text:
    No. 125.
    W. A. Martin vs. Lizzie Dickson.
    The subrogee to a lessor’s rights is entitled to claim, with, provisional seizure, whatever rent was due at the date of the transfer.

      A. stipulation in a lease to pay part of the rent to a person named, does nob divest the land* lord of a right to the amount, where the stipulation pour auti'ui was not accepted previous to the transfer. The subrogee is entitled to claim such amount in the right of his . suhrogor.
    The burden of proof is on him who alleges payment. The plea admits the debt.
    Damages cannot be allowed to a seized tenant, where the rent claimed was duo at the date of. seizure.
    A PPEAL from the Second District Court, Parish of Bossier. J. Drew,

      J. J). & J. T. Watkins and Lowery & Vanee for Plaintiff and Appellee.

      J. E. Shepherd for Defendant and Appellant.
   The opinion of the Court was delivered by

Bermudez, C. J.

The plaintiff sues in the rights of the lessor of the defendant to recover $2,000 for rent due at the date of the transfer and suit. The claim was accompanied with a prayer for a provisional seizure, which was allowed. Under the writ, property was seized, valued at nearly the amount sued for.

The defendant filed various exceptions and answers, pleading the extinguishment of any indebtedness under the lease prior,to the suit. She averred damages to the extent of $2,000, sustained in consequence of the wrongful seizure of her property and, reconvening, prayed for judgment in her favor for that sum.

. From a j udgment against her for $634.40, with privilege on the effects seized, the defendant prosecutes this appeal. The plaintiff has answered the appeal praying for an increase of the judgment to two thousand dollars, the amount sued for.

It appears that, on the 31st of December, 1880, in consideration of the payment of taxes due on certain property in the Parish of Caddo, and leased by Mrs. H. P. Dickson to her daughter, the defendant, on stated terms and conditions, the former transferred to the plaintiff, Martin, her interest in the lease.

The property consisted of two places, described as belonging to the Dickson estate. It had been leased, in December, 1879, for the years 1880, ’81, ’82, ’83, and ’84, at the price of $4,000, payable annually on November 1st, 1880, and every year thereafter, in the manner and to the persons following: $800 to Mrs. McDowell; $600 to L. M. Nutt; $2,000 to W. R. Barstow; $500 to Mrs. Dickson, preferred to all, and the balance for taxes, $100. The lessee was besides to pay all the taxes to become due on said property. The act of lease was signed only by the lessor, the lessee, and Mrs. McDowell. Whether Barstowdeclined, as stated, or not, to put his name to it, or otherwise to accept the stipulation in his favor, is not made to appear. Neither is it shown that L. M. Nutt, another beneficiary, made himself an obligee. " The plaintiff claims the $2,000 stipulated in' favor of Barstow, and which, in the absence of acceptation by him, were due Mrs. Dickson.

Lizzie Dickson, the lessee, was not notified of the transfer ; but, on the 4th of January, 1881, under the averment that the $2,000 were due, Martin, the transferree, brought suit, seizing provisionally the effects on the premises leased.

It is then that Lizzie Dickson was'formally and unequivocally notified of the transfer and substitution.

It is important to state that, on the very day of the transfer, Martin, in furtherance of the obligation which formed the consideration of the lease, namely: the 31st of December, 1880, which was the last day on which, under the constitutional clemency and immunity, the taxes could be paid without interest and charges prior to the 1st of January, 1881, paid to the sheriff of Caddo Parish $1,457.11, so that what rights were intended to be acquired by him, if any, thereupon vested in him absolutely.

In her answer the defendant had declared, without specification, that she had paid taxes to the amount of $1,195,13, but on the trial she offered a supplemental answer specifying -what items she had paid to the credit of her lessor, and by her direction, previous to the transfer, aggregating $2,279, and she endeavored to prove the verity of her averments. The plea of payment admitted that the debt once existed, and threw on the defendant proof of its extinction in that mode. In the absence of such evidence the plaintiff would have been entitled to recover.

She was heard to establish the same, but appears to have failed to do so throughout. The taxes which she has paid were not satisfied at the date which the receipts bear, December 30th, 1880, but long after, namely: in September, 1881. This fact was shown by entries in the books of the sheriff and tax collector. Neither was the Port judgment or claim, which, if it had any existence and was satisfied, shown to have been likewise paid subsequent to the date of the transfer of the lease, by Mrs. Dickson to Martin, the plaintiff.

The evidence may be deemed also deficient in several other respects, which it is not necessary to specify.

The District Judge, however, considered a number of items as established, and after deducting therefrom the $2,000 claimed, rendered judgment for the difference, $634,40.

A review of the evidence does not enable us to say that he erred in his conclusions.

As to the reconventional demand, it suffices to say that, as the plaintiff recovers rent which was due at the date of the suit, the writ did not wrongfully issue. The demand for damages must, therefore, fail.

Judgment affirmed with costs.


source: Caselaw Access Project

author: Poems, J.

license: Public Domain

text:
    No. 112.
    Kahn & Bigart vs. J. Sippili.
    In proceedings in ram, as in ordinary eases, the jurisdiction of the appellate court tested by the amount in dispute, as shown by the amount claimed in tbo pleadings, and not by the value of the property attached, or by the amount of the judgment which is, or may be, subsequently rendered in the case. t be
    In such oases the court, before which the proceedings are instituted and under whose process property in its territorial jurisdiction may, ou proper showing, attach other property of the absentee situated in the State, and in parishes not within the jurisdiction of the court.
    APPEAL from the First District Court, Parish of Caddo. Taylor, J.

      Alexander & Blanchard for Plaintiffs and Appellants.

      JD. T. Land, Curator ad hoc, for Defendant and Appellee.
   On Motion to Dismiss.

The opinion of the Court was delivered by

Poems, J.

Plaintiffs, claiming to be creditors of the defendant, an absentee residing in the State of New York, in the sum of $3,085.22, brought suit against him by attachment of his property, alleged to be in the Parishes of Caddo, Ouachita, and West Feliciana, and obtained garnishment process against parties residing in said parishes respectively.

After the garnishee in Caddo Parish had answered that he was indebted to the absentee in a sum of $151.43, and before answer had been made by the other garnishees, the curator ad hoe, appointed to represent the non-resident, filed a motion to dissolve the two attachments, directed to the sheriffs of Ouachita and West Feliciana, and this appeal is taken from a judgment sustaining that motion.

Appellee now moves that the appeal be dismissed, on the ground that we have no jurisdiction “ ratione material." He argues, that the proceeding being in rem, the judgment to be rendered in the cause ■cannot exceed in amount the value of the property seized, and that, because the amount of the property seized is only $151.43, the amount in dispute does not exceed one thousand dollars.

It is now settled beyond a doubt, that the test of our jurisdiction is to bo found in the amount in dispute, as shown by the amount claimed in the pleadings. When that amount exceeds $1,090 our jurisdiction vests, and cannot be affected by the incidents or accidents of the trial, and the result of the controversy in the lower court. This consideration disposes of appellee’s argument, that because a third party has intervened in the suit for the purpose of claiming the ownership of the property attached, our jurisdiction is to be tested by the fund to be distributed. At the present juncture we are not concerned with the rights, either in law or in practice, of the intervenor, as our investigation is restricted to an issue between plaintiffs and defendant. The motion to dismiss is, therefore, overruled.

On teie Merits.

The ground of the motion to dissolve the writs of attachment to be executed in the Parishes of Ouachita and WestFelicianais, in substance, that the proceeding being in vem, the coui't having no jurisdiction over the defendant in personam, it was without jurisdiction ' to pursue his property situated beyond its territorial jurisdiction, and could issue no garnishment process against a resident of another parish, unless the defendant had been personally cited, or had appeared by answer in the suit.

The argument is that, in this case, the writ is not a conservatory remedy incident to the main action, but, being issued in lieu of citation on the defendant, it becomes the very foundation of the action, and cannot, therefore, be issued by the court beyond its territorial jurisdiction.

The main support of the argument is derived from the decision in the case of Favrot vs. Delle Piano, 4 An. 584, in which the principle contended for is substantially announced. But a careful inspection "of the case discloses the fact, that the decision rested on another and * different point, and that the point passed upon in the ruling or dictum invoked by-appellee was not necessary to a decision of the cause under consideration.

Hence-, we conclude, that the dictum is not binding or decisive in jurisprudence.

A careful review7 of our reports shows that the precise issue presented in this motion has no? yet been directly determined by our Court, and we shall, therefore, treat the matter as “res nova.” '

Many of appellee’s propositions, touching the natural scope and effect of the action in rem, by the attachment of the non-resident’s property found in the State, are undeniable and correct.

For instance, it is true, that in such a proceeding the Court does not, by its process alone, acquire jurisdiction over the defendant in personam, and that it can render no binding or effective judgment against him over and above the amount or value of the property attached, and that the judgment has no vitality except against the property sub- ■■ ject-ed to its control. But, on the other hand, it :is equally triie, that the creditor has the undoubted legal right to reach all the property of his debtor which can be found in the State, and that he has the choice of the forum in which he desires to initiate his proceedings. Now, if 1ns debtor, as in this case, lias not in the parish selected property sufficient in amount or in value to satisfy his claim, he is not restricted, by law, to the seizure or attachment of that property, and his right to reach other property situated in another parish cannot be impaired. But, under our Code, he is not permitted to bring the same cause before two separate courts. C. P. 94.

If he attempts it, he is met by a plea of lis pendens in the courts where subsequent proceedings are instituted, and is thus subjected to the penalty of costs, and to the loss of his recourse on the property.

On the other hand, it is undeniable that the court where the proceedings were instituted, and which issued the first process, does acquire some jurisdiction over the cause, and at once obtains control of the property attached within its territorial jurisdiction, and to the end of deciding whether such property can legally be applied to the satisfaction of plaintiffs’ claim, it must, of necessity, adjudicate on the sum, and ascertain the amount or extent of the defendant’s indebtedness.

