35 La. Ann. 1018 | La. | 1883
The opinion of the Court was delivered by
The suit is for the recovery of $750 as damages resulting from the failure of the defendant to construct road crossings and cattle guards—$75 for crops destroyed—$50 for wages to men hired to guard the premises—two small sums for other damages, and $150 as attorney’s fees—$1037.50 in total.
The defence is a general denial with the special pleas of contributory negligence, and want of authority in the defendant’s agent to make the contract, the breach of which is complained of. This last plea has been abandoned.
In 1881 the Railway Company applied to the plaintiff for the right of way through his plantation. It was granted for the consideration of one dollar and the performance of certain agreements by the defendant, of which the one now claimed to have been violated is that the Company “ in accepting this sale of the right of way agrees and promises to construct all necessary road crossings and cattle guards.”
The line of the railway passes directly through the plaintiff ’s plantation, which contains one thousand acres, a distance of a mile and a half and entirely through the enclosed part of it. It divides the land in two nearly equal parts. There are three hundred and fifty acres of
The plaintiff was not slow in bringing this grievance to the knowledge of the defendant. He repeated his complaints frequently, and importuned the Company to comply with its obligation to make the road crossings. He went over the line with one of the engineers and pointed out the places where the crossings were needed. None were made. His complaints were unheeded, and his demands for the performance of the contract were evaded. He could obtain neither redress nor promise of redress. An engineer went to the plaintiff’s residence once on Sunday to confer with him about his complaints, but it seems that he is a Sabbatarian and would not talk on business on that day. Afterwards the engineer offered to build three crossings which the plaintiff deemed insufficient, but even these 'were never constructed. He would have made the crossings himself, but on signifying his purpose to do so to the engineer he was told that he would infringe the rights of the Railway Company. He had no other recourse than to bring suit.
The evidence abundantly establishes the quantum of damage claimed, and the right of the plaintiff to recover is well recognized. Mill’s Eminent Domain, 214. Indeed, three witnesses who personally knew the land and its altered condition, and who speak intelligently, concur in saying that the estimate is low. The servants of the defendant took possession of the plaintiff’s stock pasture, tore the curbing from the spring, burned or otherwise destroyed his fence rails, and permitted their own cattle to run at large upon the fields and depredate the crops. Remonstrances were vain. He hired a man to guard the premises who daily rode up and down the line of work remonstrating with the ■ defendant’s laborers, but
There are several bills taken to the introduction of certain evidence, and objections to the regularity of execution of commissions to take testimony, which we do not notice because outside of this testimony taken under commission, and considering only that heard without objection, the plaintiff lias established his claim to our entire satisfaction.
There was error in giving judgment for $150 for attorney’s fees, and it must be amended in that respect.
It is therefore ordered and decreed that the judgment of the lower court is amended by reducing the sum named therein to eight hundred and eighty-seven dollars and fifty cents, aud as thus amended that it is affirmed, the plaintiff paying costs of this appeal.
