Orleans And Jefferson Railway Co., Ltd. v. The Jefferson And Lake Pontchartrain Railway Co.

• Citation: 26 So. 278,51 La.Ann. 1605
• Decision Date: 12 June 1899
• Docket Number: 12,794
• Court: Supreme Court of Louisiana
• Parties: ORLEANS AND JEFFERSON RAILWAY CO., LTD., v. THE JEFFERSON AND LAKE PONTCHARTRAIN RAILWAY CO

26 So. 278

51 La.Ann. 1605

ORLEANS AND JEFFERSON RAILWAY CO., LTD., v. THE JEFFERSON AND LAKE PONTCHARTRAIN RAILWAY CO

No. 12,794

Supreme Court of Louisiana

June 12, 1899

Argued March 22, 1899

ON APPEAL from the Twenty-First Judicial District Court for the Parish of Jefferson. Rost, J.

Carroll & Carroll, Robert J. Perkins and L. L. Labatt, for Plaintiff and Appellee.

Dart &amp Kernan, for Defendant and Appellant.

OPINION

NICHOLLS C.J.

In the petition filed by the plaintiff it alleged itself to be a railroad corporation organized under the laws of Louisiana, and its object to be "to lease purchase, construct, operate, and maintain street railroads in the city of New Orleans and parishes of Orleans and Jefferson for the purpose of carrying passengers and freight."

It averred that the defendant company was the owner of certain land lying in the parish of Jefferson, which it described. That petitioner was then engaged in the construction of its line of road in the parish of Jefferson in accordance with its charter. That a portion of the land mentioned as belonging to the defendant and which it described, was required by it (petitioner) and the right over the same actually necessary to it for the construction of said railroad and public roads, which they were then actively building according to a described route.

The whole area of the land so declared to be necessary for a right of way was averred to be about seven acres, to be unimproved, of little or no value to defendant, and had not been used by it for any purpose for forty-five years.

Petitioner alleged that the Police Jury of Jefferson parish had granted to it a franchise to build and operate a railroad over its own portion of the desired route and, as far as it had the power as a political corporation to do so, had granted a franchise to build and operate a railroad over the property it was then seeking to expropriate.

That it had been unable to agree with the defendant for the purchase of the land or a right of way over the same, and expropriation proceedings were necessary.

In view of the premises, it prayed for a jury of free holders; for citation to defendant, and after due proceedings for judgment in its favor condemning to it a right of way as described upon paying defendant such damages and compensation as by the verdict of the jury and the judgment of court it might be decreed to pay.

Defendant answered, first pleading the general issue.

It admitted it was the owner of the property described in plaintiff's petition, but averred that it constituted a part of its road bed and right of way and was held and used under the railroad franchise conferred on it by the Legislature of Louisiana, and that if true it be that any franchise or right of way thereon had been conferred on the plaintiff by the Police Jury of Jefferson Parish, which, however, was not admitted but denied, the franchise or right of way was null and void, inasmuch as the parish of Jefferson was without power to interfere with the rights and privileges conferred on respondent by the Legislature and any such grant (if any existed), which was denied, was null and void, in violation of the Constitution of the United States and was an unwarranted interference with defendant's contract and vested rights.

Defendant averred that it needed all of said land for the exercise of its rights and privileges and for the operation of the railway which it then had in contemplation. That the plaintiff had already ample room on the street for all its purposes or necessities and there was adjoining said street abundant private property not used or needed for railway purposes and there was in law and fact no reason why respondent's road bed and right of way should be interfered with. That the plaintiff if successful would shut respondent out of the use and enjoyment of its said road bed or a material part. Respondent specially denied that plaintiff had ever been granted a right of way or franchise over respondent's land, and averred on the contrary that no such right had ever been conferred on plaintiff by the Parish of Jefferson, but if any such right or franchise had been granted the same was void and ineffectual, and the road bed and franchise of defendant railroad company could not be expropriated in favor of plaintiff to the exclusion and destruction of respondent's prior rights, grants and privileges.

