author: Watkins, J. Watkins, J. Breaux, J.

text:
    No. 12,837.
    Shreveport and Red River Valley Railway Co. vs. St. Louis & Southwestern Railway Co.
    Syllabus.
    A railroad corporation having secured a franchise and right of way for the purpose of constructing its tracks upon a locus pubUous of a city, has the right to expropriate from another railroad corporation sufficient clearance space to enable if to pass its trains free of obstructions and hindrances from the latter, i£ the use thereof be not of such a character as to be indispensable to the movement and operation of its own trains or its other business.
    On Rehearing.
    The use of a team track and delivery space of a railroad company was not shown so esential as that it would result in impairing defendant’s franchise and use, in case another railroad is permitted to use three feet for clearance space, which clearance does not interfere with the running of defendant’s train, nor to an irremediable extent with the use of defendant’s team track and delivery space.
    ON APPEAL from the First Judicial District Court for the Parish of Caddo. Land, J.

      Leonard & Randolph for Plaintiff and Appellee.

      T. Alexander and 8.11. West for Defendant and Appellant.
    Argued and submitted June 3, 1898.
    Opinion handed down June 22, 1898.
    Rehearing granted (Reasons assigned), January 9, 1899.
    Argued and submitted on Rehearing January 25, 1899.
    Opinion on Rehearing handed down March 7, 1899.
   On the Application for Rehearing by Watkins, J.

On Rehearing by Breaux, J.

The opinion of the court was delivered by

Watkins, J.

This is an expropriation proceeding, the object of which is to procure the condemnation and adjudication to the plaintiff ■of a certain strip of ground which is described in its petition upon the .payment of such damages as may be awarded to the defendant in compensation therefor by a jury of freeholders; and it is coupled with an injunction prohibiting the defendant from laying any track or other obstruction thereon, or in any manner incumbering same, pendente lite.

On the trial, there was a verdict of the jury in favor of the plaintiff, expropriating a strip of ground three feet in width, off of the Southwest side of defendant’s reservation on the batture on the river front of the city of Shreveport, and in length extending from a point opposite block sixty-one (61) in said city, to a point opposite block fifty-nine (59) and aggregating about nineteen hundred and ninety-five square yards, as shown by the map, which is annexed to the petition.

And the verdict of the jury further declared, that said strip of ■ground is awarded to the plaintiff company upon its paying to the defendant the sum of seven hundred and fifty dollars therefor, and twenty-two hundred and fifty dollars in full for damages sustained.

It further awarded the maintenance and perpetuation of plaintiff’s injunction, in so far as, and to the extent of said expropriation, and that same be otherwise dissolved.

In pursuance of that verdict, the judge a quo pronounced judgment in plaintiff’s favor; and thereupon the plaintiff deposited with the ■clerk of the District Court the sum of three thousand dollars, the ■amount of said judgment and award, and the defendant prosecutes an appeal therefrom.

In this court the plaintiff appeared by counsel and filed an answer to the appeal, and requested an amendment of the judgment appealed from by rejecting and disallowing the sum of $2250.00, which the jury awarded as damages.

The averment of the plaintiff’s petition is, that it is proceeding with the work of constructing a railroad from the city of Shreveport to the ■town of Coushatta, Louisiana, and is under an obligation to the city of Shreveport to establish its depots in, and run its daily trains into ■that city; and that in consideration thereof, said city has granted it “a right of way to lay its track on Commerce street, in said city, as is shown by plat and ordinance thereto annexed.”

That in laying and establishing its said “track under the grant of ¡said city on said Commerce street, between Texas and Cotton streets, in the said city, the space granted to it between two existing tracks o£ the defendant between Cotton and Texas streets, is not sufficiently wide to accommodate its said railroad tracks and (its) business on Commerce street, between the said Cotton and Texas streets; and that an additional strip of ground six feet wide, between the Red River and (its) right of way, and extending along Commerce street, (between certain points indicated on the map) is necessary and indispensable to (it) in the laying of its tracks and the construction of its road, and in reaching its terminals in said city as per its contract with said city.”

That said strip of ground is claimed by the defendant exclusively, which refuses to allow it to use or occupy any portion of said necessary strip of ground, notwithstanding it has tendered to the defendant the value thereof and amicably demanded same; and notwithstanding the same is not required for the defendant’s use, it having already two tracks laid on Commerce street and the aforesaid batture, and has a large amount of ground adjacent to and parallel with the aforesaid strip of ground, which is not requisite for its use.

That in consequence thereof, the expropriation and use of the aforesaid six feet strip will not interfere with the operation and use of either of the defendant’s two aforesaid tracks.

The petition further represents, that there are at present no erections or constructions of any sort upon said strip of ground, but that its fear and apprehension are, that defendant contemplates, and will, if not restrained by injunction, lay a track thereon, or otherwise obstruct the same pendente lite.

Without answering to the merits, the defendant filed an exception to the effect, that the strip of land sought to be expropriated is part of its tracks, grounds, and terminals, and essentially necessary to the proper operation of the same in handling its freight traffic in the city of Shreveport, that said strip of ground lies between its tracks, and constitutes a part of the space arranged, filled-in, graveled and built by it at great expense, for the accommodation of its business for the purposes of freight delivery.

That same is now in actual use for the purposes aforesaid; was so in actual use at the date of the institution of this suit; and had been so in use for more than one year prior thereto.

“That the bisecting of said space by the laying of a track and -the operation of the same, as sought for by the plaintiff in this proceeding, 'cWSffitl^fterly destroy and. render valueless for the purposes and uses 4nfeíliMÜ; and lor which it was intended by the defendant, the entire space between the tracks.

oi there exists no necessity for the infringement of the rights Hjf'the^defendant and the destruction of its property by laying there-"up¿íi óí the track as proposed and contemplated by the plaintiff in this proceeding; but that there is ample space outside of defendant’s track both on Commerce street and along the batture opposite its ground.

That there exists no legislative authority, or other legal power under the laws of this State, to expropriate the property of the defendant which is in actual use by it, and necessary for its efficient, proper and successful operation of its railway and transportation business.”

Fully reserving the benefit of the foregoing exceptions, the defendant filed an answer m extenso^ in which the following additional grounds of defence are set out, viz.:

That it is now and has for several years been engaged in operating a line of railway in the State of Louisiana, and in the city of Sherveport, having succeeded to the rights and franchises of the Shreveport and Arkansas Railway Company, and the St. Louis, Arkansas and Texas Railway Company. That it is the owner in possession of and engaged in operating its said road over certain tracks in the city of Shreveport, under grants by proper ordinances from said city.

That its said tracks and franchises are very valuable and necessary to the proper operation of said road in getting access to and from its. freight depot; and, also, in getting access to cotton compresses, warehouses, mills, founderies and- other factories and industries.

And that the free and unlimited use of its said tracks and terminal facilities, is an absolute essential to the successful and proper-operation of its said road.

‘‘That i ts said tracks and terminals embrace, among others, a right of way on and along Commerce street, in the city of Shreveport, between Cotton and Texas streets. That, in addition to its right of way at this point, it is the owner and in possession of a tract or strip of ground along the river front on Commerce street, one hundred feet in width, granted to it by virtue of an ordinance of the said city of Shreveport, which was part of the consideration in inducing the respondent company or its predecessors * * * to build said railroad into the city of Shreveport. That it has laid upon its said right of way and strip.of ground, two tracks, one of which is upon i-ts right of way on Commerce street proper, and the other upon the one hundred feet strip adjoining thereto, on the batture which was granted it, as aforesaid.

“That the said inner track is used as its main track in getting to and from its freight depot, warehouses, compressors, mills, etc., and the other or the outside track, is used as a switch or delivery track for the purpose of delivering freight to various shippers and consignees in the city of Shreveport.

“That at the time the said main or inside track was laid, and for years subsequent thereto, the said main track was on the edge or brink of the river; and that within the last twelve months it has, at great expense and at a cost of more than ten thousand dollars, filled-in its said ground "along the river front and built its outside track thereon.

That it was so built and constructed with the consent of the city, and in accordance with rights theretofore-granted to it by the city council; and that the use of said tracks, as they now exist at this point, as well as of the intervening space, is essential to the proper and efficient operation of said railroad.”

It further avers, that the strip of ground sought to be expropriated, is a part of the tracks, grounds and terminals which is necessary to the proper operation of same “and the handling of its freight traffic in the city of Shreveport.

That the strip of ground lies between the tracks of the defendant and constitutes a part of the space which it graded and filled in for the accommodation of its own business, and for the purposes of freight delivery to its customers.”

It specially denies the plaintiffs legal right to expropriate said property; and, also, denies the legal right of the city of Shreveport to grant to plaintiff any right of way over said strip of ground.

It then avers, that the direct and immediate effect of the expropriation of said strip of ground, and the laying of a railroad track thereon would be to destroy said freight delivery, and render same useless for the purposes same was intended to subserve, and to cause irreparable injury to its property, rights and franchises.

