Lawrence v. Morgan's Louisiana and Texas Railroad and Steamship Company

• Decision Date: 01 April 1887
• Docket Number: 9346
• Citation: 2 So. 69,39 La.Ann. 427
• Parties: TOWNSEND LAWRENCE v. MORGAN'S LOUISIANA AND TEXAS RAILROAD AND STEAMSHIP COMPANY
• Court: Louisiana Supreme Court

2 So. 69

39 La.Ann. 427

TOWNSEND LAWRENCE v. MORGAN'S LOUISIANA AND TEXAS RAILROAD AND STEAMSHIP COMPANY

No. 9346

Supreme Court of Louisiana

April 1, 1887

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

B. R Forman and Edward Simon for Plaintiff and Appellant.

Leovy &amp Leovy, J. T. Blair and Farrar & Kruttschnitt for Defendant and Appellee.

POCHE J. Mr. Justice Todd recuses himself.

OPINION

POCHE J.

Plaintiff appeals from a judgment rejecting his demand in a petitory action for the recovery of several tracts and strips of land, situated in Morgan City, in the possession of the defendant company, and on which it has erected depots for freight and passengers, several railroad tracks, switches, workshops, coal yards, cattle pens and steamboat landings and wharves, all used for the purposes of a common carrier, both by land and water.

Both parties claim title under Robert B. and Thomas T. Brashear, who once owned the plantation from which Morgan City was carved out, and which included the lands now in controversy. In addition to the plea of ownership through an alleged claim of title, the defendant company urges numerous other grounds of defense, among which is the averment that the present claimant and his alleged authors witnessed the possession of defendant of the several tracts of land in suit, were cognizant of the structures which the company placed thereon, from the year 1859 to the date of the suit, as the needs of the business required; that none of them ever objected to the company's possession and use of the lands aforesaid for the purposes of the company's business as a common carrier, and that such acquiescence is a bar to plaintiff's action to dispossess the present corporation, which has lawfully acquired all the rights of its predecessors and authors.

Although we have considered all the other features and bearings of the case, we reach the conclusion that this defense finds ample support in the record, as well as in the law governing the case, and we shall rest our decision on that plea.

The principle which underlies that ground of resistance was discussed before this Court, and it received the serious attention which was commensurate with the importance of the results likely to flow therefrom, in the case of St. Julien vs. Railroad Company, 35 Ann. 924.

In that case, under the guidance of a most respectable authority, this Court crystalized the principle into the following rule: "One who permits a railroad company to occupy and use his land and construct its road (a quasi public work) thereon, without remonstrance or complaint, cannot afterwards reclaim it free from the servitude he has permitted to be imposed upon it. His acquiescence in the company's taking possession and constructing its works under circumstances which made imperative his resistance, if he ever intended to set up illegality, will be considered a waiver. But while this presumed waiver is a bar to his action to dispossess the company, he is not deprived of his action for damages for the value of the land, or for injuries done him by the construction or operation of the road."

From the record we gather the following facts which have a bearing on this branch of the defense:

The lands in suit are situated at the point which was for many years the actual terminus of the railroad which had been built by the original incorporators, the New Orleans, Opelousas and Great Western Railroad Company, under a charter granted by the Legislature of Louisiana in 1853, and under the obligation to continue the construction of the road west of that point, namely, Berwick's Bay to the Sabine river.

In divers transactions, some in 1853, others in 1856, and others in 1857, that corporation obtained grants of lands for the construction of tracks, switches, depots, and other railroad appurtenances from R. B. and T. T. Brashear, the then owners of these lands, and from their legal representatives.

As the State of Texas soon became, in its trade with New Orleans, one of the principle feeders of the traffic of that road, it was found necessary, in view of the unfinished condition of the road, to reach Texas ports by steamers plying between the terminus of the road and Berwick's Bay and sundry points in Texas.

The needs of that kind of...