author: Breaux, J.

text:
    No. 10,899.
    Abraham Oldstein vs. Firemen’s Building Association et al.
    Merely building- a wall by one of two adjacent owners and placing tlae same in equal proportions on each lot does not make ic a party wall in absence of agreement to that effect.
    The owner of the lot adjacent has no right to have the windows in the wall closed before he makes it a wall in common.
    Servitude of light and' of air through windows in a wall can not be acquired by prescription against the owner of the lot adjacent unless he is able to assert the right to have them closed.
    The owner of the adjacent lot — that on which the servitude is claimed — has the right to use, to enjoy and to dispose of his property.
    He who buiids either above or below his soil, adjacent to his neighbor’s property, must build in a perpendicular line.
    He may build as high as he pleases, although it may occasion inconvenience, pro vided the building does not cause damage.
    Damages must be proven to enable a private individual to invoke the benefit of city ordinance and prevent moving of wooden buildings within certain limits. Inconvenience, although great, will not suffice.
    APPEAL from the Oivil District Court for the Parish of Orleans. King, J.

      Moise & Calm for Plaintiff and Appellee:
    1. A defendant pleading, his acts were rightfully done, as owner, will be held bound by the plea and can not deny ownership to avoid the responsibilities of an owner.
    2. Where defendant’s acts were such as an owne2* only could do, his plea they were done as owner is reinforced and he will not be permitted to ask a court to hold him as a trespasser.

      The defendant used the wall as a side for his house and in lieu of weatherboarding. He nailed his studdings to it.
    (a)Only an owner has the right to use and enjoy. R. C. O. 491.
    (&) Only an owner could do as defendant did. Lepage-Lois des Batiments, Sec. 160, fo. 48. Same author, No. 175, p. 47. Rogron, Art. 674; Dalloz, Vol. 80, p. 200.
    Defendant plead his acts were acts of ownership.
    (а) His acts could only have been the acts of an owner.
    (б) He is estopped from denying the wall was one in common.
    General Conclusion. — The wall is a wall in common owned in indivisión by both adjoining proprietors.
    5. A division wall built half on each side of two lots of ground owned by different owners is presumptively owned in indivisión by the owners of the lots.
    (а) Because the constructions on a man’s land are presumed to be his. R. O. C. 506.
    (б) Because it is presumed his antecedent vendors paid their share of the expense of erecting it.
    General Conclusion. — The wall is a common wall owned in indivisión by plaintiff and defendant.
    6. Windows, etc., are urban servitudes. R. C. C. 712.
    (a) View includes every opening which may facilitate looking out of a building. R. C. O. 715.
    (b) Lights are openings made for admission of light. R. C.- C. 715.
    (aa) View is a servitude which confers the right of preventing a neighbor from raising any buildings to obstruct it. R. C. C. 716.

      (bb) Light is a servitude which confers the right of preventing a neighbor from raising any construction to obstruct it. R. C. O. 717.
    7. Windows, etc. (view and light), are continous servitudes. R. C. O. 727.
    8. Windows, etc., are apparent servitudes. R. C. C. 728.
    General Conclusion. — By the code and by the jurisprudence (5 R, 16, 85 An. 469, 15 An. 816, 18 An. 289) the servitudes we claim are urban, continuous and apparent.
    9. Continuous and apparent servitudes (those claimed by plaintiff) may be acquired by possession of ten years. R. O. C 765.
    (a) Possession for over forty is shown by plaintiff’s witnesses'.
    (&) Possession for over ten is shown by defendant’s witnesses.
    10. Servitudes (continuous, apparent) may be acquired by immemorial possession.
    (а) The code (R. O. O. 766) mentions such servitudes as can not be acquired by immemorial possession.
    (fc) They are the same servitudes which can not be acquired by prescription.
    (c) The servitudes claimed in the case at bar (continuous, apparent) are not mentioned as unacquirable by immemorial possession.
    (c?) The servitudes claimed by plaintiff (continuous, apparent) are acquirable by prescription.
    General Conclusion. — The servitudes claimed by plaintiff (continuous, apparent) are acquirable by immemorial possession.
    (&) Statutory prescription gives title through possession by the lapse of time
    (б) Immemorial possession gives title by a presumption of lawfulness of the original possession. Domat, Vol. 1, Secs. 2185-2187.

      (c) In the absence of evidence; to the contrai*y the whole wall, with its openings, etc., is presumed to have been constructed by both neighbors at their joint expense. Weil vs. Baker, 39 An. 1102.
    (¿Z) That which has existed (a wall with windows, etc.) for a period of time to which the memory of the present generation [can not reach should be maintained and confirmed. Goudsmit Roman Law, Sec. 81; Lawson Pro. Ev. Rule 86, p. 403.
    General Conclusion. — -The servitudes should be maintained and confirmed.
    1. Definition. By “Commonalty” we mean the “ mitoynneté” of the French law,
    2. A demand for the recognition and enforcement of a servitude of light, said to havebeen acquired by prescription, through windows in a wall alleged to have been common for thirty years, and a demand for half the value of that wall, are inconsistent, and petitioner is rightfully compelled to elect
    3. The allegation of commonalty negatives the exclusive ownei’ship involved in the demand for half its value. The rights of servitude and ownership cannot coexist as to the same thing. R. C. 0.783, 648, 649.
    4. Art. 677, R. C. C., providing for the presumption of commonalty as to walls separating buildings “ as high as the upper part of the first story,” is a mistranslation of the French text. The latter provides that the wall is presumed common, Jusqu’a l’héberge, which means, up to the roof, covering, or first point of separation. Littré verbo “ heberge.” Rogron, Art. 653, verbo “1’he-berge,” notes; Dictionaire de L’Academie Francaise, verbo “heberge;” Dalloz, Art. 653; Flemming & Tibbins’ Fr. and Eng. Die., verbo “ Heberge.”
    5. Thepresumption established by Art 677 (C. N. 653) is to be strictly construed, A wall is presumed common when it separates buildings. If it separates a building from a vacant lot, it is not so presumed. There is no presumption of co-ownership in the proprietor of the vacant lot. He is not presumed to have contributed one-half the cost of constructing a wall from which he derives no benefit. In the absence of marks oí commonalty, the wall is presumed to belong to the owner whose building it supports. Is fecit cuiprodest. Demolombe, Cours de Code Civil, Vol. II, Arts. 314-323, pp. 346-357; Zacharise, 239, p. 44, note 2; Duranton, Droit Fr., t. 5, p. 297, No. 303; Toullier, Droit Fr., t. 3,p. 129, No. 186; Sirey, Code Civil, Ed. 1886, fc. 1, p. 359, note 3 to Art. 653; Alarcade, t. 2, p. 592; Pardessus, Servitudes, p. 237, Part. II, Chap. II, Sec II, S.I, Distinction, 3; Dalloz» Art. 653, numbers 6, 7, 9 and 11. 3, citing Rennes, 9 Juill. 1821; J. G. Servit, 413,1 et 436; Pau, 18 Aout, 1836, Ibid, 413, 2; Reg, 4 Juin, 1845; D. P. 45, 1,358; Aubry et Ran» v. 2, p. 419, citing Duvergier sur Toullier, III, 187, note a; Caurroy, Bonnier et Ronstain, II, 286; Caron “ Des Actions Possessoires,No. 95; Toullier II, p. 379; Demante Cours 11, 507, bis II; Coll, nouv, VI 2, 446; Sir, 35, 2, 29S, Reg. rej. 4 Juin» 1845; Pau, 18 Aout, 1834; Sir, 45, 1, 824; Pau 7 Fevrier 1862; Sir, 62, 2, 499; Demante, 1.1, Sec. 1,1, No. 670, p. 317; Laurent Dr. Civ., t. 7 J n. 526, p. 609, citing Arret de Rejet du 4 Juin, i845 (Dalloz, 1845, 1, 35$).