In the alternative, it estimates the loss and damages it wall sustain, in case said strip of ground is expropriated, at twenty-five thousand dollars; and it demands a verdict for that sum, and the further amount of two thousand dollars, as the actual value of the strip of ground.

The petition, exception and answer are considered especially valu.able, as containing not only a statement of the facts, and particulars •of the physical situation of the res in question, but more particularly for their judicial admissions, whereby the scope of the evidence and judicial inquiry into them have been greatly limited.

There is no question of the fact, that the city of Shreveport, by appropriate city ordinance, did grant to the plaintiff a right of way along .and parallel to Commerce street, from Cotton street, near the terminus of the railroad bridge across Red River, to Texas street and beyond, in the direction of Cross bayou, within city limits; and this grant was made and intended to enable plaintiff’s road, which was a new ■one, to reach and render accessible certain terminal facilities, freight depot, workshops, etc.

That this grant proposed and did permit the plaintiff to build and operate one single track parallel with one of the defendant’s tracks nearest to Commerce street, and between it and its outer track, which .is immediately upon the brink of the river’s bank; and that the small strip of ground which the plaintiff proposes to expropriate, is a portion of the intervening space of ground which lies between the defendant’s two tracks and is or will be longitudinally bisected by the plaintiff’s track.

The plaintiff’s contention is, that the defendant is without any fee simple title to the aforesaid space, and has no other right thereto than an use or erasement, same being riparian property, situated upon the bank, or shore of a navigable watercourse; while that of the defendant is, that it has an absolute right of ownership in said strip of land.

It is worthy of note, that notwithstanding the plaintiff demanded the expropriation of a space of six feet, the jury only awarded three feet; and that the plaintiff not only failed to appeal from the judgment and award, but in its answer to the defendant’s appeal requested no increase in the quantity of space awarded by the jury.

The record shows that the plaintiff immediately paid into the hands •c-f the clerk of the lower court the full sum of $3000.00, according to ■the award; and that since the rendition of the judgment it has built and thoroughly completed its track upon the space of ground granted to itj and is operating same with its trains.

The city of Shreveport has not been made a party to this suit, and lienee there has been made herein no direct assault upon the city •ordinance, which granted plaintiff its franchise; and therefore, we are bound to accept its existence as a fact, and one that is unquestionable in so far as the parties to this litigation are concerned.

And this necessitates the further statement, that in point of fact, this suit does not involve an actual expropriation of either the title or use of the strip of ground itself, b.ut, in strictness of speaking, only what is termed in railroad parlance, a “clearance,” or the room or space that is necessary for the movement and operation of the plaintiff’s coaches and trains of box cars in passing to and fro over its track, which is adjacent thereto.

It was three feet of space which the jury awarded, and for which the plaintiff was condemned to pay, and has paid, the sum of three thousand dollars, notwithstanding the verdict and judgment used the phrase expropriating “a strip of ground three feet in width off the west side of defendant’s reservation on the batture, etc.”

As more precisely indicating the locus in quo, we have annexed a small sketch, which we have extracted from the plaintiff’s supplemental brief, viz.:

Curb line Commerce Street or Levee.

3L C. Track..........................................

Main Cotton Belt Track...............................

Shreveport R. R. Track...............................

West boundary of reservation 120 ft. from curb.

Outside track Cotton Belt, 141.4 ft. from curb.

On the 11th of May, 1888, the common council of the city of Shreveport adopted an ordinance granting a right of way and privileges on certain streets in which it is declared, “that the right of way with the privileges of laying one or more tracks thereon* ****** be and the same is hereby granted to the Shreveport and Arkansas Railway Company, its successors and assigns ******* on Commerce Street, from ihe depot grounds of said‘company to Cross Bayou. The said railroad company being hereby granted the-right to occupy and use a strip of ground one hundred feet (100) in width along the river front, on Commerce street, between Cotton and Travis streets. Provided, that said railway company shall not lay its tracks, or in any manner use or occupy any portion of the levee, or Commerce street, between Cotton and Texas streets, within one hundred and twenty (120) feet of the banquette or sidewalk of said street, •etc."

It further provided, that said railway might “lay and maintain its tracks for and during one year from that date, on the space between Commerce street, (between Cotton and Texas streets), within one hundred (100) feet of the sidewalkbut it was further expressly stipulated therein, that the railway company was obliged to remove the same at the expiration of the year specified.

It was under and in pursuance of that ordinance that the predecessor and asignor of the defendant got into position as a railway company, in the city of Shreveport, and built and now maintains and operates its railroad, together with its rights and franchises therein; and to that ordinance we must look, in order to ascertain the full measure of its rights to the locus in quo.

The proof shows-, and the fact is, that the said railroad company subsequently built its track ’at a distance of one hundred and five (105) feet from the “curb-line of Commerce street,” and is indicated on the sketch as “Slain Cotton Belt Track” — a name by which the defendant’s road is popularly known.

That track was at first only intended to have been a temporary one; but by a subsequent agreement made between the company and the city, for a satisfactory consideration, same was made a permanent structure and has since that time been used and operated as its main ■track.

The distances marked on the sketch indicate the centres of the different tracks.

Subtracting the one hundred and five (105) feet from the curb-line of Commerce street to the defendant’s main line, there will remain, necessarily, fifteen of the one hundred and twenty (120) feet of the ■ original reservation of the city.

The record shows, that at the time this -track was first built, it was immediately on the brink of the river bank, and under authority from the city council and at an expense of over ten thousand dollars, the . defendant graded and filled in the space outside its track, up to and within the 120 feet limit and thereon erected another track, which is designated on the sketch as the “outside track Cotton Belt, 141-4 feet from curb.”

Between these two tracks of the defendant, the city council granted the plaintiff upon its reservation its right of way, and its track as placed thereon, is indicated on the sketch by the words “Shreveport R. R. Track”- — -the centre of same being one hundred and seventeen feet distant from the curb-line on Commerce street-, and only three feet from the west or outside boundary of the city’s reservation of one-hundred and twenty (120) feet.

In the ordinance of the city council herein referred to as having granted to the defendant and its predecessors certain batture and riparian privileges, there is an express stipulation to the effect, “that the city reserves the right to alter, amend, restrict, or enlarge the conditions, requirements and burdens heroin imposed on said grantees as to the use of said track or tracks, etc.,” and it was subject to those reservations that the defendant’s predecessors accepted the grant, use and right to occupy said batture with their railroad tracks, etc.

From the foregoing it appears, that in its original grant to the defendant’s predecessors in 1888, the city gave them permission to construct and maintain a railroad track “on Commerce street, from the-depot grounds of said company to Cross Bayou, the said railroad company being hereby granted the right to occupy and use a strip of ground one hundred feet in width along the levee front, etc.”

But the granting ordinance specially provided, “that said railway company shall not lay its tracks or in any manner use or occupy any portion of the levee or Commerce street within one hundred and twenty feet of the banquette, or sidewalk of said streets.”

The effect of this ordinance was to absolutely exclude the defendant’s predecessors from the occupancy and use of this one hundred and twenty foot reservation, and to grant it “the right to use and occupy a strip of ground one hundred feet in width” outside of the-limit of that reservation.

Hence the city council had a perfectly unquestioned and unquestionable right to grant to plaintiff a right for its railroad track over its reservation as it was twelve feet distant from the main Cotton Belt track on one side and three feet from the outside limit of the reservation on the other side.

The city council had a right equally as undeniable to grant th&plaintiff a right of way over the reservation as it had to grant a similar right of way over same to the defendant’s predecessors, and more recently a similar right of way over same to the Kansas City Railway Company.

But, inasmuch as the centre of plaintiff’s right of way is only three feet from the outer limit of the reservation, six feet additional was deemed necessary, and three feet additional was awarded by the jury t'o the plaintiff; not for the purpose of enabling it to build its track thereon, but to give to it ample clearance in operating its trains, in the event the defendant or other company should parallel its track— there being no track or other obstruction on said three feet of space at the date this suit was filed.

In order to reinforce this statement, we have made the following extract from the brief of the plaintiff’s counsel, viz.:

‘‘Y'.ur Honors must know that the track of the plaintiff company at this disputed point, is already laid and in possession of plaintiff. Now, then, the present situation is as follows: Defendants or Cotton Belt main track, has its center 105 feet from the curb of Commerce street; the Shreveport and Red River line has its track just next to it, with its center ITT feet from the curb; the outer rail of the plaintiff’s line is two and one-half feet from the center or 119.6 from the curb. Now, the ‘reservation’ of the Cotton Belt only begins at 120 feet from the curb. Thus the plaintiff’s rail lacks 6 inches of touching defendant’s ‘reservation,’ but in running a car or train over our track the car or train laps ever, or trenches on the so-called ‘reservation’ about a foot, and the other two feet is needed for ‘clearance.’ In order to save dispute between the plaintiff and the Cotton Belt as to such use while our trains were passing, we askedt the court and jury to state how much we should pay the Cotton Belt, considering the fact that the Cotton Belt had spent money in improving this particular strip and therefore had an equitable claim for reimbursement. They fixed it, with great liberality, at $3000.00. For be it remembered, we do not seek and never intend to use the three feet in question, except in the way explained above, and are willing for your Honors to enter any modification of the decree below, as may seem fit, to meet the peculiar situation.”

