. Co., which had formerly been used for a canal. It was especially valuable for railroad purposes and was held by the company with a view to its use for that purpose at some time. It was of little value for any use except a railroad. It was held proper to show its value for railroad purposes and an award of about $60,000 was sustained.”

Lewis, in section S00, referring to the enhancement in value caused by the work or improvement, says: “Whatever the time fixed upon with reference to which the compensation shall he estimated, the owner is entitled to the actual value of the land at that time, even though it may have been enhanced by reason of the projected improvement for which it may be taken. This is not really making the condemning party pay for an enhancement caused by its own work.

“Such enhancement does not come from the mere projection of the work, but from the existence of circumstances which create a demand for the work and' render it probable that such a work will sooner or later be built. It is not proper, however, to consider what the property would have been worth if it could have had the benefit of the proposed improvement without being taken.”

The argument has not been pressed upon us, but it lies directly in the path of our decision, and we feel called on to refer to it, that .should we attach to this defendant’s land or that particular portion •of it which plaintiff seeks to expropriate, a greater value than that of the adjacent lands or the balance of this particular tract, we will do so in spite of the rule laid down by the law makers in section 3842 of the Revised Statutes, that “in estimating the value of the property to be expropriated the basis of assessment shall be the true value which the land possessed before the contemplated improvement was proposed.”

That inasmuch as the defendant had no call for this land prior to .the contemplated building of this road, at a rate higher than that of ;the surrounding properties, it would necessarily follow that any in- . crease of price above this would be entirely due to the building of the road.

The argument gave us at first some trouble by reason of the peculiar ¡■phraseology of our statute, but a little consideration satisfied us that ..it was more specious than real.

If actual call or demand for purchase for a particular piece of prop>erty should be taken as the test of its true value, the doctrine, when ’.followed up to its logical conclusion, would, we think, result in this ■case in plaintiff’s obtaining ‘this land for nothing, for we question very much whether during the long ownership of it by the. defendant it 'has received a single bid for it, or whether it will have another one, nnlpgg in the far future. We are not called on to attempt any definition of the word “value,” or to say of what elements it is composed, .but we think .that, while present active demand affects value, it is not of its essence, and that there is such a thing as am absolute intrinsic value to property independent of offers to purchase, and that value in--eludes in it at all times the possibilities of the future. We think that the purposes of the law makers in enacting section 1842 of the Eevised Statutes was to prevent the owners of property on which a contemplated public improvement was about to be made, from availing themselves of the increased value which would be given to that property by the making of the improvement; in other words, that a railroad company (if the contemplated improvement was to be a railroad) “should not (in the language of the last section quoted from Lewis) be made to pay for its own work, and not that the owners of said property should be deprived of the right to avail themselves of the ■special adaptability of their land for railroad purposes. It will not do in this ease to say that any increase of value assigned to this strip of land by our decree over and above the value of the surrounding and adjacent lands would be due to the building of this road. So far from .the building of the road giving value to the land, it is the special condition, situation and value of the strip which is the real raison d’etre of the building of the road.

There is great reason for doubt whether the road would be built at all but for the existence of this strip, ready prepared, as it were, for a road bed. Whether the plaintiff company when organized and operated will prove a paying investment or not remains to be seen, but certainly in calculating as to the profits of a future road, the small amount required for its construction arising from the very fact of the existence of this road bed, was considered an all important factor by the promoters of this company in reaching a conclusion as to whether the road would be an assured success. Non constat that this road would have been built at all had the company been coinpelled to construct its road to the west of Orleans street along those lands in their natural condition. They could have done so had they desired. The running of the road along this particular strip was a matter of selection, not absolute necessity, and the same reasons which impelled them to make the selection should throw upon them the duty of making duo compensation, for the selection, to the owners of the property. The plaintiff does not seek, nor should it be granted, more than a right of way over this land, but for this use and occupation they should pay a fair and reasonable price.

Tt is difficult to deal with this matter of value by exact testimony, which of itself when brought to its last analysis is after all very much-a matter of simple opinion.

In considering the subject, courts and juries are forced, as was said’ in 52 Pac., 207-208, to exercise and rest upon “good sense and sound discretion.”

We think the jury in this case was influenced through and felt bound by testimony which really furnished no proper basis for them to act upon.

We do not think defendant was accorded the remuneration or compensation it is justly entitled-'to. We think it should be larger.

Eor the reasons assigned, it is hereby ordered, adjudged and decreed that the judgment appealed from be amended so as to read:

“It is ordered, adjudged and decreed, that there be judgment in favor of the plaintiff, the Orleans and Jefferson Railway Co., Limited, condemning to said plaintiff upon payment by said plaintiff to the defendant, the Jefferson and Lake Pontchartrain Railway Co., of the sum of twenty-five hundred dollars, a right of way through the property of said defendant in the parish of Jefferson, said property being: a certain tract of land situated on the Metairie Road, in the parish of Jefferson, in this State, adjoining the parish of Orleans, and measuring about one arpent front on each side of the said Metairie Road, by a depth extending to Lake Pontchartrain on the northern side, and to North Line street on the lands formerly belonging to Maearty and Lacusse on the southern side, as is more fully described in an act of sale by Griffon to Beaulien, before Peter Pedesclaux,_latenotary public, on July 15, 1814 — the said right of way to be on, over and through a portion of the land described above; comprising about seven acres, and descrihed as follows: Starting at a point marked A on the ftlan hereinafter referred to, at the river side of Geranium street, in Metairieville, opposite the northeast corner of square number seven, and at a distance of twenty-five feet therefrom; thence (A) along the east side of Orleans street; towards Lake Pontchartrain to a point twenty-five feet east of the northeast corner of square one hundred and twenty-nine, about 15,750 feet (Metairieville): (B)' thence easterly and at right angles to Orleans street, twenty-five feet to a point on the bank of the Upper Line canal; (C) thence in a southerly direction, parallel to Orleans street, three hundred and nineteen feet, to a point on the bank of said canal; (D) thence easterly along the continuation of the north side of Plane street to the dividing line-between the parishes of Orleans and Jefferson; (E) thence, along the ■said parish line fifty feet to the prolongation of the south side of Plane street; (F) thence, westerly along said prolongation to a point on the bank of the canal twenty-five feet from Orleans street; (G) thence along the bank of the Upper Line canal to a point on said bank east of the point of departure, A; (H) thence westerly to said point of departure, A; — all as will more fully appear from a plan of said .lands marked Exhibit A and annexed to and made part of the petition .herein filed.”

