New Orleans Gaslight Co. v. Drainage Commission of New Orleans

• Citation: 111 La. 838,35 So. 929
• Decision Date: 30 November 1903
• Docket Number: 13,897
• Court: Supreme Court of Louisiana
• Parties: NEW ORLEANS GASLIGHT CO. v. DRAINAGE COMMISSION OF NEW ORLEANS

35 So. 929

111 La. 838

NEW ORLEANS GASLIGHT CO. v. DRAINAGE COMMISSION OF NEW ORLEANS

No. 13,897

Supreme Court of Louisiana

November 30, 1903

See dissenting opinion of BREAUX, J., 35 So. 934.

Appeal from Civil District Court, Parish of Orleans; George H Theard, Judge.

Action by the New Orleans Gaslight Company against the Drainage Commission of New Orleans. Judgment for defendant, and plaintiff appeals. Affirmed.

Buck Walshe & Buck, for appellant.

Howe Spencer & Cocke, for appellee.

OPINION

NICHOLLS, C.J.

Statement of the Case.

In an able brief filed on behalf of the defendant it is forcibly urged:

(1) That the gas company had only the right of user in the public streets along with all other citizens, and acquired no right of "ownership" or "property" in or to any part of the public streets by virtue of its charter provisions. 2 Dillon, Mun. Corp. (3d Ed.) 683.

(2) That it took this right of user subject to the implied condition that the state or the city might, in the exercise of its police power for the public health or the public safety, cause other structures to be placed in or on such street which might temporarily inconvenience the gas company in its use, or which might occasion the removal to another part of the street of its mains and pipes, and that any damage resulting from such temporary inconvenience or such removal was damnum absque injuria.

They maintain that the gas company was given the exclusive right to sell gas in the city of New Orleans, and as a necessary incident to enable them to carry on the business of furnishing the public with gas it gave it the right to lay its mains and pipes under and through all the streets and alleys of the city, and implied a right to maintain the same, provided that such work should be done and maintained with as little inconvenience to the public as possible; but it was not given an exclusive right to the use of the streets, nor a property right in or to any particular portion of the street. The Legislature did not designate the particular streets or parts of streets in which the company should lay its mains and pipes, nor vest the common council or any officer of the city with authority to locate the pipes or regulate the location of the same. The whole subject was left to the judgment and at the risk of the gas company, with only a warning that they should be laid in such manner as to least inconvenience the public. The gas company took the risk of the location of the pipes. If the gas company could not acquire any property in the public streets, its rights were merely those of user, such a right as any other citizen similarly situated had, or as a street railway had -- a right of passage. As a corollary neither the state nor the city lost the right of control or use of streets for other legitimate purposes, and, even if the grant of the gas company was a public use, this did not impair or exhaust the right of the state or the city to make other grants, or to build in such streets other works equally for the public comfort or health. Chicago Railway Co. v. Quincy (Ill.) 27 N.E. 193, 29 Am. St. Rep. 334; Id., 28 N.E. 1070; Kansas v. Morley, 45 Mo.App. 304.

Counsel urge that the enforced removal of the plaintiff's mains to another part of the street in order to make room for a necessary and important public work was a mere police recognition of its right of user, and was in no sense a "taking" or "damaging" of private property, or a divesting of a vested right which would entitle it to compensation. Assuming the company had a vested right to use some part of the streets did not weaken the position that such vested right could be regulated in a reasonable manner for the public good. It could claim no greater or higher rights than those conferred upon street railway companies by the purchase for a valuable consideration to lay track and operate cars upon the streets. Companies of that kind, having legislative grants to use the streets, can be required by the city in the exercise of its police power for the public safety to erect or maintain gates at their own expense at street crossings and to regulate the speed or length of trains imposing heavy outlays and much inconvenience, though neither the state nor the city could divest them of the right to use the streets without making compensation, or make itself liable for damages. The existence of the right of regulation is essential to the welfare of the public, and without it the state or city would be powerless to perform its first duty to its citizens of protecting their health, welfare, and safety. Conditions of life change, and what may seem a reasonable and proper use of the streets, or what may be ample protection for the health and safety of the citizen, in one generation might be utterly unreasonable or inadequate for another. The power to regulate the streets is not only a continuing power, but an inalienable one. This being the case, all privileges such as the plaintiff claims must be understood to have been granted and accepted subject to the implied condition that the state or city in the exercise of the police power may regulate, limit, or modify that use whenever and wherever the safety, health, or welfare of the public demand it. The state or city might not be permitted to completely deny or destroy the right, or to so unreasonably regulate it as to amount to a denial or destruction, but such was not the situation at bar. Plaintiff had not been deprived of the right to use a single street where its mains had been laid. It had only been required to remove them to one side of the street, so as to permit the construction of sewers. The public health required this, and the public would have been inconvenienced had they not been changed.

