Zeringue v. Texas & P.R. Co.

• Decision Date: 10 March 1888
• Parties: ZERINGUE v. TEXAS & P.R. CO.
• Court: U.S. District Court — Eastern District of Louisiana

34 F. 239

ZERINGUE v. TEXAS & P.R. CO.

United States Circuit Court, E.D. Louisiana.

March 10, 1888

On the 19th of March, 1870, Camille Zeringue, by public act, donated to the New Orleans, Mobile & Chattanooga Railroad Company the right of way and passage over and through his plantation lying in Jefferson parish, and said company thereupon entered upon the lands, and constructed thereon the road, etc. On the 3d of May, 1870, the railroad company instituted proceedings to expropriate a certain portion of said plantation aggregating 192.10 acres. A decree was rendered expropriating said land for the use of the said company, condemning the said company to pay therefor the sum of $45,000, and also to build boundary fences; place boundary posts or stones; to drain said lands for the use and benefit of the remaining lands of Zeringue; to build and keep in repair bridges across the drainage canals; and to maintain a roadway over and through the lands expropriated of a width of 25 feet, free access to and use of same being reserved to said Zeringue his heirs and assigns. This judgment was reversed by the supreme court and case remanded for a new trial. On the 19th of March, 1872, a second had in the meanwhile died, in order to avoid further litigation, and to decree was rendered in said proceedings expropriating said land, condemning the company to pay therefor the sum of $29,000, and to do and permit certain things. Thereupon the heirs of C. Zeringue who settle the matter at issue, entered into an agreement with said company evidenced by a notarial act passed May 25 1872, by which they ceded, transferred, and assigned to said company, on the terms and conditions set forth in said judgment, said land so sought to be expropriated for the consideration of $29,000, and the further consideration that the said company would erect boundary posts or stones at least 100 yards apart on the division or boundary lines of said land expropriated; a boundary fence along the whole of the boundary, from the river-bank to the intersection of the said boundary with the drainage canals on said plantation; and that the said heirs and their assigns should have free ingress and egress, to be forever maintained to and from the said plantation and the Mississippi river, and the usufruct of the said lands, so that the drainage canals on said plantation running from said plantation through the conveyed lands should in no manner be ever obstructed; and a roadway of at least 25 feet along the canals and across said lands so conveyed should be forever reserved; and that said company would build and keep in repair bridges over and across the drainage canals,-- all of which is expressly set forth in said act. Further, the said heirs were particularly induced to make said agreement by the statements publicly made by the said company, and specially made to the said heirs by the said company, that the lands sought to be expropriated were designed for and would be used for the terminus of said company, and that the company would immediately erect thereon work-shops, machine-shops, warehouses, storehouses, depots, wharves, etc., necessary for conducting the business of the company at such terminus; which would have the effect of greatly enhancing the value of the remaining lands of said heirs. The value of the lands conveyed at date of conveyance was $60,000. As $29,000 was the amount paid in cash, it follows that the various considerations for which the conveyance was made were estimated to be equal to $31,000. On the execution of the said deed said company entered into possession of said land, and through the said company the Texas & Pacific Railroad Company now hold, and for many years have held, the same, subject to all the obligations originally assumed by and binding on the said New Orleans, Mobile & Chattanooga Railroad Company. These obligations have never been complied with. They have been entirely disregarded; no boundary posts or stones have been erected; an insufficient fence was constructed, but it was destroyed by fire a number of years since; no roadway has been laid out; no bridges built, so as to enable the owners of the plantation to have free ingress and egress; no drains or waterways have been constructed, and, on the contrary, the drains and canals which were on said plantation and extended through said land expropriated to the swamp, have been obstructed; and, as a result of these acts of nonfeasance and malfeasance, great damage has resulted to the owners of the plantation, to the extent of at least $2,000 per annum,-- this damage resulting principally from want of drainage. The nature and extent of this damage is shown by testimony of J. F. Zeringue, Robert Sharp, J. P. Thompson, and M. J. Ferguson. One witness says that the damages caused by the want of drainage is the total ruin of the plantation, and that the damage so caused in a single year amounted to $10,000. Indeed, it is known of all men that a plantation on the lower Mississippi is utterly valueless unless it is properly drained. The defendants introduced as their witness H. W. B. Smith, an engineer in their employ. He says the opening in the road 'struck him' as being sufficient to carry off an ordinary rain-fall; that with a drainage machine in the rear of the place powerful enough to draw the water off the swamp side of the place, the water which stood on the river side of the track would flow through the openings under the track, and also go back to the rear. Of course it...