It averred that it was not true that the land in question was valueless, but, on the contrary, it was a very valuable property, raised, well filled and graded, and plaintiff could not duplicate said road bed sought to be appropriated for less than twenty thousand dollars.

Defendant prayed for the rejection of plaintiff's demand. Upon the trial of the cause the jury returned a verdict for plaintiff and assessed the value of the property to be expropriated at five hundred dollars.

The District Court thereupon rendered judgment in favor of the plaintiff and against the defendant, condemning to plaintiff upon payment by it to the defendant of the sum of five hundred dollars a right of way through the property of the defendant, which the judgment described.

It decreed that the plaintiff should not enter upon or take possession of said land for railroad purposes until it should have paid the sum of five hundred dollars, or in case of appeal from the judgment by defendant, until it should have deposited the said sum in the hands of the sheriff of Jefferson Parish, subject to the order of the defendant company.

Defendant appealed.

OPINION.

Neither of the parties to this litigation denies the corporate capacity of the other.

The plaintiff company organized on the first of June, 1897, with over six incorporators, by notarial act before N. B. Trist, notary public for the parish of Orleans.

The incorporators declared that in so doing they availed themselves of the privileges of the laws of Louisiana, relative to the organization of corporations, and particularly of the act of the General Assembly of Louisiana, No. 36 of the session of the year 1888.

The declared object and purpose of the corporation were to lease, purchase, construct, operate and maintain street railroads in the city of New Orleans and parishes of Orleans and Jefferson for the purposes of carrying passengers and freight and furnishing power and light when necessary.

The defendant company was chartered by the General Assembly of Louisiana by act No. 79 of 1840.

The plaintiff sought in this proceeding to obtain by expropriation a right of way (fully described) over a part of a tract of land declared by it to belong to the defendant.

The defendant admits its ownership of the property. Plaintiff, in its petition, averred that the police jury of the parish of Jefferson, in which parish lies that portion of defendant's property on which the right of way is sought herein, had granted to it a franchise to build and operate a railroad over its portion the desired route and also as far as it had the power as a political corporation to do so, had granted it a franchise to build and operate a railroad over the property which plaintiff was seeking to have expropriated from the defendant.

This allegation was made, we presume, in view of the fact that, adjoining on its upper line the property of the defendant on which the right of way was asked, was what was understood to be one of the public roads of the parish of Jefferson, along and over a part of which road plaintiff with the consent of the police jury contemplated placing one of its tracks.

The defendant insists in this court that plaintiff had failed to prove the existence of this franchise from the police jury or to show that it had ever acquired a franchise which had been granted to any one else or a franchise assignable in character.

We do not understand plaintiff's right to expropriate defendant's property to rest upon any franchise granted to it by the authorities of the parish of Jefferson, but in right of its being a railroad corporation organized under the laws of the State. We do not think it any the less a railroad corporation because, its route leading partly through the city, it may have purchased a street franchise from the city authorities.

The parish of Jefferson has nothing to do with the expropriation of the property belonging to the defendant, while the existence or non-existence of a franchise from the police jury of the parish of Jefferson to plaintiff to build and operate a railroad on one, or partly on one, of the public roads of that parish, would, in our opinion, not affect the situation at all, so far as the defendant is concerned.

If the plaintiff should attempt to build its road without legal authority or deflect in any way from the route assigned to it, the police jury will (we assume) see that it be made to keep within its rights.

Defendant complains that the plaintiff company should have selected the particular route it did over its property. It suggests that it might have gone further to the west and beyond the public road, where the lands are of little value, swampy and uninhabited, and where no one would be specially injured or inconvenienced, whereas the property which it proposes to take, is extremely valuable and precisely that over which defendant itself would run a road bed should it hereafter determine to operate a road again.

This court referring, in Railway Company vs. Railroad Company (49 Ann. 32), to a similar claim set up by the defendant therein, said: "While we have examined this phase of the controversy, it must seem difficult to maintain as the test of the expropriation that lands of others than the proprietor should be taken. Expropriation in most instances is deemed a sacrifice by the proprietor called on...