Weis v. New Orleans Board of Trade, Ltd.
| Decision Date | 14 March 1910 |
| Docket Number | 17,166 |
| Citation | 125 La. 1010,52 So. 130 |
| Court | Louisiana Supreme Court |
| Parties | WEIS v. NEW ORLEANS BOARD OF TRADE, Limited |
On Application for Rehearing, April 25, 1910. Rehearing Denied.
Appeal from Civil District Court, Parish of Orleans; Fred D. King Judge.
Action by Fred S. Weis against the New Orleans Board of Trade Limited. Judgment for plaintiff, and defendant appeals. Dismissed.
McCloskey & Benedict, for appellant.
F. S Weis, pro se.
The New Orleans Board of Trade, owner of a lot with the building thereon, described in plaintiff's petition, sold it to plaintiff on the 14th day of September, 1904.
The Board of Trade, vendor to plaintiff, claimed the property immediately in the rear, of which it was the owner.
There is a passageway between the two properties.
The act of sale under which the plaintiff owns contains the following clause:
"It is agreed that the present right of way from Magazine street to the Board of Trade's building proper, of the dimensions as at present, be granted perpetually to the said New Orleans Board of Trade, Limited."
The contention of plaintiff is that under this right of way the Board of Trade retained a right of way for pedestrians to and from its property, but no other right, as the title is in plaintiff; that, none the less, some time in 1906, the board had the pavement removed in said alley, and a trench, running through the center of the alley, made, in which were placed water pipes in a line from Magazine street to Arcade alley. To lay the pipes, digging the earth was necessary.
The pipes measure two inches in diameter, and begin in the street, cover the sidewalk, and through the alley or passageway.
The complaint is that this was a trespass, for which defendant is liable.
Plaintiff sued for an injunction, which was issued, to restrain the Board of Trade from maintaining these water pipes, and asked that it be made mandatory to the extent of requiring the defendant to remove these pipes in such a manner as not to injure his property, and to replace the earth and pavement in the passageway to the condition they were before the asserted trespass.
Plaintiff in the injunction alleged that the land and improvement were bought from the New Orleans Board of Trade at a price in excess of $ 2,000.
Two exceptions were filed -- one for want of jurisdiction ratione materiae, and the other on the ground of no cause of action.
The defendant thereupon sought to meet the issue...
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