Egan v. Hart
| Decision Date | 01 November 1893 |
| Docket Number | 11,376 |
| Citation | 45 La.Ann. 1358,14 So. 244 |
| Court | Louisiana Supreme Court |
| Parties | MRS. LILLIAN W. EGAN AND HUSBAND v. A. HART ET ALS |
Rehearing refused.
APPEAL from the First District Court, Parish of Caddo. Taylor J.
J. C Egan and F. G. Thatcher, for Plaintiffs and Appellants.
Land & Land, for Defendants and Appellees.
J. R. Land, District Attorney, for the State of Louisiana, Intervenor and Appellee.
This is an injunction suit to restrain the construction of a dam across Bayou Pierre.
Plaintiff owns a plantation in Caddo parish, known as Grigsby's Island, and which is bounded on one side by Red river and on the other sides by bayous or streams connecting with Red river. Bayou Pierre bounds her plantation in the rear. She complains that A. Hart, and H. B. Richardson, pretending to act as chief engineer of the Board of State Engineers, and F. M. Kerr, pretending to act us engineer of said board, have combined and conspired to build a dam across Bayou Pierre at a distance of about one mile and a half from Red river, and of about a quarter of a mile from the lowest point of her land. She alleges that the defendants have announced their intention to close Bayou Pierre, and have actually begun the work necessary to carry out their purpose. She alleges that the defendant Hart was employed almost wholly by private persons to do said work. That the necessary funds were supplied by interested private parties who, for their own selfish interests and from no public motive, have entered into the combination to dam said bayou. That any pretended contract between Hart and the State is a mere pretext or subterfuge and was intended as a cloak to cover their illegal acts, and with the hope to shield themselves from the legal consequences of their wrongful acts. She avers specially that, if the acts of defendants are claimed to be done by virtue of any contract with the State or its officials, and in accordance with law, the Board of Engineers has no power to close such a natural outlet as Bayou Pierre is, and she says that since the passage of Act 74 of 1892 the Board of Engineers is without power to advertise for bids and to let contracts for building public levees in Caddo parish and for closing Bayou Pierre; but that said power is lodged exclusively in the Board of Commissioners of the Caddo Levee District, and that, if the Board of Engineers has let a contract for closing Bayou Pierre since the passage of Act 74 of 1892, it has done so without authority from the district commissioners. That, if the authority is claimed under Sec. 18 of Act 74 of 1892, said section is unconstitutional.
Plaintiff avers that the effect of closing Bayou Pierre will be to increase the volume of water in Red river, thereby rendering her lands more liable to overflow and requiring her to add to her own levees already built. That she will be compelled to surround her plantation with high levees, costly to maintain and which would leave her plantation as a basin in which rain and seepage water would stand. She alleges damages to the amount of $ 6000, of which $ 1000 are claimed for attorneys' fees and $ 5000 for the depreciation in the rental and selling values of her plantation and the disturbance of her tenants and laborers. She prays for the damages claimed and for the removal of the dam.
By an amended petition, plaintiff avers that Bayou Pierre is a navigable stream, and that the State has no power to close it.
The State intervened and alleges that the work enjoined is a part of its public levee system. That the Board of State Engineers, in the discharge of its duties, recommended the closing of Bayou Pierre and the continuation of a public levee from the hills north of and across Bayou Pierre to the Dixie plantation, a distance of two miles and three-quarters, in order to protect the adjacent country from overflow, and as a basis of a system of levees to be built as rapidly as possible; that bids for said public work were advertised for according to law; that the bid of the defendant Hart was duly accepted, and a contract was made with him by the Governor; and that Hart gave bond and security for the faithful performance of the work; that the contract price is payable out of the general engineer fund, over which the District Board of Commissioners has no control, and that the Board of State Engineers has the power, under the laws of the State, and especially under Act 60 of 1886, to determine in what part of Caddo parish its pro rata of said fund should be expended; that said Board of Engineers has the exclusive power of locating all levees in the Caddo Levee District, and of determining what outlets shall be closed or opened; that such power was not abridged by Act 74 of 1892, but, on the contrary, was made exclusive by Sec. 18 of said act; that said act makes it the duty of said Caddo District Levee Board to provide the means to carry out the recommendations of said Board of Engineers by taxation, but that these means are intended to be in aid of the general engineer fund.
The injunction was dissolved on bond.
Defendants answered, making substantially the same averments as the State.
After trial the district judge dissolved the injunction and dismissed the suit, condemning plaintiff to pay the defendant Hart $ 850 as damages, of which $ 250 are for attorneys' fees.
Plaintiff has appealed, and the defendant Hart, in his answer to the appeal, prays that the attorneys' fees be increased to $ 1000.
Plaintiff's allegations that the closing of Bayou Pierre is the result of a combination and conspiracy for private interests are clearly and abundantly disproved by the record. The work complained of is a public work undertaken, in accordance with law, by the agents of the State, the State Engineers. It is a part of the public levee system of the State. It was being carried on by the State Engineers in the performance of the duties imposed upon them by law. The work was surveyed; it was reported and recommended to the Governor. The Governor advertised for proposals to do the work. The contract was awarded to Hart, and was signed by the Governor and by Hart. The latter gave security for the performance of the work. It is clear that no possible damage could have resulted to plaintiff from the mode in which Hart obtained the contract, and that if she has suffered any injury it was not because of the mode of awarding the contract but because of the acts done under the same.
This is not a case in which a requirement of law provided in the interest of a person has not been observed.
The fact that private persons bound themselves to the contractor Hart to supplement by subscriptions of money the price which he was to receive from the State affects in no manner the...
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...563, 19 L.Ed. 999. See, also, Boykin & Lang v. Shaffer, 13 La.Ann. 129; McCearley v. Lemennier, 40 La.Ann. 253, 3 So. 649; Egan v. Hart, 45 La.Ann. 1358, 14 So. 244; Burns v. Crescent Gun & Rod Club, 116 La. 1038, 41 249; Delta Duck Club v. Barrois, 135 La. 357, 65 So. 489; State v. Capdevi......
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