On this presentation of the facts of the case, the question for decision is, whether the jury properly awarded to the plaintiff the three feet of clearance space for the passage of its trains; same being rendered, necessary from the fact that only three feet of space was ■allotted to it, between the center of its right of way and the defendant's reservation — an insufficiency of room for the operation of Us trains, though there was plenty of space for the construction of its trade thereon.

Indeed, there remained six inches of space outside of the outer rail of its track, which was not covered by it; but, as stated by counsel, the coaches and box ears would, in transit, lap over, or extend beyond the track, so that three additional feet of space were necessary for their operation.

In the first place, we think it sufficiently appears from the terms of the original grant, that the defendant’s predecessors did not acquire thereby any fee in the strip of ground one hundred feet in width, in front of the reservation of the city. It is, also, apparent that the city ordinance, in terms, excluded them from any use or enjoyment of the city’s one hundred and twenty feet reservation.

All of this property was and is batture, and is so mentioned and designated throughout these dealings and transactions.

There is no limit fixed in the ordinance for the duration of the grant, but it, in terms, declares its revocability at the pleasure of the council.

From the foregoing premise, it is easily deducible, that in so far as the plaintiff’s franchise from the city to establish its track impinges upon the defendant’s grant, the latter ordinance was an implied repeal of the former one. That this was the evident purpose and intention of the city council in granting to the plaintiff a right of way for its track within three feet of the defendant’s reserve, there can be no doubt; for it is neither reasonable nor just to suppose, that the council did not believe that the right of clearance would pass to the plaintiff as an incident of the franchise conferred.

We are of opinion that the principles of law announced in Construction and Improvement Co. vs. Railroad Company, 49th Ann. 527, are strictly applicable to the defendant’s contention that it acquired the ownership of a portion of the batture.

The defendant’s counsel does not contend that the plaintiff is without the legal right to expropriate at all the space in question, for that principle was decided in Railway Co. vs. Railroad Co., 49 An. 29.

All property is held subject to the right of eminent domain — the principal condition on which the right depends being the public necessity for the expropriation demanded. R. C. C. 3637; R. S. 1486; Const. 1879, Art. 156; Cooley’s Con. Lim., p. 523 et seq. 2 Kent, p. 333.

No question is made of the plaintiff’s use of the space being a public purpose; nor that its use is an absolute necessity for the operation of its road.

Those propositions being conceded, there can be no answer to the plaintiff’s demand other than that the space proposed for expropriation is in the actual use of the defendant for the purposes of its traffic and business; and that same is indispensable thereto.

In Railroad Co. vs. Railroad Co., cited supra, this court said:

“The question then is whether the land, the subject of this controversy, is in public use. If not, it is subject to be taken for such use the same as that of any individual. If a corporation acquires more land than it requires for its uses, the land not needed is impressed with no immunity' from the exercise of that power to which all submit.”

What is the situation of this reservation of the defendant, and to what public use is it subjected which interposes a legal barrier to plaintiff’s right of expropriation?

The proof shows and the fact is, that the defendant’s track, which is nearest the river, is only a switch track, and is laid in the form of a curve; and at its greatest diameter, is twenty-five feet from the track of the plaintiff.

The space within is open and altogether free from erections or constructions of any kind; and it was the alleged purpose of the plaintiff to keep it entirely free therefrom by means of its injunction pendente lite.

The defendant principally employs this space for the purposes of freight deliveries from its freight trains, where goods are deposited and temporarily remain until they can be hauled to the warehouses of its customers on Commerce street; and the principal inconvenience which the defendant will suffer by this attempted expropriation is, to our thinking, more seeming than real, in view of the fact that no portion of its reservation is actually taken, and only a “clearance” space of three feet has been awarded.

Before the plaintiff acquired a franchise upon the reservation of the city, the defendant had uninterrupted communication between its two tracks; and we think it reasonably inferable from this record that this franchise is the serious grievance in the case.

It is perfectlyobvious that the city of Shreveport has granted to the-plaintiff a franchise on which it has already built its track and is now operating its trains thereon. It is equally obvious, that it cannot continue to so operate its trains without it is awarded the clearance of three feet, which is absolutely necessary thereto, and the defendant is-enjoined from interfering therewith.

A jury of freeholders chosen from the vicinity of the locus in quoarrived at the conclusion that three feet of clearance space was essential to the operation of the plaintiff’s road, awarded the expropriation thereof and assessed the damages therefor at $3000.00, and the district judge of the vicinage declined to grant a new trial.

Our examination of the record and a study of the law and evidence bearing thereon, have satisfied us that justice has been done.

Judgment affirmed.

Mr. Justice Blanchard takes no part in this decision, having been of counsel for defendant.

Oh Application por Rehearing.

Watkins, J.

The chief ground of complaint which is urged against our opinion is with regard to certain extracts it made from the city ordinance which granted the original franchise to the defendant’s predecessor, as will appear from the defendant’s application, viz.:

“The statement of the court in its opiniqn in this case, that defendant company’s grant of right-of-way and franchise from the city of Shreveport, is held subject to an expressed condition in the grant itself, which makes it revocable at the pleasure of the council, based as it is, upon error of fact, is calculated to work serious injury to the defendant. It affects not only the present suit, but may be used against it in the future to jeopardize the rights of the company to its-entire tracks and terminal system in the city of Shreveport, etc.”

The statement of the opinion referred to is given as follows, viz.:

“In the ordinance of the city council herein referred to as having granted to defendant, and its predecessors, certain batture or riparian privileges, there is an express stipulation to the effect, 'that the city-reserves the right to alter, amend, restrict, or enlarge the conditions, requirements and burdens herein imposed on said grantees as to the use of said track, etc., and it was subject to these reservations that the defendant’s predecessors accepted the grant to use, and right to occupy said batture with their railroad tracks, etc.”

Again, the opinion states, “there is no limit fixed in the ordinance for the duration of the grant, but it, in terms, declares its revocability at the pleasure of the council.”

The present contention of defendant’s counsel is, that notwithstanding the original draft of the ordinance did embody the foregoing provision, a subsequent ordinance was immediately thereafter adopted, which explained and modified the provisions of the original grant. To show the application of this ordinance and of its amendment, the following statement of the contentions of the parties quoted from our opinion will suffice, viz.:

“The plaintiff’s contention is, that the defendant is without any fee simple title to the aforesaid space, and has no other right thereto than an use or easement, same being riparian property, situated on the bank, or shore of a navigable watercourse; while that of the defendant is, that it has an absolute right of ownership in said strip of land.”

The opinion makes an extract from the city ordinance making the grant to defendant’s predecessor, which conferred only “the right to occupy and use a strip of ground one hundred feet in width, along the-river front” — -same being one hundred and twenty feet distant from Commerce street.

It further states, that “it was under and in pursuance of that ordinance, that the predecessor and assignor of the defendant got into position as a railway company in the city of Shreveport, and built and' now maintains, and operates its railroad * * * and to that ordinance we must look in order to ascertain the full measure of its rights to the locus in quo.”

It is to this state of the case, that the quotation from the ordinance-which counsel object to, was appliéd.

And, predicated upon that quotation, our opinion says:

“Hence the city council had a perfectly unquestioned and unquestionable right to grant to plaintiff a right of way for its railroad track over its reservation, as it was twelve feet distant from the main Cotton-Belt track on one side, and three fe.et from the outside limit of the reservation (of the defendant) on the other side.”

Again:

“On this presentation of the facts of the ease, the question for-decision is, whether the jury properly awarded to the plaintiff three feet of clearance space for the passage of its trains; same being rendered necessary from the fact that only three feet of space was allotted to it, between the centre of its right of way and the defendant’s reservation — an insufficiency of room for the operation of its trains, though there was plenty of space for the construction of its track thereon.

“Indeed, there remained six inches of space outside of the outer rail of its track which ivas not covered by it; but, as stated by counsel, the coaches and box cars would, in transit, lap over, or extend beyond the track so that ihree_ additional feet of space were necessary for their operation.

“In the first place we think it sufficiently appears from the original grant, that the defendant’s predecessors did not acquire any fee in the strip of ground one hundred feet in width in front of the reservation of the city. It is, also, apparent that the city ordinance, in terms, excluded them from any use or enjoyment of the city’s one hundred and twenty feet reservation. All of this property was, and is, batture, and is so mentioned throughout these dealings and transactions.”