Having such jurisdiction, it necessarily has the power, on proper showing of the insufficiency of the property thus attached, and of the existence of other property of the absentee in the State, to extend its process to the same, and to thus subject it to its control.

We know of no legislation which denies such a natural and legitimate power, or authority which militates against its exercise, and we have been referred to none.

■ We find its exercise necessary to prevent a denial of justice to both parties, and we hold it to be an inherent power of the court which is legally vested with jurisdiction of the cause.

We are constrained to differ with our learned brother of the District Court in his conclusions on this point, and we conclude that he erred in his judgment sustaining the motion to dissolve.

It is, therefore, ordered, adjudged, and decreed that the judgment appealed from be annulled, avoided and reversed, and that the motion of the curator ad hoc for the dissolution of the writs of attachment issued herein, and directed to the sheriffs of the Parishes of Ouachita and West Feliciana, be dismissed at the costs of defendant in both Courts.


author: Todd, J.

text:
    No. 129.
    The State of Louisiana vs. Robert Ferguson.
    It is not necessary, to support a prosecution foi forgery or falsely uttering, that the instrument purporting to be forged should be perfect in its resemblance to the kind it was designed to represent. It is sufficient that it was calculated to deoeive.
    Thus m order addressed to a merchant in these words: “Please let George have sixteen dollars worth, and charge the same to Mr. George Garrett;M held sufficient.
    APPEAL from the Third District Court, Parisii of Claiborne. Graham J.

      A. JBarhsdale, District Attorney, for the State, Appellee.

      JE. H. McClendon and J. S. Young for Defendant and Appellant.
   The opinion of the Court was delivered by .

Todd, J.

The defendant was indicted for forging an order, and for .uttering the same, in two counts ; was convicted on the last count and sentenced to two years imprisonment at hard labor and has appealed. . The order was as follows :

“ Homer, La., March 17, .1883.

Mr. G. G. Gill: Dear Sir—Please let George have sixteen dollars worth and charge the same to Mr. George Garrett.”

There was a motion to quash the indictment upon the ground, substantially, that the said order was void on its face and could not therefore serve as the foundation of a prosecution for forgery.

This motion was overruled, and this ruling is charged as error, and relied on solely for a reversal of the sentence.

The law on the subject is this: It is not necessary that the instrument, whether a promissory note, bill of exchange, order, or other instrument should be perfect; it is sufficient if it bear such a resemblance to the'document it is intended to represent as is calculated to deceive. Roscoe Criminal Evidence, 7th Ed. 545; L Bishop, 3d Ed. Sections 748, 749.

In this instance the order may be informal in not having the signature of George Garrett at the foot of the instrument and having Mr.” before his name. Notwithstanding such informality, however, there is no question but that, if the instrument were genuine, that is, written by George Garrett, the reputed drawer, in his own handwriting, and the money or goods delivered, he could have been made liable for them. It is not sacramental that the drawer should place his signature at the foot of the instrument or below the body of it, as ordinarily done, to bind him, and the prefix of ■“ Mr.” could in no way affect the question of his liability.

Under this view of the case the instrument was legally sufficient, as a basis for the prosecution, and the motion to quash properly overruled.

Judgment affirmed.


text:
    No. 115.
    The State of Louisiana vs. Laura Hamilton.
    The excusing of a tales juror by the Judge, although not legally exempt, and although the accused may have at the time exhausted his peremptory challenges, is not sufficient to vitiate the verdict. .(i
    An accomplice may be called as a witness for the State, even when jointly indicted with said accused and before his own conviction or acquittal, where the trials are separate.
    The Judge is not bound to give a charge, although it may be correct as an abstract principle of law, where, in his belief, there is no fact proved to which it is pertinent.
    APPEAL from the First District Court, Parish of Caddo. Jones, J.
    - M. S. drain, District Attorney, for tlie State, Appellee.
    • JS. E. Randolph for Defendant and Appellant.
   The opinion of the Court was delivered by

Todd, J.

The defendant appeals from a sentence of five years’ imprisonment in the penitentiary for burglary and larceny.

We find in the transcript three bills of exceptions taken against the rulings of the Judge a quo during the progress of the trial:

1. The first bill was taken to the action of the Judge in excusing from jury duty a person employed as pilot on a United Stated Government vessel and summoned as a tales juror, excused after the accused had exhausted her peremptory challenges, and the juror, as claimed, not being legally exempt from jury duty. The Judge stated in the bill, that he excused him because he was a pilot employed by the U. S. Government on- a boat that might be ordered to move at any moment.

There is a certain discretion vested in District Judges, in regard to excusing jurors from service, which has been frequently recognized by this Court, and the exercise of which affords no reasonable or legal ground of complaint. State vs. Sonnier, 33 An. 237; State vs. Welch, 34 An. 991.

Had this juror not been excused, and been erroneously excluded subsequently from the jury, on the challenge of the State to his competency, this Court has held, on unquestioned authority, that such exclusion would not even be sufficient to set aside the verdict. The main object of the law is to secure for the accused a fair and impartial trial by an unprejudiced and competent jury, and when this has been attained, and we hear no charge to the contrary as to this jury as finally composed, then the end of the laiv is subserved, and the accused cannot be held as aggrieved, even should he have failed to secure on the jury some particular person whom he either wanted or pretended to want to serve thereon. State vs. Barnes, 34 An. 395.

2.' The second bill was taken to the ruling of the Judge, in admitting one Hattie Martin to testify for the State. This witness had been jointly indicted with the defendant, but a severance had been granted and the defendant had been first placed upon trial. It was objected, that until this witness liad been acquitted or convicted, she was not a competent witness. The authorities on this point are not uniform* Bishop lays down the rule thus :

One of two or more joint defendants cannot be a witness for, or against another, even on a separate trial, until the case as to himself is disposed of by a plea of guilty, or a verdict of conviction or acquittal; then, he may be. Sentence need not be rendered. Of course, if the indictments are separate he may be a witness, though the offense is supposed to be joint. And in some of. the States the statutes are interpreted to make him such where the indictment is joint, the trials being separate. There are even, perhaps, States in which this is held under the common law.” Bishop, Crim. Proc., 3d Ed., Seo. 1020. And in a note on the same page it is added that this would seem to be the late English doctrine, referring to Reg vs. Winsor, 10 Cox C. C. 276, 327; Law Rep. 1 Q. B. 390; 11 Cox C. C. 607. Many cases are referred to also from the American reports, as sustaining the same doctrine. It is unnecessary to cite them, as the same doctrine has been expressly sanctioned by this Court in the case of the State vs. Prudhomme, 25 An. 522; which has been approvingly cited in the case of the State vs. Russell, 33 An. 136. Whatever may be our opinions, were the question a new one, these authorities must be held as conclusive.

3. The third bill was taken to the refusal of the Judge to charge, that if the prisoner was under fourteen years old, she was prim,a facia incapable of committing crime.” Among the reasons assigned for his refusal the Judge says, that there was no evidence that the girl was under the age of fourteen years.”

We must respect this reason and hold it sufficient to justify the Judge’s refusal. Under his statement such a charge would have been foreign to the issues in the case, and without a bearing on the facts proved on the trial. We have often held that the Judge was not bound to charge abstract principles of law having no immediate relation to the case before him, and that the question of its pertinency was a matter largely, if not exclusively, within his discretion. State vs. Riculfi, 35 An., and authorities therein cited.

4. There is, also, an assignment of errors, to the effect that the record does not disclose that the grand jury, which had found the bill,had been sworn. This question is disposed of adversely to the accused in the case of the State vs. Stewart, just decided, in which the facts are the same as presented in this.

This completes the review of the record, and there is nothing therein to justify us in disturbing the sentence appealed from ; and the same is, therefore, affirmed with costs.


author: Manning, J.

text:
    No. 123.
    Vicksburg, Shreveport & Pacific Railroad Company vs. Henry T. Dillard. And The Same vs. J. M. Foster et als.
    In suits for tlie expropriation of lands for railroad purposes, the owners are entitled to the value of the lands expropriated, and also to damages, in addition to those sustained by the taking of the land.
    Under our present Constitution private property can neither be taken nor damaged for public purposes without adequate compensation.
    In estimating this adequate compensation, the location of the road bed near buildings, or so as to divide a cleared field, or the fact that it disturbs or destroys the system of drainage, and like circumstances, should be taken into account.
    Since the damages in such cases are continuous and will last while the railroad remains, all the damages, present and prospective, which the land owner will suffer, should be assessed.
    APPEAL from the Second District Court, Parish of Bossier. Drew, J.

      Wise & Herndon for Plaintiff and Appellant.

      J. A. Snider and Alexander & Blanchard for Defendants and Appellees.
   The opinion of the Court was delivered by

Manning, J.

These cases were cumulated by consent. They present the same questions, and are proceédings by the Railroad Company to expropriate lands of the defendants alleged tó be necessary for the road bed of the railway. The controversy is only over the value of the expropriated land, and the damage arising therefrom.

The jury found in separate verdicts $2,400 as the value of Dillard’s expropriated land, and $2,800 as damages to his plantation; and $2,521 as the value of the land expropriated from Foster and his co-defendants, and $2,500 as their damages. They found for the plaintiff on the right of way, according it. The plaintiff appealed.

Both the plantations are in Bossier Parish and close to Shreveport, Dillard’s being the nearer'. The road bed runs through the middle of the Dillard place. The Foster land is divided in two by a shed road, and the railway bed runs through the middle of that part of the plantation which is south of that road. This shed road is a covered way, built under authorization of the parochial authorities for facility of travel and transportation of freight.

The lands appear to be very Valuable. The lowest estimate is far ahead of similar lands in other parts of the State, where the stimulus of returning prosperity is less felt than there. Several witnesses place the value at $65 per acre, others at $75, and one at $100. Many say that its marketable value cannot be stated, by which they mean that it cannot be bought—it is not on the market. Unlike lands generally, the woodland is as valuable as the cleared land because of its proximity to Shreveport, which affords a market for fuel, and the shed road enables its transportation at all seasons.