The judgment appealed from as so amended is affirmed. Costs of ■ both courts to be paid by the plaintiffs.


source: Caselaw Access Project

author: Breaux, J.

license: Public Domain

text:
    No. 12,924.
    S. D. Peters vs. A. C. Bell, City Engineer.
    Syllabus.
    On Motion to Dismiss.
    'Where the salary of the office of one who claims that he has been Illegally di#charged, if as he claims, he 7tas been illegally discharged, is more than the sum required to give this court jurisdiction, an appeal will lie. The amount of the claim for salary may be shown by affidavit in the Supreme Court.
    On the Merits.
    1. The removed officer held under appointment from the officer in charge of a department.
    Ha was appointed first by the City Council under the Charter of 1882, and reappointed under the Charter of 1896, in September, 1896. The reappointment by the city engineer was made under an ordinance of the City Council authorizing defendant to appoint plaintiff.
    2. He qualified under the last appointment prior to the classification of office* and the adoption of the civil service rules. He was not examined by the civil service board ,and his case does not come within the rules of the board.
    3. The ordinance giving to the engineer the power to appoint his deputies was not ultra vires. Under the charter of 1882, the City Council had the power ro regulate the city engineer’s office; under the existing charter, the power was expressly delegated to the city engineer, under conditions which could not be observed, but still leaving the power to appoint in that officer.

      i. The power of appointment carries with it the power of removal, where the appointment is not made for a special term.
    'In matter of an injunction to reinstate the officer, the right sought not being obvious, the court a qua was vested with discretion needful to grant the-writ.
    The issue of title is one primarily to be settled in quo warranto, intrusion into office, or other similar proceedings.
    ON APPEAL from the Civil District Court for the Parish of Orleans. Bilis, J.

      James Wilhinson and A. J. Peters for the Plaintiff and Appellant.

      Samuel L. Gilmore, City Attorney, and W. B. Sommerville, Assistant City Attorney, for the Defendant and Appellee.
    Submitted on motion to dismiss November 1, 1898.
    Opinion on motion to dismiss handed down November 21, 1898.
    Argued and submitted March 23, 1899.
    Opinion handed down on the merits April 3, 1899.
    Rehearing refused June 26, 1899.
   On Motion to Dismiss Appeal.

The opinion of the court was delivered by

Breaux, J.

Plaintiff alleges that -he was appointed assistant engineer of the city of New Orleans on the 5th of May, 1896, under the authority of the City Council, and was, when unlawfully discharged, performing -the duties of his office.

That having been regularly appointed, under the terms of the city charter, he holds his office during good behavior, and can only be discharged for cause, by the City Council and not by the city engineer,, who has undertaken to discharge him.

He avers in his petition, that the sum in controversy exceeds two-thousand dollars, and he prays for an injunction, prohibiting him from obstructing him in carrying out the duties of hi-s office, except so far as it may be needful to give necessary orders to perform the-work of his office.

The district judge refused to grant an injunction. Thereupon plaintiff filed a supplemental and amended petition for a judgment as-prayed for in his original petition recognizing him as entitled to the-office he claims, with the emoluments, at the rate of one hundred dollars per month from June 15, 1891, to the time when he shall have-been reinstated.

There is an affidavit filed in this court setting forth his interest aabeing in amount within the jurisdiction of this court.

The judge of the court a, qua mantained the exception, and dismissed plaintiff’s suit.

Plaintiff prosecutes this appeal.

We have only to deal at this time with the jurisdiction of this court which comes up on defendant’s motion to dismiss the appeal.

It may be that the amount involved is much less than two thousand dollars, and that on the merits it will be decided that plaintiff has no-right of action. At this time, we would not feel justified in dismissing the appeal upon the assumption that he is not entitled to any amount (as defendant urges we should) or to be reinstated, and that his averments and affidavits were made in error. Some weight has-always been given to affidavits setting forth that the judgment was-rendered for an appealable amount, whenever the evidence did not,, on the face of the papers, show that it was not correct and true.

Only as relates to jurisdiction, there is sufficient showing made to> enable plaintiff to sustain his appeal and to obtain a hearing as to whether he is entitled to a reinstatement to the office he claims and to the salary of the office to the day of reinstatement. Goodrich vs. Newell, 43rd Ann., 373; and Sims vs. Walshe, 49th Ann., 781.

The motion to dismiss the appeal is denied.

On ti-ie Merits.

This is a suit brought by plaintiff to be reinstated in the office of assistant city engineer, from which he was removed by an order of the-city engineer.

Plaintiff applied for a writ of injunction to restrain defendant from discharging him. The judge a quo issued a rule nisi ordering the defendant to show cause why the injunction should not be issued. After a hearing of the parties concerned, the injunction was refused.

Thereupon, plaintiff filed a supplemental petition, making the city of New Orleans a party, and asking for judgment against the city for the salary he claimed. On an exception filed by the city attorney,, the suit against the city was dismissed, and from the judgment of dismissal, no appeal was taken.1

There is no dispute as relates to the following facts:

Plaintiff was appointed assistant city surveyor and engineer inr 1896, prior to the repeal of the city charter of 1882, and he was reappointed in 1896, under the existing city charter.

Defendant in his answer, alleged that the plaintiff was discharged by him from the position of assistant engineer on June 1st, 1897; the discharge to take effect June 15th, 1897. The plaintiff was notified ■on the first of the month of his discharge, to take effect as alleged.

With reference to plaintiff’s appointment, it appears that “the city of New Orleans, by ordinance 12,316, passed on May 19th, 1896, established plaintiff’s position as an assistant engineer of the city, at one hundred dollars per month, in the city engineer’s office. Said plaintiff to be appointed in accordance with section 1 of said ordinance.”

Plaintiff’s name was sent to the City Council by the city engineer, Pell, as assistant engineer, and was duly confirmed 'by that body.

Sometime after, acting under Section 18 of Act No. 45 of 1896, the City Council reorganized the different departments, and acting under said ordinance, plaintiff was again appointed and confirmed. Defendant Bell notified the City Council of plaintiff’s appointment, and requested the approval of the Council. The approval was given and the appointment confirmed.

Contradictorily with the City Engineer Bell, the case was tried on the merits and plaintiff’s demand rejected.

From the judgment, plaintiff appeals.

I.

At the outset we gave consideration to the issues arising on the merits; and issues regarding the injunction- were not taken up at first for decision. They will be taken up after consideration of the merits of the ease. This brings us at once to the question of defendant’s right vel non to discharge the plaintiff.

Defendant, in the first place, urged that the right to appoint carried with it the right to discharge; that it is an essential power in the proper administration of the municipality applying to municipal officers who are, defendant contended, removable at will, by the one who made the appointment, without any necessity of assigning a cause.

Plaintiff controverts defendant’s position, and insists, as we take it, that if plaintiff was subject to discharge at pleasure, it was only at the pleasure of the Council, and not of the city engineer, to whom the power was not delegated.