The Legislature intended by the provision in the company's charter that it should lay its mains and pipes "in such manner as may procure the least inconvenience to the city or its inhabitants" that the right granted should be subordinate to the paramount right of the public, and that the company should at all times yield without compensation to the necessities of the public welfare.

Counsel refer the court to Mugler v. Kansas, 123 U.S. 623, 8 S.Ct. 273, 31 L.Ed. 205, and the authorities therein cited; to National Water Works Co. v. Kansas City (C.C.) 28 F. 921; Railroad Co. v. Wakefield, 103 Mass. 261; Jamaica Bond Co. v. Brookline, 121 Mass. 5; Columbus Gaslight Co. v. Columbus (Ohio Sup.) 33 N.E. 292, 19 L. R. A. 510, 40 Am. St. Rep. 648; Cincinnati v. Penny, 21 Ohio St. 499, 8 Am. Rep. 73; Clapp v. City of Spokane (C. C.) 53 F. 516; State v. Flower, 49 La.Ann. 1199, 22 So. 623.

In citing the case of Columbus Gaslight Co. counsel say: "That was a suit for damages for expenses of relocating gas pipes to conform to a charter in the established grade of a street made by the city of Columbus. The court held that a gas company laying its pipes in the streets of a city under a grant from the city in conformity with an established grade does so subject to the right of the city to change the grade of the street whenever the necessities of the public require it; and, in the absence of wantonness or negligence on the part of the city, the company cannot maintain any action for damages caused by the necessity of taking up and relaying its pipes in order to accommodate them to the new grade."

Referring to Jamaica Bond Co. v. Brookline, 121 Mass. 5, they say "This was an action of damages to recover expense of changing the location of certain water pipes. Plaintiff alleged that it had theretofore laid water pipes on the streets under its charter in accordance with the established grade in the street; that the city had changed the grade, and required the plaintiff to change the location of the pipes, to plaintiff's great injury and damage. The court held that the injury was damnum absque injuria." National Water Works Co. v. Kansas City (C. C.) 28 F. 921 (Mr. Justice Brewer), is quoted with the following statement: "This was an action for damages. In 1883 the plaintiff company laid a water pipe in one of the streets of Kansas. The grade of this street had been previously established, and the plaintiff had been directed by the city to lay a water pipe therein, and the same was laid in the place and manner directed by the city. In 1884 the city dug a sewer on said street on the same part of the street in which the plaintiff's water pipe had been laid, in consequence of which the plaintiff was compelled to take up and lay its pipe in another place. The action was brought to recover the cost and expense of this relocation." The case is even stronger than the case at bar, in that the city had directed the place and manner in which the plaintiff should lay its main, and the water company contended that under the circumstances it had acquired such a vested property right in an undisturbed location and position to entitle it to resist any further trespass or invasion thereof. The answer of the city was that the matter of sewerage was one affecting the public health; that it could not, if it would, and that it did not, if it could, contract away the right to construct sewers in any part of the public streets; that the plaintiff took its contract to lay its pipes on such public streets subject to the paramount and inalienable right of the city to construct its sewers whenever, in its judgment, the public interest demanded. The learned justice sustained the city's contention, and said: "Sewerage is a matter unquestionably affecting largely the public health, and no municipality can make a contract divesting or abridging its full control over such matters. * * * The contract between the plaintiff and the defendant is to be interpreted in the light of this well-established rule,...