There is a ridge running through the highest and best land. The railway selected this as a favored spot, admirably adapted forits purposes. It was the best and most convenient location for its bed, but it is the most inconvenient and hurtful to the plantations. Each plantation is thus severed—cut in twain—so that communication between the two parts is impeded. Instead of passage to and from one part to the other being unhampered, the laborers and teams can cross and recross only at certain places more or less far apart. This inconvenience will be realized more vividly by recalling the difficulty one has to reach a spot on the opposite side of a bayou. You must travel on the side you are on till you reach a bridge, and crossing, go back to opposite where you started. Not uufrequently ten miles must be travelled ' to reach a spot not twenty yards distant from your starting point. It is not surprising that the intelligent and thoughtful planters, s.ome of whom were witnesses and others were jurors on the trial below, gave great prominence to this difficulty of inter-communication, caused by the railway bed. And it is worthy of remembrance that the Code has formulated a rule for guidance in regulating a passage from an estate enclosed by surrounding lands, which may well be applied to the analogous demand of a right of way by a railroad, viz., that it shall be fixed in the place least injurious to the person on whose estate the passage is granted. Rev. Civ. Code, Art. 700 (696).

There is another consideration tending in the same direction. Each one of these plantations is in the highest condition of improvement and cultivation. Each was planned, laid out, arranged, and disposed as a symmetrical whole. The cabins, stables, ginhouses, barns, etc., have been placed with reference to the needs of the entire plantation, and to promote convenience and the better conduct of the place, and its most profitable cultivation. More important still, a system of drainage had been devised, adapted to the structure (so to speak) of the land, the maintenance of which in its integrity is the most imperatively essential condition for successful cultivation of our soil. Any considerable obstruction of this system of drainage, or serious interference with its full action, is not inconvenience but ruin. These plantations, each arranged on a harmonious plan, were in complete order when the railway bed pierced them in the middle. It runs straight through the open land separating the ginhouses from the fields, and isolating cabins from tracts intended to be cultivated by their inmates.

And there it will remain. It is not a temporary obstruction which may next year be removed, but a permanent and abiding hindrance to the cultivation of the places., Instead of free access to all parts of the plantation, crossing can be done only at fixed and widely separated spots. Time is consumed by traversing circuitous routes, and danger incurred from passing trains. In some places the road cuts through the bends in the bayous detaching small parcels of land, and putting them practically out of cultivation. The drainage is impeded. The excavations made to obtain earth for the embankment are not continuous. Patches of ground lie between, and they cannot therefore serve as a ditch.

It is argued that the enhancement in value of the defendants’ property because of the railroad is a legitimate offset of the damages suffered by building it. . The proof here is that the road cannot benefit these plantations, and so far as transportation of their produce is concerned, they have no use for it. This covered road, of which mention has been made, is more convenient to them and less expensive. They must load their wagons to get their produce either to the railroad or the shed road, and having had that trouble and labor, it will be more convenient to continue on the shed road, and there being no depots between these places and Shreveport no advantage is to be had by hauling to the railroad.

. The Constitution enlarges and emphasises the prohibition against taking private property for public use by specially including damaging” within the prohibition, Art. 156, and as this is an addition to the usual phraseology, it is said to denote the increased care and circumspection with which the organic law hedges this matter. However this may be, it is certain that few subjects are within the cognisance of either legislative or judicial bodies of more importance than maintaining the safeguards that were in the very beginning of our government thrown around private property, and repairing the breaches that have been made in them by an unwise yielding to the clamor of those who disguised covetous desires of acquisition under the pretext of concern for public uses. By these means the elements of damage for taking private property have often been confined within such narrow limits as to convert the constitutional protection into a false pretence, and practically make it only a “ promise to the ear ” which it “ breaks to the hope.”

The authority of Mills,-in his work on Eminent Domain, is cited in the plaintiff’s brief to shew that annoyances from various mentioned causes, incident to the running of railroad trains, are not actionable; and that compensation is not to be given by a court of justice for a great variety of consequential damages resulting from the construction and operation of railroads. But when one comes to probe the matter, and inquire why such restrictions have been imposed, no reason can be assigned, except that the dicta of courts, made in the infancy of railroad law, countenanced them, and text writers have adopted them without question.

Why should not the fact that the track of a railroad runs through •the heart of a plantation, and severs its arteries, and dislocates its whole framework, be an element of damage ? Is not the injury greater if the train shoots between barn and stable, or close by ginhouse or sugar mill, than if it skirted the edges of fields, or was far removed from the inhabited enclosures?

' We are asked to disregard the verdict of the jury, and are reminded of the wisdom of that provision in the Constitution of this Court, which gives us supervision over verdicts. The statute concerning expropriation'has confided the assessment of damages to a jury selected from a special class. None but freeholders can sit upon it, but we would not abrogate our function because of that peculiarity. It is apparent from the record that these verdicts are not guess-work. Some of the witnesses, when asked how they computed the damages in these cases answered, by ascertaining the annual damage to each plantation, and then giving to the owners such sum as, put at interest at the usual rate,-would yield that sum. As the damage is continuous, the reparation of it should be prospective as well as for the present. 1 Redfield on Railways, $§ 71, 74. Others adopted another mode, i. e., ascertaining the difference'between the value of the plantations before the railroad bed was laid and now, and by some of them the difference was stated at from five to ten thousand dollars less now than before.

The jury have adopted a mean avoiding the extreme estimates—in other words have taken the testimony as a whole, and based their verdicts upon it. And'we do not think they have erred.

Judgments affirmed.


text:
    No. 120.
    The State of Louisiana vs. Silas Dillard.

      A Judge has a right to change the terms of the court over which he presides. He was not deprived of such authority by the Act No. 7 of 1880, which only directed how the order* fixing the terms should be made and published.
    Where a term of court has been ordered to be held by the Judge under a general order fixing the terms, and subsequently he prepares another order, in which it is announced that it will not ho held, and hands such order to the clerk with instructions not to record it, th* Judge can, within a short time after, and before any action is taken under it, withdraw or erase the order, and the first order for the holding of the term will be in full force, and the term held under it, a legal one.
    Where a change is made in the terms it is not necessary that a notice of suoh change should precede the order making it, hut that notice for the prescribed time should he published before the arrival or holding of the term.
    Where, owing to some obstacle, the grand jury cannot be empanelled on the first day of the term, it may be empanelled on the second day.
    APPEAL from the Tenth District Court, for the Parish of DeSoto. Logan, J.

      W. P. Hall, .District Attorney, for the State, Appellee.

      H. W. Sutherlin and J. 0. Pugh for Defendant and Appellant.
   The opinion of the'Court was delivered by

Todd, J.

This is an appeal from a sentence of imprisonment of two years at hard labor for an assault with intent to commit a rape.

There was a motion on the first day of the term to quash the venire, and, subsequently, during tbe term, after the finding of that indictment, a motion to quash tbe same.

The grounds of both motions are substantially the same, with one exception. Both motions were overruled, and the alleged errors of the Judge in these rulings are the main reliance to reverse the sentence appealed from.

1. It is charged that the term of court at which these proceedings took place was an illegal one, because held under or by virtue of an order of the Judge, (of the 23d of May, 1883) changing the terms of the court for the Parish of-DeSoto, and that the Judge was without power or authority, under the Constitution and laws, to change the terms of court when once fixed.

The third clause of Article 117 of the State Constitution provides as follows:

Until provided by law, the terms of the District Court in each parish shall be fixod by a rule of said court,which shall not be changed without notice by publication at least thirty days prior to such change.”

This clearly conferred on the Judge the power to_fix the terms of court and, under the condition stated subsequently, to change them.

The Article likewise gave to the legislature the right to assume at its pleasure the power thus delegated to the Judges, and divest them of it entirely find fix and establish the terms of court by statutory enactment, or, in its discretion, continue wholly or partially the exercise of the power in the Judges originally delegated by the Constitution.

There was legislation on the subject at the first session of the General Assembly after the adoption of the Constitution, known as Act 7 of 1880. That Act fixed the first terms of all the courts and left with the Judges the authority to fix the subsequent terms, which they possessed under the above Article of the Constitution, providing simply the mode by which the same should be fixed, and that the jury and non-jury terms should alternate. As we view it, all the powers of the Judges derived from the Constitution, except as expressly restricted by the Act, were left unimpaired.

Hence, it necessarily follows that the Judges did, after the passage of this Act, and do possess the power to change their terms, as delegated by the Constitution, subject only to the regulations contained in the Act.

We find, too, from an examination of the record, the prescribed regulations were strictly followed with respect to the order of the Judge (of May 23d, 1883), under which the term of court was held, at which this prosecution was instituted.

It was made in open court, duly entered on the minutes, was published for the required time and conformed to the Act, with respect to the alternate jury and non-jury terms of the court.

Neither the Constitution nor the law cited required that the order shouldhave been preceded by the notice or publication. It was sufficient that this notice for the prescribed time should precede the first term held ■under it. This is the obvious meaning of the Act, and at the same time the legislative construction of the Article of the Constitution in question.

2. It is, however, urged in the motions under consideration that, granting this order of the 23d of May was a legal one, so far as it authorized the holding of the term of court in question—August term, 1883—it was revoked and rescinded, and, therefore, that term was held without any legal authority whatever, and the proceedings before it were void.