      Moise & Titohe and W. B. Lancaster for Defendant and Appel- , lant:
    6.A “servitude of light” can not be acquired by prescription through a window in a wall the exclusive ownership of which is vested in the person claiming the servitude. See reasons for the suppression^ Arts. 43 and 44 of the Code of 1808, given by compilers of the Code of 1825 in their Projet, Ed.Ben. Levy &Co , 1823, p. 73; Lavergne, Tut.,vs. Lacoste,26 An. 507; Jeanninvs. DeBlanc,ll An. 465; Laurent, Yol. 7, Mo. 518, p. 600, Mos. 517 and 518, pp 599, 600, Yol. 7, ar. 150, par. 162, p. 190, par. 142, p> 166, Yol. 8 No. 40, pp. 61 and 62; Domat 1069, 1047, 1019; L. 10, D. cum proed. 1, 26 de servit. proed. urban., R. C. C. 658.
    7. Every proprietor has a right to build within his own boundary linos above or below the soil in a perpendicular line. R. C. C. 678.
    3. A prohibition against building is a non-apparent servitude and can be only es tablished by title. R. O. C. 765,766,728.
    9. Continuous apparent servitudes only can be acquired by prescription. R. C. 0: 765.
    10. Differently with servitudes established by destination du pire de fmnille. They are not confined exclusively to continuous apparent servitudes as provided for in the first paragraph of Art. 767, but include all of their necessary adjuncts and connected arrangements, such as the situation and position of things, indicating the destination intended by the former owner, and involving that relationship between the two immovables referred to in the second paragraph of the article. They also include all those servitudes of which the signs are apparent according to Art. R. C. C. 769. These may be discontinuous. R. C. C. 769, 767. Sirey, notes 19, 21 and 23 to Art. O. N. 694, which is an exact reproduction of our Art. 769. He says, note 19, “Ij’avt. 694 est applicable au cas de servitude discontinue,” citing “Toulouse 21 Juill. 1836; S. 37. 2. 155 — p 37.1.92 — Oaen 15 Nov. 18.36, S. 37 2. 187-p. 37.1. 583. — Cass. 26 Avril 1837. S. 37. 1/916-p. 37. 1. 304 -Douai, ler Juill. 1837. S. 38. 2. 22 — p. 38,1.185. — Limoges, 4 Aout 1840, S. 41. 2. 99 —Cass 8 Juin 1842,
    5 42.1. 609 — p. 42.1. 766; 17 Nov, 1847, S. 47. 1. 30 — p. 47. 2. 664. — D. 47.. 2. 377 — 30 Nov. 1853, S. 54.1. 679 — p. 55. 2 576. — D. 54 1. 17; 7 Avril 1863, S. 63. 1. 369-p. 64. 647 — D. 63. 1. 413; 27 liars 1866, S. 66. 1. 215 — pp. 66. 548. — D. 66.1. 339; 5 Juin 1872, S 72. 1. 371 — p. 72. 991. — D. 72.1. 231; 22 Avril 1873, S. 73 1. 276 — p. 73 668, — D. 73. 1.428 -En ce sens llerlin Rep.,Vo.Servit., Sec. 19,n.2; Paraessus, n. 289 et 300; Solon, n. 389; Caron Act. Poss.,n. 270; Demolombe, t. 2, n. 821; Aubry et Rau, t. 3,-Sec. 252, note 9: Du - Caurroy, Bonnier et Roustain, t. 2,n. 354; Demante, t. 2, n. 549 bis; Dupuich, Rev. prat., 1862,p. 209. — Y. encore Toullier, t. 2. p. 450 et S.”
    11. The attachments to an opening in a wall, such as window blinds or doors opening and closing, are apparent discontinuous servitudes. The hand of man is required in their use. R. O. C. 727, Sirey, Note 14, Art C. N. 688, Ed. 1886,
    12. The servitude of light defined by Art. R. C. C. 717 is of two kinds, the apparent and positive, and the non-apparent and negative. R. C. C. 717, 728; Cooper’s Justinian, p. 470; Laurent, t 8, Sec. IV, 143, p 172.
    13. If one of adjacent proprietors should violate the prohibition contained in Ar.t. 696, R C. C , by making openings in the common wall he can only acquire by prescription the right to have the openings there — which would be a servitude in its continuous apparent aspect. He could not acquire the non-apparent, indefinite right to prevent his neighbor from building on his own property opposite said openings. Projet of the compilers of the Code of 1825, Ed. Ben. Levy
    6 Co., p. 73, reasons for suppression of Articles 43 and 44, Code of 1808; R C C. 696, 765, 76fi, 728; C N. 677, 678; Laurent, Vol. 8, p. 54; Taylor vs. Boulware, 35 An. 471.
    14. The right in an adjacent proprietor to make a wall common under Arts. R. Ok C. 676 or 684. is indefeasible and imprescriptible. Jeannin vs. DoBlanc, 11 An,, 465: Lavergne, Tutrix, vs. Lacoste, 26 An. 507.
    15. Trivial attachments made to a wall on the boundary line between two lots, the exclusive property of which is vested in one of the proprietors, can not have the effect of forfeiting the right of the other proprietor to make the wall common or to withdrawtlie attachments, and pay such damages as ho may have cau-od. R. O. O. 676, 684.
    16. Korean such acts be urged as an estoppel (pleaded after trial), against the consideration of positive uncontradicted proof of non-commonalty of the wall shown during the trial, and no objection made to the introduction of the evidence.
    17. Nor can a servitude of light based upon the prescriptions often, twenty and thirtyyears as to openings in said wall because of its continuous existence of commonalty for that period of time, be acquired through the agency of such a plea, based upon the trivial acts referred to.
    18. Plaintiff’s remedy in such a case is to enforce the conditions precedent upon which the right to such use is based. Florance vs. Maillot, 22 An. 114; Lavergne vs. Lacoste, 26 An. 507; Chism &Boyd vs. Lcfebre, 27 An. 199; Costa vs. Whitehead & Carroll, 20 An. 341; Audi vs. Labouisse, 20 An. 554; Davis vs. Grailhe, 14 An. 388; Grailhe vs. Hown, 1 An. 140; Murrell vs. Fowley et al., S. An. 165.
    19. Private individuals can not secure the abatement of a nuisance arising from the erection of a building in violation of city ordinances unless special, particular damages are alleged and proved. Blanc vs. Murray, 36 An. 162; Werges vs. R. R. Go., 35 An. 641; Cooley on Torts, 2d ed.,pp 732, 7; Wood on Nuisances, 2d ed., Secs. 645, 646, 668; Wait’s Actions and Def., Ed. 1885, p. 107, Sec. 8, Vol. 2, pt 108; Soltau vs. Deheld, 9 Eng. Law and Eq. 104; Milhau vs. Sharp, 27 N. Y (13 Smith) 611; Pierce vs. Dart, 7 Cow. 609; Francis vs. Schoelkoff, 53 N. Y (8 Sick) 152: Ford and Wife et al. vs. Groves, 29 Md. 188, 194; Clark vs. Ice Co., 29 Mieh. 508; Brown vs. Perkins and Wife, 12 Gray, Mass. 100; Houck vs. Wachter, 34 Md. 265; Lawson’s Rights, Rem. and Act., Vol. 6, Par. 2961, 2970.
    20. To recover judgment for damages the amount must he fixed with clearness and certainty. Lallande vs. Bull, 21 An. 185; Gebelin vs. Hamilton & Scott, 18 An. 646; Dangerfield vs. Fauver, 19 An. 172; Sutton vs. Mock, 18 An 597; Kearney, Blois & Co. vs. Hauche, 18 An. 316; 15 An.268,457; 22 An 378; 19 An. 121.
    21. Where a judgment recognizes piaintiff’s demand for a servitude of light and orders defendant to remove his obstruction to said light (such obstruction being a building opposite plaintiff’s window), and where it is further ordered that in default of his compliance within thirty days the sheriff shall remove said obstruction, so as to allow plaintiff the exercise of his servitude of light, and said judgment does not state specifically the distance the building is to be removed, it is void for want of certainty. A judgment should not depend for its execution upon the discretion of the sheriff. Black on Judgments, Secs. 116, 117,118; Copley vs. Bonnes et al, 7 An. 578; Williams vs. Kelso, 7 La. 406.
   The opinion of the court was delivered by

Breaux, J.

Plaintiff is the owner of an improved lot in this city which he purchased from Mrs. Emma Reese.

The' building improvement is a two-story dwelling house constructed years ago.

Witnesses residing in the neighborhood, advanced in years, did not know when it was built. They saw it in their youth where it now is.

One-half of one of the walls was constructed on-the lot which now belongs to the defendant.

It is not proven that any of defendant’s authors contributed in any manner to the building of this wall.

There are eight windows in this wall — four in the first story and the others in the second.

Four of these windows have blinds, opening and closing on their hinges.

The defendant bought the adjacent lot, on which the said wall partly rests, from the Firemen’s Building Association.

The structures on defendant’s property were, at the time of his purchase, two small houses; one an old frame cottage fronting on the street with one of its side walls extending from the banquette to the front corner of plaintiff’s house, on or near the boundary line of the two premises. The other was in the rear of this lot.

The shutters of defendant’s cottage opened on plaintiff’s flower garden in front of his house.

The defendant had eighteen inches cut off the western side of the building (the side adjacent to plaintiff’s lot), and reduced its width by that number of inches. His shutters no longer open on plain- . tiff’s lot.

The space between the two corners of plaintiff’s building and defendant’s cottages, separated by eighteen inches cut off, as just mentioned, was closed by a wall about seven feet high.

Another building, the one in the rear of the lot, was moved by defendant against the wall of plaintiff, leaving a space along the wall between this moved building and defendant’s cottage in front.

This space was afterward taken up 'with a new structure against plaintiff’s wall and connecting defendant’s cottage with the .said moved building.

There is no window in that wall opposite this part of the building.

The uprights of the building touch the wall of the plaintiff. These uprights average three by four inches in thickness.

Laths were nailed thereon and afterward the inside wall was plastered.

This part of the building has no wall on the outside other than plaintiff’s.

The frame of each of the defendant’s buildings is self-supporting.

Four of the windows are almost entirely closed by the wall of defendant’s building. That part not closed by the wall was closed by the defendant with boards.

Defendant’s buildings are covered with slates.

Where the roof touches the wall there is a coat of plaster, serving as a valley or conduit to the rain falling on the roof.

A shed was constructed in the rear of the last building, one of the walls of which completely obstructed two windows.

The two remaining windows were closed at first with boards, afterward screens were erected.

Plaintiff’s vendor states, as a witness, that the closing of the windows darkened the apartments of the house and caused dampness.

It was her reason for selling, she says.

A skylight was opened; it did not give sufficient light, another witness testifies, and it is necessary, at times, to light the gas in the kitchen.

