Louisiana Ry. & Nav. Co. v. Xavier Realty, Ltd.

• Decision Date: 22 June 1905
• Docket Number: 15,612
• Citation: Louisiana Ry. & Nav. Co. v. Xavier Realty, Ltd., 115 La. 328, 39 So. 1 (La. 1905)
• Parties: LOUISIANA RY. & NAV CO. v. XAVIER REALTY, Limited
• Court: Louisiana Supreme Court

39 So. 1

115 La. 328

LOUISIANA RY. & NAV CO. v. XAVIER REALTY, Limited

No. 15,612

Supreme Court of Louisiana

June 22, 1905

Appeal from Civil District Court, Parish of Orleans; Thomas C. W Ellis, Judge.

Condemnation proceedings by the Louisiana Railway & Navigation Company against the Xavier Realty, Limited. From a judgment awarding damages, both parties appeal. Affirmed.

William Winans Wall and Thomas Jones Kernan, for plaintiff.

Carroll & Carroll and Wise, Randolph & Rendall, for defendant.

OPINION

NICHOLLS J.

Statement of the Case.

Plaintiff in its petition alleged that by an ordinance of the city of New Orleans (No. 1997, New Council Series) approved September 4, 1903, it was granted certain rights and privileges in the city of New Orleans, including the right to acquire by expropriation all property in the city of New Orleans needed for railway purposes. That under the laws of the state of Louisiana it is authorized and entitled to expropriate all property needed for railroad purposes, and especially the property thereinafter described. That the Xavier Realty Limited, was the owner of certain property, which it described, situated in the Seventh Municipal District of said city.

That said property was necessary to petitioner for railway purposes. That it annexed hereto a plan of said property on which there were no improvements.

That it could not agree with the owner of said property as to the price to be paid for the purchase thereof, although it had offered more than the value thereof, and that it was necessary for petitioner to expropriate said property.

In view of the premises, it prayed that after due proceedings the said property be adjudged to it, upon the payment to the owner of all such damages as it might sustain in consequence of the expropriation of the same for railway purpose, and it prayed that all the costs of these proceedings might be paid as the law provides, and it be granted such other and further relief as should be meet and proper in the premises.

A certain plan was annexed to plaintiff's petition.

Defendant answered, pleading first the general issue. It admitted the ownership of the squares of ground described in plaintiff's petition, but averred that the square shown as No. 520 was really two squares (Nos. 480 and 520), and alleged that, in addition to said 10 squares, respondent owned, and was in possession as owner of, certain other squares of ground which it described, in the Seventh District of the city of New Orleans, to wit, Squares Nos. 482, 483, 485, 486, 487, 488, 489, 490, 492, 510, 511, 512, 513, 514, 515, 517, 525, 526, 527, 528, 529, 555, 556, 558, 561, 562, 563, 564, and an unnumbered triangular piece of ground bounded by Protection, Highland, and Edinburgh streets, all of said squares being contained within the limits of Oleander (formerly Fourteenth) street, Cambronne street, Palm (formerly Sixteenth) street, and the Protection Levee, said squares being separated from one another and from other squares, and bounded by said Protection Levee, and the following streets, viz.: Highland, Livingston, Live Oak, Cherry (formerly Clay), Laurel Grove, Hamilton, Holly Grove, Gen. Ogden (formerly Jackson), Eagle (formerly Mary), Monroe, Leonidas, Joliet (formerly Jefferson), Cambronne, Oleander (formerly Fourteenth), Forshey, Olive (formerly Fifteenth), Edinburgh, and Palm (formerly Sixteenth). Respondent specially denied that the expropriation sought in this suit was necessary for any public purpose, and averred that it was wholly unnecessary for any purpose whatever, and would be an unlawful and wanton invasion of respondent's rights, and a spoliation of its property, and particularly for the reason that the city of New Orleans had granted said company the right to construct, maintain, and operate its railway line into said city along, across, and upon the following streets, viz.: Protection, Oleander, Livingston, Forshey, Live Oak, Olive, Cherry, Edinburgh, Laurel Grove, Hamilton, Palm, Holly Grove, Stroelitz, Gen. Ogden, Palmetto, Eagle, Dixon, Monroe, Leonidas, Joliet, Peach, Cambronne, Dante, and the Shell Road, to the New Basin Canal. That, having the right of way on the said streets, there existed no public necessity, nor any necessity whatever, for the expropriation of any of respondent's said property, and that said company could easily make its entrance into said city, and construct and operate its said railway line on said street, without taking any of respondent's property. That, in the alternative, if it should be held that plaintiff had the right to expropriate any of respondent's said property, such right was limited to the least quantity thereof absolutely necessary for the construction, maintenance, and operation of its said line of railway, which respondent averred could in no event exceed a strip of land 30 feet wide through the squares on which it was located, and no others. That, even as to said strip of land, plaintiff could in no event expropriate more than a servitude or right of way thereon for railway purposes, and that plaintiff could not expropriate the fee-simple title or ownership of any part of said land. That the city of New Orleans was without power to confer upon plaintiff any right to expropriate private property, which right was conferred and limited by the Constitution and statutes of the state of Louisiana, and was in no respect enlarged in favor of plaintiff by Ordinance No. 1997, N.C.S., approved September 4, 1903, which was pleaded and relied on in plaintiff's petition.