The facts bearing on this point, which we gather from a careful reading of the record, are substantially these :

On the 27th of July, 1883, the Judge prepared an order for the holding a special term of the court in DeSoto on the first Monday of September following. In this order appeared these words : “ And that the drawing of jurors for court, fixed on the 2d Monday of August, 1883, be, and is hereby set aside and annulled, as said court will not be held.” The paper containing the order, written by the Judge, was handed by him to the clerk of the court, who was instructed not to record it; and, according to the Judge’s statement, neither to record nor file it. The clerk was thus instructed, as explained by the testimony of the Judge, because some doubt had crossed his mind about thelegal.ity of the August term attlie time of writing the order; that in about one hour’s time, this doubt having been removed, he returned to the clerk’s office and erased the above lines of the order, leaving the writing otherwise intact, which ordered the holding of the special term of court for September, and directed the summoning of the venire for that term. The Judge further explains his motive for embodying the lines referred to in his order, by stating that, if no August term was held, the venire already drawn for that term could serve for the special September term, and the jury commissioners, by the terms of the order, would be so instructed.

It is charged that this part of the order, i. e., the lines above quoted, had the legal effect of dispensing with the August term of court, and tli'at it was beyond recall, and that no subsequent act of the Judge, after writing it and handing to the clerk, could destroy the effect of it, and the act of the Judge in making the erasure has been severely and acrimoniously criticised and commented on in the argument of the case before this Court.

We see no just grounds for such criticism. It might have been more conformable to the deliberation, system and order that should characterize all judicial acts, if the Judge had solved his doubts and reached a fixed conclusion touching the legality of the term of court referred to, before taking the steps he did; but when he was satisfied of his error, it was not only his right, hut his duty, to correct it. The whole matter, under the circumstances stated, was in his hands and clearly within the scope of his authority as the presiding Judge of that court. Under the facts disclosed, he never made an effective order, dispensing with the ternr of court, and even had he issued sucli an order it was clearly within his power to withdraw it when and in the manner he did.

Apart from his authority, his act in the premises could not be held as calculated in any way to injure or wrong anyone.

3. In the motion to quash the indictment it is urged that the grand jury was without authority to find the bill, because it was empanelled on Tuesday, the second day of the term. The first day was entirely consumed by the proceedings, which were to determine whether the, jury could be empanelled at all, or not. It has been held that the law providing for the organization of the grand jury on the first day of the term is directory, and when any obstacle prevents their being empanelled on that day, it can be done on the next. State vs. Davis, 14 An. 678.

4. We find in the record a bill of exceptions taken to certain questions asked á number of jurors on their voir dire, with a view to test their competency. The questions were answered, and the jurors accepted. The questions may have been unnecessary, but we cannot see how either the questions or the answers were calculated, in the least, to prejudice the accused. They were without significance, and it is needless to discuss them.

This completes the review of all matters presented in the record for, our consideration, and they afford no just ground of relief to the accused. The sentence and judgment are, therefore, affirmed with costs.


author: Bermudez, C. J.

text:
    No. 126.
    O. F. Mulhaupt vs. Peter Youree.
    The burden is on the vendor, in a sale with the pact of redemption, to prove that the oontraot was one of mortgage or of antichresis, when possession was given to the purchaser.
    "Written evidence alone is admissible between the parties, when fraud or error is not alleged.
    Interrogatories may be propounded to the vendee, but his answers, nncontradictedby written evidence, showing the reality of the transaction, will conclude the vendor.
    If not exercised within the delay agreed, and according to the terms of the contract, the right of redemption will be considered as forfeited.
    APPEAL from the First District Court, Parish of Caddo. Taylor,. J.

      J. H. Shepherd for Plaintiff and Appellant:
    * Two instruments parts of same contract must be construed together, and where one has superseded or followed the other, reference may be had to the latter to explain any ambiguity. 9R. 30; 3 R. 171; 2 An. 92.
    No construction rendering important expressions useless is'admissible. 12 M. 114; 4N. S. 85; 8 N. S. 365; 12 L. 539; 3 R. 171; 3 An. 578; 4 An. 485.
    Documents in form of sale shown by a counter letter or its equivalent interrogatories of facts ■ and articles to have been made without snob intention, cannot serve as a sale. 23 An. * 658, 666 ; 28 An. 357 ¡ 31 An. 348.
    A tender, sufficient or insufficient, in presence of witnesses preserves the right to redemption, and authorizes a suit, the necessity of tender or consignment is dispensed with where a party absolutely refuses to receive anything. 14 L. 214.
    Contemporaneous writings or their equivalents must be construed together. 21 An. 505; 29 An. 567.
    In a sale with right of redemption a stipulation for interest converts the same into a loan, and the property sold, a pledge for the security of the debt. See Patterson vs Bonner, 14 L. 214, 235.

      Alexander <& Blanchard for Defendant and Appellee:
    1. As between the parties to an authentic act of sale of immovable property, no evidence is admissible to show fraud, simulation, or to vary the written instrument, except a counter' letter or admissions of defendant in answer to interrogatories on facts and articles. C. C. 2236, 2275, 2276 ; 4 L. 166; 19 L. 409 ; 10 R. 466; 12 An. 739.
    No fraud or error is alleged in this case.
    2. The answers of a party “interrogated on oath,” as provided for hy Artiole 2275 of the Civil Code, cannot be contradicted hy parol. 3 L. 118; 4 R. 466; 10 An. 132; 12 An. 114 - 26 An. 251.
    Nor can the extra-judicial admissions and confessions of a party thus interrogated he proved hy parol. C.C.2290; 30 An. 898; 32 An. 635.
    3. The party availing himself of the confessions made in the answers to interrogatories on facts and articles, oannot divide them; they must he taken entire. 31 An. 869, and numerous authorities therein cited.
    4. Article 354 of the Code of Practice, which provides that the answers of a party interrogated on facts and article, may be disproved, does not apply to cases in which the title to immovables is involved, and when written evidence is alone admissible. 10 An. 132,704 ; 12 An. 114.
    5. The debtor, in an. alternative obligation, lias the option to deliver or perform either one of the two things promised, but he cannot divide it, and force the creditor to reoeivo part of one and part of the other. C. C. 2069; 4 R. 54; Pothier on Obligations, (Sec. 247.
   The opinion of the Court was delivered hy

Bermudez, C. J.

This is an action to annul a sale with the pact of redemption, on the ground that the contract was one of mortgage or of antichresis.

The defense is, that the agreement was a vente a réméré ; that within the delay allowed for the redemption, defendant loaned plaintiff a certain sum of money to be refunded on a particular day, under penalty of a forfeiture of tbe right to redeem; that by the failure of plaintiff to pay on the day stated he lost the right of acquiring the property.

The District Judge considered the transaction as a sale with the pact of redemption, but rendered judgment annulling the same, on payment of a certain sum by plaintiff, within a stated delay.

From this judgment the plaintiff appeals. No amendment is asked by the defendant.

The evidence shows, that on the 5th of March, 1880, the plaintiff Sold to defendant certain real estate and an interest in a market, for the sum of five thousand dollars, reserving the right of redeeming the same on return of the price, at the end of three years; that the defendant, the purchaser, was put in possession of the property thus sold; that on August 20th, 1881, defendant loaned plaintiff $1,500 with the condition that, if the same was not paid back on the 1st of January, 1882, the plaintiff would then forfeit the right of redemption reserved in the act of March 5th, 1880; that the time of redemption was extended to March 5th, 1883; that the plaintiff did not then tender the whole amount required to redeem the property.

■ In his inability to produce any written evidence, which was the only admissible proof in the absence of a charge of fraud or error, to show that the contract was one of mortgage or of antichresis, the plaintiff ventured to probe the conscience of his adversary, who answered the interrogatories in a manner which establishes his defense.

The reasons assigned by the District Judge show an elaborate and thorough investigation of the differences of the parties, and justify his conclusions.

It is, therefore, ordered and decreed that the judgment appealed from be affirmed with costs.


text:
    No. 113.
    Succession of James Marks.
    A will spoalts as of the death of the testator, and conveys all the property owned by him at that time, unless a contrary intention manifestly appears. This is true even though the property may have been wholly changed in the interval between the making of the will and the death.
    The word “property ” used in a will has as broad meaning as “ estate ” or “ succession,“and is identical with those words.
    Succession of Valentine, 12 Ann. 286, and Lawson case, Ibid. 603, overruled.
    j^PPEAL from the First District' Court, Parish of Caddo. Taylor,

      Land é Land for Plaintiffs and Appellees:
    1. A disposition, couched in terms present or past, or a disposition, the terms of which express no time, refers to the time of making the Will, and embraces only property owned at the date of the will. 0* 0*1720-22.

      2. Where the disposition reads “ all the balance of my property I will to my six brothers and two sisters, to be equally divided between them,” it was held that it was a disposition only of present property, and did not include future acquisitions. Succession Valentine, •12 An. 286; Lawson’s case, lb. 606.
    3. The instant case is identical with that of Valentine, and the entire absonco of any reference to the estate or succession of the testator differentiates it from cases in 8 La. 489 and 2 An. 580, and from the Burnside case.
    4. A bequest which does not embrace the whole or a fixed proportion, of the estate or succession of the deceased is a particular legacy. C. C. 1606-12; 12 An. 606; 30 An. 271; Marcadé 4, Mo. 119; Toullier Vol. 3, Mo. 510.
    5. Sales and donations constitute tacit revocations of legacies for all that has been sold or given, though the thiugs have returned into the possession of the testator. C. C. 1695. The legacy of a note is revoked so far as it has been collected by the testator. The legacy was not perfect until the testator died and then it took place as to what was then due. 4 M. S. 428.
    The legacy of money in a particular drawer is satisfied by payment of money found there, though of less amount. 5 M. S. 102.

      E. J. Looney, T. F. Sorrels and M. L. Jones for Defendants and Appellants.
   The opinion of the Court was delivered by

Manning, J.

James Marks made his olographic will in May, 1879, and died in J une, 1882, at the age of seventy-seven years. He was never married. His nearest surviving relatives are the children of pre-deceased brothers and sisters. After directing the payment of his debts there follows several legacies in separate clauses, and then these two items upon which hinges the construction of the will:

Item 6. I give the balance of my property of every kind and description to (here follow the names of some of his nephews and nieces) to be equally divided between them, but such as have received advances are to be charged with that much as part of their shares.

