Westwego Canal & Terminal Co., Inc. v. Louisiana Highway Commission

• Court: Louisiana Supreme Court
• Writing for the Court: ROGERS, Justice.
• Citation: Westwego Canal & Terminal Co., Inc. v. Louisiana Highway Commission, 181 So. 429, 189 La. 870 (La. 1938)
• Decision Date: 02 May 1938
• Docket Number: 34655
• Parties: WESTWEGO CANAL & TERMINAL CO., Inc., v. LOUISIANA HIGHWAY COMMISSION

181 So. 429

189 La. 870

WESTWEGO CANAL & TERMINAL CO., Inc., v. LOUISIANA HIGHWAY COMMISSION

No. 34655

Supreme Court of Louisiana

May 2, 1938

Appeal from Twenty-Fourth Judicial District Court, Parish of Jefferson; L. Robert Rivarde, Judge.

Suit by the Westwego Canal & Terminal Company, Inc., against the Louisiana Highway Commission to recover the value of land which the defendant was alleged to have unlawfully appropriated. Judgment for plaintiff, and plaintiff appeals.

Judgment affirmed.

John E Fleury, of Gretna, for appellant.

N. S Hoffpauir, of Crowley, and E. R. Stoker and J. Elton Huckabay, both of Baton Rouge, for appellee.

ROGERS Justice. O'NIELL, C. J., does not take part.

OPINION

ROGERS, Justice.

The Westwego Canal & Terminal Company, Inc., brought this suit against the Louisiana Highway Commission, under section 27 of Act No. 95 of 1921, Ex.Sess., to recover $ 6,700 as the value of certain land which it alleged the defendant commission had unlawfully appropriated.

The commission filed an exception of no right or cause of action, and, later, filed an answer denying that it had encroached on plaintiff's property and averring that it had merely availed itself of the right of way which it had purchased from plaintiff for a valuable consideration. The commission also filed a special plea of estoppel.

Defendant having abandoned its exception, the case was tried on its merits and judgment was rendered in favor of the plaintiff for $ 200, with interest from judicial demand and all costs. Plaintiff has appealed from the judgment.

The record shows that the Westwego Canal & Terminal Company, Inc., as the successor of the Barataria & Lafourche Canal Company, is the owner and operator of a certain canal, known as "Company Canal," in the parish of Jefferson. The record also shows that prior to May 10, 1928, the Westwego Canal & Terminal Company, Inc., was the owner of a certain bridge over the Company Canal at the town of Westwego.

On May 10, 1928, the Westwego Canal & Terminal Company, Inc., sold this bridge to the Louisiana Highway Commission, together with the right of way for a new bridge approximately on the site of the old bridge. The consideration of this sale was $ 6,000.

In May, 1931, the Louisiana Highway Commission began the construction of a new bridge over the Company Canal at a point adjacent to the old bridge. After a certain number of piles had been driven, the work was stopped on receipt by the commission of a written protest from the president of the Canal Company. The pertinent portion of this written protest reads as follows: "We, therefore, demand that your plans be changed from what they are now to ones that will permit us to operate our Canal as heretofore and to issue instructions to stop the work until the method that will be adopted will be approved by this Company."

Subsequently, a conference was held in regard to the protest of the Canal Company by representatives of that company and representatives of the Highway Commission. At this conference it was agreed that the location of the bridge would be changed and that it would be constructed at right angles, instead of at acute angles, to the center line of the canal, and that the piles previously driven would be removed and relocated as requested by the Canal Company.

The commission then proceeded to construct the new bridge adjacent to the old bridge, and there was no complaint on the part of the Canal Company as to the location with reference to the operation of its canal, although it did complain that the bridge was not constructed over the right of way purchased by the commission, and demanded additional compensation.

The agreement between the parties as embodied in the deed of May 10, 1928, clearly evidences the intent on their part that the Highway Commission should purchase the old bridge "together with a right of way for a new bridge should such a bridge in the opinion of the State Highway Engineer, his successor or successors, become necessary, of not more than forty (40) feet over and across the property of the Westwego Canal & Terminal Company, Inc., adjacent to the present highway traffic bridge over the canal of said Company * * * as approximately located and shown in red...