It averred that the petition herein does not disclose the purpose for which the plaintiff conceived that it needed and was justified in expropriating the 10 squares of ground described in plaintiff's petition, and respondent denied that said squares of ground were necessary to plaintiff for any purpose whatever.

It averred that plaintiff's purpose in attempting to expropriate all of respondent's 10 squares of ground described in plaintiff's petition was to acquire the same now and hold them, because property was then cheap, in order to resell them at a profit hereafter for manufacturing and business sites, and it denied that the plaintiff herein had any right to expropriate said squares for any such speculative purposes. That this suit had been instituted without proper authority of the board of directors of the plaintiff corporation.

Further answering, and still pleading in the alternative, it averred that, if plaintiff was permitted to expropriate the limited servitudes hereinbefore described, such expropriation of said servitude and the construction and operation of a steam railroad thereon would utterly ruin and destroy the value of the said 10 squares described in plaintiff's petition, which, including the value of said servitudes, would inflict damage upon respondent to the amount of $ 30,000, for which plaintiff would be legally liable and bound to indemnify respondent.

That the 38 squares of ground hereinabove first described had been acquired by respondent and its authors as the result of patient effort and careful investment, extending through a period of many years, and constituted practically a continuous body of squares, situated in that portion of the city of New Orleans where property was now most rapidly improving in value, and were now well worth at least $ 114,000. That said body of squares practically constituted a large tract of land of much greater value than the same number of isolated squares of the same character could possibly have. That plaintiff's proposed expropriation and construction of its steam railroad along the line indicated by it would destroy the continuity of said body of squares; would render its development as a residential, commercial, or industrial suburb, for which it was admirably adapted, impossible; would impede the free access thereto; would obstruct the streets upon which said squares abut, and render them useless as thoroughfares; would seriously obstruct the drainage of said squares; and would thereby inflict upon respondent, in addition to the damages hereinabove set forth, damages to the amount of $ 21,600, for which plaintiff would be legally liable and bound to indemnify respondent.

It prayed that plaintiff's demand be rejected at its costs, or, in the alternative, if plaintiff be permitted to expropriate the servitude hereinabove described, for judgment against plaintiff for the value thereof, and the damages hereinabove set forth, amounting to the sum of $ 51,600, and 5 per cent. per annum interest thereon from date of judgment until paid, and if any greater amount of respondent's land, or any greater estate therein, should be expropriated by the judgment rendered herein, then for such additional damages as might be shown on the trial to be inflicted upon respondent thereby, and for costs and general relief in the premises.

Plaintiff filed a supplemental petition, in which it averred that it needed and required for railroad purposes the property referred to and described in the original petition filed in this case, in order to have a right of way for a double-tract railroad, with necessary and usual switches, turnouts, and cross-overs, and to have room and space upon which to erect car sheds, section houses, and repair shops, and to have room and space for storage of the necessary materials for construction and maintenance of its line, and to have room and space for yards for parking cars, and to procure ground from which to obtain earth or soil with which to erect and construct the banks or roadbeds of "your petitioner's" line of railroad through the squares belonging to the Xavier Realty, Limited, defendant herein.

Petitioner prayed that this supplemental and amended petition be filed and...