Item 7. I release my executors from the trouble and expense of taking an inventory and appraisement of my property and here give a statement of all the property that I have. (Here follows a long list of notes, accounts, land warrants, and two large tracts of land, statement of moneys in bank, and judgments.)

Between the date of the will and his death, the.testator had disposed of all his land and nearly all the money, rights, and credits enumerated, and had acquired other lands, and had invested his money in other notes and securities, so that at his death he had but little of - the property lie owned when he made his will. He seems to have been a busy bustling man and changed his investments with rapidity.

The contention is that the will disposes only of the property owned by the testator at the time of making it, and consequently as to the property acquired thereafter the testator died intestate. The lower Judge so ruled. We have lately examined this and cognate questions in the Succession of Burnside, going over the whole ground, and considered the subject in the light both of principle and authority, and have held that the will in that case spoke as of the date of death. We see no reason to doubt the correctness of that ruling and shall apply it here.

The inveterate propensity of the common lawyers to invent terms and apply unbending formulas in their treatment of the multifarious concerns of life, produced a habit of mind from which that branch of the profession has only begun to extricate itself in recent years. They gave especial significance to words such as “ estate,” effects,” etc., and would not permit them, in the mouths of laymen, to mean anything else. They recognized that the true and indeed the only rule for the construction of wills was to ascertain the intention of the testator—for what is a man’s will but his intention ?—but in the same instant they required that that intention should be expressed in their way. This produced a succession of decisions in which the manifest intention of testators was violated because they had not used the language the lawyers had invented, or had used it in a sense different from theirs. Of what possible consequence can it be that the words “estate” or “succession” are not used by Marks in his will? Why should it be of any more consequence that in nominating executors he has omitted the words without seizin,” except that a senseless requirement still remains in the Code? Does not every one know, when a business man, a plain layman outside the legal profession, who knows nothing of technical terms or their occult meaning, writes his will and gives the whole or the residue of his property to designated persons, that he means what the lawyers mean when they say “ estate ” or “ succession ? ” And when he selects tried and trusted friends to execute his intentions, what absurdity to make the extent or duration of their power depend upon the employment or omission of words which to him are meaningless.

The case is identical with Burnside’s and the language almost the same, and it would be impossible to select two better illustrations of perversity of construction than would be furnished if we should give to the word “property” a restricted meaning. These two eminently practical business men employ the same word to designate their possessions—the' word which is in common use for that purpose-—w’hen writing that document which all admit must be construed, not by technical professional rules, but by intelligent effort to ascertain what the writer meant. And yet in both cases it is argued that the employment of that word instead of “estate” has significance.

Burnside’s language is, after reciting special legacies,—the residue of my property of every description, say stock in trade, notes * * * etc., I bequeath to, etc.

Marks writes, I give the balance of my property of every kind and description to, etc.

The parallel of the two cases does not end there. Marks gives in the seventh item a complete list of his property. It is urged upon us that this was done to inform the legatées of the objects of his bequest. He states his object to be the avoidance of the trouble and expense of an official inventory.

The learned Judge below, who annually gives us proof of his thorough researches and admirably poised judgment, decided for the contestants on the authority of Valentine’s Succession, 12 Ann. 286, which along with Lawson’s case, Ibid. 603, we overruled in the Burnside decision. We then passed in review the whole jurisprudence of this Court upon this subject and applied and reaffirmed the doctrine of the earlier cases. Shane vs. Withers, 8 La. 489; Compton vs. Prescott, 12 Rob. 56; Succession of Fisk, 3 Ann. 705; McDonough’s case, 8 Ann. 252. It is unnecessary to repeat here what we there said.

The. brief of contestants informs us that there is no controversy over the first five items of the will. As to the sixth we hold that the disposition therein contained embraces the “ balance of the property of every kind and description ” which the testator owned at the time of his death.

It is therefore ordered and decreed that so much of the judgment of the lower court as restricts the testamentary disposition of James Marks to the property owned by him at the time of making his will and declares his intestacy as to all subsequently acquired, is avoided and reversed, and it is now adjudged and decreed that the legatees named in the sixth item of the will are entitled to the residue of the property of the testator, after the special legacies are deducted, to the exclusion of all others, and that the will be thus executed, the contestants paying the costs of both Courts.


text:
    No. 119.
    The State of Louisiana vs. Thomas Brown.
    The Judge does not err in refusing to give to the jury a charge, however legal, which is evidently covered by previous charges. Such charge is unnecessary.
    Sentence can be legally passed on a conviction of guilt of larceny, although the indictment was for burglary and larceny and the verdict was on both, and the indictment, fatally defective on the count for burglary t was, with the verdict, to that extent quashed on a motion in arrest.
    The indictment and verdict on the charge of larceny, which is an offense not necessarily connected, remained perfect and wore a good foundation for the sentence.
    APPEAL from the Thirteenth District Court, Parish of St. Landry. Hudspeth, J.

      F. F. Ferrodin, District Attorney, for the. State, Appellee.

      Ij. Dupre for Defendant and Appellant.
   The opinion of the Court was delivered by

Bermudez, C. J.

The defendant was indicted and tried for burglary and larceny. The indictment having been quashed on a motion in arrest, in so far as it charged burglary, the court proceeded to pass judgment on the prisoner and sentenced him to eighteen months’ imprisonment at hard labor in the State penitentiary.

He appeals from the judgment and sentence.

His counsel alleges as errors :

1. That the Judge erred in refusing to charge the jury: “If the

jury can arrive at any other conclusion than that of the guilt of the accused, they must acquit.”

2. That the indictment being fatally defective in one respect, as far as it charged burglary, it should have been avoided as a whole.

I.

*

The District Judge rightfully declined to charge as requested.

The bill shows, that the court had first charged the jury, that the prisoner must be given the benefit of every reasonable doubt; that, under the law, every man charged with the commission of a crime was presumed to be innocent, until the contrary was proved beyond a reasonable doubt, and that accordingly,.after weighing and sifting the evidence submitted to them, if the jury found that there existed a reasonable doubt in their mind of the guilt of the prisoner, then and in' that event their duty was to give him the benefit of such doubt and acquit him, and that they could only convict him when satisfied that the case had been made out against him beyond such reasonable doubt. Proceeding further, the court explained fully the meaning of reasonable doubt.

The charge asked was covered by those previously given and therefore unnecessary.

The prisoner does not show that he objected to the charge and explanation thus given and which appear to be fair, impartial and legal. It is impossible to conceive how the prisoner, by the refusal of the Judge to give the charge asked, could in the least have been injured.

II.

The indictment charged burglary and larceny. The prisoner was tried and convicted of both charges. It is settled that both offenses may be charged in the same count of the indictment, without making the indictment amenable to duplicity. 34 An. 50, qnd authorities there cited.

The indictment could have been quashed as far as it charged burglary, as well before as after trial. In the first instance, the case could have proceeded on the charge of larceny, which was not necessarily connected. In the second, sentence could be passed on the conviction of guilt of larceny.

Wharton on Crim. Ev. 138, says :

All unnecessary words may, on trial, or arrest of judgment, be rejected as surplusage, if the instrument would be good on striking them out. Even an indictment, on its face made defective by insensible or repugnant allegations, may, by discharging phrases which destroy or pervert its meaning in this way, be made good, the noxious surplusage being discharged upon motion in arrest of judgment.” See 18 N. H. 563.

The action of the District Judge is sustained by additional reasons set forth in his opinion.

After striking out the part of the charge in which the burglary was attempted to be set forth and the verdict on it, the charge and conviction of larceny .remained perfect in all their parts.

Under such circumstances the court was authorized'to pass sentence.

Judgment affirmed.


text:
    No. 116.
    J. S. Bacon vs. Mary C. Shultz.
    A partition defective in form and voidable for lesion may be ratified by word and deed, and made conclusive and binding.
    ~ EAL from the Second District Court, Parish of Webster. Drew,

      J. D. d¿ J. T. Watldns for Plaintiff and Appellant.

      McDonald & Reynolds for Defendant and Appellee.
   The opinion of the Court was delivered by

Manning, J.

The plaintiff and defendant are the only children of J. S. Bacon the elder who died in September, 1880. The father had been in declining health, and two months before his death had partitioned his property. The division of the realty was by notarial act. The notes and accounts were divided verbally in the presence of witnesses. Mrs. Shultz has children, and to them her father gave some notes. In November, 1880, the plaintiff and defendant, two months after their father’s death, put in form the division of the notes, etc., that he had made. The writing recites that they do hereby agree to make an amicable partition of the succession falling to them upon the death of their father as herein set forth. There being no debts outstanding, all charges of every kind against said succession having already'been paid by said parties to this agreement, each one-half, and all lands owned by J. S. Bacon, deceased, having been duly partitioned .as evidenced by donations inter vivos, by notarial act duly recorded in said parish, and all stock, mules, cattle and hogs and miscellaneous movable property, having been divided and delivered, which partition is hereby ratified and adopted, leaving now to be divided certain rights and credits which, by mutual agreement, are hereby partitioned as follows.”

This suit is to rescind and annul the partition, made by the father and perfected as to the notes and credits by this writing of November, 1880, because of lesion.

Of this partition the plaintiff as a witness says : The credits were divided as agreed upon before his father’s death. Says the understanding between him; his sister and his father was before the deed was signed, that the notes and accounts were to be divided just as they were divided in the partition. That he does not recollect ever hearing his father say that it was a final division, but he asked them to divide it in that way, and they told him they would. That he supposes his father died uuder the impression that all the details of the division of his estate had been agreed on between himself and his sister. Says they had agreed sometime before the act of partition on the terms of the division of the notes and accounts; thinks they agreed in April before his father died ; that his father designated the claims that were received by them in partition.