We have noted that plaintiff was reappointed under the charter of 1896, and we think the right he claims must be tested under that charter; although, as relates to the naked question of discharge, whether considered under the charter of 1882 or the charter of 1896, we are convinced that there is somewhere a power of removal of an officer of the municipal corporation. It is one of the inherent powers, and “from the reason of things, from the nature of corporations and for the sake of order and of good government, the power is incidental.” Dillon, Municipal Corporations, Sec. 240, 3rd Ed.

We have not sought to determine in whom the power of removal was tested under the charter of 1882; we think that plaintiff held his position under the charter of 1896.

The department in which plaintiff was employed is a separate and independent department, and its officers and employees are not subject to the control of any other department, nor are they to be removed by any one connected with it.

II.

Plaintiff alleges that the City Council, and the City Council alone, had the power to suspend or remove him under the regulation of the board of civil service.

Plaintiff was appointed before that board had been organized.

The statute applies to the officers or employees “in the classified service who shall have been appointed under said rules.” Statute 45 ■of 1896. Not the case here, as plaintiff had been appointed and confirmed when the rules were adopted. City of New Orleans vs. Board of Fire Commissioners, 50th Ann., 1000. It was decided in this ease that the part of the law relating to “classified service” did not become operative prior to March 18th, 1897, a date subsequent to plain•fiff’s appointment. But the Act of 1896 (the city charter of New Orleans), in other respects, was in force from the-date of its promulgation, and we have seen that the reappointment of plaintiff was made by defendant under the authority of that Act, which provides “there shall be appointed by the city engineer under and in accordance with the rules and regulations prescribed by the board of civil service commissioners not more than seven deputy surveyors, skilled in their profession.” Section 35 of Act 45 of 1896.

III.

There was a power of appointment delegated by the Act, we think,, which was independent, necessarily, from the board of civil service commissioners, which did not exist at the date of the appointment.

Moreover, under another section (18) of the statute, it was provided that “the Council shall organize the departments of comptroller, treasurer, commissioner of public works, commissioner of public buildings, city engineer and city attorney; regulate the number of clerks and other persons to be employed therein, and fix the salaries of such clerks and employees.” The City Council chose-to authorize the city engineer to make the appointment of the deputies in his office; and, under the ordinance, the city engineer appointed the plaintiff. Under the laws at the time in force, he alone-was entrusted with the appointment.

Plaintiff was originally appointed by the city engineer. If he was not originally appointed and re-appointed by that officer, who had, under the power of the statute, the absolute right to appoint, he was not appointed at all.

But plaintiff’s counsel insists, that under section 27 of the statute cited supra, the proper party to act was not the city engineer, but the mayor, in the exercise of 'his right of supervision.

The section in question grants to the mayor the right to appoint and remove “such officers as may be hereinafter designated.” This applies to “officers and persons employed by the city.” We are not inclined to think that it applies to assistants employed in any of the departments, who are employed by the chief of the department and not directly by the city through its mayor. The section, taken as a-whole, refers to the duties of the mayor. We take it, that it was not the intention of the legislature that the mayor should concern himself' about what each deputy or assistant ought to do in his subordinate-capacity in any of the departments. This, we take it, under the terms of the statute, was left to the chief of each department to exercise properly, both as relates to his department and to those placed in his charge under the statute.

Another sentence of the section points out, we think, the purpose of the statute, in making the mayor responsible “for the proper conduct of the officers of the several departments appointed by him,” and he-may remove them.

He appoints the city engineer and may remove him. He does not appoint his assistant or deputy. It follows that, as relates to an inherent right of removal, he is without authority; and that, under the terms of the statute, it could he his only power; it not being, in our view, expressly delegated.

But counsel for plaintiff contends that the statutes of 1896 must be construed together, and as all future employees were to be appointed under civil service, it was considered unfair to take from the chief the absolute power of employment and discharge of his head deputy. And that, as the new law limited the power of removal, under the-maxim inclusio unius est exclusio alierius, the inclusion of the right to appoint one special clerk or deputy and discharge him at pleasure,, was an exclusion of the right to remove plaintiff, who was not the-special clerk or deputy.

In our judgment, the maxim cited does not apply, for the reason that there was a right of removal lodged somewhere, being one of the incidental rights of a corporation. Before the civil service was organized, this power was vested in the one who had the right to appoint, and the right of removal was not limited to the chief deputy. It ceased to be thus delegated when the civil service commission became the controlling authority.

IY.

This brings us to the conclusion that the city engineer had the power to appoint his deputies, and that until the power was lodged elsewhere, he had the right to remove them. When the officer is a deputy (employed by his principal) whose tenure of office was not fixed, in the absence of any statutory prohibition, the power to remove him was incidental to the power of appointment.

We have found several decisions hearing upon the power of removal.

In People vs. Mayor and City of Brooklyn, 43 N. E., the court said: “It is a well established rule of law that a power to appoint to an office or position, where the term or tenure is not defined by statute or otherwise, necessarily carries with it the power of removal.” Citing People vs. Board of Fire Commissioners, 73 N. Y., 437; People vs. Robert, 126 N. Y., 180, and 27 N. E., 267.

There is no claim in the case before us for decision that plaintiff’s-' tenure was in any way defined. He was, as we take it, employed by the month, at a stated salary per month. •

In another case in another jurisdiction, the court held: “Where the tenure is not fixed by law, the office is held at the pleasure of the authority making the appointment.” Collins vs. Texas, 36th Texas, 546.

“In the absence of a prohibitory statute regulating the power of removal, it was decided that the power of removal was incidental to the power of appointment.” 7th Am. Rep., 686.

“This power of removal cannot be divested or taken away, except by the term of the statute.” People vs. Hill, 7th California, 102, and affirmed in Smith vs. Brown, 59 California.

The.Supreme Court of the United States in a leading case held: “All offices, the tenure of which is not fixed by the Constitution or limited by law, must be held either during good behavior, or (which is the same thing in contemplation of law) during the life of the in■cumbent, or must be held at the will and discretion of some department of the government subject to removal at pleasure.” It cannot for a moment be admitted that it was the intention of the Constitution that those offices which are denominated “inferior offices” should be held during life; and if removable at pleasure, by whom is such removal to be made?

“In the absence of all constitutional provision or statutory regulation, it would seem a sound and necessary rule to consider the power of removal an incident to the power of appointment.” In re Hennen, 13 Pet., 230, 250.

This, we understand, is the jurisprudence of the National Court regarding the removal of “subordinate officers.”

Here, there is no necessity of recognizing the principle further than as applying to a deputy who has been discharged by an officer by whom he had been employed. In our judgment, the jurisprudence of this State, as heretofore announced, is not adverse to the views before expressed as applying to deputies holding under their principal, the ■officer in charge of the office in which they are deputies.