Then follows the paragraph to which counsel made objection, viz.:

“There is no limit fixed in the ordinance for the duration of the grant, but it, in terms, declares its revocability at the pleasure of the council.

“From the foregoing premise it is easily deducible that, in so far as the plaintiff’s franchise from the city to establish tracks, impinges upon the defendant’s grant, the latter ordinance was an implied repeal of the former one.”

It is this statement of the opinion, and conclusion of the court, which defendant’s counsel regard as an assault upon the defendant’s franchise, and the correctness of which they deny.

Taken in connection with the quotations that preceded it, it is evident that the objectionable paragraph does not affect the opinion, though it might, in the future, affect the plaintiff’s franchise.

The entire reservation of the defendant of one hundred feet in width is alluvion, and, at the date of the city ordinance which granted it to the predecessors of the defendant, it was a portion of the bank of Red River, a navigable watercourse.

Some years after the defendant’s acquisition of it, same was raised, or filled in by the defendant, and thereupon its ouside track was built. The inside or western limit of this reservation was one hundred and twenty feet distant from the outside curb of Commerce street, which runs parallel with the river.

It is this strip of three feet of the defendant’s reservation, which adjoins the city’s reservation, that is in controversy.

The city granted to the plaintiff a right of way upon -¿is reservation of one hundred and twenty feet, and within three feet of the defendant’s reservation. There being upon this right of way an insufficiency of space for the plaintiff to operate its cars, it seeks to expropriate the additional space required. Its petition demanded six feet in width, and the jury allowed only three.

Evidently recognizing' the fact that the strip of ground upon which it granted defendant’s predecessors a franchise was a portion of the river bank, the city did not donate the soil or land in fee simple, but conferred upon it only “the right to occupy and use a strip of ground one hundred feet in width along the river front.”

It was, evidently, upon this theory that plaintiff sought an expropriation thereof; and it was, confessedly, upon the theory that it had filled in and raised the height of the river bank that the defendant demanded and was allowed a large sum in damages.

In view of this state of the case, it was quite an unimportant factor in the decision of the same whether the original grant was revocable or irrevocable; or whether or not the city ordinance which granted a franchise to the plaintiff operated as an implied repeal of the prior ordinance which granted a franchise to the defendant’s predecessors.

For if same was an irrevocable grant to the defendant’s predecessors, and it has been of the fee instead of the use, it was in the sense of the opinion, and, in our conception, liable to expropriation by the plaintiff as a locus publicus.

The statement in the opinion with regard to the revocability of the defendant’s grant, and it having been impliedly recalled by the grant in favor of the plaintiff subsequently, was merely argumentative, and only intended to more clearly demonstrate the untenability of defendant’s contention.

In this view let -us consider the amended and supplemental ordinance to which our attention is now attracted, and its scope and purpose, in connection with the defendant’s original grant.

The latter is of the following purport, viz.:

“Section 1. Be it enacted by the City Council of the City of Shreveport * * * that the right of way, with the privilege of laying one or more tracks thereon, * * * be and the same are granted to the Shreveport and Arkansas Railroad Company, its successors and assigns. * * * The said railway company being hereby granted the right to occupy and use a strip of ground one hundred feet in width along the river front, etc.

* * * * -x- * -x- *

“Section 6. Be it further ordained, etc., that the city reserves the right to alter, amend, restrict, or enlarge, the conditions, etc., etc.”

This ordinance is dated and signed as a completed ordinance. Transcript, pp. 33 to 36. It was offered and filed in evidence on behalf of the plaintiff. In a different part of the transcript the same .ordinance again appears as part of the defendant’s evidence. Transcript, pp. 40 to 43.

Upon this latter page there is what appears to be an amendment to the original ordinance. The original ordinance was adopted on December 30, 1887, and the amendment was adopted on the lith of May, 1888; but our attention was not particularly .attracted to this amendment until this application was filed.

The amendment, amongst other things, provides “that section six be and the same is hereby amended by striking out the 'first portion of said section, etc;” that is to say, that portion which relates to the reservation of the city, “to alter, amend,” etc.

The gist of this amendment is not readily apparent, and upon casual observation would not be seen; but giving to it its full effect, it does not impair, in any sense, the force or logical consequences of our opinion — as has been sufficiently explained.

But, as defendant’s counsel have explained, the error of statement, though inadvertently made, might, in the future, most seriously affect and impair the defendant’s franchise, we will make the proper correction so as to give full force and effect to the amended ordinance; but in so doing we will not disturb our conclusions in other respects, nor the force and effect of our decree.

On Rehearing.

Breaux, J.

Defendant insists that the ground plaintiff seeks to expropriate is a part of its (defendant’s) tracks and terminals, and indispensable in its operation, and to the handling of its .freight ■traffic in the City of Shreveport. That the space lies between the tracks of its company, and is part of a track filled in and gravelled by it at great expense for the accommodation of the business of the road, and delivery of its freight; that the space is in its actual use; that there is no necessity for the expropriation.

Defendant, in the application, also complains of a passage in our opinion in regard to a right expressly reserved by the City of Shreveport “to alter, amend, restrict, or enlarge, the grant,” made by it, the city, to the defendant; again, to the statement in the opinion: “there is no limit fixed in the ordinance for the duration of the grant, but it, in terms, declares its revocability at the pleasure of the council.”

The original ordinance of the City Council, as first adopted, was introduced without amendment which forms part of it, and which struck out entirely the clause authorizing the council to alter and amend the grant at its pleasure.

It is a fact, as contended by defendants, that the ordinance, with the amendment, shows that the City Council made the grant without any reservation whatever, and that without reservation it was accepted by the defendant company.

It also appears that the City of Shreveport has never repealed, or in any way restricted the Cotton Belt Grant, and that the ordinance under which the plaintiff company held contains a statement that the grant to it was not intended to effect the Cotton Belt Grant.

The space on which the right of way granted by the city fco plaintiff to lay its track on Commerce street was not sufficiently wide to accommodate the track, therefore the needi of additional space sued for under the laws authorizing expropriation. The trouble all arose in the matter of the expropriation, with which the city of Shreveport has naught to do.

We do not find it possible to agree further with the position taken by defendant in this application for a rehearing.

As to the first ground stated, that the space of three feet which plaintiff seeks to expropriate is indispensible to the running operation of defendant’s road, we do not take it that plaintiff has the right of the use of way in such a manner as to wantonly cause loss or damage to defendant.

These companies will have to manage to run over the short space, and. manage their freight there with as little inconvenieee as possmie to one another. We take it that in handling freight from one road to the other, there should bo but little, if any, impediment.

The defendant has argued that a right of way should not be needlessly interfered with by another right of way. Ey exercising some of the regard good neighbors usually manifest toward one another, these railroads, we believe, can. manage to get along very well, and not inflict injury on each other’s interest. Railroads, as with all other interests, are subject to regulations.

It is true, as contended by defendant, that these three feet allowed were filled in and graveled by it at considerable expense.

We thought, and still think, as did the jury in this case, that three thousand dollars was compensation enough for this work, provided the use was exercised with due regard to the rights of the defendant's road,

With reference to the delivery of freight, and the communication, between the two roads in the matter of freight, we do not take it that there should be any interference further than must unavoidably arise from passirig trains of plaintiff company.

We do not think there is any necessity to discuss the question growing out of the right of the batture, further than to state that in our view of the case, it was in charge of the municipality.

While we have no reason to change the rules of property under which it was decided, in a number of jurisdictions, that property in use by a railroad company can not be expropriated by another railroad company without legislative direction, we can not be unmindful of the fact that in a number of cases it has been held that even part of • the yard of defendant’s railway may be taken under general grant of the power of eminent domain. Elliott on Railroads, Sec. 1121, citing a number of decisions.

We are informed that the right of way was essential to the construction of plaintiff’s railroad, and plaintiff urges that, having the amount assessed, it is reasonable and just to let plaintiff have the use for its passing trains.

Plaintiff avers that its rail lacks six inches of touching on defendant’s “reservation;” that in running plaintiff’s car or train over its (plaintiff’s) track, the body of the oar or train extends over and shadows the reservation about a foot, and the other two feet are claimed by plaintiff as indispensable for “clearance.” The three feet expropriated are never to be used save to the extent just stated, and that, as we take it, for the purpose of passing trains only, and none other. The foregoing, we think, is sustained by the testimony.

The purpose involved, in the principle that one railroad company shall not expropriate the property of another, save for crossings and similar objects, is to prevent one railroad from absorbing, destroying, or injuring another. In the present ease, we have not discovered that the mere passing (over the short distance expropriated) of plaintiff’s-road will have that effect. As we take it the appointed work of the-defendant road can be carried on at this place without damaging-interruption.

In the light of the evidence before us, we think it proper to sustain our original opinion.

We have not discovered, after a painstaking review of the testimony, that the decree would, to any degree, with i5e modification, here made, impair defendant’s franchise.