He took possession of the property allotted to him, received and collected the notes and accounts assigned to him that were collectible. There were notes of one Goodwill that had been given to Mrs. Schultz’ children in the same division. • He presented those notes to Goodwill for payment, on behalf of Mrs. Schultz, and received Goodwill’s draft for their amount in her favor. He owed Goodwill, who desired to deduct his’debt from their amount, but that was refused because the notes did not belong to him. He delivered the drafts to his sister. In January, 1881, he borrowed two thousand dollars from his sister, and mortgaged a tract of land received from his father among the divided property, to secure its payment. He did not pay his note, and she sued him. He then brought this suit.

The recital of his own testimony shews a ratification of the partition. His own acts taken singly exhibit it. Taken together, the proof cumulates beyond requirement. No fraud or deceit is alleged or proved, no violence pretended. Want of form, if there be any in the partition, is cured. Lesion was condoned. But in truth the testimony renders doubtful whether there was lesion. If there was, it does not exceed the disposable portion. Rev. Civ. Code, Arts. 1724 and 1875; Chesnau vs. Sadler, 10 Mart. 726; Jouet vs. Mortimer, 29 Ann. 212.

No words are needed here to characterize the plaintiff’s reprehensible conduct. His own recital of his own acts is his sharpest condemnation. The lower Judge turned him away from the temple of justice. He has no place within its portals.

Judgment affirmed.


author: Bermudez, C. J. Manning, J.

text:
    No. 8613.
    F. W. Tilton et al. vs. The New Orleans City Railroad Company.
    The property known and designated as the “ commons," acquired by the treaty of cession o Í Louisiana, was donated in 1807, by the United States to'the City of New Orleans, on two conditions: 1st, that a reserve would be made of a strip through it, to enable the N. 0. Navigation Co. to connect its canal and basin with the river; and, 2d, that the same would forever remain open as a public highway.
    The sale by tbe City in 1809 of lots fronting the space selected for the purpose and known generally as the “neutral1 ground,” was made in reference to the dedication, as shown on-the plan drawn up at the time, from which it appears that the space was described as “ Rue et Promenade

    The right of the Naivgation Company was subsequently.acquired by the City.
    The destination of the strip of ground,-was not changed by the City. If it was altered, the City had the right to do so, derived from the Code, the Statute and hor charter.
    The City has authority to grant a right of way through her streets and other property.
    The City first granted the privilege of way to the New Orleans City Railroad Company in 1876, hut subsequently recalled it, and again in 1881 conferred it anew.
    The ordinances concede the right of laying tracks from Basin to Carondelet, but not that of using steam as a propeller.

      The plaintiffs were owners at the time the tracks were laid and did not object thereto. Their silence is an acquiescence.
    The light to use steam not having been granted, the Company has no authority to run and station their trains, moved by that power, as they do, between the designated points.
    The use of steam is therefore a nuisance, if not actual, at least constructive.
    The injunction ashed caunot issue to prevent the defendant Company from using the tracks, hut only to prohibit the use of steam, between the two streets named.
    APPEAL from the Civil District Court, for the Parish of Orleans.. Houston, J.

      Breaux & Hall for Plaintiffs and. Appellants:
    1. The neutral ground on Canal street, occupied by defendant, was dedicated as a promenade, riaintiff's having acquired their property with reference to such dedication, had vested rights to the same, of which they could not be deprived by the vendor corporation. Act of Congress, 1807, March 3d, U. S. at large, p. 411; Act of Deposit by Macarty, Mayor, Reo. p. 181, Map ; Frenoh vs. N. 0. and Carrollton R. R. Co., 2 An. 87; Sarpy vs. Municipality No. 2, 9 An. 598; Municipality No. 2 vs. Orleans Cotton Press, 18 L 237; Cincinnati vs. The Lessee of White, 6 Peters 431; Delabigarre vs. Municipality No. 2, 9 An. 233; New Orleans vs. United States, 10 Peters, 710.

      % No particular form or ceremony is necessary in the dedication ofland ; and the subsequent acquisition of title to property dedicated to public use, by the donee, emires to the benefit of the dedication. New Orleans vs. United States, !0 Peters, 713; Sarpy vs. Municipality, No. 2, 9 An. 597 ; Delabigarre vs. Same, 3 An. 233.
    3. The sovereign alone has the right to change the destination of public places. New Orleans vs. United States, 10 Peters,- 713; Parish vs. Municipality, 8 An. 149. Even this is denied by Judge Martin in DeArmas vs. Major & Co., 5 L. 158.

      4. ' That which, from being pursued under authority of the law, cannot he a public nuisance, may be a private nuisance. Wood on Nuisauces, p. 788, Sec. 751; p. 796 (note); Dillon on Corporations, § 521.
    5. When the complaint shows that he suffers special and peculiar injury from a nuisance, he is entitled to an injunction, nigh on Injunctions, § 755, note 4 ; Wood on Nuisances, p. 835, Sec. 783.
    (I. The defendant is operating a road with steam trains, on Canal street, without legal right.

      (a) Granting the administration of franchises, and selecting the hands into which they shall be put, is a State prerogative; and it can be transferred only with the assent of the State, aud in the mode pointed out. N. O. Spanish Fort R. R. Co. vs. Delamore, opinion book, p. ; Thomas vs. Railroad Company, 101 U. S. 83; The N. X. & Maryland Co. vs. Williams, 17 Howard 30.

      (b) Neither the act incorporating the New Orleans, Metaiiie and Lake Company, nor the act of 1874, authorizing business and manufacturing corporations or companies, warrant the consolidation invoked. Acts, of 1869, p. 205; Act of 1874, p. 18; bouud Acts'1875.
    (c) The City Charter only grants power to regulate the running of steam trains. Acts of 1870, par 11, Sec. 9.
    7. The purposes, objects and character of a corporation to run city railroad cars for passengers, is essentially different from those of an ordinary railroad to carry freight and passengers. 'The one exercises privileges under a license by the City; the other exercises a franchise which can bo granted only by the State. Brown vs. Duplessis, 14 An. 892; Pierce on Railroads, pp. 246-7; New Orleans, Spanish Fort R. R. Co. vs. Delamore, opinion book, p.
    8. The unauthorized extension by a railroad of its traok, is the attempted exercise of a valuable franchise, and is, of itself, sufficient ground for perpetuation of an injunction. High on Injunctions, Sections 412, 415, 408 ; 10 Miss. 82 ; 45 Barbour, 63; 27 N. Y. 611.

      9. When a company lays its rail on a street without statute authority, it may be enjoined by lot owners specially injured. Dillon on Corporations, § 561; Railroad Company vs. Shields, 33 G-a. 601.

      Brauglm, Bucle & Binlcelsggiel for Defendants and Appellees:
    The United States having, by Act of Congress of March, 1807, granted and donated to the City of New Orleans all the property known and designated as the “ Commons,” acquired by the treaty and cession of the Province of Louisiana, the City of New Orleans was at liberty to dispose of the same, as in the judgment of her municipal authorities it might he for the best. The grant of Congress was, however, coupled with one condition, viz : That the City of New Orleans was to reserve a strip or portion of land sufficient for a canal through a portion of the said ceded “ Commons,” to enable the N. 0. Navigation Company to connect its canal and basin (at present the Old Basin and Canal Carondelet) with the Mississippi River. The Navigation Company, in pursuance of the provision and reservation specially made in its interest, and embraced in the third section of the Act of Congress of March, 1807, selected the space at present known as the Neutral Ground on Canal street between South and North Canal streets.
    The City of New Orleans took no action and made no disposition of the “ ceded Commons,” which embraced a wide space of ground all around the limits or boundaries of tho City as it then existed, until the year 1809. The Commons at the upper limit of the City extended from Customhouse street to the line of present Common street.
    In 1809, under the administration of Mayor John T. Mather, the Council of the City determined upon a survey and subdivision of the entire Commons into blocks and lots, and ou a sale of the same on ground rent titles, for a period of 39 years, and an ordinance to carry out this plan was passed.
    The city surveyor, under this ordinance, at once proceeded to a survey and subdivision of ' £he Commons. The sale of lots within these Commons commenced the following year, viz: in 1810, the lots numbering írom 1 to 459 by plan of “ Tanesse, surveyor.” The first; lot sold, or Lot No. 1, formed the corner of Dorsiere and present North Canal street, the site of Stauffer, Macready & Co.’s hardware establishment. The acts of sale of this and other lots, now fronting on North and South Canal, describe the lots, when on the lower side, as fronting on a projected road (chemin projeté mesurant) or measuring — feet in. width, up to the lower line of the space of 42 feet, French measure, reserved for the Navigation Company, and when said lots were on tho upper side, at present South Canal street, they are described in the acts of salo, all passed before Pedesclaux, notary, as measuring — feet front on a projected road (chemin projet) measuring — feet in width, and extending to tho upper limit or line of “tho reservation ” between the two projected roads, for the Navigation Company.
    In none of the acts of sale which conform in description with Tanesse’d plan, are the lots described as fronting on a public promenade or on Canal street. What has since been named on some maps, made many years later, as Promenade or Neutral Place, appears in none of the-original titles when the property was sold in 1810, 1811, 1812, 1813, 1814,1815, and so on, strictly according to Tanesse’s plan, which was the official plan, determining measurement and all other rights. The term Street or Hue as applied to present Canal street, appearsneitherontheplanorin the act of sale; or by chemin pro jeté. In point of fact the Canal street of that period, was a road way along the Gravier Canal, into the Faubourg St. Mary, on the extension of Poydras street, and was laid out as early as the year 1795, and is at present the site of North Poydras street. This is the “ Old Canal street,” referred to by Justice Rost in the case of “ French vs. Carrollton Railroad.” The Navigation Company, at some period in the past, had acquired the Gravier Canal and had proposed also to connect the Old Basin with this Gravier Canal and'a New Basin in the St. Mary Faubourg. This was long before the Canal and Banking Company undertook the excavations of New Canal and New Basin.