They also testify that the value of the property was depreciated; the danger from fire was increased.

PLEADINGS.

Plaintiff alleges that the wall is a party wall, and that the defendant had no right to close his windows, which during more than thirty years had given access to light and air.

•That his possession and that of his antecedent owners entitles him tc these windows.

That the defendant has annoyed and harassed him by depriving him of light and air.

Por damage to his property, deprivation of light and air, and the value of half of the wall he claims $4500.

The defendant excepted to plaintiff’s petition on the ground that his allegations were contradictory, and his demands inconsistent, and that he should be made to elect one or the other.

In compliance with the court’s ruling, plaintiff, after having reserved a bill of exception to the ruling, elected to abandon the demand for the value of the wall and rested his case on its being a wall in common.

The defendant filed a general denial, and in addition alleged that his acts, on his premises, were in pursuance of his legal rights as owner.

The plaintiff also filed a special plea of immemorial possession and pleaded the prescription of ten, twenty and thirty years.

He also filed a plea in estoppel, based on defendant’s allegation in his answer, that in acting as he had, he pursued his legal rights as owner.

The judge of the District Court maintained the pleas of prescription and estoppel and ordered that the hindrances be removed, and recognized a servitude of light and air as described in the petition.

The owner of a lot in a city who first builds in a place not surrounded by walls may rest one-half of his wall on the land of his neighbor. O. O. 675.

There is conflict between the article just referred to and Art. 505, O. O.

Under the latter the ownership of the soil carries with it the improvements.

Under the former he has the right to erect a construction on the owner’s property and to remain the owner until his neighbor may choose to make it a wall in common.

Built at his expense, he is the owner. Jeannin vs. DeBlanc, 11 An. 465; Lavergne vs. Lacoste, 26 An. 507.

In each of the cases just referred to, the wall which was the subject of litigation was built at the individual expense of one of the neighbors and rested upon the line of division of the properties adjacent one to the other. In each it was held that the wall was owned by the proprietor at whose expense it was built.

The case principally relied upon by the plaintiff is not’ similar.

The two buildings were separated by a wall in common; it was presumed common, for the reason that each building on the respective lots rested on the whole wall. It was decided that the flues in this wall also were in common as well as the wall used by both proprietors. Weill vs. Baker, 89 An. 1102.

In the pending- case, prior to moving the buildings as before stated, there was no structure against or near the wall.

The fact that this wall separated defendant’s lot from plaintiff’s houses does not make it a wall in common.

Every wall which separates a yard and garden in a city shall be presumed to be common. O. C. 677.

This article corresponds to Art. 656 of the C. N.

Baudry Laeantinerie commenting upon the latter says:

“ The wall which separates a house from a garden or lot is not pre-sumed a wall in common (mitoyen).

“The lawreadsbetweenbuildings; and between enclosure and garden, and not between a building and an enclosure and garden.” Yol. 1, p. 884.

“The owner of the enclosure or of the garden has not the same interest in constructing the wall as the proprietor of the house.” Ib.

He can not be forced to surrender part of his land and made to pay the cost and value of the wall, although of no service to him in building.

The ownership remains in the one who has had it constructed until the owner of the adjacent lot makes it a wall in ccmmon.

“ The defendant contends that until the wall is made common it is her exclusive property * * * it appears to me that view of the case is correct.” 11 An. 465.

It was decided in said case that plaintiff did not have a right of action to have the window closed in a wall which he did not choose to make a party vgall.

It is obvious that in order that prescription may be acquired the owner must be able to assert his right. "

“The wall belonged to plaintiff in full ownership until the owner of the contiguous lots should pay for half of it, and this right would exist so long as that wall stood.” 26 An. 507.

It is in some respects different under the French Code. In a case in which the facts were somewhat similar to those of the case at bar the plea of immemorial possession was maintained.

The grounds were that the owners of the adjacent estate before the wall had been made one,-in common, had the right to have'the windows closed before making it a party wall.

“They, the said'parties, permitted a servitude to be established which they might have prevented.”

“Legislation and jurisprudence have established that servitude of light can be acquired by prescription.” Montagnae vs. Montégu, Cassation, 1869, p. 387.

In Jeannin vs. DeBlanc, the reverse is decided, “ the wall belongs exclusively to the party who built the wall.” The right of action “ remains in suspense until it is made a wall in common.”

This decision is not the only authority.

Under the Code of 1808 the proprietor of a wall not in common adjoining the estate of another had the right to make windows under certain restrictions.

The articles conferring the right were not included in the Code of 1825. The reasons given for the suppression of those articles show that it was not the intention to prohibit the openings in walls thus situated.

“Nous avons cru devoir supprimer oes deux articles qui preseinent au propriétaire d’un mur non mitoyen joignant immediatement Vheritage d’autrui de n’y faire des ouvertures ou fenétres qu’a une cer taine hauteur, et avec des burreaus ou a verre dormant. Nous avons pensé que chaoun doitétre le maitre defaire dans sonbien oe qui lui plait et par consequent, d’ouvrir dans son mur telles fenétres que bon lui semble.” Travaux Preparatories, page 73. (La. C. C. of 1825.)

The question had been previously considered in this and other States and the doctrine has since been followed in numerous well considered cases.

The simplest rule, and that best suited to a country like ours, in which changes are continually taking place in the ownership and use of lands, is, that no right of the said character can be acquired, that is, the prescriptive right to light and air, without express grant of an interest in or covenant relating to the lands over which the right is claimed.’'’ Wait’s Actions and Defences, Vol. I, p. 297, p. 295 et alia.

The French text writers are equally as clear as to the right of the owner of lot adjacent to build on his property. The owner who has possessed during thirty years windows at a prohibited distance, has acquired the right to conserve them. But has he, in addition, ac: quired the right to prevent the neighbor from constructing on his land buildings near enough to render the lights useless? The answer of the commentator is in the negative. Mourlon, Vol. I, p. 861.

Equally as clear is Laurent, Vol. 8, p. 54:

Si, dans un mur joignant immédiatement V héritage d’autrui, il pratique des vues au lieu de jours, s’il les possede pendant trente ans, il aura recouvré la liberté de son héritage, la servitude légale de Particle 676 sera éteinte. Mais il n’aura acquis aucun droit sur P héritage du voisin, celui-ci conserve, de son cóté, la liberté de son héritage, il peut con struire máme contre les fenétres de son voisin, sans étre tenu de respecter un préteddu droit de vue qui n’ existe pas.

The wall is not a party wall.

The owner of the adjacent lot has not paid its cost, nor its value. .

His buildings were not erected against the wall to support any weight.

The testimony gives rise to the immediate impression that defendant’s buildings were constructed against the wall to close the windows so as to prevent servants and children from prying upon the privacy of his dwelling and premises.

The plaintiff contends that it is a partition wall in order evidently to establish a servitude of light.

If we were to maintain plaintiff’s contention that the wall is one in common, prescription would at most commence to run from the time the buildings were moved against the wall. This would not be of any service to his cause. The acquisition of the right would not have a retroactive effect. There was no estoppel on the part of the defendant. The allegation in his answer that he acted in pursuit of his right as owner is not such an admission as makes it conclusive that the wall was in common.

The wall not being a party wall, the neighbor had no right to its use, and was without authority to close the windows as was done.

The plaintiff having alleged a party wall and the defendants having denied, each manifestly against his interest, we treat the question as an original question and base our conclusion on the testimony, which establishes that it was not in common.

“ Generally a party is not estopped by assuming a position forced upon him by the opposite party.” A. and Eng. E., Vol. V, p. 20; Greenleaf, Vol. 1, p. 34.

Plaintiff urges that a city ordinance has been violated relating to the moving and remodeling wooden buildings. Private individuals have no right of action unless they have personally suffered damages.

“ Ownership gives the right to use, to enjoy one’s property in the most unlimited manner not prohibited by law.” O. O. 491 and 450.

The allegations with reference to damages were not proven, and plaintiff is therefore left without cause of complaint on account of the said violation.

The additional danger from fire was not shown, or any increase in the rate of insurance.

No depreciation in the value of the property was proven.

The vendor to plaintiff says that after the structures had been moved against her wall she accepted $1000 less than the price aq. which she had previously offered the property.

This statement uncorroborated by other testimony does not establish the difference in the value of the property, which should be shown by direct r. ferenee to the value of the house, before the moving and after, and not by what a vendor asked one day and determined to accept the next. The plaintiff lastly urges that the city ordinance was not only violated, but that the defendant in violating it had conceded his breach of the law and fixed matters so as to prevent an injunction.

Our conclusion makes it unnecessary to consider this proposition at length.

The defendant had no right to close windows as he did and to build against and use his neighbor’s wall as he did.

Plaintiff had no right under said city ordinance (actual damages not having been proven) to prevent him from moving his buildings.

The defendant has the right to make the wall one in common by paying half its value, or he can build as near to plaintiff’s wall as he chooses, provided his structures do not touch his wall.

The judgment appealed from is affirmed in so far as it orders that the boards nailed on the windows and any of defendant’s structures touching plaintiff’s wall be moved and made not to touch it; also in so far as it orders the plaster serving as a valley or conduit for water to be taken off plaintiff’s wall.