It is therefore ordered, adjudged and decreed, that plaintiff’s rail shall not be laid nearer than six inches to the defendant’s reservation, and that in running over the track the body of plaintiff’s cars, or trains, shall not top over or trench on defendant’s “reservation” more than about one foot, and that the remaining space of two feet shall be plaintiff’s clearance for its ears or trains, and that this right shall be used only for passing and crossing trains.

With this modification, we, for reasons assigned, re-adopt our original opinion and decree as the decree of the court; that is, as in-our original de'cree, the judgment of the lower court is affirmed.

Rehearing refused.

Mr. Justice Blanchard takes no part in the decision of this ease..


source: Caselaw Access Project

author: Blanchard, J.

license: Public Domain

text:
    No. 13,040.
    State ex rel. James Jackson et al. vs. Isidore Newman, Sr., et als.
    Syllabus.
    1. The N. O. Gas Light Co. can exercise only such powers as were conferred by^legislatlve grant upon the Crescent City Gas Light Company, of which it is the successor, either by express terms, or by necessary implication.
    2. Implied powers in corporations are presumed to exist only to the extent that may be necessary to enable such bodies to carry out tbe express powers granted, and to accomplish the purpose of their creation.
    S. An incidental power may be defined to be one that is directly and immediately appropriate to the execution of the specific power granted, and not one that has merely some slight or remote relation to it.
    4. While, under some circumstances, one corporation may not unlawfully acquire holdings of stock in another corporation, such holdings do not partake of the. fullness of perfect ownership. They rather come under the head of what the Code (Art. 422) describes as “imperfect ownership.”
    5. Thus, when under circumstances tolerating it, a corporation, not possessing the express or necessarily implied power to do so, acquires stock in another corporation, it may collect dividends on, and sell or dispose of such stock, and yet not have the power to vote it at elections for officials to govern and manage the affairs of the other corporation.
    6. For one corporation- to take possession and manage the affairs of another .corporation is, in effect, equivalent to engaging in a business other than ( that authorized by its charter, and this is in contravention of the public policy of the State as established in its fundamental law, and void.
    APPEAL from tbe Civil District Court for tbe Parish of Orleans. —Monroe, J.

      Bucle, Walshe & Buck, Fra/nk N. Butler, and Frank N. Butler, Jr., for Plaintiffs and Appellants.

      E. Howard McGaleb, Fenner, Henderson & Fenner for Defendants, Appellees.
    Argued and submitted January 24, 1899.
    Opinion handed down March 20, 1899.
   'The opinion of tbe court was delivered by

Blanchard, J.

An election for directors of tbe Jefferson City Gas.light Co. was held November 7, 1898.

Tbe Board of Directors of that corporation is composed of five persons, elected annually by tbe stockholders.

• '.The election is by ballot and is conducted or presided over by three inspectors or commissioners of election chosen for tbe purpose.

There were two tickets in tbe field for directors, one headed by James Jackson, tbe other by Isidore Newman, Sr.

Tbe Newman ticket was returned elected by tbe inspectors.

Whereupon James Jackson and those running on tbe ticket with him instituted this proceeding by quo warranto to inquire into said «lection and to contest the authority by which Newman and his associates, returned elected, claim the office of directors aforesaid.

Jefferson Oity was once an independent municipality. Later it became merged into the city of New Orleans and now forms part of the latter city.

When it was an independent municipality, the Jefferson Oity Gas Light Company was organized, first by notarial charter, afterwards by legislative enactment confirming the grants made to the company by the mayor and council of Jefferson Oity.

The time of the expiration of this charter is a subject of contention —relators claiming it expires March 9, 1899; respondents that it expires April 15, 1900.

But this is not a direct issue in the present controversy, and it is, ■therefore, not necessary to pass upon it.

The New Orleans Gas Light Oo. and another corporation known as the Orescent Oity Gas Light Oo. were organized under legislative ■charters.

The former was granted the exclusive privilege of making and vending gas in the city of New Orleans from the date of its incorporation in 1833, until April 1,1875, and the latter was granted the same privilege for fifty years from the date of expiration of the charter of the first named company.

. In 1870, when the legislative charter of the Crescent Oity Gas Light "Oo. was granted, the Oity of Jefferson had not yet become a part of the municipality of New Orleans.-

When, later, it and other suburban towns were merged into the city of New Orleans an act was passed by the General Assembly of the State, amending the charter of the Crescent City Company, by which it was declared that the “Oity of New Orleans,” as used in the original charter, should be deemed “to include all parts of the present City of New Orleans, and any additions which may at any time be made thereto,” but that it was not the intention of the act to conflict with the existing charter of the Jefferson Oity Gas Light Oo. In other words, while the franchise privilege of the Orescent City Gas Light Oo. was extended to cover that portion of the city of New Orleans formerly known as Jefferson -City, such privilege was- hot to attach until the charter rights of the Jefferson City Gas Light Oo. had expired, or some action was otherwise taken in respect thereto by the two corporations, satisfactory to both, fulfilling the injunction of the law to avoid a conflict with the rights claimed by the Jefferson. City GasLight Co. under its charter.

In 1875, just prior to the expiration of the charter of the old New Orleans Gas Light Co., that corporation and the Crescent City Gas Light Company, under authority of law, effected a consolidation by which the two companies, with all their rights, privileges, property, etc., became merged into one, thereafter to be known as the New Orleans Gas Light Co.

In 1882 this company purchased, and has since held, 1506 out of the 3000 shares representing the capital stock of the Jefferson City Gas Light Co. This was a majority of the stock of the latter company.

Of the 1506 shares so purchased, 1491 shares have been and are carried on the books of the Jefferson City Gas Light Co. in the name of the New Orleans Gas Light Co., ten shares in the name of A. II. Sieward, and' five in the name of R. M. O’Brien.

Sieward and O’Brien have been for years past and are now president and vice-president, respectively, of the N. O. Gas Light Co.

It appears that the right of the N. O. Gas Light Co. to hold -and to vote the stock of the Jefferson City Gas Light Co., purchased by it as aforesaid, has not heretofore been challenged.

Accordingly, this stock has been voted at recurring elections for directors in the Jefferson City Gas Light Co., and Sieward and O’Brien, with James Jackson, F. O. Lorenzin and W. A. Lorenzin, have been repeatedly chosen as the Board of Directors of said company, and were the incumbent board at the time the election took place over which the present controversy arose.

So that,, as holders of the majority of stock in the Jefferson City Gas Light Co., the N. O. Gas Light Co. has exercised a controlling voice and influence in the affairs and in the management of the former company.

When, however, the election for directors in November last came on, certain of the minority stockholders filed with the officials named to conduct the election a protest against permitting the N. O. Gas Light Co. to vote the stock held by it, and demanded that the inspectors-refuse and reject the vote when tendered.

The ground of the protest was that the N. O. Gas Light Co. is without legal right or standing to vote the stock held by it, or to exercise any act of ownership in respect thereof.

Sieward, president of the N. 0. Gas Light Co., appeared and tendered the vote of the 1491 shares of stock held by his company. It was offered to be cast for relators herein. The inspectors, acting on the protest referred to, declined to receive it. Had this vote been recieved and counted it would have elected relators directors of the Jefferson City Gas Light Co. for the ensuing term. Without it, the result of the election, as tabulated and returned by the inspectors, showed the election of Newman and others, respondents herein.

The president of the N. 0. Gas Light Oo., duly protested against the action of the inspectors in declining to receive the vote he .tendered.

If the N. O. Gas Light Oo. had the legal right to vote its stock, 'then must the vote tendered by its president be considered as cast, and relators held entitled to be recognized as the Board of Directors of the Jefferson City Gas Light Co.

If it did not have the legal right to vote its said stock, then must this proceeding by quo warranto fall, with the resultant effect, impliedly, of recognizing respondents as the true and lawful Board of Directors of the Jefferson City Co.

Whatever authority the present N. 0. Gas Light Co. possesses, in respect of its rights to acquire and hold personal and real property, is derived from the charter granted by the State to the Crescent City Gas Light Co., of which, as we have seen, it is the assignee and successor.

It may exercise only such powers as were conferred by the legislative grant upon the Crescent City Gas Light Co., either in express terms, or by necessary implication. Implied powers in corporations are presumed to exist only to- the extent that may be necessary to enable such bodies to carry out the express powers granted, and to accomplish the purpose of their creation. And an incidental power may be defined to be one that is directly and immediately appropriate to the execution of the specific power granted, and not one that has merely some slight or remote relation to it. The People ex rel Peabody vs. Chicago Gas Trust Co., 130 Ill., 268.

But in the view we take of the case, it is not necessary to pass directly on the question whether or not the N. O. Gas Light Co. could legally acquire, and may lawfully hold, stock in the Jefferson City Gas Light Co,

Conceding that under some circumstances one corporation may not unlawfully acquire holdings of stock in 'another corporation, such holdings, we think, do not partake of the fullness of perfect ownership as defined by the Civil Code (Art. 491) giving “the right to use, to enjoy and to dispose of * * * in the most unlimited manner.”