To this point of the case we were decidedly inclined to the opinion, that, as relates to the merits, plaintiff was the appointee of the city surveyor, and entertained no doubt, that the term or tenure of the office not being fixed, the appointing power had, as an incident, the -power to remove his appointee.

Granted that this position is not entirely and absolutely conclusive in all respects, the legality of plaintiff’s claim to the office he claims, to say the least, is not free from some doubt.

In this respect, we are impressed by the views of the judge of the District Court, directing attention to the existing charter, wherein it appears that an officer or employee must have been examined by the board of civil service in order to be brought within the provision of the statute regarding its power of removal of an officer or employee.

We insert in extenso the view of the judge of the District Court,, given by him in support of his decree:

“On the trial, it was conceded that the civil service commission organized March 19th, 1897, and promulgated its rules, as required by the charter, on April 1, 1897, and, the rules show, that the office of assistant city surveyor and engineer has been placed in the classified list.

“Plaintiff’s appointment by the city engineer, antedates the adoption of said rules, by several months. There is no allegation or proof that he has been examined by the said board, and whether, or not, he is an appointee, under said rules, i. e., after examination, as was intended perhaps, by the terms of the charter, when he was appointed; and whether or not it is required that he should be examined, and whether or not he is recognized by said board as on the civil service list, aro all open questions of law, to some extent, and also questions of fact, of services, in part bearing on his title to the office in question, and placing it in more or less doubt.

“Unless the title to the office, and his consequent right to remain in the discharge of his duties, are absolute and apparent, on the mere statement of the eafee, it seems well settled, that a preliminary injunction ought not to issue in such a case. This is true of all kindred matters; the right to a public office included. See McComb vs. Ernest, 1 Woods, 196; 21st Ann., 18; 32nd Ann., 649; 47th Ann., 53; 61 and 65. (Italics ours.) * * *

“The case alleged by the plaintiff does not bring it within any of the categories provided by our Code, where the writ issues as a matter of right, and, therefore, it rests in the discretion of the court to decide whether the act sought to be enjoined will, if carried out, pending any contest on the issue of title, operate to the irreparable injury and wrong of the plaintiff.

“In this case, the office in question has been placed in-the civil service, as classified. If under the rules, plaintiff has been placed in .said office, the right of the city engineer to remove him may well be questioned. At least he would have to prefer charges, and it seems, that the civil service board and not a judicial court would decide the issue.

“If this be not the case, on the facts, it may be, that, under the intrusion into office act, or, by quo warranto, or some kindred proceeding, the issue of title may be settled by a court having jurisdiction.”

The learned judge further said that as plaintiff had not taken any proceeding against defendant and the city to test plaintiff’s right to the office, he had declined to issue the injunction. It was, he thought, a matter within his jurisdiction. The office, as classified, had been placed within the civil service. If, under its rule, plaintiff had been placed in the office he claimed, the right of the city engineer to remove him may well be questioned. If he was in the civil service, the ■issue was one to be decided by the civil service board, and not by the ■courts. If his case is not within the civil service, it may be that, under the intrusion into office statute, or by quo warranto or other similar proceedings, the issue of title may be settled by the courts.

He felt that he should hesitate to issue an injunction, and thereby bring confusion and discord in an important branch of the public service. He took the charter as his guide, and applying to the allegations of plaintiff’s petition the tests and rule laid down in State ex rel. Kuhlman vs. Rost, 47th Ann., 53; State ex rel. Keller vs. Rost, 47th Ann., 61, and State ex rel. Picard vs. Rost, 47th Ann., 65, he felt that he exercised a sound discretion and promoted the general good and orderly administration of justice, by refusing the injunction, so long as the right which plaintiff claimed is a matter not determinable in this suit as against the city and the defendant. The judgment reserved to plaintiff -whatever right he might have.

We think that these grounds sustained the decree of the District ■Court, and that they and the judgment should be affirmed. They are affirmed.

Monroe, J., takes no part, as he was not a member of this court when the case was submitted.


author: Nicholls, C. J. Breaux, J.

text:
    No. 13,009.
    Heirs of R. L. S. Marmion vs. Bridget McPeak et als.
    Syllabus.
    On Motion to Dismiss.
    ■When the pleadings of a plaintiff, verified by affidavit, show as to the amount in dispute, a prima fade right to an appeal to the Supreme Court — the appeal will not be dismissed on a motion in limine, based upon testimony in the record taken on the trial of the cause in the District Court. Testimony so taken can only reach the Supreme Court when the cause goes before it on the merits, at which time the appeal will be dismissed if the Appellate Court is without jurisdiction ratione materiae. '

    On the Meeits.
    1. Action Petitoey. — Plaintiff in a petitory action based his claim on a’complete legal title.
    2. Tax Title.. — The defendant has no title at all.
    3. Thbeb Yeaes’ Pbesceiption. — The plea of prescription (3 years) did not give vitality to an adjudication at tax sale which in law never had force or effect.
    4. Ten Yeaes’ Pbesceiption.. — The purchaser, knowingly, not having compiled with his bid as required by repeated decisions of this court, was not in good faith, and, therefore, his asserted title was not cured by the prescription of ten years.
    5. Rent and Impeovements. — Plaintiffs’ claim for rent was not sustained by proof and was not allowed and defendants’ reconventional demand was rejected.
    ON APPEAL from the Civil District Court for the Parish of Orleans. Monroe, J.

      Kernan & Gowland fc / Plaintiffs and Appellants.

      Farrar, Jonas, Krulischnitt and Gurley for Defendants and Appellees.

      J. Zach Spearing, amicus curiae, in support of the application for a rehearing.
    Submitted, on motion to dismiss, January 9, 1899.

      The opinion, on motion to dismiss, was handed down January 23, 1899.
    Argued and submitted, on merits, May 6, 1899.
    Opinion handed down May 15, 1899.
    Rehearing refused June 26, 1899.
   The opinion of the court, on motion to dismiss, was delivered by Nicholls, O. J.

On the merits, by Breaux, J.

On Motion to Dismiss.

Nicholls, C. J.

The appellants have moved this court to dismiss-the appeal filed herein, upon the 'ground that the court is without jurisdiction to entertain the same, ratione materiae, the amount claimed or in dispute being less than two thousand dollars. The action is a petitory action brought by the plaintiffs as heirs of their father, Richard L. S. Marmion, in which they seek to have themselves decreed the owners of certain property described in their petition, together with rent from September 2nd, 1886, from which time, they allege, they have been deprived of the use of their property. The value of the property is alleged to be one thousand dollar’s, and the value of the rents, up to the filing of the petition, declared to be ten dollars per month. The petition of the plaintiffs is verified by affidavit of their attorneys, they, the plaintiffs, being absentees.