It is amended by rejecting plaintiff’s demand to have them moved any further than to prevent their touching plaintiff’s wall.


source: Caselaw Access Project

license: Public Domain

text:
    No. 10,917.
    Mrs. Emma Berthelot vs. Mrs. J. E. Fitch et al.
    Collation is founded on the equality which should prevail among children, and the purpose is to restore the property or its value to the succession, so that the heir will receive his portion as if no donation had been made.
    If, as to immovables, the donee elect to collate in kind, the property belongs to the succession as of the date of the donor’s death.

      He will be charged rent for the property from the time of the opening of the succession.
    He is entitled during that time to the taxes paid by him, and the insurance.
    He also has the right to repairs made at his expense covered by the provisions of Articles 1256 and 1257 of the O. O.
    The donee of movable must collate by taking less. 1283 O. O.
    The waiver of all rights by the usufructuary in favor of one of the heirs in so far as concerns her portion does not giveTvalid cause to object.to a partition. The usufructuáis has the right to waive the entire right. She, therefore, can waive apart on a property falling to one of the heirs.
    A defendant who has not appealed can not avail himself of the appeal of his co-defendants. A judgment can not be amended as between co*appellees.
    Immovable property in another State belonging to heirs must be administered under its laws.
    APPEAL from the Civil District Court for the Parish of Orleans. - King, J.

      Henry P. Dart, Farrar, Jonas & Kruttschnitt and Samuel L. Gilmore for Plaintiff and others, Appellants:
    In partition, the heir-at-law and donee of movables is bound to collate their value at time of donation. As to immovables, if the donee collate in kind, the property belongs to the succession as of the date of the donor’s death; and in that event is debtor the expenses placed upon it and necessary for its preservation or for keeping the property in proper order, as also all taxes; and is credited with the rents from the date of the opening of the succession. If the collation be made in kind, the dooee is entitled to recover none of his expenses prior to the opening of the succession, except such as were absolutely necessary to the preservation of the thing. C. 0.1253-56-57-58 and 1268; Laurent, Vol. XI, p. 15; Aubry & Rau, Yol. VI, p. 633.
    2. When property is given to children by the father and mother, between whom a community exists, the collation is due one-half to the estate of each. Baillo vs. Baillo, 5 N. S. 230; 2 An. 630.

      W. 8. Benedict for Appellee
    cited: C. C., Arts. 1227-28, 1284, 1236, 1242; 5 N. S. 228; 2 An. 630; 14 An. 625.

      Gilmore & Baldwin for Defendant and Appellee.
   The opinion of the court was delivered by

Breaux, J.

Plaintiff petitions for a partition as one of the heirs of her late father John Henderson, and to have returned to the mass of the succession (either in kind or by taking less) the property which two of the heirs have received in advance of their shares, in order that this property may be divided together with the other effects of the succession.

One of the heirs filed an exception to the suit on the ground that prior it was necessary to know the assets and liabilities of the succession, in order that the judgment might settle the rights of the parties.

The court overruled this exception.

This heir denies in her answer that she is indebted to the succession. She also denies that any collation is due by her.

She alleges that her brothers and sisters have received from their father an amount equal to that which she has received.

Another heir admits that she received real estate from her father, and adds that only half is subject to collation, because her mother is living, and the property donated belonged to the community.

The remaining heirs also pleaded the general issue, and express their consent to a partition, subject to the right of usufruct of their mother.

The latter is also a party to the suit.

In her answer she admits that she has waived the usufruct allowed her by law on the share of plaintiff in the estate of her father.

The judge of the District Oourt ordered a partition to be made, and the judgment decrees that the heirs shall collate the property donated and that the taxes, insurance on the property and necessary repairs be deducted from the time mentioned in the judgment.

From this judgment the plaintiff appeals.

The order overruling the said exception gives no ground for •defence. For the purpose is to ascertain the assets and liabilities of the succession.

Proof of these can not be required as a condition precedent to maintain the suit.

The judge orders the partition and regulates the manner in which it shall be made, as well as the collations. They are among the first acts to establish the assets and liabilities of the succession.

On the Merits.

Collation is founded on the absolute equality which should prevail in dividing property of the father or mother among children or other lawful descendants.

The donations made did not stipulate that they constituted an extra portion.

At the time of the donor’s death they were in excess of the disposable portion of his estate.

The court in the judgment appealed from fixed the value of the immovable property at the time the succession was opened and at which the collation should be made in the event'that the donees elect to collate by taking less, as required by Art. 1269, C. C.

The appreciation of the testimony in this respect by the district judge impresses us as just and eminently correct: that donated to Mrs. Maginnis at $14,000; that donated to Mrs. Pitch at $3100.

The latter'is properly ordered to collate one-half the property donated to her by her father as head and master of the community. With reference to the expenses on the immovable property in case the donor elects to collate in hind,: the court a qua ordered that the donees be charged with the rental of the property from the opening of the succession and fixed the amount due by Mrs. Maginnis for rent at $80 a month on the immovable property donated to her. This was proven as being a fair amount and was properly allowed.

We do not discover any error in ordering that the necessary repairs, taxes and insurance paid during the time the rent is charged on the property be deducted.

They were useful and unavoidable expenses incurred during the time that the rent was being paid.

Expenses in immovable property, in case of collation, are distinguishable by three kinds:

Necessary, useful, and those for mere pleasure.

The first is chárged when they were necessary to preserve the-thing.

The second should be deducted when the value of the real estate has been increased thereby.

The third should not be charged at all.

The donee has the right to take them away if he can without injuring the estate and leave things in the situation they were at the time of the donation. 1258 C. O.

With reference to necessary repairs, it is said that the donee has the right to reimbursement when he has acted as a prudent admin.istrator should; that is, has had the work done as cheaply as pos - sible, and has acted for the best in every respect.

“ The decujus would have been obliged to make the expense had he been the owner; he would not have had the repairs made for less; it is, therefore, just that his succession should indemnify the donee.” Baudry Lacantinerie, Vol. 2, p. 186.

This commentator illustrates what are necessary repairs, by reference to the reconstruction of a wall threatening to fall or the elevation of an embankment and the repairs to prevent this. The useful repairs are such as a prudent owner would make. They must be substantial and improve the value of the property.

The reasons for judgment and the judgment establish that necessary repairs and useful repairs improving the value of the property are to be deducted, such as the cost of the Barber asphalt pavement, $602, and the amount paid P. Jehnke also for paving, $270, to which the donee has a right.

The donee has no claim for expense in substituting one iron fence for another, it being proven that the first was not out of repair.

The other items which are not covered by the definition of repairs improving the value of the property or necessary must be rejected.

The same principle applies in all respects to the immovable property of the other defendant, Mrs. Pitch.

The plaintiff alone appeals.

All the appellees except one have filed an answer to the appeal alleged to have been taken by Mrs. Anna L. Maginnis.

She is not an appellant.

As between the appellees the several demands were passed upon by the judgment below.

There can be heard on appeal only those who are actually appellants. 12 An. 846.

Therefore the question of repairs is reduced to the issue presented by the appeal against those called upon to collate.

Usufruct. — One of the defendants files an objection on the ground that the survivor in community has no right to renounce her usufruct in favor of one of the heirs.

The waiver was made in favor of plaintiff, who is one of the owners.

If after the partition, or even before, the usufructuary waives her right as to an heir, this gives no valid objection to the partition of the property. She has the right to waive the whole; she therefore can waive a part. Totum in toto et totum in qualibet parte.

The movable property must be collated by taking less at its appraised value at the time of the donation. C. C. 1283. The value was correctly fixed, we think.

The wear and decay since they were purchased and presented to the donees should not be taken into account in establishing the rights of the parties, for the donee of movables is bound to collate their value at the time of donation.

We agree with the learned judge of the District Court that plaintiff has received no property from her father, and owes no debts for which she is bound to collate.

The claims made, if proven, come within the exception stated in Art. 1244 of the Civil Code.

One of the defendants claims that certain real estate in Mississippi should be brought into the settlement of the succession.

The question was not passed upon by the court a qua. Neither in the reasons for judgment nor in the judgment is there anything stated about real estate in which the succession has interest in another State.

In the absence of any decision as to this property by the court below, this court will not decide any issue affecting it.

In the second place, the claim is made by one of the appellees against her co-appellees.

The judgment can not be amended as between them.

We see no reason, however, not to add that immovable property in another State belonging to heirs must be administered under its laws. 3 N. S. 1; 7 N. S. 44; 12 R. 306; 9 R. 438; 5 An. 158; 14 An 165.

We will not alter the judgment. The decree does substantial justice.

Judgment affirmed at appellants’ costs.

On Application for a Rehearing.

Our attention on rehearing is directed to an error committed by the draughtsman of the judgment in the District Court.

It was evidently an oversight on his part. It escaped our attention. The district judge, in his reasons for judgment says: “In this case if Mrs. Maginnis collates in kind she owes rent which the evidence proves to be $80 a month from the date of the opening of the succession, from which must be deducted all necessary repairs.” In our opinion a paragraph is headed: With reference to the expenses on the immovable property in this case the donee elects to collate in hi/nd,” and we ordered that the donees be charged with the rental of the property from the opening of the succession and fixed the amount due by Mrs. Maginnis for rent at $80 a month on the immovable property donated to her.

And that the necessary repairs, taxes and insurance paid during the time the rent is charged on the property be deducted, should the donee elect to collate in kind.

It happens by the said inadvertence that the clause reads: “If the parties elect to collate said immovables by taking less, the rent of the Magazine street property is hereby fixed at eighty dollars,” etc.