They rather come under the head of what the Code (Art. 492) describes as “imperfect ownership,” which only gives the right of enjoying and disposing of property when it can be done without injuring the rights of others.

For instance, when under circumstances tolerating it, a corporation, not possessing the express or necessarily implied power to do so, acquires stock in another corporation, it may collect dividends on the same and may at will dispose of it, and yet not have the power to vote the stock at elections for officials to govern and manage the affairs of the other corporation. ,

This is sustained by both reason and authority and founded in the public policy of the State.

If a corporation, like the N. O. Gas Light Co., formed to manufacture and sell gas within certain limits of the city of New Orleans, is-permitted to acquire a controlling interest in the stock of another gas company authorized to make and sell gas in another part of the city, and by such controlling interest to practically take possession and manage the affairs of such other corporation, it, in effect, is equivalent to engaging in a business other than that authorized in its charter,, and this is in direct violation of the fundamental law. Constitution 1879, Art. 237; Constitution 1898, Art. 265.

The public policy of a State is manifested by its fundamental law,, or by legislation enacted in pursuance thereof, and that it is the duty of the judiciary to refuse to sustain that which is against public policy is beyond cavil.

In Milbank vs. N. Y., Lake Erie & Western R. R. Co., 64 Howard Practice Reports, 20, it was held by the Supreme Court of New York that though a railroad corporation may take title to all kinds of personal property, including stock of other railroad corporations, to secure debts due it, the investment by a railroad' company of its corporate funds in the purchase of the stock of another corporation is not necessary in the exercise of any of its corporate powers, is unauthorized, in violation of the statute, and, consequently, ultra vires. Further, that while a railroad corporation remains the owner of the stock of another corporation it may collect and receive dividends thereon,. and has the right to sell and dispose of the same, it has no right to-vote thereon.

To the same effect is the ruling of the Supreme Court of Alabama in Memphis & Charleston R. R. Co. vs. Woods, 88 Ala. 631.

See also Central R. R. Co. vs. Collins, 40 Ga. 582; Hazelhurst vs. Savannah G. & N. R. R. Co., 43 Ga. 13; and 130 Ill. 268.

The conclusion reached is that the N. 0. Gas Light Co. could not legally vote the shares of stock in the Jefferson City Gas Light Go., owned and held by it, either in its own name or in the names of other persons, at the election held for directors on the Jth day of November last, and not having such legal right it is without just cause of com* plaint that its Vote was not received and counted. Had it been received and counted, and a different result as to the choice of directors had, the minority stockholders, protesting against its vote, would have had a legal cause of action in the courts to contest the same, and avoid the election thereby brought about. And so the final result would be' the same.

We have given consideration to the contention of relators that because the N. 0. Gas Light Co. has been permitted to vote the stock held by it in past years, the other stockholders of the Jefferson City Gas Light Co. are estopped from now denying its right to vote. But we cannot give our assent to this doctrine as thus broadly insisted on.

It is public policy crystalized into law which denies it the right to vote, and what is against the law cannot, in such a case as this, bé legalized by acquiescence. Estoppels are not favored. Besides, there may have been no particular reason in the past for the minority stock* holders to object to the vote, whereas at the recent election, when the expiration of the charter of the Jefferson City Gas Light Co.' dre\V near and á liquidation of its affairs, perhaps, necessary, there maj> have been the best of reasons for objecting to the N. O. Gas Light Co. electing a Board of Directors of its own choosing, especially so in view of the fact that it claims the right of succession to make* and vend gas in that part of - the city, and was likely to become a bidder1 for the property and effects of the outgoing company.

That conflicts of interest, in view of this, between the companies, are likely to arise, is not difficult to foresee, and to contend that aBoard of Directors chosen by the succeeding company, especially that part of the board invested with important holdings and powers of administration in the superceding corporation, will be altogether impartial and unbiased in respect to the matters and things over which the clash of interest arises, or may arise, is to expect a little too much - of average human nature.

So, the law wisely removes the temptation.

Because, after the expiration of the charter of the Jefferson City Gas Light Co., the N. O. Gas Light Co. claims the right, under the act of the Legislature, to make and vend gas in that part of the city of New Orleans, that fact cannot be held to vest the latter company with authority not theretofore possessed with regard to acquiring and voting the stock of the former corporation and thus controlling its affairs.

Nor do we think that the question of the right of these two gas companies to consolidate, and, as incidental to that right, the question of the authority of the one to acquire the stock of the other with which it is proposed to consolidate, arise in this case. There is no pretensé that any such purpose was in view.

The judgment of the court below was in favor of respondents and the same is affirmed.

Mr. Justice Breaux concurs in the decree.


text:
    No. 12,966.
    Laurent Lacassagne vs. H. Abraham & Son, et al.
    Syllabus.

      1. A mortgagee in good faitli, accepting his mortgage on the faith of a recorded title, based on a conveyance made by a husband as head and master of the community, is not affected by the fraud imputed to the husband with respect to his wife.
    2. Such a mortgage is not within the prohibition of alienation of property, prescribed by the Code, pending suit for recovery of the property — the mortgagee being no party to such suit.
    3. A mortgage is, in the purview of the law, a quasi-alienation; the seizure and sale of the property under it the exercise of the remedy and the consequence of the mortgage.
    APPEAL from the- Seventeenth Judicial District Court for the Parish of Vermillion. — Bonrges, J. ad hoc.

      W. 8. Benedict and Don Oaffery & Son for Plaintiff and Appellant.
    IF. A. White, Dinhelspiel & Hart, for Abraham & Son, Defendants and Appellees.

      II. S. Suthon, Albert Voorhies and W. J. Fermento, for Widow • J. O. óavé Cavailhez, etc., and Widow 0. F. Remick, Defendants, Appellees.
    Argued and submitted December 23, 1898.
    Opinion handed down March 20, 1899.
   The opinion of the court was prepared in greater part by Mr. Jusj tick Miller prior to his decease; acted on and adopted as the judgment of the court after his decease.

Completed and handed down by

Blanchard, J.

This is an appeal by plaintiff from the judgment dissolving the injunction- obtained by him to prevent the seizure and sale of a plantation of which he claims to be the owner, under a judgment of one of the defendants against another defendant, F. Chapuis.

The facts of this complicated litigation are: J. B. Cavailhez, a Frenchman, acquired the plantation, the subject of controversy, in 1869; he and his reputed wife made a donation of the property to their daughter; the donation not proving effective for some cause not material to this discussion, was followed, by a sale to Remick, the husband of the daughter; Cavailhez, his reputed wife and their son-in-law, Remick, subsequently died, and at the sale of the property of the latter’s succession his widow, Marcelino Remick, acquired the property.

All these titles were duly recorded.

On the faith of her title, Mrs. Remick, in 1883, obtained a loan, and to secure its payment mortgaged the property to A. L. Maxwell.

Thereafter, Jeanne Caroline Cavé, claiming to have been married to J. B. Cavailhez in France in 1833, brought a suit in the United States Circuit Court for the Western District of Louisiana, alleging her marriage fifty years before; representing that the subsequent mar-riage of Cavailhez in Louisiana was void; asserted her title, as widow, to one-half of the property acquired by Cavailhez, including the plantation; and averred that he was indebted to her, and that she had a mortgage on the other half of the plantation to secure that indebtedness. The petition also attacked the donation by Cavailhez to his daughter and his sale to Remick as in fraud of her rights as his wife.

The judgment of the Circuit Court, rendered in January, 1886, decreed the petitioner to be the lawful wife of J. B. Cavailhez, annulled the donation by him, as well as his sale to Remick, and recognized the wife’s rights to the full extent claimed in her petition.

This suit was directed only against 'Mrs. Remick, individually and as tutrix, the sole survivor of those the bill charged had combined and conspired to deprive the complainant of her rights as the wife of J. B. Cavailhez.

While this litigation of J. Caroline Cavé, alleging herself to be the widow of J. B. Cavailhez, was in progress, Maxwell, no party to the litigation, conceiving that his mortgage granted by the recorded owner before the widow Cavailhez made her appearance to set up her claims under the marriage in France of fifty years before, was wholly unaffected by that suit, instituted proceedings on his mortgage claim, seized and sold the property, he and Lacassagne becoming the purchasers thereof on the - August, 1885. They entered into possession. '

In April, 1886, Mrs. Cavé Cavailhez caused a writ of possession to issue on her judgment in'the United States Circuit Court, under which she sought to dispossess Lacassagne, he having become sole-owner by purchase of Maxwell’s interest. Whereupon Lacassagne filed a bill in the United States Circuit Court, and averring his-ownership and possession and that he was neither a party to, nor bound by a decree in the suit of Mrs. Cavé Cavailhez against Mrs. Remick, obtained a writ of injunction to restrain the execution of the-writ of possession.