Plaintiffs declare that defendants base their right of ownership and possession upon a tax sale which is illegal and void, and which conveyed no title to them for reasons assigned; they further aver that the defendants failed to comply, as adjucatees, with the terms and conditions of the said tax sale, and that title, under the same, has never been completed, they, not having paid taxes subsequent to the year 1880; that they had permitted the property to be readjudicated to the State for the taxes of 1880, 1881 and 1883, and that they, the plaintiffs, had been permitted, by the State, to redeem the property.

Counsel of appellees call our attention to the case of Walsh vs. Harang, 48th Ann., p. 984, stating, that by that decision it was decreed that purchasers at tax sales owed fruits and revenues only from judicial demand, and, therefore, the court should ignore allegations of plaintiffs’ petition asking for rent, prior to that time. They further call the court’s attention to testimony taken on the trial of the case, by which plaintiffs’ own witnessess fixed the value of the property at six hundred dollars, and the rental value at five dollars a month, while defendants’ witnesses fixed the value of the property at four hundred and fifty dollars, and declared it to have no rental value whatever.

Counsel is in error in supposing that this court, in Walsh vs, Ilarang, announced, as a rule of law, that defendants in a petitory action, claiming title to the property in litigation, under a tax adjudication made to them, were only chargeable with rent, or fruits and revenues, from judicial demand. The defendant in that particular case was not the adjudicatee at a tax sale, but a purchaser in good faith from such an adjudicatee, and the court held she was properly chargeable with rent from judicial demand.

We have, on several occasions, noted the difference between appeals dismissed on motion in limine, and appeals dismissed by the court after the case had been regularly taken up and tried.

We think the pleadings of the plaintiffs, verified by affidavit, show a prima facie right to an appeal to the Supreme Court sufficient to withstand a motion to dismiss, made in limine. Wo would not, oh such a motion, be authorized to take up the testimony introduced on the trial of the cause, and base a dismissal, in limine, upon it. That testimony can only reach us, regularly, when the cause comes before us on its merits. Should the testimony in the case disclose, at that time, that the matter in dispute is smaller in value than required to vest appellate jurisdiction in this court, we will, at that time, dismiss the appeal. Wo must decline to dismiss it, in limine, on the motion made.

For the reasons assigned, it is ordered that the motion to dismiss the appeal before the cause is submitted to us on the merits, is denied, leaving the question of jurisdiction to be ascertained and acted upon hereafter.

On the Merits.

Breaux, J.

Plaintiffs brought this action to recover two certain lots of ground sold at tax sale (taxes due prior to 1879) for the amount of four dollars. The adjudicatee at the sale, in addition, was to pay the taxes due -the city of New Orleans for the years 1873 to 1879. Also, rents and revenues on the property are claimed.

Plaintiffs acquired by inheritance from their father, R. L. S. Marmion, who died in 1813.

Roth parties to the suit treat the action as petitory against the defendants in possession of the property more than ten years. Defendants’ possession, under a tax title, dates from September 2nd, 1886.

The grounds upon which the tax title is attacked are; Cl) that the assessments were illegal, having been made in the name of a dead person; (2) that the assessments arc grossly erroneous as to description, the names of the streets and the boundaries not having been correctly given; (3) that defendants and their ancestors never complied with the terms of adjudication necessary to perfect their title.

Plaintiffs alleged that they redeemed the property from the State of Louisiana, and they claim rent.

i Defendants deny that plaintiffs have title to. the property, and plead 'the prescription of three and ten years,, and pray, in event of a judg•ment against them, for a judgment in reconvention.

There is an admission of record showing that R. L. S. Marmion owned the property. That in 1885 the property was sold by the State 'Tax Collector, and was adjudicated te> the State; that the adjudication of the lots was timely registered in the conveyance office..

It appears that on September 2nd,, 1886, the State Tax Collector-offered these lots at public sale, under Act 82 of 1884, as having been adjudicated to the State. Patrick Fane (an-coster of defendants) became the purchaser, and his title, was duly recorded the same day.

Defendants, in the first place, invoke their possession, as- a ground to defeat plaintiffs’ action. It must be- borne- in mind in considering the ground of defense, that plaintiffs have introduced a complete -valid title in evidence; one that must ho sustained unless there was a tax sale made of the property, which gives a right superior to the right claimed by plaintiffs. It must also be remembered that both plaintiffs and defendants agree that this action is a petitory action.

No attack has been made on plaintiffs’ title.

Defendants, wc apprehend, placo too great a reliance on their possession.

The rule of practice is well founded in law and justice, that one in a petitory action must recover on the strength of his title, and not on the weakness of his adversary’s. The questions to which civilians have, given effect and force is of equal application here.

Qui interrogatus, cur possideat? Besponsunts sit, quia possideo.

But does not this question cease to- be pertinent when a plaintiff, as in this case, produces a title valid against the world and under which lie should unquestionably recover the property claimed, unless it be made evident that since the date of his title, for good -and valid cause, another title was created which is superior to his?

In our judgment, the question answers itself in the affirmative. The answer can now no longer be possideo quia possideo, but the defendants must show, in opposition to plaintiffs’ valid title, that they possess the property not merely as a question of fact, but in addition ■that their possession is a possession under a title.

We have not found that defendants have civil possession, or such a possession as gave them the right to stand on their right in opposition to the title offered by plaintiffs. The burden of proof, in presence of plaintiffs’ title, has shifted-. The unassailed title must prevail,-unless defendants show a better.

In this, we think, the defendants have failed.

In order to uphold their title, defendants have pleaded the prescription of three and ten years, and to sustain the former they depend on the case of Russell vs. Lang, 50th Ann., 36, interpreting a statute which decrees the prescription of an action, citing, in support, Breaux vs. Negrotto, Jr., 43rd Ann., 441.

We do not take it that by the terms of the decision cited, all defects, however radical, must be considered cured by the prescription of three years.

This court- in the last cited case, supra, said: “After a most careful and serious consideration, we have deliberately reached the conclusion that the views expressed in Barrow vs. Wilson, 39th Ann., 410, ought to be modified so as to conform to the views expressed in the opinion now under consideration.” And that opinion was that there are radical defects, such as in the case before us, that are not cured by the prescription of three years.

This has been the view entertained and expressed by this court since that, decision was rendered, to which we must adhere.

The case of Russell vs. Lang, 50th Ann., 36, is not an obstruction in the way of our conclusion, as there is no complete similarity between the two. Moreover, in the last cited case, the court said: “The deed evidencing this title accurately described the property, and is otherwise sufficient, in terms, to transfer its title.”

Defendants’ title must prevail over that of plaintiffs’ unless the latter can get rid of it by showing that, as a tax sale, it is void for inherent defects, such as want of fulfillment of the requirements of law in the matter of assessment of the property for taxation, or in the proceedings taken for its sale for non-payment of taxes.