This inadvertence we now correct by substituting for said words the following, viz:

“Should said defendants elect to collate said immovables in kind, the rent of the Jackson street property donated to the defendant, Mrs. Maginnis, is fixed at eighty dollars a month.”

The judgment having been amended and made to comply with the reasons for judgment of. the District Court and with the decision of this court, as amended it is affirmed without granting a rehearing, all parties in interest having been heard.

The appellees to pay the costs of appeal.

Rehearing refused.


author: Bermudez, C. J.

text:
    No. 10,904.
    Henry William Schulte vs. New Orleans City and Lake Railroad Company.
    A person who is afflicted with deafness and who wears protruding apparel obstructive of the exercise of the sense of sight, and who ventures without looking right or left to cross a street railway track, acts rashly and is guilty of contributory negligence, and can not recover damages in case of an injury sustained by a collision with a coming mule and car.
    The driver had a right to presume the person sound of hearing, and that she would exercise her senses so as to avoid an accident, by stopping in time, to let the mule and car pass freely.
    The verdict of a jury in favor of the company, in such a ca>e, will not be interfered with.

      APPEAL from the Civil District Court for the Parish of Orleans. King, J.

      Moise & Titehe and Sambola & Dueros for Plaintiff and Appellant:
    1. Di-vers of street cars in cities should be more than ordinarily careful at street crossings.

      2. When a lady places herself in a position of danger, and is subsequently through the negligence of the driver, run over by a car at a street crossing, the defendant company can not rely upon the negligence of plaintiff as a protection, to exonerate it from all damages resulting from the injury. Weeks Case, 42 An. 615; 23 An. 182; Cooley on Torts, pp. 810, 811, citing 50 Mo. 161; 18 Ga. 670; ■52 N. II. 528; Ilia. Ill; 3 Ohio (N. S.) 172; 33 Md. 512,541; 56 Mo. 338; 5Bxch. 243;68 Me. 552; 85 N. C. 310.

      Buck, Dinkelspiel & Hart for Defendant and Appellee :
    ■On approaching a street crossing- of a railway track, it is the duty of a traveler to exercise his senses of sight and hearing and to look and listen for an approaching- train; his failure so to do is negligence, which in any ease of collision will prevent his recovery of damages for injuries sustained. Herman Herlisli vs. New Orleans & Texas Railway Company.
   The opinion of the court was delivered by

Bermudez, C. J.

This is a suit in damages for $15,000. The substantial allegation is that on the morning of August 26, 1889, at about 10 o’clock, petitioner’s wife, while] in the act "of crossing Royal street, at its intersection with Bartholomew street, in the third district of this city, was suddenly and violently knocked down and injured by a car of said company, which passed over her, injuring her ankle, through the gross carelessness, neglect, fault and management of the driver thereof, in the employ of the company. The petition proceeds to describe the injury sustained, the sufferings endured, the nature of the damages experienced, etc.

The answer is a denegation, and charges that plaintiff’s wife, through the most reckless inattention, carelessness and imprudence contributed and was the sole cause of the accident.

The case was tried before a jury, who returned a verdict for the defendant, upon which, satisfied with the correctness of the finding, the district judge rendered judgment accordingly.

The plaintiff appeals.

The evidence shows that plaintiff’s wife was hard of hearing, in point of fact deaf, and wore a large sunbonnet, at the time men tioned, which covered both sides of her face, coming down over her shoulders.

It is evident that she neither saw nor heard the approaching car while she was walking to cross the street, for had she seen or heard it she would either have stopped or, at her peril, hurried through safely.

It is not to be supposed that when the driver saw her he imagined she would not stop, and that he acted wantonly. He had a right to believe that she had exercised her senses and would stop and so avoid all accidents.

The authorities are numerous that on approaching a street crossing of a railway track it is the duty of a traveler to exercise his senses of sight and hearing and to look and listen for the approaching train or car, and that his failure to do so is negligence, which, in case of collision, prevents the recovery of damages for injuries sustained. Herlish vs. N. O. & Texas Ry. Co., lately decided, 44 An. — ; Childs vs. R. R. OCo., 33 An., p. 154: Hearn vs. R. R. Co., 34 An. 160; Gallier vs. R. R. Co., 37 An. 288; White vs. R. R. Co., 42 An. 990; Brown vs. R. R. Co., 42 An. 350; Peetz vs. R. R. Co., 42 An. 547. See also Wharton on Negligence, Sec. 384; Beach on Contrib. Neg., Sec. 63.

Under the facts and the law the plaintiff can not recover.

Judgment affirmed.


text:
    No. 11,011.
    Mrs. H. L. Stanton vs. W. H. Harvey.
    Rent due under a’lease entered into by a husband in the name of his wife, though the lease was signed in another State, the place of their domicil, for property situate in this State, can be claimed from the husband. It is a community debt, incurred by him, for which he is liable and can be made to pay. It is to be regulated by the ter loci contractus, which thus fixes the responsibility.
    APPEAL from the Ninth District Court, Parish of Concordia. Young, J.

      Mam & Dagg for Plaintiff and Appellee.

      Luce & Lemle for Defendant and Appellant:
    1. To authorize a judgment against one for the debt of another by reason of the fraudulent disposition of the debtors, the insolvency of the debtor must be alleged and shown, and it must be alleged and proved that the debt can not be made out of the debtor.
    2. Such an action is for damages for a quasi offence, and must be clearly and conclusively established. 12 R. 25, 26; 16 An. 151; 1 Hen., p. 521, No. 1.
    3. Under the Mississippi Code there is no community, and the husband is not liable for the obligations of the wife. Mississippi Code of 1880, Secs. 1168, 1169 and 1607.

      i. The acquisition, alienation and contracts relating to personal property are governed by the law of the owner’s domicil. 15 An. 151; 36 An. 21, Hyman, Lichtenstein & Co. vs. Shlenker & Hirsch Story on Conflict of Laws, Secs. 376 and 377.
    5. R. O. C., Art. 2100, applies to real estate, and if held to apply to personal property, only regulates the title and ownership thereof, and not the liability for its acquisition, and does not establish a community between non-residents married persons.
    6. An obligation or demand for rents is a movable. R. C C. 171, 23 An. 11.
    7. An obligation or demand for money follows the domicil of the creditor, and is personalty.in Mississippi. Story on Conflict of Laws, Sec. 362; 9 R. 113; 35 An. 21.
    8. Marital relations, rights, contracts and liabilities are governed by the law of the domicil.
   The opinion of the court was delivered by

Bermudez, C. J.

This is a suit to hold a husband liable for the rent of property leased by him in the name of his wife.

The property lies in Louisiana and the husband and wife were at the date of the contract residents of another State.

The defence is, that the defendant did not lease for his account but for that of his wife; that he is not liable, that she is.

From a judgment condemning him to pay he appealed.

The contention is, that, under the laws of the domicil of the parties, the wife could lease the property for her own account; that the husband would not, in such case, be liable for the rent due ander it; that the contract was entered into at that domicil and that the wife is alone responsible.

The laws of the place of the domicil when the contract was entered into, and the domicil of the parties, play no important parts in this litigation. The same laws exist in this State, as a married woman may here lease property for her individual account; but this she can do only if she have the means necessary and can show that the contract was entered into for her exclusive benefit and not for that of her husband, or of the community, if any, between them.

The law which is to govern in this controversy is not, however, that of the place at which the contract was formed, the iea> loci contractus, but that of the place at which it is to be executed, the lex loci solutionis.

It is a well recognized principle that each sovereignty has the right of regulating the acquisition of property within its territorial boundaries and to fix the naturé of its character.

Hence it is that the law-giver has declared that all property acquired in this State by non-resident married persons, whether the title thereto be in the name of the husband, or wife, or their joint names, shall be subject to the same provisions of law which regulate the community of acquets and gains between citizens of this State. R. O. C. 2400. ‘ •

It is apparent that, had property been purchased situate in this State, by the wife, whether acting in person or through an authorized agent, with the sanction of the husband, that property would have become, prima facie, at least, community property, whatever the domicil of the purchaser would have been, here or out of the State, and would have been thus dealt with, until the wife had proved that the purchase was made for her separate account, with her individual funds and in no way for account of her husband or the community.

Had the lease been signed by the wife with the authority of the husband, it would have been as much a community contract as it is when signed by the husband for the wife.

In the absence of such proof, had any portion of the price of sale remained unpaid suit could have been brought for it against the husband, as head and" master, and as such alone responsible, and judgment could have been recovered. R. O. C. 2404. It would have been a community debt.

This applies whatever the property might be, for the law does not discriminate and place any limit, or characterize the same. R. C. C. 2402. It merely considers the date of the purchase and not the person who made it. It needs no reasoning or authority to show that the husband, as head and master of the community, is liable for its debts, contracted by him, for which the wife is not responsible and which anyhow would be his, community or no community.

It is unnecessary to determine whether a lease is real or personal property, as its character, in’that respect, is no factor in this case. It is sufficient that it be a contract under which a right — which is property — has been acquired.

Being property it falls under the provisions of laws quoted, which apply as well to residents and to non-residents, and therefore to the defendant, for he is either the one or the other. Non-residents surely can not claim to be placed on a better footing than residents. When they do so pretend they must show clearly that they are entitled to the preference.

