Gumbel v. New Orleans Terminal Co

• Decision Date: 01 March 1937
• Docket Number: 34126
• Court: Louisiana Supreme Court
• Parties: GUMBEL v. NEW ORLEANS TERMINAL CO

173 So. 518

186 La. 882

GUMBEL v. NEW ORLEANS TERMINAL CO

No. 34126

Supreme Court of Louisiana

March 1, 1937

Rehearing Denied March 29, 1937

Appeal from Civil District Court, Parish of Orleans; Walter L Gleason, Judge.

Petitory action by Henry E. Gumbel against the New Orleans Terminal Company. From judgment recognizing the plaintiff's ownership subject to a servitude in favor of the defendant for railroad purposes, the plaintiff appeals, and defendant answers the appeal.

Judgment amended so as to tax costs against plaintiff, and as amended affirmed.

P. M Milner, of New Orleans, for appellant.

Monroe & Lemann and Walter J. Suthon, Jr., all of New Orleans, for appellee.

ROGERS Justice. O'NIELL, C. J., absent.

OPINION

ROGERS, Justice.

This is a petitory action in which the plaintiff is the appellant from a judgment recognizing his ownership of the property claimed, subject to a servitude in favor of the defendant for railroad purposes, arising from unopposed occupancy. The judgment also reserves the rights of the parties as to any claims for damages, compensation, or other items which plaintiff may have against the defendant for its use and occupancy of the property, no monetary recovery having been sought in the suit.

Plaintiff alleges ownership by his purchase on November 10, 1913, of a square of ground in the Second district of New Orleans, designated as Square No. 483, bounded by St. Louis, Toulouse, Telemachus, and Genois streets. He further alleges that defendant wrongfully and illegally entered upon his square of ground on which it laid its spur tracks to private industries located in other squares of ground and beyond plaintiff's square of ground, and wrongfully claims possession and ownership of all that portion of his land occupied by the spur tracks.

Defendant in its answer claimed no conventional title to the land nor any conventional servitude thereon. The defense which prevailed below is that defendant, as a public utility possessing the power of eminent domain, has acquired a servitude for railroad purposes across plaintiff's square of ground, by actually constructing tracks across the property and by maintaining and using the tracks for many years in its operations as a public utility, to the knowledge and with the consent and acquiescence of defendant and his authors in title.

Defendant also unsuccessfully pleaded the prescriptions of one, two, five, ten, and thirty years and a claim to a servitude across plaintiff's land for railroad purposes by destination du pere de famille. Defendant reurges these pleas by answer to the appeal.

Prior to his suit, plaintiff sold to the American Can Company that portion of his property which forms the corner of Toulouse and Genois streets, which was excepted from the judgment. None of the railroad tracks in dispute are located on that portion of the square of ground previously sold by plaintiff.

We find no error in the judgment appealed from.

There is no dispute between the parties as to the present location of the railroad tracks. According to the exhibits in the record, the main line tracks of the defendant are located on St. Louis street alongside Square No. 483. From its junction with the main line tracks on the river side of the Orleans Canal a spur track, extending towards the lake, crosses Genois street and enters Square 483 near the corner of St. Louis street. This track, known as track No. 70 extends across the entire Square 483 to Telemachus street. From track No. 70,near the center of the square, another track, known as track No. 71, branches out and extends across the remainder of the square to Telemachus street. The tracks of the defendant which cross Square 483 also extend through the four squares of ground on the Lake side of that square. These squares are designated by the Nos. 500, 509, 526, and 527 and abut St. Louis street on which the main line tracks of the defendant are located. A number of industrial plants located in those four squares are served by the spur tracks in question, as were a number of other industrial plants previously operated in the squares.

The record shows that Henry E. Gumbel, the plaintiff, acquired the entire Square 483 by purchase from Thomas Capo on November 10, 1913. Capo purchased the square from Louis S. Berg and his daughters, who had inherited their mother's community interest, on July 14, 1913. Berg acquired the half of the square fronting Telemachus street from Santo Oteri on November 23, 1903 and the half of the square fronting on Genois street from the New Orleans Terminal Company, the defendant, on March 27, 1907. The Terminal Company acquired the half square sold to Berg, through expropriation proceedings, from the estate of Mrs. Frank Barker, on December 8, 1905.

Louis S. Berg was the president of the defendant company from June 30, 1903, to February 11, 1907. From 1903 to 1907, defendant owned one-half of Square 483 and Berg owned the other one-half. From 1907 to 1913, Berg owned the entire square.

