41 La. Ann. 808 | La. | 1889
Tlie opinion of the' Court was delivered by
The plaintiff claims damages in the sum of $10,000, being the amount of diminution of tlie market value of her property occasioned by the construction by defendant of elevated embankments for the laying of its tracks along the streets contiguous to said, property and several feet above the grade of said streets, the effect of which is to obstruct and partially to cut off access thereto.
The anwer of defendant admits the building of the embankments and the tracks; but avers that said constructions were made under authority of the council of the city of Shreveport; that, therefore, it acted in exercise of a legal riglit, with due care and caution, and is not liable for any resulting damage to plaintiff.
The Art. 156 of the present Constitution of this State provides:
“ Private property shall not he taken nor damayed- for public purposes without just and adequate compensation first paid.”
A similar article in tlie Constitution of the State of Illinois has recently passed under tlie review of the Supremo Court of the United States, and it was held that under such provision, a recovery may be
The opinion is well considered and conforms to the rulings of the'Supreme Court of Illinois on the same subject. Rigney vs. Chicago, 102 Ill. 64; Chicago and W. I. R. R. vs. Ayers, 106 Ill. 518.
The doctrine seems to us clearly correct and we adopt it.
It follows that the authorization by the city of Shreveport cannot avail to protect the defendant. Had the city itself done the work it would have been responsible.
There is no serious conflict in the evidence on the point that the embankments do materially obstruct access to plaintiff’s property and impair the convenience of its use as a cotton warehouse for which it is constructed.
We are not concerned, in this case, with the character and extent of the consequential damages for which a party may be entitled to recover in such a case. The plaintiff has herself confined her demand to the diminution in the market value of her property, and the authorities quoted leave no doubt that this is a recoverable element of damage.
' There is really but one controvertible question in the case, viz : the quantum of damages.
The case was tried before a jury, which heard the testimony, viewed the Zocas in quo, and returned an (apparently) unanimous verdict for $1625. Amotion was made for a new trial and the judge rendered a written opinion refusing it, in which he says the jury was an intelligent one, and announces his own approval of their verdict.
We have carefully read and considered the testimony, which is conflicting and contradictory in the estimates of the effect of the works upon the value of the property. While we are not bound by the findings of a jury even on questions of fact or of damage and do not hesitate to reverse them when manifestly erroneous or excessive, yet we give them the weight to which they are justly entitled and do not lightly disturb them. We can find no warrant to reverse the verdict in this case, which is moderate in amount and fully sustained by numerous witnesses, though contradicted by others.
Judgment affirmed.