The right to enjoy the property leased was therefore a community asset, and failure to pay for it can be saddled on the husband.

Judgment affirmed.


author: ■Fenner, J.

text:
    No. 10,864.
    Moses A. Boniel vs. Henry Block.
    1. A house owner wlio has sei-ved the notice provided byAclOG of 18S8, and lias followed it by ejectment proceedings provided therein, thereby acknowledges that the party so proceeded against and occupying liis bouse is a tenant, and is estopped from subsequently denying it.
    2. Where a landlord, instead of resorting to the means provided by law, takes upon himself, without authority, to remove the property of his tenant and to turn him out, he will be liable in damages, though the ejectment was effected, without personal violence, in the tenant’s absence.
    3. It is no defence that the business conducted by the tenant was illegal or that the latter was claimed to be in default in payment of his rent. The law provides remedies for such wrongs and does not sanction private redress.
    PPEAL from the Civil District Court for the Parish of Orleans. Bightor, J.

      Gus. A. Breaux and Henry L. Lazarus for Plaintiff and Appellee.

      Moise & Titehe for Defendant and Appellant:
    The existence or scope of one’s authority to act as agent for another can not be proyed by the declarations or admissions of the alleged agent. Abbott’s Trial * Evidence, p. 43.
    The connection between the parties, which renders the declaration of one competent against the other, can never be proved by the declaration itself, but must be separately proved as the foundation for admitting the declaration. Abbott’s Trial Evidence, p. 191; Ewell’s Evans on Agency, p. 156, p* 16 u.
    Defendant in an action of damages for unlawful interference with iMainliffs business may prove that the business was in violation of city ordinances and had been declared unlawful by our Supreme Court, for if not a justification the evidence would be in mitigation of damages.

      The testimony of any witness, whether a resident or not of the parish where the court sits, may be taken pursuant to the provisions of Act No. 84 of 18GS.
    A "notice to vacate” given by the owner of the house to one in possession does not estop tile owner from showing that ho had not consented to the occupancy: the “breach o£ iho lease” may be failure to pay rent betore occupancy. Act S>i of 1SSS.
   The opinion of the court was delivered by

■Fenner, J.

The allegations which constitute the cause of action may'be briefly stated as follows:

1. That plaintiff had rented a house from the defendant and occupied the same as a tenant, and was conducting a grocery business therein with a stock of groceries.

2. That one Edwards, acting under the authority and direction of the defendant, forcibly entered the house in his absence, removed his goods and took possession of the premises.

8. That said acts were illegal and occasioned him damage, for which the defendant is responsible.

The defence is a general denial.

The case was tried before a jury and resulted in a verdict and judgment for §1500, from which the defendant appeals.

It can not be denied that the petition sets forth a good cause of action, if the allegations are proved.

1. The defendant is conclusive^ estopped from denying that plaintiff occupied the house under a contract of lease from him by the following notice signed by himself and served on plaintiff:

“New Orleans, April 12, 1889.

“ Mr. Boniel — You are hereby notified to vacate the property now occupied by you at the corner of Monroe and Newton streets for failing to comply with the verbal lease entered into by you. This notice is in conformity with Act 96 of 1888.”

This notice was followed by a suit brought under the act referred to, which was a judicial admission of the relation of landlord and tenant under the very terms of the act.

2. It Is proved to our entire satisfaction that Edwards, claiming-to act by defendant’s authority, had gone to Boniel and demanded the key and possession of the property, which Boniel refused; that Edwards then-told him that he intended to take possession, and that Boniel warned him that, if he did, he and Mr. Block would be held responsible; that Edwards then went to a locksmith and had a key-so filed as to fit the lock of the house; that, subsequently, in plaintiff’s absence, leaving the house locked up, Edwards returned, unlocked the door with a false key, entered, removed the plaintiff’s counter and goods, and took possession. When plaintiff returned and found what had been done he caused Edwards to be arrested for trespass. When plaintiff resumed possession of the premises he was called upon by one Levy, an employee of defendant, who was sent by the latter again to demand the keys, and the interview resulted in an altercation in which plaintiff was knocked down and severely beaten. After this he concluded to abandon the premises and rented and moved into another house. It is not pretended that defendant is responsible for 'this assault, and it is unnecessary to determine who was in fault. It was only admitted and is referred to to explain plaintiff’s final abandonment.

3. The evidence is, to our minds, equally clear that in all that he did, Edwards acted under the authority and direction of defendant. Edwards’ statements to that effect, in connection with his acts themselves, though properly admitted as part of the res gestse, to prove rem ipsam, would not operate as proof of authority when made out of defendant’s presence; but there is other testimony of statements by Edwards in the presence of defendant, and of defendant’s own statements, to sustain the authority, particularly in view of the significant fact that the defendant, though testifying as a witness, does not even intimate a denial of Edwards’ authority.

The foregoing findings are sufficient to sustain the action of plaintiff.

It is no defence to say that the business conducted by plaintiff was illegal, being the kind of business described in State vs Boniel, 42 An. 1110. Defendant was not charged with any function as an officer of the law, and if, as a citizen, he desired to vindicate the law, the course pointed out was entirely different from that here pursued.

Neither is the charge that Boniel had not complied with the terms of his lease of any avail. There was a dispute as to whether Boniel was bound, under his lease, to pay his rent in advance. Even if he were so bound and had failed to comply, defendant’s remedy was at law and not by such proceedings as those here taken.

Counsel for defendant has quoted some common law authorities which are no doubt of great weight in the cases to which they apply; but, so far as this ease is concerned, we prefer to rest it upon the memorable case of Thayer vs. Littlejohn, decided by this court, 1 Rob. 140, in which the doctrine, ever since followed by this court, was laid down that “-where a landlord, instead of resorting to the means provided by law for obtaining payment of his rent and possession of his premises, takes upon himself, without authority, to remove the property .and turn out the family of his tenant, he will be liable in damages, and it will be no excuse that such removal was effected without violence or injury.”

See also Van Wren vs. Flynn, 84 An. 1158. -

We have observed the stress laid by counsel upon. his numerous bills of exception to the admission and rejection of evidence, and have considered them all carefully.

We need not review them. Several of them are disposed of by our ruling that defendant was estopped from denying the fact of a lease. Others are eliminated by other views above expressed.

The only one sufficiently important to require special notice is that excluding the evidence of Edwards, taken by defendant’s counsel at his office and out of the presence of opposite counsel, but in alleged compliance with Act 84 of 1868.

Mere reference to that act will show that the testimony was not taken in compliance with the requirements of that act, and that it would be inadmissible unless compliance with those requirements had been waived by consent of counsel.

There was no agreement in writing and the counsel disagree in their statement of the facts.

Plaintiff’s counsel states that when he received a verbal notice from defendant’s counsel that he wanted to take Edwards’ testimony he sent back the message that ‘ ‘ he did not desire to be present at the taking of the testimony, that he reserved all legal objections and reserved the right to cross-examine the witness.” This was certainly not a waiver of any requirements of the statute. Defendant’s counsel gives a different statement.

This court declines to decide such delicate differences, and requires that “ all agreements of counsel, on which the court is to act, must be in writing.” Rule XI, Sec. 8.

The testimony, therefore, stands as not taken according to the statute and without any waiver. Although the particular objection on which the court acted may not have been sound, the testimony was objected to and was not legally admissible.

The testimony was not brought up with the bill, and we know nothing of its nature or importance. We can not remand the ease on this ground.

The damages allowed by the jury are excessive.

In the case of Thayer vs. Littlejohn above referred to, the damages allowed, in absence of proof of direct pecuniary injury, were $300. We think that $200 additional will cover the actual pecuniary loss of this plaintiff.

It is, therefore, adjudged and decreed that the verdict and judgment appealed from be amended by reducing the amount thereof to $500, and that as thus amended the same be now affirmed, appellee to pay costs of appeal.


author: Fenner, J. Watkins, J.

text:
    No. 11,004.
    The H. B. Claflin Company, Limited, vs. B. Feibelman & Co. Sweetzer, Pembroke & Co. et al., Intervenors.

      1. A peremptory exception going to the cause of action is not waived by being referred to the merits and tried and submitted with them.
    2. The indorser of a promissory note only becomes the debtor of the holder after complying with the conditions of pi’esentment at maturity, failure of maker to pay and due notice given.
    3. A demand against an indorser brought before maturity is properly rejected on exception to cause of action or even under the general issue.

      i. Creditors who have attached the same property may intervene in a prior attachment proceeding by another creditor and oppose the maintenance thereof; and the prima facie proof of debt which the law sanctions as sufficient to authorize their attachments, is also sufficient to maintain their interventions without requiring them to anticipate the issues involved in their suits against their debtor and to make such proof as would sustain a final judgment.
    45. The attachment must stand or fall according to state of facts at date of issuance and the demand in this case is not of a nature to authorize an attachment.
    APPEAL from the Seventeenth District Oourt, Parish of East Baton Rouge. Buckner, J.

      Ous. A. Breaux for Plaintiffs and Appellants:
    A. Proceedings in attachment, and ex parte affidavit made to obtain such attachment, not admissible on behalf of an intervenor, in a suit between other parties except to prove rein ipsam.

