17 La. 421 | La. | 1841
delivered the opinion of the coux-t.
This is a suit for damages. Plaintiffs allege, that in the spring of the year 1840, they had neax-ly completed their work on the Baratax-ia and Lafoux-che Oanal, and were engaged in excavating the said canal, through a piece of land belonging to them, measuring five arpents fx-ont on the left bank of the Bayou Lafourche, by forty appents in depth, hounded on each side by lands belonging to the defendant, Eliza Mills, wife of William. Eield (separated in property from her husband); that they had employed in the-said wox-k about sixty slaves, and two dredging machines; when their said- land was over
Our- first inquiries must he in relation to numerous bills of exceptions, taken by the defendant to the opinion of the court on divers questions of evidence, and also to the legality of the charge of the court to the jury.
1. The record shows us, that the court a quo, having decided that the plaintiffs had a right to show possession and acts of ownership by parol testimony, defendant’s counsel took and tendered a bill of exceptions, in which it was simply stated, that the plaintiffs had offered to prove ownership by parol; which bill the court refused to sign, unless it embraced the reasons on which it was grounded, and suggested to the counsel the' propriety of embodying all the testimony objected to, and admitted by the court in the bill [425] of exceptions; which was declined. "We are of opinion that the district judge' did not err in permitting parol evidence to be introduced, to prove a possession and acts of ownership; and we think, also, that he acted correctly in refusing to sign a bill of exceptions, which did not embrace the true grounds of his opinion. This court has often decided, that a party who takes a bill of exceptions, must spread on its face every thing necessary to bring the point in its true light before the appellate court. 8 FT. S. 889 ; 11 La. Reports, 309; 12 La. Reports, 266. The most reasonable and proper mode was undoubtedly to embody the testimony admitted by the court in the
2. The next bill of exceptions is one taken to the opinion of the court, permitting the plaintiffs to prove, that many of the inhabitants had been obliged to quit their houses, in consequence of the overflow resulting from the-crevasses on the land of the defendant. We think the district judge did not err. The object of the evidence was certainly pertinent to the issue, as it went to show the extent of the inundation, and the cause from which it proceeded.
3. Defendant’s counsel having proposed to ask a witness the following questions: “ Did you, or not, as inspector of the upper part of the fifth ward of the parish, apply to Judge Knobloch, as register of conveyances, to know to whom a tract of -unoccupied and uncultivated land in your ward, on the left bank of the bayou, belonged,- and were you not answered, that it belonged to Varice Ooulon? ” and other questions to the same purport, with regard to other tracts; the district judge refused to permit the interrogatories to be propounded, and said defendant took a bill of exceptions. We think the judge did not err; as the evidence sought to be introduced was not only harassing, but went to show title by parol and reputation. The best evidence to prove the facts alluded to, was the production of certified copies [426] of the acts said to exist in the office of the register of conveyances.
4. The district judge decided correctly in permitting the plaintiffs to prove what defendant’s husband had said in relation to her levees. It had been clearly shown that he was, and acted as the general agent of his wife, and transacted all her business; and his acts and conduct in the administration of the affairs of the defendant, were good evidence against her, particularly to rebut her reconventional demand.
5. The evidence offered from a suit between William Field, in his own name, and F. Girod, is in no manner connected with his declarations, referred to in the fourth bill of exceptions, and was properly rejected by the court; the record of said suit was res inter alios acta.
O. The situation of the plaintiffs’ levees, on the opposite side of the Bayou Lafourche, has nothing to do with that controversy, and cannot be made the subject of an investigation in this suit.
7. The last bill of exceptions, is one taken by the defendant to the judge’s charging the jury, that “ it was not necessary to show a police regulation, to compel a front proprietor to make his levees on the bayou which communicates with the river,” and referring them to the act of the legislature, respecting roads and levees, of 1829. This law of 1829 provides, that the levees shall be made by the riparian proprietors, in the proportions and at the time prescribed by the act. It fixes the height and base of the levees; gives the distance from the river; leaves the said distance on the bayou to the determination of the police jury; authorizes the police juries to appoint inspectors ; provides, in its 25th section, “ that every proprietor, whose levee shall have been broken by his own neglect to comply with the provisions of this
On the merits of the case, we have carefully perused and examined the voluminous record which contains the testimony of the numerous witnesses heard on both sides. Some parts of the evidence appear contradictory; several of the witnesses say, that the complaint was universal about Mrs Field’s levees; that it was useless for others to make levees whilst these were neglected ; one of them swears that he traversed the whole extent and counted thirty-nine crevasses on the defendant’s land, and agrees with other witnesses that the inundation must be attributed to the fault of Mrs. Field; plaintiffs’ witnesses generally concur in saying that there had been gross negligence respecting defendant’s levees, as the crevasses on her land below the company’s tract were of four years’ standing and had never been stopped; that those crevasses were sufficient to have overflowed the whole country; that as to negligence, there had never been any thing else, and that for a long time nothing had been done to the levees. On the other hand, defendant attempted to show that there were crevasses on other tracts which might have been the cause of the inundation: on this subject, the evidence, though contradictory, appears to weigh very particularly on the side of the plaintiffs, who, from the situation of the tract of land on which they were excavating their canal, as shown by the plan produced in evidence, must have suffered considerably from the crevasses on defendant’s land, and from her neglect in making the [428] necessary repairs tp her levees. On the whole, when we consider that the jury who tried this cause was composed of inhabitants of the parish where the inundation complained of took place; that they were all undoubtedly well acquainted with the situation of the different tracts subject to be overflowed; that they heard the witnesses who testified before them, and were the proper judges of the degree of credibility to be placed in their testimony ; when we consider also that the judge of the district presided in the’ cause, and that after having gone through the minute proceedings of a long and tedious trial, in which he had repeated opportunities of observing the deportment and conduct of witnesses, with whom he was perhaps not unacquainted, and that he refused to set aside the verdict of the jury, we cannot refrain from expressing our deliberate opinion that such a verdict, which so far from being manifestly erroneous, ought not to be disturbed.
It is therefore ordered and decreed, that the judgment of the district court be affirmed, with costs.