41 La. Ann. 827 | La. | 1889
Tlio opinion of the Court, was delivered by
Plaintiffs are the lessees from tlie City of Shreveport of a certain lot of ground for an original term of ten years, of which about live years had expired at date of this suit. They owned a building constructed on said lot in which they conducted a wood and hide business.
They brought a suit against the defendant railroad company alleging that, against their protest, the said company had laid a railroad bed and track along Commerce street, which obstructed their trade and business and rendered their lease and buildings valueless; that these works are a trespass on their rights and have damaged them in the sum of $5000, for which they ask judgment.
Subsequently they filed a second suit, in which they averred that the railroad company was maiong further constructions of a similar character, the effect of which would occasion an additional damage' of $5000, unless restrained, and they asked tor an injunction prohibiting further construction, and for a final judgment making said injunction perpetual, and compelling the'defendant to remove the works already built and granting the additional $5000 damages.
The petition did not even allege that the injury was irreparable; on the contrary the damage, present and prospective, was very exactly appraised in dollars and cents, and the case presents no feature, of injury not readily and fully appreciable by that standard. The case falls within no recognized exception to the general rule of the Code of Practice, Article 307 authorizing the bonding of injunctions when “ the act prohibited is not such as may work an irreparable injury.”
It is true the Constitution, Article 156, provides that “Private property shall not he taken nor damaged for public pulposos without adequate compensation being first paid.” We will not say what might he the effect of this article on the right to bond if the act prohibited involved the taking of property, the value of which might he settled in advance. But in this case there is no taking of plaintiffs’ property, which is not invaded Or touched. The damages claimed are purely consequential in their nature, necessarily conjectural, and impossible of any accurate determination except after the construction of the road. To impose upon the parties the necessity of settling and paying-such damages before proceeding with the work would he to require a manifest impossibility; and if such an injunction could not he bonded it would operate, a perpetual bar to the construction of public works, which was certainly not contemplated by the Constitution.
The two cases were brought to issue by answers of defendant, setting-up that their road was constructed on a public street, under lawful authority of the City of Shreveport,, with due care and prudence, and denying their liability for the damages claimed. They were consolidated and tried together and culminated in a judgment against the defendant for $1500 damages, from which the latter appeals. The'plaintiffs ask an amendment perpetuating the injunction and compelling removal of the road.
The evidence satisfies us that the track is laid in accordance with the permission granted by the municipal authorities, at least so far as the locality in question is concerned.
The track does not approach nearer than within twenty-six feet of plaintiffs’ building, and about nine feet from his banquette. It is laid flush with the street, or nearly so, and a well planked crossing is provided.
There is no taking of plaintiffs’ property and no invasion of, or trespass upon it, in any manner whatsoever.
The question prim.arily to be determined is, what are the nature and measure of the obligations incurred by. defendant towards plaintiff by reason of the former’s exercise of this legal right.
The ordinary rule of the law exonerates a party from responsibility for damages resulting from the prudent and careful exercise of a legal right, assigning to sxxcli injury the character of damnum absque injuria. Wirges vs. R. R., 35 Ann. 646; Hamilton vs. R. R., 34 Ann. 974.
Rut, in this case, the legal right passed to the defendant encumbered with the restriction imposed by Article 156 of the Constitution, above quoted, and it must discharge that.burden.
Prior to the Constitution of 1879 the organic law of this State, like that of all the States of this Union, simply provided that “Private property shall not be taken for public pxxrposes without adequate compensation, etc.” Under this rule, iix absence of other special provision, a taking of the property was a condition precedent to liability and the measure of compensation due was the value of the property taken. Merc consequential damage to property, when the property itself was not taken, was not recoverable; and much less any damages resulting to individual owners, in the way of discomfort, inconvenience, loss of business and the like. All sxxcli injuries, inasmuch as they resxxlted only from the exercise bj another of his legal right, were damna absque vnjurid.
The Article 156 of the present Constitxxtion, in providing that “private property shall not be taken nor damaged for public purposes without adequate compensation, etc.,” only extended its protecting shield over one additional injury and required compensation, not only for property taken, but also for property damaged.
As in the case of a taking the measixre of compensation is the value of the property taken, so in the case of damage, the measure of compensation is the diminution in the value of the property.
There is no warrant for extending the liability one whit beyond this. We are simply to inquire what damage has deen done to the property, i. o., to its value for rental and sale. Mere consequential injuries to the owners arising from discomfort, disturbance, injury to business and the like, remain, as they were before, damna absque injur id, particular sacrifices which society has the right to inflict for the 2nxblic good.
Such is the view taken by the Supreme Court of the United States in
Hotliing in the evidence shows that the building on this lot has any exclusive adaptation to the particular business conducted therein ; and, therefore, this element does not figure in this case.
Guiding ourselves by the foregoing principles, we must disregard all the evidence and the contentions of plaintiffs in support of their claim for damages except those which go to show a diminution in the market value of plaintiffs’ property, viz : the right of occupancy during the unexpired term of Ms lease and his building.
We have carefully read the evidence and fail to find any which would enable a juty or the court to determine any diminution in the market value of plaintiffs’ property or to fix any amount therefor. A great portion of it is devoted to elements of damage which are not recoverable. The statements of witnesses on the real question of damage to value are vague, uncertain and equivocal, furnishing no basis for any estimate whatever. The jury have evidently considered matters of damage, for which defendant is not liable. In fact, the whole case lias been conducted on a false theory. It may he that plaintiffs’ property has been damaged within the meaning of the Constitution, but, if so, the fact and amount of such damage are not established by any evidence which would support any judgment whatever. Out of abundant caution, however, we shall make the judgment one of non-suit as to the damages.
It is, therefore, adjudged and decreed that the judgment appealed from bo annulled, avoided and reversed; and proceeding to render such judgment as should have been rendered, it is now adjudged and decreed that the demand of plaintiffs in the injunction suit be rejected, and that his demand for damages he dismissed as in case of non-suit, plaintiffs to pay costs in both combs.