Let us pass to the next question, involving the character of the title claimed. We think it was void, and therefore readily difference it from the last case cited, supra. The title was not of a nature to transfer property.

The adjudicatee at a tax sale, for reasons apparent from our statement o'f facts, must be held to have had knowledge that the State could not convey the property in the proceedings in which it was sold, and that the adjudication transferred no title.

Now, as relates to prescription of ten years, also pleaded, there are tax deeds so entirely null as not to be within the reach of prescription of three, or even ten years. We think that the case before us for consideration is of that number. The prescription of ten years is based on good faith.

In order to determine whether or not the defendant to whom the property was adjudicated at a tax sale was or was not in good faith, a definition may assist us.

Good faith consists in the well settled opinion that the possessor has acquired the property which is in his possession.

Under the repeated decisions of this court, regarding tax sales, we are precluded from arriving at that conclusion.

Here the title was not apparently good, and of such a character as to induce the possessor’s belief that it was legal. It was absolutely defective on its face, and' the defendant must be held to have knowledge of this defect. He must be held, under our jurisprudence, to have known of the vices of his title, and his heirs, who hold under him, must be held to the same knowledge. Oeuvres de Pothier (Dupin), Vol. 8., p. 336.

The maxim of the law — Melius esi non habere litulum quarn habere viiiosum is particularly true when, as in this case, the vice amounts to a complete nullity.

Plaintiffs’ claim for rent. The property was unimproved, a naked lot. The preponderance of proof shows that plaintiffs were not entitled to rental.

As relates to defendants’ reeonventional demand, under our views -of this case, as before expressed, we 'do not think that we would be warranted in sustaining- that demand.

It is therefore ordered, adjudged and decreed, that the judgment appealed from be annulled, reversed and avoided, at defendants’ and appellees’ cost in both courts.

It is further ordered, adjudged and decreed, that plaintiffs have judgment as prayed for, decreeing them to be the owners of the property described in their petition and annulling all tax deeds and rights claimed under the tax deeds and adjudication by defendants.

It is ordered, adjudged and decreed that plaintiffs’ claim for rental is rejected.

It is; lastly, ordered, adjudged and decreed, that defendants’ reconventional demand is rejected.

Mr. Justice Blanchard takes no part, not having been present at •the argument.

Monroe, J., recused.


text:
    No. 13,022.
    Jackson Heffner et als. vs. Wise & Herndon.
    Syllabus.
    Instead of settling- for the succession property as lie should have, the administrator disposed o£ the funds.
    'The court directed the administrator to be imprisoned. No funds were furnished by him after his imprisonment.
    I-laintiff brought suit for damages caused, it was alleged, by improper advice imparted by defendants to their client, the administrator, who had failed to account.
    Heed : While it is true that one may claim damages from an attorney who advises his client to commit a wrong against his, the former’s interest, it must be proven that a reckless and malicious advice was given, which was fol- , lowed by, and resulted in, a loss to the complainant.
    'Here, the charge of having given the advice was denied, and the denial sustained by preponderance of evidence, and, therefore, the demand is rejected.
    ON APPEAL from the First Judicial District Court for the Parish of Caddo. Land, J.

      Harrison & Aston, and D. T. Land, for Plaintiff and Appellant.

      T. Alexander for Defendants and Appellees.

      Submitted on briefs January 27, 1899.
    Opinion handed down March 20, 1899.
    Rehearing refused June 27, 1899.
   The opinion of the court was delivered by

Breaux, J.

This suit was brought to recover damages from the defendants, growing out, it is alleged, of improper advice given by them, as attorneys, to their clients.

This court annulled the will of the late William Heffner. Plaintiffs were to be the legatees under the terms of the annulled will.

Defendants were the attorneys of the executor, by whom an accounting- was due to plaintiffs for the succession property. The executor failed to account to the heirs.

The plaintiffs sue to render the defendants liable for all the funds wrongfully disposed of by the administrator, alleging the defendants, as attorneys of the executor, gave the advice on which he disposed of the property under the will annulled, i. e., paid out and distributed the funds to the legatees. They allege that the acting executor under the will had been notified that they intended to contest the validity of the will, and would demand the property of the estate, and that,, despite the notice, under the 'advice of defendants, the executor disposed of nearly all of the property of the succession of William Heffner, and that, thereafter, again under the advice of the defendants, Janies Heffner executed and sold -his real estate and caused his wife, Mrs. Eliza J. Heffner, to institute suit and obtain judgment against him for separation of property, thus protecting himself from the pursuits of his creditors, and placing his property beyond the reach of his creditors, and that, in consequence, petitioners have lost the sum of nine thousand eight hundred and ninety-seven 29-100 dollars, amount due them by the executor, and for which they seek to hold the defendants responsible.

Defendants filed the plea of general denial, and specially averred that they were employed by James Heffner, executor of the last will’ and testament of William Heffner, to represent him, and the succession, in the suit brought by plaintiffs to annul the last will of the deceased; that, in the various phases of the case, they represented their client to the best of their ability, and they specially deny that they ever advised the defendant, James Heffner, executor, to pay out and distribute the funds of the succession to the legatees named in the will; such advice having been given by the attorney who probated the will anterior to the employment of counsel.

The testimony shows that the executor did sell all his property aaalleged. This court directed the executor to be imprisoned under the order of the lower court, and to pay over the funds, but the imprisonment proved ineffective, and did not result in any relief to plaintiffs.

An affidavit, taken by James Heffner, executor, was filed in evidence in answer to rule to show cause why he should not be punished for contempt, for not paying the funds in his hands to plaintiff.

In this affidavit lie swore that he had paid the funds to the legatees under the will, and that in thus paying he had advice of counsel. The name of counsel is not stated in the affidavit, and does not appear of record.

Defendants, on the other hand, each of them, testified that they had not advised the executor. . •

With reference to the answer to the rule and affidavit before referred to, Hr. Wise, in answer to <tbe questions propounded to him, as a witness, said, substantially, that the words “advice of counsel” quoted from the affidavit before referred to, did not bave reference to himself or his firm; that no such advice had been given by it, but that the advice had been given, he was informed, by his client, James Heffner, at the time he wrote the affidavit for him, by the attorney wTho preceded them in the matter of the settlement of the succession; that his client, Heffner, stated to him, that, immediately after the will had been probated, the attorney, who was not connected with the defendant firm, and wlm alone at the time represented the executor and the succession, advised -him at once to execute the will and pay the legacies; that his client had every confidence in the attorney, and in the validity of the will.

Counsel testifies, in positive terms, that he only knew that the legacies had been paid some time after payment had been made.