      2.An exceptor who goes to trial on the merits, on answer filed, without requiring the court to pass upon his exception, will be held to have waived such exception. C. P. 338; Mix vs. Iiis Creditors, 40 An. 626; Boon vs. Carroll, 35 An. 284; Chaffe vs. Ludeling, 34 An. 966; Francis vs. Lavigne, 2o An. 312.
    Referring an exception to the merits, on filing an answer, is a waiver of the exception.
    4. And intervenor must prove his claim as against plaintiffs and defendants; and an ex parte affidavit made to obtain a writ of attachment is no proof. Harper vs. Railroad Bank, 15 An. 136; Washburn, Administrator, vs. Frank, 31 An. 428; Walker vs. Simon, Jr., 21 An. 671; Golsan & Co. vs. Powell, 32 An. 524.
    5. In the absence of allegation and proof of injury to himself an intervenor can not assail the rights of plaintiff in any suit.
    6. An intervenor can not, without allegation of, fraud or collusion, urge defences which are personal to defendant. Flemming & Baldwin vs Shields, Jones’ Int., 21 An. 117; Cordell, Undertutor, vs. MeCullogh, 20 An. 174; Theaver vs. Smith, 24 An. 597; Herman vs Smith, 7 U. S. 676; Clamageran vs. Ricks et al.,4 U. S.487; Gasquet vs. Johnson, 1 La. 432.
    7. Rational Bank vs. Moss & Co., 41 An. 227, distinguished and shown to have no application.

      Farrar, Jonas & Kruttsohnitt on the same side on Application for Rehearing.

      Bead & Goodale for Intervenors, Appellees:
    1. In order to be entitled to intervene it is enough to have an interest in the success of either of the parties in the suit, or an interest opposed to hotli. C. P., Art. 390.
    2. An intervention is a demand by which a third person is permitted to become a party to a suit, by joining plaintiff * * * or by uniting with the defendant in resisting the claims of plaintiff, or, when his interest requires it, by opposing both. Art. 389, C. P.
    3. Exception as to cause of action and for prematurity not dilatory. Ohaffevs. Ludeling, 34 An. 966.
    Even dilatory exceptions pleaded in answer prior t.o plea to merits will he entertained. 40 An. 626.
    4. After a defence is made by a defendant, and he is joined therein by an intervenor, the defendant would not he permitted to abandon his pleas to the detriment of intervenor. Succession of Baum, 11 R. 314.
    In the present case there is no abandonment of position by defendant.
    All decisions which restrain intervenor from making pleas personal to defendant, and not urged by him, refer entirely to irregularities as to bond, affidavit, etc., and not to cause of action itself. 1 La. 425; 8 La. 57; 2 An. 118; 27 An. 239. Cases quoted from in brief.
    6. A cause of action can no more lie on an obligation not due than if it never existed. 3 An. 33; 2 An. 498; 14 An. 426; 10 An. 324; 10 R. 533; 11 An. 368; 5 L. 225; 9 L. 457; 5 R. 189; 2 L. 221; 9 An. 562; 13 L. 404.
    7. The remedy by attachment does not embrace cases of prospective and. contingent liability. 10 An 324; 41 An. 227; Read vs. Ware, 2 An, 478.

      8. The bolder of anote can not proceed by attachment against an indorser previous to maturity. Taylor vs. Drane, 131.. 64; Ilarrod vs. Burgess, 0 It 44Í).
    9. The latv in this State is settled that no recovery can be had either against the maker or indorser, without proof by plaintiff of a demand at the place designated in the note, and that too although the note is payable in another State. Ilennen, p. 192.
    10. And it will not suffice to show that the surety had no funds there. Ibid. Failure to protest note in season will relievo indorser.
    11. Nor will it make any difference that “acceptance is waived.” 10 An. 324.
    12. In order to sustain attachment there must beproof that at the time the writ is issued the defendant had done or was about to do the act charged, “unlawful preference.” Cliaffe vs. MacKensie, No. 15, Vol. N, p. 371; 42 An., .Southern Reporter.
    13. When documents or suits are made part of petition by special allegation, all their averments become the averments of the petition, and it will be unnecessary to introduce said documents or suits in evidence specially in order to have the benefit of their allegations, and the facts shown by them.
   The opinion of the court was delivered by

Fenner, J.

The H. B. Claflin Company instituted this attachment suit against the commercial firm of B. Feibelman & Co., claiming an indebtedness as due them by the defendant of $30,970.70, of which, however, the sum of $22,500 was claimed by them as holders of three promissory notes of $7500 each, which were made by the firm of Cohn & Feibleman and endorsed by the defendant and not due at the date of suit.

The defendant firm promptly interposed an exception to the cause of action on the ground 11 that the action is premature and the debt nob due.” Subsequently, Sweetzer, Pembroke & Co., and sundry other alleged creditors of B. Feibelman & Co., who had levied attachments on the same property attached by the Claflin Company, intervened in this suit, .and setting up that, as to the said claim for $22,500, it could not authorize or sustain an attachment, they prayed that, to this extent, the plaintiff’s attachment be not sustained or recognized as inferior to their attachments.

This intervention was put at issue by answer, and the defendants also appeared and filed an answer to the principal suit, in which, first “ reserving the benefit of the exception herein filed,” they pleaded the general denial.

On January 18, on motion of defendant’s counsel, without objection, the exception was referred to the merits. The cause was then assigned for trial instanter, and, after introduction of evidence and argument of counsel, was submitted to the court.

Judgment was rendered in favor of the Olaflin Company to the extent of the debt due, with recognition of their attachment privilege, but rejecting their demand on three notes of $7500 each above referred to, and also sustaining the intervention of Sweetzer, Pembroke & Oo. et al.

From this judgment the Olaflin Company appeals.

The appellant claims that, by referring their exception to the merits and by going to trial on the merits without requring the court to pass on the exception, defendant must be held to have waived th© exception.

He relies on the following authorities: Mix vs. Creditors, 39 An. 624; Boone vs. Carroll, 35 An. 284; Chaffe vs. Ludeling, 34 An. 966; Francis vs. Levine, 26 An. 312.

Reference to them will show that they apply only to dilatory or declinatory exceptions, the effect of which is only to retard, or change the forum of the action.

The exception here is not of that character. It is, by its terms, an exception to the “cause of action,” based on the elementary proposition that the indorser of a promissory note incurs no other obligation except to pay in ease the maker, on due demand at maturity, shall fail to pay and in case due and legal notice thereof shall be given to him. Hence, before maturity, the indorser is not the debtor of the holder who has no cause of action against him. Such a defence would be conclusive under the general issue, or even on application to confirm a default. It was never waived by defendant, was entirely susceptible of being referred to and tried with the merits as part of them, and, in point of fact, the judgment, though it does not mention the exception, is obviously based upon it.

We think, moreover, the intervenors properly established their right to intervene. They were attaching creditors of the same property, and made their attachment proceedings parts of their petition. These exhibited the prima faoie proof of debt which the law sanctions as sufficient to authorize the attachment, and if they were authorized to attach they were authorized to intervene and to protect their attachment from being nulllified by the allowance of a preference in favor of a prior illegal attachment. They were not bound to anticipate the issues involved in their suit against their debtor by proof of their claims such as would sustain a final judgment against him. Their interest is too palpable to admit a dispute, since the maintenance of plaintiff’s attachment would render their own futile.

The case is fully within the authority of National Bank vs. Moss, 41 An. 227, where we held that an attachment must stand or fall according to the state of facts existing at date of issuance; that in order to sustain it, the debt must be unconditional, and hence that the holder of a bill of exchange, not yet due, can not attach against the drawer of the bill because his liability does not arise until after compliance with the conditions of presentment at maturity, failure of the drawee to pay, and due notice. We can discover.no error in the judgment appealed from.

Judgment affirmed.

On Application foe. Rehearing.

Watkins, J.

The importance of the questions involved and the earnestness with which the application has been presented have induced us to re-examine the case.

Counsel do not, however, seem to be in agreement as to «the character of the questioned contract of the defendants — one presenting the theory that, notwithstanding averment is made in the petition that their contract is one of indorsement, yet they are entitled to take judgment against them as principal debtors, on the proof in the record, admitted without objection; whilst that presented by other counsel is that, in truth, they are either sureties in solido, or solidary obligors, and bound primarily.

In addition to the foregoing the point is made and insisted upon that the inter venors are merely ordinary litigants, tendering issues of fact for trial, which they are bound to establish, and failing to do so, are not entitled to recover.

The case before us is a controversy between the plaintiffs as first attaching creditors of B. Feibelman & Co., defendants, and the intervenors as second attaching creditors of the same property — the latter claiming the right to prime the former in the distribution of the proceeds thereof, after the defendants’ absolute indebtedness has been satisfied therefrom.

It is error to insist thatlintervenors seek to obtain a judgment in this suit .against the defendants. They are only seeking to reduce and restrict the amount of plaintiffs’ judgment against them so as to enable them to realize something out of the property attached.

Manifestly, the defendants’ exception and answer can not affect ■their right. All that is necessary in order to entitle a party to intervene in a pending suit between other parties is that his petition shall disclose an interest in the success of either party, or an interest opposed to both parties. O. P. 390.

The proposition on which the intervenors mainly depend is that the plaintiffs’ demand, to the extent of $22,500, is based upon indorsements of B. Feibelman & Oo. upon the notes of Cohn & Feibelman, drawn to their own order, and by them indorsed and made payable at a future date and not due at date of suit; and that, on ¡such indorsements no attachment will lie; because the obligation of an indorser is conditional only, and can not become absolute until the maker is in default for non-payment, and due presentment, protest and notice have been made.