      The name of Canal street to the wide avenuo which now bears the name, is of later date.
    It may be well to know that the present middle space was held by the Navigation Company until the year 1842, as its own and private property.
    'Ry Tanesse’s plan of 1809, it is not set apart as a public dedication ; it is not designated as a promenade, nor is it so indicated or designated in the conveyances of the lots; but, on the contrary, it is especially designated as a “ reservation ” between two projected roadways, for the Navigation Company.
   ■ The opinion of the Court was delivered by

Bermudez, C. J.

This is an injunction suit coupled with a prayer for damages, to prevent the defendant Company from running and stationing their steam cars and trains in front of the residences and stores of plaintiffs, on Canal street in this City, between Rampart street •and Bourbon and Carondelet streets, the last two meeting and intersecting the first named street.-

The grounds upon which the injunction is claimed are : that the strip of ground, on which the cars run and station, in the centre of the space ■between the buildings, fronting on- each 'external line of the double ■'street, and commonly known as the “ neutral ground,” was dedicated •by the City to public use as a street and promenade; that the plaintiffs, having acquired their property from the City with reference to such dedication, have a vested right therein and cannot be divested ■thereof by the City; that the defendants are thus operating their train's without legal authority; that the use to which said strip of land was 'and is thus devoted, is an intolerable nuisance, greatly prejudicial to the plaintiffs in their persons, and detrimental to the value of their ■'property '; that they, the plaintiffs, are entitled to have such nuisance abated and to claim damages for the injury sustained. The petition ■concludes with a prayer that an injunction issue and be perpetuated, and that the plaintiffs recover forty-five thousand dollars damages, to accrue to them in different proportions.

" After a hearing on the face of the papers, an injunction was allowed, ■'which was subsequently dissolved on bond.

■ The answers contain a denegation of the pretensions and charge's preferred, particularly of a want of authority to the right of way and ■of running the steam cars, on the strip of land in' question, and of the 'truth of the complaint that the exercise of such privilege has resulted ‘into an intolerable nuisance. The defendants further plead, that the ■plaintiffs are not entitled to an injunction, and that their money claim 'is barred by prescription.

' From a judgment dissolving the injunction and rejecting their demand, the plaintiffs have appealed.

The fact that the defendants run and station steam ears and trains, as charged in the petition, is not disputed. The right of the plaintiffs to complain, if the running and stationing are unauthorized, and if the same are an intolerable nuisance, cannot be questioned.

The parties litigant have raised, argued and submitted many issues, only two of which we think should be determined, to set their differences at rest. They are :

1. Have the defendants legal authority to run and station their cars as they do ?

2. If they have such authority, is the exercise by the use of steam of the right thus acquired a nuisance which should be abated?

I.

The record shows that, on the 22d of August, 1876, by Ordinance 3617 A. S., the City Council gaye a permission, revocable at pleasure, to the Company to run their cars between Basin and Carondelet streets ; that, on the 15th of June, 1830, this permission was recalled by Ordinance 6528. It was renewed on the 3d of March, 1881, by Ordinance 6891, at the request of a large number of citizens styling themselves property holders and residents on Canal street, and authority giv.en the Company to extend its track from Basin to Carondelet streets.

The municipal authority to thus use the neutral ground is so clearly given, that, but for the denial of the power of the council to make the concession, the first question would be of easy solution.

The plaintiffs contend, first, that the City had no right to grant the privilege of way; because:

A. The strip of land on which the cars are run and station, was dedicated to special public use; because

B. The City has no right to change the destination of a public place thus consecrated.

It appears that the United States having acquired, by the treaty of cession of Louisiana, the property known and designated as the “ commons,” donated the same in 1807 to the City of New Orleans, with the conditions: that a reserve would be made of a strip through a portion of the same, sufficient for a canal, to enable the New Orleans Navigation Co. to connect its canal and basin with the river, and that the same would forever remain open as a public highway. The space in question measuring 42 feet, French measure, was that selected for the purpose.

In 1809, the City authorities caused the commons to be divided into blocks and lots. Many were sold for ground rents. The titles describe them as fronting on a projected road up to the line reserved, upper or lower, for the Navigation Company.

In 1809, twenty-seven lots remaining unsold on Canal street, a plan was made of the same by the then City Surveyor, Pilie, which, by resolution of the Couucil, was to serve as a guide for the ordered sale. That plan shows that the space between the blocks on the upper and lower sides of Canal street, was thereon designated as Rue et Promenade du Canal.” The lots of two of the plaintiffs figure on that plan.

In 1838, an attempt being made to excavate a canal on that middle space, it was arrested by the populace, who thought that the excavation would affect the public health, and the excavated spots were filled.

In 1842, the rights of the Navigation Company to the neutral ground were seized, offered for sale and adjudicated to the City of New Orleans.

In 1847, in the case of French vs. N. O., C. R. R. Co., 2 An. 87, passing allusion was made to old Canal street by this Court, and it was there said : “ That street was laid out as a single street, and the proprietors, on both sides, purchased their lots with reference to that destination. The authority given to the Company to extend their canal through the middle of it was a change of destination' of public property, not a divestiture of private ownership.”

There can be no doubt that, from the beginning, the whole of the space was dedicated to public use. A strip, in front of the blocks, on each side, at first, 11 feet, presently, 18 feet wide, was devoted as sidewalks j then, two other contiguous strips of a certain width were laid out and used as streets, leaving between them the strip, forty feet wide, known as the “ neutral ground,” upon which the steam trains of the defendant Company and the horse cars of several other companies are run and station.

That dedication was, therefore, originally for the purpose of a contemplated canal and side streets, and subsequently, for “a street and promenade.”

The question which next presents itself is, whether that dedication has been changed, by the City, and if so, whether the City had the right to do so, and whether the plaintiffs can be heard to complain.

The evidence does not show that the neutral ground in question has absolutely ceased to be a “promenade.”

The word is used without any limit, and means, as well, promenade ápied, á cheval, as en voiture, or any other, subject -to municipal regulations. ’

The well known “ Promenade des Champs Elysées,” in the great French metropolis, is used for all three purposes.

The strip of land in question is not enclosed, either on its sides, or at its intersections, by the several streets. Citizens are free to walk across or along it, at their discretion or option. It, therefore, remain^accessible at all points.

• The evidence does not show that it ever was used exclusively, if at all, as a pathway, or promenade á pied. It appears that, for a long While, it served as a place of deposit for.rubbish, building materials and other purposes, which obstructed its use.

. Par from establishing that the City has changed its destination, by destroying or affecting its public character and converting it to private conveniences, the proof is, that the City has, by her administrators, employed this comm'on property for the greater good of the whole community. R. C. C. 458.

The City, it is of public notoriety, has, for upwards of twenty years, expressly permitted .the use of this neutral ground for street car purposes, for the greater benefit and advantage of citizens travelling in different directions, not only-without a murmur from anyone, but to the entire satisfaction of all.

:,-The City had authority to do so. It is well settled, by law and precedents, that the City has a supervision and control over all streets public places and other public property within her limits, and may regulate the use thereof.

. In 1859 the question was presented to this Court, whether the City had the power to sell.the right of way for the establishment of a railroad, through its streets. It was determined in the affirmative, in a well considered and elaborate opinion, which was since followed: Brown vs. Duplessis, 14 An. 842; Board vs. City, 32 An. 915.

-. In the late case of Harrison, 34 An. 462, the present Court had occasion- to review a similar or identical question. Supported by many authorities, from which copious extracts are embodied in the opinion, the Court held, that the doctrine is well settled that the legislature can delegate to a municipal corporation the power of authorizing thé construction of a railway on a street of the city, as effectually as if the power and right had been conferred directly by the State herself; Dillon, Municipal Coporations, 556, 655; 27 Penn. Stat. 339; 33 Penn. Stat. 99; 6 Wheat. 328; 7 Barb. 509; 23 Peck. 328; 1 Barn. & Ad. 30; 18 Barb. 97; 12 Iowa, 240; 24 Iowa, 455; 10 Bush. 288; 87 Pa. 282; 3 Camp, 226; 5 Hill N. Y. 209.

-nln 1876, when the first ordinance was passed granting permission tp the defendant Company to build a track and to establish a st.and for the lake'cars o'n Canal street, between Baronne and Carondelet streets, the City had the right to make the concession. Her. authority for so doing was: the provisions of the Code, the Statute Book and her Charter.

The Codal provisions are : That common property is that, to the use. of which all the inhabitants of a city or other place, or even strangers, are entitled in' common, such as streets, public walks, the quays, and that common property, though it belongs to the corporation and be not for the common.use, may be employed for their advantage by the municipal administrators. R. C. C. 4,58.

. The statutory provision is, that “ no railroad, plank road, or canal, Shall be constructed through the streets of any incorporated city or town, without the consent of the Municipal Council thereof.” R. S. 689.

The Charter, Secs. 12 and 13, provide that the City Council shall have the power to regulate and make improvements to the streets, public squares, and other public property, and to regulate the proper government of carts, drays, carriages, omnibuses, and all other vehicles of every description, freight, locomotive, passenger and street cars, which run in the streets and within the limits of the city.

. This power was, perhaps, better formulated in the present charter, (1882, p. 21) which provides that the City shall have power to authorize the use of the streets for horse and steam railroads. The City owned the middle ground, either as public or private property, and in either contingency could have disposed of it, the way she did.

Strenuous efforts were made in argument to establish that the consolidation of the New Orleans, Metairie & Lake R. R; Co., (incorporated by law) with the defendant Company, was illegal, and that thereby the latter did not acquire the right said to have been possessed by the. former to run and station steam trains on the spot in question. It is unnecessary, presently, to examine whether the first corporation ever existed and what its prerogatives were. It is likewise needless to ascertain whether the consolidation of the two companies was legal or not.

The City does not grant franchises. This can be done by the State alone. But the City can concede the right of way through her streets, public places and other property. It is perfectly true that franchises cannot be transferred.

It is worthy of note, also, that the titles of two of the plaintiffs date back to 1849 and to 1853, before any track was laid on the neutral ground in question, while that of the third one, which, was to be produced, was not furnished, and is not included in the transcript.

