Hughes v. Brignac

• Decision Date: 26 April 1954
• Docket Number: No. 20241,20241
• Citation: 72 So.2d 22
• Parties: HUGHES v. BRIGNAC.
• Court: Court of Appeal of Louisiana — District of US

Page 22

72 So.2d 22

HUGHES v. BRIGNAC.

No. 20241.

Court of Appeal of Louisiana, Orleans.

April 26, 1954.

James J. Morrison, New Orleans, for defendant-appellant.

Harry R. Cabral and Lewis R. Graham, New Orleans, for plaintiff-appellee.

JANVIER, Judge.

Plaintiff, John R. Hughes, and defendant, Paul Brignac, own adjoining properties fronting on the Gentilly highway in New Orleans. During the fall of 1952, there arose between them a controversy over the construction of a division fence between their properties. The defendant Brignac had already erected along a part of the division line, though two inches from the line and entirely on his own property, a fence commencing about 132 feet from the front of the properties and extending towards the rear 96 feet. The rear end of this fence was 184 feet from the rear line of the properties so that there was no fence between the properties for a distance of 132 feet from the front line and for a distance of about 184 feet from the rear line.

On November 3, 1952, plaintiff, Hughes, wrote to defendant advising that he intended to construct a Page wire fence along the division line, but entirely on his side of that line. In the letter he said that it would not be a community fence; that he expected to complete it when he saw fit.

It is obvious that there had already been conversations between defendant and plaintiff concerning a fence, and in this letter plaintiff Hughes referred to a previous conversation. When Brignac received this letter he employed an attorney, Mr. D. A. McGovern III, to answer it and Mr. McGovern wrote to Hughes on November 5th. He referred to the letter of Hughes dated November 3rd as being impertinent, and stated that an investigation showed that the material for the construction of the fence which Hughes intended to build was available and that no delay was necessary; that a neighbor under the law 'need only contribute when a fence composed of wooden materials is erected,' and added, however, that since Hughes had stated that he would not require contribution 'the question of contribution cannot possibly enter the picture.'

To this letter of Mr. McGovern, Mr. Harry Cabral, as attorney for Hughes, made reply, addressing the answer to Mr. McGovern. He stated:

'Since it is apparent your client desires to exert his legal rights in every respect, I have advised my client to abide by the law and to build a 7-board feather-edged fence of the best material available on the market, the entire length of your clients' property which, as you know, will result in your client being called upon to pay the cost of one-half of this fence.'

No answer was received by either Mr. Cabral or plaintiff Hughes to this letter, and, on November 21st, Mr. Cabral again wrote to Mr. McGovern as attorney, stating that he was enclosing two bids for the erection of the fence, together with a sketch showing the location of the fence and in this letter he said:

'* * * Notice is hereby given to Mr. Brignac through you that our client proposes to erect this fence and call upon Mr. Brignac for the payment of one-half thereof. Please advise us within the time prescribed by law whether or not Mr. Brignac accepts the responsibility for the payment of one-half of the cost.

'Should we fail to receive your reply within the time prescribed by law, we shall be compelled to build the fence and take a lien against Mr. Briganc's property subject to payment by Mr. Brignac.'

No answer was received to this letter and, on December 16th, Mr. Cabral, as attorney for plaintiff Hughes, again wrote to Mr. McGovern as attorney calling attention to the letter of November 21st, regarding 'the community fence to be built by John R. Hughes on the adjoining property line between his property and that of Mr. Brignac.' Mr. Cabral stated that, since no answer had been received, Mr. Hughes would proceed to build the fence in accordance with the sketch and with the lower of the two bids, which amounted to $881.32. He added that after the construction of the fence 'we expect your client to pay one-half of the cost thereof.'

On January 22nd, Mr. Cabral wrote directly to Mr. Brignac, the defendant, as follows:

'We have complied with all phases of the law in regard to the fence which Mr. Hughes has constructed along the adjacent property line dividing your property from his. We have received no cooperation or no advices from you. Therefore, the fence was built by our client. The cost of the fence is $691.20. Your half of the cost amounts to $345.60. You are now notified that payment in the sum of $345.60 is demanded on or before Thursday, January 29th, 1953, after which time a lien will be filed against your property and the necessary litigation will be entered into in order to compel you to pay for this community fence.'

It appears that when Mr. McGovern received the letter of Mr. Cabral, which was dated November 21st, and in which the bids were enclosed, it was stated that Mr. Hughes would abide by the law and build the fence, and would call upon Mr. Brignac to pay one-half of the cost. Mr. Cabral sent a copy of this letter to Mr. Brignac.

In his petition plaintiff alleged that, in spite of the several letters which had been written to Brignac or his attorney, he had taken no action to seek other bids and that therefore he, Hughes, had erected 'a standard seven board feather-edge board fence,' using '4 X 6 No. 1 Common Cypress posts and No. 2 1 X 12 feather edge Cypress boards, for a distance of 320 lineal feet, at a cost of $2.16 a foot, or a total of $691.20.' And it is for one-half of this amount, to wit $345.60, for which this suit is brought.

Defendant Brignac denied all of the allegations of the petition and averred that the fence erected 'does not comply with the specifications of any law or ordinance for a party fence to which a landowner is entitled to compel his neighbor to contribute.'

After a trial on the merits there was judgment in favor of plaintiff as prayed for, and defendant has appealed.

In this Court counsel for defendant has contended that the First City Court of the City of New Orleans had no jurisdiction ratione materiae and that we should dismiss the suit because of lack of jurisdiction of that Court. This contention is based on the theory that there is involved a dispute over the fixing of the boundary between the property of plaintiff and that of defendant. We cannot agree with this contention. Counsel for defendant directs...