In the assertion and maintenance of such a proposition, intervenors certainly had an interest, and, in support of such plea, it was only necessary that they should allege and prove the existence ■of their attachments, and the character of the defendants’ contract. The assertion of their interest does not depend at all upon the validity of intervenors’ claim against the defendants, for that is not an issue in this case.

Defendants objected to the introduction of evidence tending to establish them. The real object of their demand is to diminish the plaintiffs’ claim against the defendants, .so that the extent of their privilege on the property attached might be correspondingly reduced. In order that this object be accomplished it became necessary that the claims of the intervenors should be presented “to the court by whose mandate the property was first seized,” so that it should “proceed to class the privileges * * according to their rank * * in a summary manner,” etc. R. S., Sec. 2903.

From the record- it appears that the three notes in controversy are each for the sum of $7500, drawn by Cohn & Feibelman as makers, payable to their own order at the Importers and Traders National Bank of New York, and by them indorsed in blank. They matured respectively on the 27th of November and December 12, 1890, and 10th of January, 1891, and suit was filed and service made on the 1st of December, 1890 — the very date on which the first note went -to maturity.

Upon each of those notes the name of B. Feibelman & Co. is indorsed in blank, immediately underneath that of C.ohn & Feibelman,, without any accompanying explanatory statement.

On the same date, and contemporaneously with the service of citation, a protest of said note was made, and due notice given to both makers and indorsers, the evident purpose thereof being to fix the liability of the defendants.

Viewing defendants’ contract as one of indorsement, pure and simple,, this protest, made as it was in the city of New Orleans, was altogether unavailing, because the note was payable at a bank, in New York, and could not be presented for payment elsewhere.

It is a familiar principle, that the indorser’s undertaking is not general, but conditional upon due diligence being used against the principal debtor, and such diligence requires presentment at the place specified, where it is presumed that funds have been provided to meet the bill at maturity.” 1 Dan. Neg. Ins., Sec. 644, 3d ed.

Inasmuch, as this protest was insufficient to place liability upon defendants, the three notes occupy very much the same position in this case — the defendants having become exonerated from the payment of the first, and their liability on the other two not having become absolute at date of suit.

The controversy is thus narrowed to the single question, whether B. Feibelman & Oo. were really, as matter of law, sureties of the makers, notwithstanding plaintiffs’ averment that they are indorsers.

This court has frequently held the law to be well settled in this. State, that one not a party to a bill or note who puts his name upon it is presumed to have done so as surety; and that, in such case his obligation will not be that of an indorser under the principles of the commercial law. 4 M. 639; 3 N. S. 659; 10 La. 374; 14 La. 386; 4 R. 161; 1 An. 248; 2 An. 592; 4 An. 273; 9 An. 533; 14 An. 144; 12 An. 517; 20 An. 348; 21 An. 25; 22 An. 41; 24 An. 468.

This rule is well recognized by text writers. Story on Prom. Notes passim; Ohitty on Bills, p. 435; 1 Parson on Notes and Bills, 521, et seq.

But it is just as well settled that the foregoing rule is exclusively applicable to bills or notes payable to order, and which are subsequently indorsed by one not, originally, party thereto — the real purpose and object of an indorsement being to transfer the property in a bill or note and to effect a legal delivery thereof to the indorsee,.

From this settled principle it follows that it has no application to; such notes as those in controversy, same being payable to bearer and not to order; for Mr. Daniel has justly observed of the proposition under consideration, to-wit:

“If the note be payable to bearer, either in terms, or becomes so In effect, by being made payable to the maker’s order, and then being indorsed by him, in either case the party who places his name on the back of it will be deemed an indorser, only.” 1 Dan. Neg. Ins., p. 635, Sec. 707a, 3d ed.

The author cites in support of this proposition the very clear and pertinent opinion of the Massachusetts court as expressed in Bigelow vs. Colton, 13 Gray, 309, to the effect that in case the note is payable to and indorsed by the maker “ it does not fall within that anomalous class of cases where a third person, neither maker nor payee, puts his name on the back of anote before its indorsement by the payee; but is the ordinary case of an indorsment of a note payable to bearer, the effect of which can not be varied or controlled by jparol proof.”

We have no hesitation in accepting this interpretation of the principles of the law merchant, and they are especially applicable to this case.

Applying them to the contract in question there is not a doubt in our minds that it was one of indorsement pure and simple, and not of suretyship or unconditional obligation.

Nor, in our opinion, does it matter, materially, that certain parol proof was introduced in reference to the disposition that was made of the proceeds of the discounted paper and without objection on the part of intervenors.

The evidence referred to is as follows, viz.:

“ Q. Is the firm of B. Eeibelman & Co. and Cohn & Peibelman practically one concern?

“ A. Yes, sir, except with different partners. I had most of the money in both of them.

“ Q. What was dons with the proceeds of these notes?

“ A. It was first handed to Cohn & Peibelman and then paid to me. I paid B. Peibelman & Co.’s accounts with it and continued •our business.

“ Q. The three notes of $7500, you mean?

“ A. Yes, sir.

“ Q. The proceeds of these notes were used, then, for the payment of debts created for the benefit of B. Feibelman & Co.?

“ A. Yes, sir.”

It shows that Cohn & Feibelman really discounted the paper, it may be for the benefit of the defendants; but that can make no possible difference, as, presumably, every indorser receives a consideration for his signature.

It shows, further, that if Cohn & Feibelman did discount their own paper, it was apparently indorsed by the defendants at the time, and the money was expended for their benefit.

Evidently, when interpreted in the light of this evidence, the undertaking of the defendants was conditional and not absolute.

A careful investigation of the law and evidence, and a comparison, of our opinion made therewith, have served to confirm us in the correctness of our opinion, and, therefore, a rehearing is refused.


author: Fenner, J.

text:
      No. 10,945.
    The State ex rel. City of New Orleans vs. The Canal & Claiborne Streets Railroad Company.
    1. Under Act 183 of 188S mandamus is provided as a special statutory remedy applicable to tbe enforcement of such obligations as those involved in this case in a contract between the city and a street railway corporation.
    2. The case involves a construction of. the provisions of the contract, and the ;judge below properly interpreted the meaning of the language used.
    3. The intent of the parties being plainly expressed, no foundation existed for resort to evidence of prior conversations to vary or explain it.
    APPEAL from the Civil District Court for the Parish of Orleans. King, J.

      Henry Renshaw, Assistant City Attorney, and Carleton Hunt, City Attorney, for the Relator and Appellee.

      J. R. Éeekwith for Respondent and Appellant.
   The opinion of the court was delivered by

Fenner, J.

This is a proceeding by. mandamus to compel the performance of obligations of a certain contract entered into between the city and defendant with reference to the maintenance of certain street bridges along the route of a street railway.

It is taken in conformity with legislative act No. 133 of 1888, which authorizes the writ of mandamus as a special statutory remedy in such-cases, and there is no tenable objection to its invocation in this case.

The following are the provisions of .the contract enforcement of which is demanded:

“The street bridges where crossed by the company’s tracks throughout their routes shall be placed in first-class order and be kept so during the term of franchise 15 * *.

That said Canal & Claiborne Streets Railroad Company, or its successors or assigns, as a part consideration for said franchise, etc., shall, at its own cost, charges and expense for all material and labor, and without indemnity or right of reclamation, construct and maintain all street bridges where crossed by said company’s tracks; and at all times to keep all such crossings, bridges, culverts where crossed, in first-class order, and shall also keep and maintain two feet of the street on the outer side of each rail of their tracks in good order and condition.”

The city contends that these provisions impose the obligation to keep the bridges crossed by the railway in order.

The defendant claims that it is only required to keep that portion of the bridges in order immediately under or between the tracks, or “ where crossed.”

■The judge below maintained the city’s construction and gave reasons therefor to which we can add nothing. Notwithstanding the insistence of defendant’s counsel we are unable to discover any ambiguity in the contract which raises in our minds any doubt as to its true meaning.

The things to be constructed and maintained are the bridges, nob the crossings of the company’s tracks over the bridges. It is true the word “where” indicates and limits locality; but the locality indicated here is that of the bridges, not of the particular part of the bridges crossed by the track. The meaning of the words “where crossed” jumps to the eye; it means that bridges situated where they are crossed by the track are to be maintained and kept in order; other bridges situated where they are not so crossed are not included.

'This is rendered more clear by reference to the preceding contract between the parties, which required the purchaser “to keep in good repair and condition, during the continuance of this privilege, the paved and unpaved streets through which said tracks pass, as well as all the bridges on said streets.

The new contract modifies the old, in favor of the company, by-restricting the obligation to a particular part of the streets and to the particular bridges crossed. Had the intention been to confine the obligation to a particular part of the bridges, this would have been defined with the"same distinctness as that employed as to the parts of the streets. Moreover, as the judge a quo weightily says, there was no reason for the city'to obligate by written contract the defendant to keep in repair the bridges only, at the points where ■crossed by the tracks for the reason that the defendant was and is compelled to do so in order to maintain its tracks and run its cars.”

Finding that'the intention of the parties is plainly expressed in the contract, no foundation existed for resorting to prior conversations and negotiations between representatives of the contracting corporations to vary or explain it, and such evidence was rightly excluded.

Judgment affirmed.