... ,.The plaintiffs, then, were front property owners when the City permitted the use of the neutral ground the way she did, for street cap purposes, whether moving or stationing.

If it be true that the plaintiffs had vested rights under their purchases in and to the strip of land on which the cars are run and stand in front of their residences and stores, they should have been as watchful as if the same had been their exclusive property. They have slept on the same, and at this late hour how can they be heard successfully to complain ?

The authorities are unanimous to the effect that, where a party stands by and silently permits the construction of a railroad on his land, it is too late for him, after the road is completed and large sums of money are expended on the faith of his apparent acquiescence, to seek, by injunction or otherwise, to deny to the railroad company the right to use the property.

Tile omission of resistance is an implied assent. The moment the work was completed without opposition, the public, the company, and all concerned in it, acquired á vested right to it. Hilliard on Inj., 43; High on Inj., 397, and cases cited; also, Goodin vs. Cin., 18 Ohio Stat., 169; 31 An. 480.

• In the instant case, permission was first granted in 1876, and it has been enjoyed for four consecutive years without any judicial complaint on the part of plaintiffs. The privilege or right of way was next revoked, but after a brief interruption, again conceded.

In neither instances, however, was the right of using steam as a propeller, conferred. This is a most material omission, fatal to the pretensions of the defendants to run and station their trains moved by that power. This privilege should have been expressly formulated. It is hardly necessary that the defendant Company could not, and did not, acquire the right to use steam, by any concession on the part of the New Orleans, Metairie & Lake R. R. Co. Such right could not be delegated, either specially or by an unauthorized consolidation of companies.

II.

The plaintiffs complain that thecarsrundailyandcontinuouslyin the night, at short intervals; that this causes noises and motions -which disturb the comfortable enjoyment and affect the value of their property ; that the engines emit odors, noxious vapors, which are exceedingly disagreeable to the senses, and that the use of the street or middle ground by said Company, in that manner, has become an intolerable nuisance which should be abated, and which has occasioned them damages, which they are entitled to recover.

Having reached the conclusion that, although the defendant Company was allowed by the City to extend its track to Carondelet street on the middle ground, still the City has not conferred on them the privilege to run tlieir trains, moved by steam, thereon; the legal consequence flowing therefrom is, that the unauthorized use of steam is a nuisance in contemplation of law, though perhaps not so in reality, of which the plaintiffs have a right to complain.

The right of way is, in terms, revocable, at the pleasure of the Council. The power of recalling or regulating it is in them. There can be no doubt that it will be exercised whenever they will deem it expedient to do so, in case a suppression be considered conducive to the public good.

From all the foregoing it results that, while the strip of land, known as the neutral ground, on Canal street was dedicated for a public use, its destination was not changed by the City; that, if it was altered, or modified to some extent, the change was accomplished with legal authority ; that the plaintiffs, in any contingency, have no standing in Court to complain that the right of way and station was granted and the road laid; that the use of steam, on the space between Basin and Carondelet streets, being unauthorized, is a constructive nuisauce, and that, as the Company has no authority to use steam, an injunction lies in the premises against it.

The evidence does not disclose a state of facts in which pecuniary damages can be allowed.

It is, therefore, ordered and decreed that the judgment appealed from be reversed; and it is now ordered, adjudged and decreed that there be judgment in favor of the plaintiffs, so far only as to allow the injunction prayed for, forbidding the defendant Company from using steam as a propeller on their tracks, between Basin and Carondelet streets,'on Canal street in this City, and that, in other respects, the demand of plaintiffs be rejected, the defendants to pay costs in both Courts.

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

Manning, J., concurs in the decree.

Concurring Opinion.

Manning, J.

I concur in the decree, but I go further than the opinion of the Court seems to warrant, and there are parts of it to which I do not assent.

That steam trains on that part of Canal street are a nuisance, offensive to eye, ear, and smell, disagreeable at all times, and intolerable in onr climate for one-half of the year, should seem scarcely questionable. We are told the purest oil is used on the running gear and that it emits no smell; that anthracite coal is burned that gives a whitish smoke perceptible only in early morning; that no whistles are blown', and bells only tapped. If, with all these precautions, the air is laden often with stench and smoke, and the clatter drowns all fainter sounds, what would be the lamentable condition of these plaintiffs if full rein were given to the steam train to expend all its capacity for annoyance. The evidence of the kind and extent of the nuisance produced by these trains is ample, but if it were less complete, how can anyone shut out from sight and hearing the rattling of cars over iron rails, the puffing of laboring engines, the bell taps that announce the going out and coming in of a long line of carriages every fifteen minutes of some days, noises which, are prolonged into the night and until the small hours of the morning.

And what is the excuse for inflicting this perpetual nuisance upon the inhabitants of the very heart of the city ? The promotion of trade and health! The promotion of trade by a pleasure train that has. no freight, and the promotion of health by putting the terminus only three blocks away from its present situs. One hundred and seven firms and 'individuals sign a petition to the city council to continue this nuisance, a large number of them between the terminus and the river and therefore unaffected by it, and sign it with thé same indifference and facility that they would sign a petition for the pardon of a criminal, or for the execution of a saint, and these assert the great advantages derived ■from running these dangerous trains exceed the trifling inconveniences resulting from them. The comfort, freedom from stench and noise, of 'lióme life, and the safety of pedestrians in an often crowded thoroughfare must be sacrificed because of the great advantage of selling a few dollars worth of goods!

It is said individual comfort and convenience must give way to the public good, but what is the public good ? Is the promotion of the pecuniary interest of a private corporation the public good? Is the conferring upon and the enjoyment of valuable franchises by associated private individuals, the promotion of the public good ? The overgrown power of great corporations almost always ha? its origin in the employment of catch-words that delude the popular imagination, and cast a glamour over what is hidden beneath. How far private rights áre to be ignored in the pursuit of this ignis fatuus, which for the nonce'is assumed to be the public good, does not yet seem to be clearly determined, but it is certain that the authorization of an act even by the legislature does not prevent it from being a private nuisance. Woods-on Nuisances, 788. One has as much right to protection from noxious gases and mephitic odors transmitted through the air, as to protection from a trespass upon his soil, and there is no good reason why courts should not guard the one as jealously as the other.

These considerations would be worthy of attention even if the defendant Company had the right to run steam trains over this part of Canal street, but it has none whatever. Apart from the dedication to public use of this central space, which the plaintiffs’ counsel have presented with ingenuity, it appears the City sold the lots, or some of them, now owned by the plaintiffs, fronting on this street. Thisspaee was at one time converted into a promenade, with shelled walks, shaded by trees, and protected from the intrusion of vehicles by ornamental chains and posts. It is well stated in the opinion of the Court, as was said in French’s case, 2 Ann. 87, these parties bought with reference to the reservation of this central space for public use, and where property has been thus set apart and enjoyed as such, and private and individual rights have been acquired with reference to it, it is an estoppel in pais which binds the original owner. Sarpy vs. Municipality, 9 Ann. 597.

It is of no consequence that the City acquired this central space after she had sold the bordering property. There is no reason why a municipal corporation may not beheld to the same restrictions and responsibilities as a private individual in its contracts. • It received for the property it sold a larger price, because in its front was a wide street which assured ventilation, the middle of which was not used for the passage of horses or vehicles, and it should not gain by the existence of a condition of its property which attracted and induced purchasers, and when it acquires the object which formed the attraction, so change its use as to destroy that attraction, and even convert itinto a nuisance.

The right to run these steam trains is claimed under an Act of the General Assembly incorporating the New Orleans, Metairie & Lake Railroad Company, Acts 1869, p. 205, the defendant being the assignee and successor of the incorporators, and also under an Act of July 1, 1878, between the City and the defendant, wherein the right to run cars with steam dummy engines, is said to be recognized.

No such right is recognized by that Act. The use of a steam propeller was not contemplated at all, and it is the use of steam as a propeller of which the plaintiffs complain. The purpose of the organization is exhibited by the specifications of the contract with the City, and it was to construct and maintain a railroad within the City to be propelled by horse-power. It was a tramway rather, than a railroad.

Unquestionably that was its original franchise, and it can only exercise a greater and different franchise by derivation of authority since the grant. It has none. The pretension that it acquired such larger franchise through purchase of the Metairie & Lake Road franchise, falls before the declaration of this Court that it is the State’s prerogative to confer franchises, and they cannot be transferred without the consent of the grantor. Spanish Fort R. R. Co. vs. Delamore, 34 Ann. 1225; and to like effect, Thomas vs. R. R. Co., 301 U. S. 83.

Nor is the defendant’s claim of a more satisfactory origin when it is attempted to be derived from the City Ordinance of August, 1876, granting permission to establish a stand for the cars on the neutral ground on Canal between Baronneand Carondelet streets, revocable at the pleasure of the Council. It was wisely revoked in June, 1880, and the stand was removed to Basin street, but the petition of the one hundred and seven, like the famous charge of the six hundred at Balaclava, won the day, and the obnoxious stand was reinstated in March, 3881.

Tho authority of the Council to confer this privilege upon the railroad is said to be derived from the charter of 1870, in force at the time of the grant, under that clause giving power to “regulate the proper government of carts, drays, etc., freight, locomotive, passenger and street cars, which run in the streets, and within the limits of tho City.”

The flimsiness of this pretence is apparent when it is considered that the power to regulate the government of railway ears can in no sense include the power to grant a franchise. The regulation of cars, etc., is simply an act of ordinary administration. The grant of a franchise is an extraordinary act—the exercise of a power inherent in sovereignty —a power obtainable only by a concession from the sovereign, the terms of which are always strictly construed.

Even if a municipal corporation has authority from the sovereign to grant a franchise, it cannot so exercise it as to create a private nuisance for which there is no redress. The legislative grant is nota protection against an action for damages resulting from, the private nuisance. A fortiori is the defendant without protection and without excuse, since it has neither municipal authority nor legislative grant.

Rehearing refused.