Taylor v. New Orleans Terminal Co
| Decision Date | 09 May 1910 |
| Docket Number | 17,896 |
| Citation | 52 So. 562,126 La. 420 |
| Court | Louisiana Supreme Court |
| Parties | TAYLOR v. NEW ORLEANS TERMINAL CO |
On Application for Rehearing, June 6, 1910. Rehearing Refused.
Appeal from Twenty-Eighth Judicial District Court, Parish of Jefferson; Prentice E. Edrington, Judge.
Action by Raphael E. Taylor against the New Orleans Terminal Company. Judgment for plaintiff, and defendant appeals. Amended and affirmed.
Saunders Dufour & Dufour, for appellant.
James J. McLoughlin and Frederick A. Middleton, for appellee.
BREAUX C. J. PROVOSTY, J., takes no part, not having heard the argument.
Plaintiff sued the defendant for the sum of $ 3,750, with legal interest from judicial demand.
He describes in his petition the land he owns; refers to his plat of survey and to the origin of his title.
He charges in his petition that defendant appropriated a strip of his land and constructed a switch track thereon, occupying about five acres of his land; that this alleged appropriation cuts off access from his said tract of land to a larger triangular shaped tract he owns, forming part of the southeast area of his property used by him as a pasture.
He fixed the value of the appropriated land at the sum of $ 1,000, and the damages growing out of the appropriation at $ 500, and avers that there is continuing damage committed which he alleges he "reserves the right to claim."
Plaintiff avers that defendant is bound, under the title which it holds, to construct wire fences, maintain ditches, and build gates and crossings, which it has failed to do.
Plaintiff charges that defendant entered upon his land with workmen and ran a preliminary line for a switch track; they cut down trees and damaged the property in the sum of $ 250.
Plaintiff, in addition to the foregoing amount, claims $ 1,000 damages caused by a preliminary survey.
The answer is:
(a) That the land used for the switch was taken by defendant many years ago, but with the tacit consent of the then owner, and defendant has ever since been in the open, continuous, and peaceable possession of the land so taken; except that plaintiff did recently attempt to interfere with defendant's possession, and thereupon plaintiff was promptly enjoined, at the instance of defendant, from further disturbing defendant.
That defendant had been in the possession and enjoyment of said switch track for many years before plaintiff bought the land through which the said tract runs, and when he bought plaintiff bought the land as it then stood, and has no right now to claim damages or compensation for the land which defendant had previously taken and was then occupying with its switch track.
(b) That access to part of plaintiff's land is not prevented by the switch above mentioned, and, if access is in some degree impeded, the damages which plaintiff claims in his petition as being caused thereby are grossly exaggerated.
(c) That plaintiff is a stranger to and without any rights under the contract for right of way made with a former owner of the land, and his suit on this contract must, therefore, be rejected.
(d) That defendant had the legal right to make a preliminary survey for its contemplated new switch, and that it did make such a survey without damage to plaintiff's property, but has never actually built the contemplated new switch; and plaintiff's claim for damages is fictitious and wholly unfounded.
There can be no right to punitory damages.
The judge a quo gave judgment in favor of plaintiff:
First, for the value of three acres of land, which he found had been taken for, and were being occupied by, the switch, at $ 300 an acre; in all, $ 900.
Second, for $ 100, amount of damages done by the preliminary survey.
Third, ordering the defendant to build the fences, ditches, etc., within a year; and, if it should not build them in that time, to pay the plaintiff $ 500 with which to build them, and the defendant to maintain them thereafter.
The other demands of plaintiff were rejected.
The defendant appealed, and the plaintiff has answered praying for the amendment of the lower court's judgment.
By defendant's appropriation with the tacit consent of the owner at the time, the right to the strip of land passed from the owner to the appropriator -- the right became segregated from the property, and the owner became a creditor for the value of the property taken.
The right was personal. The owner at the time had a claim personally for the amount.
The purchaser by the act of purchase does not become invested with a right to the value of the property taken unless the right is transferred with the property.
In a leading case (St. Julien v. Morgan's R. R. Co., 35 La.Ann. 924) it was decided that the owner is concluded from reclaiming his property free of servitude imposed thereon if he failed to object to the appropriation in due time.
He is allowed compensation for value instead of the property taken.
The right inures to him personally and not to successive owners.
This right to recover compensation is not connected with the title.
In the cited case, the plaintiff sought to return into possession of the property and to have himself recognized as the owner with all the rights which the word "owner" implies.
The railroad track, instead of being the track of a quasi public corporation, would have become, had his demand been granted, to the extent that plaintiff claimed, the private property of the plaintiff.
The court in the cited case solved the difficulty by which it was confronted by relegating the plaintiff in that case to a compensation for value.
In another case, the court holds that plaintiffs "should have denied defendant's access and have prevented it by using legal process"; that defendants thereby became creditors for value. Bourdier v. Railroad Co., 35 La.Ann. 951.
The company was not a trespasser, but had acquired, by absolute silence, an absolute right. Day v. Railroad Co., 36 La.Ann. 244.
Again his acquiescence did not prejudice his...
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