The case found its way to the Supreme Court of the United State» and that tribunal held that the remedy of Lacassagne was at law, not in equity; and that if the mortgage was superior to the right of the Widow Cavailhez his remedy at law was ample.. The court, in its opinion, referred to the fact that his title had been acquired subsequent to the suit of the widow, and thought the article of our -Code1 avoiding alienations of property .pending suit for its recovery, applied. The bill was dismissed with full reservation to Lacassagne to enforce-his rights at law.

While this litigation was pending in the Supreme Court, the Widow Cavailhez died, and her will constituted F. Ohapuis her. executor and legatee. He mortgaged the property to Abraham & Son, under whose execution the property was about to be sold.

At this juncture, Lacassagne, remitted by the decree of the United States Supreme Court to the assertion of his rights at law, enjoined the salo under the execution of Ohapuis’ creditors, setting up his title to the property.

This is the suit now before us bn a second appeal, the first having been determined by us in 1896. 48 Ann., 1160.

On the previous appeal the defense pleaded was res judicata, based on the decree obtained in the suit of Widow Cavailhez against Mrs. Remiek. That defense, as well as the other aspects of the case argued,, received our attention. We held that the plea of res judicata, based on a decree in a suit to which Lacassagne was no party, could not be sustained as against him. The argument there took a wide range and asserted in its general effect that the mortgage granted by the recorded owner before the claims of the Widow Cavailhez were made known, could not be enforced by the seizure and sale of the property because of the suit of Mrs. Cavailhez to establish her rights as his widow based on the marriage in France in 1833.

But our decision maintained that the .mortgagee in good faith, acquiring his mortgage on the faith of the recorded title based on the-conveyance of J. B. Cavailhez, could not be affected by any fraud imputed to Cavailhez with respect to the wife it is claimed he-married in France before he came to Louisiana, and that the enforcement of such a mortgage, created prior to the suit of the widow, was-not within the inhibition of alienation of property pending suit for its recovery. Our decree, overruling the plea of res judicata, remanded' the case for trial on its merits.

On the second trial the defendants supplemented their pleadings by urging the exception of res judicata based on the decree of the-Supreme Court of the United States on the bill filed by Lacassagne to-enjoin the writ of possession issued in the suit of the Widow Cavailhez against Mrs. Remiek. 144 U. S., 119. On this- exception,, as well as on the merits, the lower court rendered judgment in defendant’s favor and the case is again before us on appeal. ■

The first inquiry is as to the right conferred by the mortgage of this property to Maxwell in 1883, as the plaintiff’s title is based on that mortgage, and the mortgage is based on the sale of the property in 1869 by J. B. Cavailhez. He was the “head and master,” as our Code expresses it, of the community. Whether married in France before he came to Louisiana and contracted the marriage here, is unimportant in testing the effect of his sale of the property, involved in this controversy, in 1869. The power of disposition was his and the title made by him, and spread on the public records, gave validity to any subsequent sale or mortgage created on the faith of that title.

If the husband alienates the community property by any fraud to the injury of his wife the law gives to her an action against him and his heirs, but the sale by him is entirely valid as to third persons who in good faith have acquired rights on the faith of the title he spreads on the public records. It is a proposition we deem beyond reasonable controversy that the mortgage to Maxwell, based on the title to the vendee of J. B. Cavailhez, and which had stood unquestioned on the public records for fifteen years before Widow Cavailhez asserted her rights under the marriage contracted in France, was not assailable by her. This proposition is based on the protection accorded those who act on the faith of the public records, so often recognized by our •courts and of general recognition in every system of jurisprudence. It is bottomed upon the principle that the true owner, whoever he may be, is bound by the title he puts on the public records, so far as respects third persons bona jicLe, acquiring rights on the faith of that title.

If the mortgage granted in 1883 was securely protected by law and jurisprudence, it gave to the creditor the right to foreclose it. We can not conceive that this right, so essential to the creditor, could be taken away by a suit brought afterward by the wife asserting' her right to the community, subordinated, as are all her rights, to the power of the husband to mortgage or alienate the community property.

The mortgage creditor, exerting the remedy given him by the contract, seized and sold the property for his debt, and the title passing at the sale was completely vested in the plaintiff Lacassagne.

The contention is that the sale was void because the suit of the Widow Cavailhez was pending. Although the Maxwell mortgage was -of record when the suri? was brought she carefully abstained from making him a party. The argument seeks to apply the provision of our law which forbids alienations, pending a suit to recover property, to the prejudice of the plaintiff bringing the suit.

The article of the Code embodying this provision has clear application to cases of alienation pure and simple, not to the enforcement of rights created before the suit was brought. The mortgage created a right to seize and sell the property for the payment of the debt. Under our law the mortgage is a quasi alienation. The seizure and sale is the exercise of the remedy, and is the consequence of the mortgage. If, then, the mortgage is to be deemed an alienation, the title of the plaintiff is not within the scope of the provision forbidding alienations pending the suit, for the mortgage was granted before the suit.

There are expressions in the reasoning of the United States Supreme Court, which taken literally and severed from the ■context and decree, may seem to'give color to defendants’ pretensions as to the scope and effect of that decree. But the ground that the plaintiff’s remedy was at law disposed of the ease, and points to the decree as containing all that constitutes res judicata in any sense known to the law. That decree simply and only dismissed the bill with full reservation to plaintiff to enforce his rights at law.

Now, what right could he enforce? The mortgage had merged in the title. The Supreme Court could not have contemplated a suit on a mortgage changed into another right. To remit him to some supposed remedy on a mortgage exposed both to the defense of peremption and that of prescription would have been to substitute a mere shadow for the substance of Lacassagne’s right. The decree reserved his legal rights given him by the mortgage. Following that decree, when Laeassagne found the property seized under the execution of the creditor of Chapuis, the legatee of the Widow Cavailhez, he resorted to the remedy given him by our law. He asserted his title to the property attempted to be levied on as the property of another, and, in our view, adopted the only practicable method of exercising the right left to him by the Supreme Court.

Under the mortgage granted by the head of the community, clothed with full competency to grant it wholly irrespective of whether he had or had not married in France, the mortgage creditor had the right to seize and sell the property in whose hands so ever it might be without regard to any change of title by suit, alienation, descent, or any other .diode.

On what theory, then, are we to hold that the suit to establish the French marriage of Oavailhez denuded the mortgage of the right it-gave the creditor to seize and sell? To so hold would be to simply ■change our jurisprudence and overthrow a rule of property.

Nor do we appreciate that the Supreme Court of the United States in the decision now pleaded as res judicata and as effective and intended to destroy the creditor’s right to foreclose his mortgage, as sustaining any such contention. The case presented to that court was a bill in equity to restrain the execution of the writ of possession issued by Widow Oavailhez on her judgment against Marceline J)iaz, widow of C. H. Remick, deceased.

The plaintiff here, the complainant in that suit, averred his title and possession as the basis for the relief he sought. The court held the plaintiff’s remedy was at law, not in equity. We do not think the ■question of Laeassagne’s title was passed upon, or intended to be passed upon in that decision'. What the court declared and held was that, on the showing made, “a court of equity can not give the plaintiff any relief until he has established his title by an action at law.” 144 U. S., 124. And all his rights with respect to such action at law were reserved to him.

We hold the present suit to be such “action at law” as there contemplated, coupled with injunction to prevent the property being sold under execution for the debt of another alleged not to be the owner. The necessary parties are before the court to adjudicate the question of title raised, and that the suit involves the title is shown by the averments of the petition and by its prayer, which is that plaintiff be •decreed the owner of the property and sent into possession thereof.

On the issue thus presented we think the case is with the plaintiff) and that his claim of ownership must be sustained, and his right of possession enforced.

For the reasons assigned, it is ordered, adjudged and decreed that the judgment appealed from is avoided and reversed, and proceeding to render such judgment as should have been rendered in the first instance, it is now ordered and decreed that the estate of Laurent Lacassagne, deceased, represented by Marie L. Casey, as administratrix thereof, be and is recognized as the owner of the property described in the petition filed, and, as such, that she be sent into possession thereof, for which purpose a writ of possession is directed to issue.

It is further ordered, etc., that the injunction issued herein be sustained and perpetuated, and that the property he held free from any incumbrance placed upon the same by defendant, F. Ohapuis, or asserted against it by defendants, H. Abraham & Son.

It is further ordered, etc., that defendants pay all costs of both courts.

Mr. Justice Breaux dissents.

