Nagle v. Police Jury of Caddo Parish

• Decision Date: 31 October 1932
• Docket Number: 31481
• Citation: 175 La. 704,144 So. 425
• Court: Louisiana Supreme Court
• Parties: NAGLE v. POLICE JURY OF CADDO PARISH

144 So. 425

175 La. 704

NAGLE v. POLICE JURY OF CADDO PARISH

No. 31481

Supreme Court of Louisiana

October 31, 1932

James U. Galloway, Dist. Atty., of Shreveport, for appellant.

R. D Fuller and Julius T. Long, both of Shreveport, for appellee.

O'NIELL C. J., concurs except as to damages caused by the fire.ST PAUL, J., takes no part.

OPINION

OVERTON, J.

This is a suit for $ 31,950 damages, which plaintiff urges were caused her, in the year 1929, by defendant, in the construction of a paved highway through her property.

The damages claimed are those resulting from encroaching upon plaintiff's land for dirt, and also for taking land from her in excess of that deeded to defendant for a right of way; those arising by the placing of a culvert under the highway, connected with a ditch wrongfully constructed by defendant on her land, thereby causing water to flow on her land, to her injury; those arising from injury to the trees and shrubbery on a part of plaintiff's property, caused by defendant, through its employees, setting fire to debris on the side of the right of way, removed from the proposed roadway, in constructing the road, and permitting the fire to spread from the burning brush over a part of plaintiff's land; and those arising from mental anguish, pain, and suffering, resulting from the wrongful acts of defendant.

Defendant, before answering, filed a motion to strike from the petition certain parts of plaintiff's demand, consisting of that part for damages for overflowing a part of her land, and of that part for damages arising from the injury to the trees and shrubbery by permitting the fire to spread, and also an exception of no cause of action. The motion to strike out and the exception were overruled by the trial court. The theory upon which they rest is that defendant, being a state agency, is not liable for the torts of its agents and employees. As this question is involved in deciding the merits of this case, it will be considered there.

The trial resulted in a judgment for plaintiff for $ 750, with legal interest thereon from judicial demand, until paid. Defendant has appealed, and plaintiff has answered the appeal praying that the judgment be increased to the amount demanded in her petition.

The right of way for the proposed highway through plaintiff's property was deeded to defendant by plaintiff. The proof clearly establishes that defendant, through its agents, went beyond the right of way at three points, but not to the extent urged by plaintiff. At one of these points, in order to save an oak tree, defendant ran one of the highway ditches 9 feet beyond the right of way for a distance of 160 feet, thereby taking about 1/40 of an acre of plaintiff's property, not included in the right of way deeded. At another point, defendant removed dirt from plaintiff's property, along the right of way, to a depth of from 6 to 10 inches by a width of 3.06 feet, and by 470 feet in length, thereby encroaching upon plaintiff's property between 1/30 and 1/40 of an acre. At still another point, defendant encroached on plaintiff's property for dirt to construct the highway to the extent of an average of 9.4 feet in width by 403 feet in length, thereby encroaching on plaintiff's land to the extent of something over 1/15 of an acre. The total of these encroachments is 6,613 square feet, or less than 1/5 of an acre. The record does not establish any other encroachments, except the digging of a drainage ditch on plaintiff's land. The contention that any more was taken is not established.

The drainage ditch, just mentioned, was dug on plaintiff's farm to relieve the ditches, dug along the roadway, of excessive water during rains, and was constructed without authority from plaintiff. It connects with a culvert, constructed by defendant under the roadbed. The purpose of the culvert and ditch apparently was to carry a part of the water from the main ditches through depressions on plaintiff's farm to a creek. The ditch was constructed approximately 7 1/2 feet wide by 10 inches deep and by about 150 feet in length. The ditch, during hard rains, overflows, and, according to plaintiff's contention, causes some 40 acres of her land to be boggy and worthless.

While the evidence is conflicting as to the cause of the boggy condition of the land and vague as to the acreage affected yet we think that it sufficiently appears that the boggy condition is partially due to the culvert and the connecting ditch. The record does not justify us in holding, however, from our appreciation of it, that more than four acres were affected, or that the land, at this point, due to its being in a depression, was worth much over $ 25 an acre. If more was affected, the evidence as a whole is too vague to allow it. The ditch drained only about 2.7 acres, at best. In clearing the right of way, defendant piled the debris on the side of the road...