75 So. 652 | La. | 1917
Front street, upon which the property of the plaintiff fronts, in the city of Baton Rouge, is along the river bank. Between it and the bed of the river is the public levee for protecting the low-lying parts of the city from overflow when the fiver rises above its banks. For many years, under franchises from the city, the defendant company has had its main railroad line on the top of this levee, and two service tracks between it and the line of properties fronting Front street and the river. As the level attained by succeeding floods in the river has risen, the levee has had to be enlarged ; and from time to time the level of Front street has been raised. The high water of 1912 admonished the city authorities that a considerable increase in the size of the levee was necessary, and for having this work done the city entered into a contract with the defendant company according to which, in consideration of certain additional privileges, the defendant company was to do the work at its own expense. The work was to be done according to plans and specifications to be furnished by the board of state engineers. That board prepared these plans with a view solely to the construction of the levee, without taking into consideration the railroad , situation, with the result that the effect of the plans being carried out 'would have been to leave the three railroad tracks upon different levels, thus practically disconnecting them. To obviate this result, which, of course, had not entered in the contemplation of the city and the defendant in making their contract for this enlargement work, the defendant company suggested to the city that the plans be changed so as to reconcile the enlargement with the railroad situation; and the city, after having submitted the change to the board of state engineers and secured its approval of same, gave its consent; and the work was done accordingly. The date of this contract was October 28, 1913; and the work under it was completed in May or April, 1914.
The effect was to raise by some three feet, as we gather, the level of Front street, which had already, by several previous raisings, in 1885, 1892, 1899, and 1904, been elevated a couple of feet or so above the level of the ground floor of plaintiff’s buildings fronting on the street; and the result was that plaintiff’s buildings were practically cut off from all outlet on said street so far as the ground floor was concerned.
The present suit was filed in March, 1915. Plaintiff sues in his own behalf and that of his minor child. The suit is (quoting from the brief of his counsel)—
“for damages on account of the depreciation in value of two pieces of property belonging to plaintiffs fronting on Front street growing out of the gradual and continuous raising of the grade of Said street by the defendant.”
It will be noted that the ground of the action is not that the defendant company is
In his petition plaintiff treats all these grade raisings as having been done by the defendant company with no authority whatever from the city, and solely for its own convenience.
Defendant pleads that it acted throughout as agent of the city, that the contract of 1913 expressly so provided, and also provided that the city should hold it harmless, and it calls the city in warranty, and asks judgment over against her for whatever amount it may be condemned to pay plaintiff.
“It being further agreed and understood that the railroad company shall not be required to make any additions to or changes in the said levee, or to assume any obligation or incur any expense in the maintenance of the said levee that would not have devolved upon the city of Baton Rouge in ease this agreement had not been entered into.
“In the performance of the work hereinabove assumed by the railroad company, the said railroad company shall not incur any liability to the city of Baton Rouge, or to any person, firm, association, or persons, corporations or property holder, for any damage whatever caused by defective construction or faulty maintenance of said levee, whether such damage may result from water or from any other cause, it being understood that all such work of construction and maintenance and reconstruction to be performed by the railroad company at its sole cost and expense shall be done by the railroad company acting as the agent for the city, and under the direction and control of the city; the only obligation undertaken by the said railroad company in connection therewith shall be the payment of the cost of construction and maintenance and reconstruction of said levee.”
The work under this contract was done under the supervision of the board of state engineers and of the city engineer, the latter furnishing the levels by placing the stakes.
It is thus seen that the contract of 1913 provided in express terms that the defendant company in doing the work should be acting as agent of the city. The other contracts, while not so providing in express terms, were necessarily to the same effect.
True, the plans and specifications as first prepared by the board of state engineers for the contract of 1913 were changed at the solicitation of defendant, and solely to accommodate defendant, but none the less they were changed, and none the less the work was done only after they had been changed; so that it was, as a matter of fact, done according to the plans and specifications furnished, or approved, by the city and the board of state engineers.
Under these circumstances the defendant company does not stand in the case as a trespasser and tort-feasor, but stands in the shoes of the city; stands precisely as the city
The raisings previous to that of 1913 were strictly street grading and drainage propositions, by virtue of the city’s charter authority to grade and drain. The raising of 1913 was a combined street grading and levee proposition, the authority for the street feature of it being the charter authority to grade the streets, and the authority for the levee feature of it being the servitude resting upon all lands fronting on the Mississippi river to give up without compensation whatever space may be needed for levee purposes.
The city was fully advised by the plans and specifications furnished by the board of state engineers that the raising of this street was in no way necessary for the construction of the levee; hence it was not by right of the 'levee servitude that she authorized and directed this raising to be done, but necessarily by right of her charter authority to fix the grade of her streets.
We fully realize that as a street grading proposition this last raising of the level of this street was not necessary—in fact, that it was, perhaps, disadvantageous—but nevertheless the work was done as a street grading proposition, in the exercise of the governmental authority of the city to grade hex-streets; and that which is done by a municipality in the exercise of its sovereign, governmental authority does not constitute a tort, even though by a mistaken, nay, even an abusive, exercise of the authority. Such erroneous or abusive exercise of governmental authority may be prevented by resort to the courts, but is not actionable as a tort. 28 Cyc. 1262, 1285; Planters’ Oil Mill v. Monroe, 52 La. Ann. 1243, 27 South. 684; Allen & Currey Mfg. Co. v. Shreveport Waterworks Co., 113 La. 1091, 37 South. 980, 68 L. R. A. 650, 104 Am. St. Rep. 525, 2 Ann. Cas. 471.
Plaintiff is not now asking that the street be restored to its original level, but is acquiescing in the present status, saving his right to indemnification for the diminished value of his property. The legal situation is therefore that the city has elevated the
But, there not having been a tort, and the defendant having acted. as agent, the cause of action, if any, is against the city alone.
The judgment appealed from is therefore set aside, and the plaintiff’s suit is dismissed at his costs.