The District Court rejected plaintiffs’ demand and dismissed tlieir suit.

They appeal.

The claim for damages alleged to have arisen from the advice of defendants was directly presented, and w^e have reasons to infer that it W'as energetically pressed.

The evidence does not prove the allegations made in behalf of plaintiffs? cause.

The will was probated a considerable time before the defendants were employed, and the record disclosed that advice had been given by another counsel regularly retained, who had the will probated, to execute the will and pay the legacies. It was under,that advice, as we take it, that the payments were made, and not under advice of defendants, who did not know, until after they had been employed to defend the will attacked, that payments had been made as alleged by plaintiffs.

However liable attorneys at law may be, in damages, for advising their clients to commit a wrongful act against another person, that liability does not arise before it is proven that the advice is given. In a matter so delicate, we are not inclined to the inference that such advice was given. The proof to sustain the charge should be direct .and convincing.

In the face of the sworn and uncontradicted statement of attorneys of unquestioned honor and integrity, emphatically denying that they ever gave such advice, we do not think we should assume, because of legal steps taken by the wife of the executor to protect her rights, and the advice given by them in this regard when called upon, that they must, in some way, have taken part in advising the executor in disposing of his property as he did. Nor can it be concluded, because of the sales made by the executor, that his counsel must have suggested what conveyances were advisable as a protection against plaintiffs’ claim.

Many persons in embarrassed circumstances resort to such acts, and without seeking advice from attorneys. If advice is sought in such eases, and information be given in reference to some individual right, it does not follow that he knowingly made himself the attorney of the wrongful act of his client; clients generally know their responsibility as debtors.

From the fact that he gets information in regard to a sale, or in reg’ard to the rights of his wife as a creditor, it does not follow that the attorney is a party to the wrong his client commits in selling all his property with improper haste to defeat creditors.

The learned judge of the District Court, who, in all probability, knows the parties concerned, in whose court all the proceedings were conducted, rejected the demand. We do not think there is cause to disturb the judgment.

Judgment affirmed.


author: Breaux, J. Per Curiam:

text:
    No. 13,023.
    Tutorship of Minor Heirs of Samuel S. Watson. On Opposition to Account.
    Syllabus.
    1st. Expenses in Excess op Revenue. — Where the tutor’s expenses for the support of the minor exceed her revenues, and no family meeting recommended the expenses, and the minor, arrived at her majority, refuses to recognize the amount as due, he is not entitled to any credit for the amount in excess of revenues.
    2nd. Interest. — The tutor is liable for interest on all sums of money of his ward which came into his hands.
    3rd. Fee op Attorney. — The fee not having been claimed in the lower court, the Supreme Court affirms the judgment without allowing a fee not claimed heretofore.
    4th. Carrying Claim on the Inventory. — The notary, who, sometime after an inventory was made, becomes the tutor of the minor, is not precluded from showing that a debt due by himself was erroneously credited in the process verbal of the inventory.
    5th. Charged in Account. — ’The court a qua fixed the amount of an indebted ness arising from 'several sums collected. There was a presumption raised in favor of its correctness. Succession of Bauman, 30 Ann., 1138. ■
    6th. The Judgment. — With reference to very small items of an account, the judgment will not be disturbed, unless error be shown beyond all question.
    Ox Rehearing.
    ■ A tutor is ruled io file an account of his administration and does so, claiming a balance as due him by the estate of his ward. On opposition to the account and final adjustment, it is decreed he owes a balance to his ward. From iliis judgment he appeals, but does not succeed in reversing the judgment, nor in amending it by reduction in his favor. I Ield, costs of appeal are to be borne by the tutor individually; those of lower court by the estate.
    ON APPEAL from tbe First Judicial District Court for tbe Parish of Caddo. ' Land, J.

      JD. T. Land for L. E. Carter, Tutor and Appellant.

      L. E. Thomas for Opponent and Appellee.
    Argued and submitted January 27, 1899.
    Opinion handed down May 29, 1899.

      Decree amended, and rehearing refused, June 27, 1899.
   On application for rehearing per curiam.

The opinion of the court was delivered by

Breaux, J.

The opponent, a minor until recently, at her majority sued her tutor for an account of his tutorship. The tutor filed his account showing a -balance in his favor.

The record discloses that the opponent and her sister, also a minor, a short time after their father’s death became wards of L. E. Garter,, the party from whom opponent claims an amount as due her.

The sister, Evelyn, died in 1882, and from that time the opponent was the only heir of her father’s estate.

The property consisted of a tract of land, live stock, some movables and interest in a dairy, also personal property of little value.

The tutor kept up the dairy until the expiration of the lease, and collected a few hundred dollars of revenue therefrom.

In 1891 it became evident that the minor did not have revenues enough to pay for her maintenance and education. On June 24th,. 1891, a family meeting' gave authority to the tutor to expend an amount out of the capital of the minor not exceeding the sum of $12.00 per month for her support.

The tutor, who is appellant, avers that his former ward did not authorize the attorney to sue him for an -account- of tutorship, and to repudiate expenditures made for her maintenance and education, though not warranted by a. family meeting; and he further contends that he does not owe her interest on the- capital and revenues received by him, and that if he does owe that interest, he is entitled to interest on amounts paid out by him for her.

The tutor asks the court to allow and fix the fee of attorney for preparing and filing the account of tutorship, or to reserve appellant the right to claim it in his account.

Before this court the minor answered the appeal, and asked for an increase of the judgment, on the ground that the district judge erred in his finding that, on June 24th, 1891, the minor’s capital was $1,268.20, and contends that the amount really due at that date was $1,805.45; also, that he erred in finding that a due bill of the tutor, for $175.00, due to the late father of the opponent, had been paid, and that he erred, also, as relates to an item of $62.25, and another item of $16.

The district judge, in his opinion, states that the real estate, and part of the. personal property, were sold at public sale in March, 1882; that the dairy was run until the expiration of the lease, about the same time; and he says, among other things, that, practically, there is no contention on the fact, save that opponent claims that the tutor can not charge for money expended for -her, beyond the revenues; and he holds that the tutor owed interest on the capital and revenues received by him.

In the briefs other issues are argued, but they relate to small accounts.

(1) As relates to the expenditure of the tutor exceeding the revenues of the minor, the complaint is that the tutor had trusted to the minor’s sense of justice and right, and that the minor alone can urge the objection when arrived at the age of majority.

After an examination of the facts regarding this issue, we arrived ait the conclusion that the former ward unquestionably authorized her attorney to act for her, a.nd claim the deduction of the amount which exceeded the sum the tutor was authorized to expend for maintenance and support, and that, in consequence, he is without right to recover any sum in 'excess of the amount allowed by the family meeting for the support and education of the minor.

“The expenses for the support and education of the minor ought “ never to exceed his revenues.” C. C., 850.

