77 So. 121 | La. | 1917
The city of Baton Rouge having ordered the laying of sidewalks upon Champagne street upon which the property of defendant abuts, and having ordered all encroachments upon "said street obstructing the laying of said sidewalk to be removed, this is a suit against defendant to compel him to remove from the street his row of frame cottages which encroach from four inches to two feet upon said street.
Defendant’s main reliance is upon article 862 of the Civil Code, which reads:
“If the works, formerly constructed on public soil,' consist of houses or other buildings, which cannot be destroyed, without causing signal damage to the owner of them, and if these houses or other buildings merely encroach upon the public way, without preventing its use, they shall be permitted to remain, but the owner shall be bound, when he rebuilds them, to relinquish that part of the soil of the public way, upon which they formerly stood.”
In Village of Moreauville v. Boyer, 138 La. 1070, 71 South. 187, relied upon by defendant, the facts were that, for the building of a new levee and the providing of a new public road along the levee on the land side the yard of . Boyer was being taken without compensation, in the exercise of the servitude of levee and of road due the public by riparian proprietors, and an anciently constructed building was sought to be removed simply because it encroached slightly beyond the new property line that was being established for Boyer’s property. Between such a case and that of some frame cottages recently built upon an existing street in a city, there is, of course, no analogy.
It is therefore ordered, adjudged, and decreed that the judgment of the Court of Appeal be amended so as to read as follows: It