7 La. App. 64 | La. Ct. App. | 1927
Plaintiff is claiming in this case a right of passage on the estate of the defendant, his neighbor, to connect his estate with a public highway which lies north of plaintiff’s property. The land of the defendant adjoins that of Esterbrook on the east, these two estates being bounded by the line dividing sections 21 and 22. A lane has been used on the land of the defendant east of and along this section line to the highway fpr a period of about twenty years prior to the institution of this suit. Of late, for some reason or other, plaintiff and defendant have not been on friendly terms. A fence was erected across this land by defendant, hence this suit for its removal and for the fixing of the right of passage claimed by plaintiff.
The District Judge rendered judgment, granting the right of way to plaintiff, from which defendant prosecutes this appeal.
The evidence shows that the estate of the plaintiff is inclosed, and that his only outlet to the public road, is either through the old lane on the eastern line of defendant’s property, or on its western line. The defendant contends that plaintiff’s right-of-way should be established on the western line of defendant’s property because along that line it would be less «injurious to his estate, and more convenient to him.
The evidence shows that the house of the plaintiff is situated at a longer distance
The Civil Code, Article 700 says: “The place the least injurious, etc.” T'oullier (Yol. 3, No. 548) thus expresses himself on this subject: “Mais le passage doit etre fixé dans I’endroit le moins dommageable a celui sur le fonds duquel il est accordé’’. (684.) Here, the French Commentator uses the words “moins dommageable,” that is, less damaging, or less injurious, which comes near “least injurious,” the precise term employed in the Code. It is testified to by one of the witnesses, and not contradicted, that the placing of the passage through the lane on the east side of defendant’s property, would give considerable additional value to it. Measured in cents and dollars — a prevalent criterion in our days — instead of an injury, a benefit would be conferred on the plaintiff.
In Littlejohn vs. Cox, 15 La. Ann. 67, the court, in passing on a case of this character, has not confined itself to the issue of “least injury” to the person on whose estate the passage is granted. In referring to such a person, the court said: “At the same time that due regard will be paid to his interests, gnd even to his convenience in the premises, the court will keep in view the rights which the law intends to secure to the opposite party”. In that case, the court departed from the strict letter of the Code, broadened its meaning so as to embrace within its terms, matters affecting the “convenience” of the owner of the subservient estate. In this case defendant complains that the right-of-way granted by the court is extremely inconvenient to him. Much testimony was taken on this point, but the preponderance shows that his convenience will not be materially affected by the selection of the way along the old lane which for so many years had been used by common consent, and without complaint.
In the case above cited, the court also said: “The defendants can not exact that an extremely circuitous, impracticable and expensive route should be taken by - the plaintiff, because it may happen to be less burdensome to the former”. The proof' does not show here, that the route, along the western line of defendant’s property would be more circuitous, but it does show, that it would be far more impracticable, and expensive, than through the lane where-it was fixed by the court. We findj as was found in the case cited, that the location as made by the District Judge meets the law and equity of the case.
Counsel for defendant contends that the judgment is not sufficiently explicit. It gives to plaintiff a fifteen feet strip of right-of-way on the east side of the tract of land of George Clark, as described in the petition, next to the property of Easter-brook, from a point on Bandelin’s property through the entire tract of the defendant, George Clark.
The petition asks that the passage be Jaken on the land of defendant along the line which divides or' separates sections 21 and 22. The judgment, as rendered, must