. The authority given to hold a family meeting was invoked, and the tutor was authorized to take from the capital in order to supply her wants. If he paid more than he was authorized to pay, he has no one to blame save himself. If the minor, upon arriving at majority, did not choose to approve his acts, it was a matter which the law leaves exclusively to the sense of right of the minor.

2nd. Now, as relates to interest, another issue before us at the instance of opponent, it is settled that the tutor owes interest on sums that fall into his hands, unless he shows that he invested them. Fulton vs. Curtis, 3 La., 194; Monget, Tutor, vs. Walker et al., 4 Ann., 214.

In Fuselier vs. Babineau, 14 Ann., 777, a well considered case on the subject, this court said: “The counsel of appellee argues that interest was improperly charged the tutrix upon the various sums of money received by her.

This argument is based upon a variation between the expression used in Art. 71, p. 70, of the Code of 1808, and Art. 841, of the Code of 1825. The former provides, that the tutor is bound to pay to his ward, interest at the rate of five per cent, on all sums which he shall have received on his account from the time he shall have received such sums respectively, without being' admitted to free himself from such interest under pretence of his not 'having been able to lay the money out.

The Article 341 of the new code directs the tutor to invest in the name of his minor the revenues which exceed the expense of his ward, whenever they amount to the sum of five hundred dollars. And, in default of making such investment, the tutor is bound to pay (by the Act of 1825, p. 198, par. 1), legal interest.

The obligation of the tutor to pay interest on moneys of the minor ■which come into his hands, can scarcely be considered an open question, at this day, after the many decisions recognizing such an obligation, since the Code of 1825 is in force.

We will Content ourselves, therefore, with observing- that the word ‘revenues/ in the first paragraph of the Article 341, is to be taken as synonymous with the word ‘funds/ in the second paragraph of the same article; and as meaning all moneys belonging to the minor, that come into the hands of the tutor in the course of administration.” ■(Italics ours.)

We have quoted freely from the foregoing decision, for the reason that it is determinative, of the point at issue. Under the circumstances, the tutor was liable for interest on all funds from the time of the receipt of the different amounts. But the tutor contends that if he owes this amount, he is entitled to credit at the same rate of interest on amounts expended; and cites the case entitled, Tutorship of the Minor Heirs of Hollingsworth, 45 Ann., 134, in support of his contention.

We do not think that this case has a direct bearing upon the point now before us for decision. In the cited case, the tutor had mingled the administration of the minor’s estate with his own; under the circumstances, the court held that the proper mode was to compute interest on the active and passive side of the account, for the reason that the passive side involved more than the mere paying of an amount for the minor’s support. It included considerable service in the interest of the minors; the making of improvements on their lands ■under the supervision of the tutor. In the case before us for decision, all that the debtor did was to pay the amount, a small one, to the aunt of the former ward, in whose care the minor was. We do not think that in law or justice he has earned any right to the interest claimed.

3rd. With reference to the fee of attorney claimed, the account was filed and made out, we presume, by the tutor himself, and no amount was placed therein for the service of attorney.

The ease was tried, decided, and brought to this court on appeal.

In all the proceedings no mention was made heretofore of attorney’s services. We think it is too late to call upon the court, at this time, to fix the amount for the services, and that there is no precedent under which it is possible to hold that after proceedings, and delays, and failure to ask for services, the right to recover for services should be reserved in matters of successions, and settlements of minors’ accounts. The maxim that litigation shonld not be indefinitely protracted applies with great force;' and, therefore, we must decline to grant the request made in the brief.

This disposes of the contention presented by the tutor and appellant. As relates to the appellee, who asks for an amendment of the judgment:

4th. We take up in the first place, the item of $175, carried on the inventory by the notary, (who afterward became 'tutor of the minor), as due to the succession of the late S. S. Watson, father of the minors.

It appears by the tutor’s testimony, that this due bill was not due to the succession of Watson, hut that it was held by him for another, to whom it was paid after the notary, who made the inventory, became the tutor of the minor.

The district judge accepted the statement as correct. The amount was not large. He (the district judge), we infer, knows the former tutor (appellant here) personally, who, as tutor, acted under his supervision of the minor’s interest. His decision regarding this amount, under the circumstances, impresses us as being absolutely correct. Besides the tutor’s testimony, there is evidence which sustains Ms claim.

We do not think that we should be warranted in disturbing the judgment appealed from, as relates to this item. There is no evidence to impeach the testimony.

Now, with reference to the item of $62.25, this is not abundantly supported by evidence, but there are larger items which may include this amount. We do not know, of course, the items which compose the different statements. We judge that it is included in one of those items, as no objection was raised in the District Oourt. No evidence was admitted pointing out specially any error. We conclude that it was properly charged.

6th. Lastly, as to the item of $16 paid for the minor’s support and education, it does not appear by reference to particular receipts that $12 was paid, as charged, instead of $10, as claimed by the opponent; but there are a number of receipts in the transcript, and a number of items have been paid; therefore, it would be exceedingly difficult to base a safe conclusion in opposition to the finding of the district judge that $12 was paid, based as it is, on the testimony of the tutor, that he had paid the amount. There are facts of record which raised the presumption in favor of the correctness of the account taken as a whole. The vouchers filed, the testimony of the witnesses, and the manner in which the judge of the District Court has settled the revenues and claims of the parties, appear to us substantially correct-.

If we were tc make a change in the judgment to the amount of sixty or more dollars, as relates to interest, it would not he particularly beneficial to the opponent, as, under the law of amendments, an appeal must bo made at the expense of the appellee. But be that as it may, we think that the amount is correct, and does substantial justice between the parties, and for that reason, it is ordered, adjudged and decreed that the judgment appealed from be and is affirmed.

Moxuou, J. takes no part, the case having been submitted prior to his appointment as one of the members of this court.

Ok Application pon Rhiiharixo.

Per Curiam:

This appeal Avas by the tutor from a judgment charging him with a balance of $441.06, and interest, as due his ward.

This result was arrived at by opposition made to his account as tutor, which, as filed, showed a balance in his favor.

The- judgment was affirmed here, but no mention was made as to costs — by whom, to be paid.

It is now considered that the tutor having failed, on his appeal, to reverso the judgment, or to amend it by reduction in his favor, must bear the costs of appeal.

The costs of the lower court, however, must be paid out of the funds of the tutorship, or the estate of the minor, even though the account was forced in the sense that the tutor was ordered to file it. This, upon the rule of law that “the account of the tutorship is given at the expense of the minor.” C. C., 359.

The decree heretofore handed down is amended so as to read:

Judgment affirmed, costs of appeal to be bonie by the tutor individually, those of the court a qua by the estate of the minor.

Rehearing refused.