The record shows that railroad tracks were constructed across Square 483 more than thirty years prior to the institution of this suit. Defendant contends that the tracks as presently existing are identical as to location with the tracks as originally constructed. Plaintiff, on the other hand, vigorously asserts that the location of the tracks across Square 483 has been changed from time to time since the date of the construction of the original tracks. We do not find it necessary to determine this disputed question of fact.

It is certain plaintiff's authors in title were aware of the existence of the tracks across the square and that they offered no objection thereto. Plaintiff admits that prior to his purchase he had examined the property and found railroad tracks extending across it. He also admits that he made no objection to the tracks until he demanded their removal shortly before he filed this suit. So that as far back as 1913, plaintiff was aware of the existence of railroad tracks on his property. And the record shows without contradiction that at least as far back as 1928 the tracks across plaintiff's property have been located exactly where they are now located and that they have been used by defendant in its operations without objection on plaintiff's part, until the time of his first protest early in the year 1936. In these circumstances, we find ample warrant for applying in defendant's favor the well-recognized doctrine of acquisition of a servitude by unopposed use for a public purpose.

The early leading case in our jurisdiction enunciating the doctrine is St. Julien v. Morgan's Louisiana & T. R. R. & S. S. Co., 35 La.Ann. 924, at page 925, which lays down the rule in the following language, viz.:

"Having thus permitted the use and occupancy of his land and the construction of a quasi public work thereon without resistance or even complaint, he cannot afterwards require its demolition, nor prevent its use, nor treat the Company erecting it as his tenant. He is not debarred from an action for damages by reason of the taking of the land and for its value, but having acquiesced in the entry and encouraged if he did not invite it, he cannot afterwards affect to treat it as tortious. Considerations of public policy, not less than the suggestions of natural justice, require that in such case the owner shall not be permitted to reclaim his property free from the servitude he has permitted to be imposed upon it, but shall be restricted to his right of compensation. Goodin v. Cincinnati & W. Canal Co., 18 Ohio St. 169, 98 Am.Dec. 95."

The doctrine is also recognized and applied in the following cases, viz.: Bourdier v. Morgan's Louisiana & T. R. R. & S. S. Co., 35 La.Ann. 947; Day v. New Orleans Pac. Ry. Co., 36 La.Ann. 244; Lawrence v. Morgan's Louisiana & T. R. R. & S. S. Co., 39 La.Ann. 427, 2 So. 69, 4 Am.St.Rep. 265; St. Julien v. Morgan's Louisiana & T. R. R. & S. S. Co., 39 La.Ann. 1063, 3 So. 280; Mitchell v. New Orleans & N. E. R. R. Co., 41 La.Ann. 363, 6 So. 522; Payne v. Morgan's Louisiana & T. R. R. & S. S. Co., 43 La.Ann. 981, 10 So. 10; Lindner v. Yazoo & M. V. R. R. Co., 116 La. 262, 40 So. 697; McCutchen v. Texas & P. Ry. Co., 118 La. 436, 43 So. 42; Taylor v. New Orleans Terminal Co., 126 La. 420, 52 So. 562, 139 Am.St.Rep. 537; Moore Planting Co. v. Morgan's Louisiana & T. R. R. & S. S. Co., 126 La. 840, 53 So. 22; Brewer v. Yazoo & M. V. R. R. Co., 128 La. 544, 54 So. 987; Pons v. Yazoo & M. V. R. R. Co., 131 La. 313, 59 So. 721; Louisiana Land Co. v. Blakewood, 131 La. 539, 59 So. 984; Roussel v. New Orleans Ry. & L Co., 152 La. 517, 93 So. 758.

And the application of the doctrine is not dependent upon the lapse of any specific prescriptive period and even a brief period of occupancy and use of the property by a public utility, with the knowledge, consent, or acquiescence of the landowner, will suffice to effectuate the doctrine in favor of the utility.

Thus, in Moore Planting Company v. Morgan's Louisiana & T. Railroad & S. S. Company, 126 La. 840, at page 872, 53 So. 22, 33; this court said:

"These decisions [holding that a railroad which has gone into possession without title, but without opposition, and is in operation cannot be ousted by the owner, but has the right to continue in possession], be it noted, are not founded upon any law of prescription. The proof of this lies in the fact that the railroad is maintained in possession even though it has been in operation less than the shortest time required for prescription. Those decisions are founded upon the combined presumed consent of the owner of the land and the public interest. The owner of the land is presumed to have yielded, without an expropriation suit having been brought...