In this case the defendants obtained a writ of error from the Supreme Court of the United States, directed to the Supreme Court .of Louisiana.


author: Watkins, J.

text:
    No. 12,943.
    C. L. Shepard vs. City of New Orleans and Mrs. F. Ault.
    Syllabus.
    'The provision of the city charter that the council shall not grant any privilege for the opening of a barroom except upon the written consent of a majority of the bona fide house holders, or property holders, within three hundred feet of the place proposed for its establishment, means either one or the other, indifferently, and without distinction.
    A house holder is a person who occupies a house as a place of residence or business, without any relation to the character of the title by which the property is held.
    ON APPEAL from the Civil District Court for the Parish of Orleans. Monroe, J.

      Parkerson & Tobin for Plaintiff, Appellee.

      G. H. LaVillebeuvre, Assistant City Attorney, for City of New Orleans, Defendant, Appellant.

      Buck, Walshe & Buck for Mrs. F. Ault, Defendant, Appellee.
    Argued and submitted March 23, 1899.
    Opinion handed down April 3, 1899.
   The opinion of the court was delivered by

Watkins, J.

Alleging himself to be a citizen and tax-payer, residing at the corner of Toledano and Carondelet streets, in the city of Eew Orleans, the plaintiff avers that the defendant, Widow Ault, applied to the city council for permission to operate a barroom at the corner of the two aforesaid streets, and that said permission wasgi-anted her by the said council, by an ordinance which was passed over the veto of the mayor.

That said permission to operate said barroom “is contrary to law, in utter disregard of the rights of petitioner and the other residents of that neighborhood; and is a gross usurpation of authority on the part of the oily council.”

He represents, that a majority of those entitled to vote upon the question are opposed to the granting of said permit; and that the city council is without authority to grant it otherwise.

That a barroom at said corner is detrimental to the welfare of the neighborhood, and will work irreparable injury to him, as it will be a Joafing-plaee for disorderly persons, who, becoming intoxicated upon liquors sold on the premises, will disturb the peace and quiet of the residents, and render it unsafe, and even dangerous for the women and children.

That said locality is in the centre of the residential portion of the city, and the location of a barroom there is an outrage upon decency, and a wanton disregard of the rights of the reputable people who live there.

Alleging prospective damages at $2500.00 in the depreciation in the value of his property, as in the nature of an injury which is perpetual, petitioner prays that an injunction issue against the city of New Orleans, prohibiting it from promulgating said ordinance, and from issuing to the defendant, Mrs. Ault, the proposed permit; and enjoining and restraining Mrs. Ault from, opening or operating a barroom at said locality.

His prayer is for the maintenance and perpetuation of his injunction, and a decree pronouncing said ordinance illegal, null and void.

After pleading an exception of no cause of action, the defendant, Mrs. Ault, filed an answer, pleading the general issue, and prayed for the dissolution of the plaintiff’s injunction.

The city urged a like exception, and made a similar answer.

On the trial, there was judgment in favor of the plaintiff, maintaining and perpetuating'his injunction, as to both of the defendants; and from that judgment the city of New Orleans has alone appealed.

The following is, substantially, the statement of facts upon which-the suit was tried, viz.:

That Mrs. Ault petitioned the city council for a permit to open a-barroom at the locality specified, on the 17th of July, 1897; and that nineteen property owners signed her petition.

Subsequently, five of the signers withdrew their signatures, and-signed a protest against the allowance of the permit — thus reducing the number of signers to fourteen.

On the protest opposing the permit, were twelve property owners, and five tenants, making a total of seventeen.

The protestants have three hundred (300) feet more frontage than is prescribed by city ordinance regulating the matter.

An ordinance granting the permit was passed over the mayor’s veto, and contrary to the advice of the city attorney.

The mayor’s veto contains the statement, viz.:

“I do so on the opinion of the city attorney, that the prerequisites “to granting this privilege, have not been complied with; and, as the. “ law is clearly set forth in the accompanying documents.”

The city attorney’s statement is, that Mrs. Ault signed her own petition, and her signature was counted; and that Mr. Frank signed her petition as the owner of a piece of property which was occupied by Mr. - Graham as tenant, whereas, Mr. Graham signed the protest against it.

That Mr. Henry, who lives in Covington, and owns two houses in the neighborhood, signed the petition for the permit, whereas his two • tenants occupying the houses, signed the protest.

That the names of the two property owners were counted, whereas ■ the signatures of the other tenants were disregarded.

The opinion of the city attorney on this question, is as follows, viz.:

“My opinion is, that the votes of Mr. Graham and Mr. Henry’s ten- • ants should have been counted, and the votes of Mr. Frank and Mr. - Henry rejected.”

Section 21 of the city charter provides:

“That the council shall not grant any privileges for the opening of*' any barroom, saloon, concert-saloon, or dance-hall, except upon the-written consent of a majority of the bona fide house-holders, or,property-holders within three hundred (300) feet, measured along the street fronts, etc.”

In his opinion, which was introduced in evidence, (as well as- the foregoing section of the charter), he says:

“House-holders” — within the contemplation of that section — “are any persons who occupy houses for the purposes of residence or business, and have control of the inmates thereof.

“The nature of the title under which the occupant holds possession of the house is immaterial.”

Referring- to the phrase of the charter, “bona fide house-holders or property-holders,” he says:

“As it was clearly the intention of the legislature to give to a majority of th?. persons residing in said neighborhood, the right to prevent or permit the establishment of a barroom, they being the persons directly affected by such an establishment, the only reasonable construction to be put upon (that) section of the charter is, that the privileges for the opening of bar-rooms shall be preceded by a petition signed by a majority of the house-holders, and when there is vacant property, (then) by the owners of such vacant property.

“It was certainly never contemplated that a non-resident property-'holder owning all, or a greater part of the property in a neighborhood where it is proposed to locate a barroom, should have the right to allow the location of a barroom, even if its establishment was opposed by all of the house-holders, who, alone, would be subject to the annoy.ance and damage the barroom might cause.”

In his letter to the city engineer requesting an interpretation of the word “house-holder,” the city attorney said:

“I beg leave to say, that in my opinion, a house-holder is any person “ who occupies a house for the purpose of residence, or business, and “has control cf the inmates thereof. The nature of the title under “ which he holds possession of the house is immaterial.”

It is admitted, per contra, that the city council by Ordinance No. 12,636, O. S., put a different construction upon that section (21) of -■the charter.

The provision of that ordinance is as follows, viz.:

'“That, hereafter, it shall not be' lawful for any one to set up or “establish a barroom, saloon, concert-saloon, dance-hall, beer-house, “ or place where liquors are sold * * * without permission of the “ council previously applied for in writing, which shall be aceompan“pied by a written consent of a majority of the bona fide property- holders along the street fronts, etc.”

That ordinance bears date of passage, September 3rd, 1896, subsequent to the enactment of the city charter; and the conspicuous feature of its phraseology is, that the word house-holder is completely -eliminated therefrom, ex industria.

The only legitimate inference to be drawn therefrom is, that, in the opinion of the council, house-holder and property-holder possessed the same identical meaning, or signification; but that interpretation can not be correct, because the owner of property unimproved could not, in any sense, be termed a house-holder.

Counsel for Mrs. Ault does not agree with either the city attorney or the city council with regard to the interpretation to be placed upon the aforesaid phrase of the city charter. He says in his brief, viz.:

“And when we consider that after all, this statute is a ‘regulation;’ “ that the right to carry on a barroom or similar business in the ab- “ sence of restrictive legislation, is as absolute as the right to do any “ other business, this interpretation becomes reasonable, because the ■“ lawmaker may have it in mind to ask only a certain moral condition “ that would justify the council in granting the privilege, and it may “ well have considered that such privilege to do what otherwise a man “ might naturally do, might well be primarily accorded when a ma- “ jority in number of either householders or owners of property within “ a certain limit recommend the person as a fit one to be permitted to 11 carry on such business and consent to the establishment of the bus- “ iness itself.”

It is, in our opinion, quite a conspicuous fact that the term “owner” was omitted from the statute, and in its stead the terms “householder,” and "property-holder” were employed.

The owner of unimproved real property is, in a certain sense, a property-holder; and a tenant by the month or year is a house-holder.

Webster speaks of the word “or” as indicating an “alternative gen- “ erally corresponding to either, as ‘either this or that;’ that is to say, “ either cne thing or another thing.”

Applying this rule to the. phrase in question, we will have it read thus, viz.:

“Either house-holder, or property-holder.”

That is to say, either one or the other, indifferently.

On this hypothesis, either one could sign the petition or protest, without distinction, and the name of either must be accepted and considered as equally efficacious.

Rut, it does not possess the significance of allowing both to sign, -either petition or protest; either one or both. Everything-'else being equal, the preference of right should be given to the house-holder, as-being the party most interested; and particularly when the property-holder is an absentee. And indeed some significance should be attributed to the fact that the word house-holder is the first one mentioned in the statute. On this interpretation of the city charter, protestants were in the majority, and the petition of Mrs. Ault was defeated.

Judgment affirmed.

Mr. Justice Monroe having decided this case in the lower court, takes no part on the trial of the case on appeal.