City of Shreveport v. Kansas City, S. & F. Ry. Co.

• Decision Date: 06 January 1936
• Docket Number: 33642
• Parties: CITY OF SHREVEPORT v. KANSAS CITY, S. & F. RY. CO. et al
• Court: Louisiana Supreme Court

166 So. 471

184 La. 473

CITY OF SHREVEPORT
v.
KANSAS CITY, S. & F. RY. CO. et al

No. 33642

Supreme Court of Louisiana

January 6, 1936

Rehearing Denied March 2, 1936

Wilkinson, Lewis & Wilkinson and Wise, Randolph, Rendall & Freyer, all of Shreveport, for appellants.

Aubrey M. Pyburn and Jos. H. Jackson, both of Shreveport, for appellee.

OPINION [166 So. 472]

[184 La. 475] HIGGINS, Justice.

This is one of four expropriation suits instituted by the city of Shreveport against four different railroad companies for the purpose of extending Allen avenue, from its intersection with Texas avenue, across nineteen railroad tracks and the property of the railroads, to Hoadley street, all within the corporate limits of the city, in order to open a cross-town street as a thoroughfare for the relief of congested traffic on Texas avenue, Southern avenue, and other streets in that locality.

The defendants denied the right of the city to take the property on the grounds that there was no public necessity for doing so; that it would deprive them of the use of their railroad yards; that it would be extremely dangerous to those who used the railroad and those traveling on the proposed street, particularly as to the north Y track, where there was to be a grade crossing; that it would unduly interfere with the trains of defendants engaged in interstate commerce; that defendants had recently spent a large amount of money for improvements in the vicinity of the [184 La. 476] proposed street, and that the opening thereof would destroy the use and purposes for which the said property had been acquired and the improvements made, thereby burdening and interfering with interstate commerce in violation of the Constitution of the United States (article 1, § 8, cl. 3); that an unprecedented, economic depression had depleted the financial resources of defendants to such an extent that, if they were forced to contribute to the opening of the street, as required by the provisions of Act No. 51 of 1928, they would be unable to perform their duties as interstate carriers; that a majority of the citizens of Shreveport favored a safer and more economic location for the proposed street; and that the refusal of the mayor and council of the city, to consider some other route, in order to avoid the danger to the public and the excessive costs for opening the street, is arbitrary and unreasonable and constitutes an abuse of power, which will unduly burden interstate commerce, in violation of the Transportation Act (41 Stat. 456), the Interstate Commerce Act (49 U.S.C.A. § 1 et seq.), and the Constitution of the United States. And, in the alternative, in the event that their property was expropriated, defendants claimed damages in the total sum of $ 745,000.

The trial judge ruled that the right of the city to expropriate a servitude or right of way for the street over the defendants' tracks and property had been finally settled in the city's favor, by granting it the right to open the street by means of an overpass or underpass, except as to the north Y track, which was to be crossed at grade. [184 La. 477] He, therefore, sustained the plea that the decisions of this court have become the law of this case and a plea of res adjudicata, and struck out these defenses, citing City of Shreveport v. Kansas City, Shreveport & Gulf Railway Company et al., 169 La. 1085, 126 So. 667; City of Shreveport v. Texas & Pacific Railway Co. et al., 178 La. 1087, 152 So. 913; City of Shreveport v. Kansas City, Shreveport & Gulf Railway Company et al., 181 La. 458, 159 So. 715; [166 So. 473] City of Shreveport v. Texas & Pacific Railway Co. et al., 182 La. 36, 161 So. 12.

A jury of freeholders was impaneled for the purpose of determining the extent of the defendants' damages, but the judge refused to allow the defendants to introduce any proof as to alleged damages, except the value of the land actually taken and the damages which the defendants might suffer in constructing future tracks over the underpass. The jury rendered a verdict in favor of the defendants for the sum of $ 4,036.94, for which amount judgment was entered in their favor, jointly.

Defendants applied for a new trial on all grounds previously urged as defenses, and on the further ground that the trial judge erred in excluding evidence as to defendants' damages, and that the amount of the verdict is inadequate and insufficient.

At the same time, the defendants filed exceptions of no right or cause of action on the following grounds:

(1) That under the provisions of article 2630, Revised Civil Code, it is a condition precedent to the plaintiff's right to bring the expropriation suit, to allege and prove [184 La. 478] that the parties could not agree on the purchase of the property in question; and (2) that the plaintiff failed to offer any proof whatsoever of any competent legislative authority for the opening of Hoadley street, in the manner proposed, or for the taking of the defendants' property in this suit.

The application for a new trial and the exceptions were overruled.

The defendants appealed. Plaintiff has answered the appeal, claiming that the verdict of the jury was excessive and should be reduced to the sum of $ 877.21.

We shall first consider the exceptions:

Article 2630, Rev.Civ.Code, reads, in part, as follows:

'Whenever any corporation, constituted under the laws of this State, * * * can not agree with the owner of any land which may be wanted for its purchase, it shall be lawful for such corporation to apply by petition to the judge of the district court in which such land may be situated.'

The petition alleges that the parties were unable to agree. The defendants denied that allegation. The record shows that these two defendants, as well as the three other ones in the previous and...