105 La. 439 | La. | 1901
The opinion of the court was delivered by
Plaintiff alleges that it owns an irrigating- canal extending from Bayou Teche to the rear country, by means of which it furnishes water, at a fixed price, to persons engaged in the cultivation of rice upon lands contiguous to said canal. That it is under contract to furnish water to various parties “through and by means of this canal, “ which transfers (traverses ?) a section contiguous to the rice field of “ITonoreRomero, a resident of this parish, and extending beyond his property. That said irrigating canal is constructed upon a right of way ex- “ tending from Bayou Teche to its extreme limits considered (conveyed) “ and granted to the petitioners by the various owners through whose “ lands the said canal traverses * * *, that at a point in said canal “proximate to the rice field of ITonore Romero, the said Honore Ro- “ mero without legal right or a warrant has dammed said canal so as to “ prevent the water flowing therein to go beyond his own fields, to the “ extreme prejudice of all rice lands depending upon this canal for their “ irrigation and to the great and irresponsible (irreparable) injury of “petitioner * * *; that the damming of said canal, preventing it “ from complying with its contracts with various other parties, would “ occasion, if persisted in * * * injury and damage to the peti- “ tioner * * *; that it has repeatedly notified the said 'ITonore Ro- “ mero to desist-from his wrongful conduct * * *; that it is urgent, “ in order that the other rice fields dependent upon this canal for water “should not be allowed to suffer, that said dam should be moved at “ once, and said Romero injoined and prohibited from continuing his “wrongful conduct.”
The petition further alleges that the defendant has acted maliciously and has inflicted actual loss and injury on petitioner, and prays for an injunction, both piandatory and prohibitory, commanding said defendant immediately to remove the dam constructed by him and prohibiting him from placing any other in said canal or from otherwise obstructing !he same; and the injunction was issued accordingly, and was obeyed by the defendant who removed said dam and has not since obstructed said canal.
Thereafter, the defendant answered, as follows, to-wit: He denies
- The evidence shows that the defendant, together with his brother, O. P. Romero, and his neighbor, Ovide Landry, and others, signed a document, which was produced and filed in evidence by the plaintiff, and which reads as follows, to-wit:
“New Iberia, La., Oct. 28, 1899.
“ This shows that the New Iberia Rice Milling Oo., Ltd., of New' “ Iberia, La., will construct an irrigating canal, the pumping plant to “ be located on the .Bonin plantation, and that we, the undersigned, “ bind and obligate ourselves to plant and cultivate rice, in the number “ of acres set opposite our names below, and further agree to cultivate “ rice during a term of three years from the date hereof, and to com“pensate the said rice milling company by (for) furnishing us with “ water for irrigating our lands by giving two sacks of rice for every “ acre irrigated. All terms, agreements, and rules relating to furnisli- “ ing said water to be the same as now in force with other irrigating “ companies in this State. And (we) further agree to give any and all “rights of way for said main canal and for lateral ditches across our “ lands to furnish water to parties beyond our respective lands.
“(Signed) O. P. Romero, 150 acres.
“H. Romero, 125 acres.
“L. C. Duboin, 150 acres.
“Ovide Landry, 100 acres.
“S. LeBlanc & Bro., 200 acres.
“Robert Wilkin,
“William Newman, 75 acres.”
At a date which we understand to have been subsequent to that borne by this instrument the plaintiff excavated a canal running out from Bayou Teche at a right angle to thé course of the bayou, approximately, South,
The evidence leaves it in doubt as to whether the line between the property of Landry and that of II. & O. P. Romero runs through tire middle of this fork, but, so far as it goes, rather indicates that such is the case. And it is established beyond controversy that said fork existed as a drain before the plaintiff began operations, and that the defendant co-operated with the plaintiff’s superintendent and representative when the latter undertook to do the work necessary to convert it into an irrigation canal, and that a slight change was made in its course at his suggestion. It also appears that plaintiff, as part of its plan of irrigation, has a dam in said fork about midway between the line separating the defendant’s property from that of Leitmeyer, on the north, and the line between defendant’s property and that of his brother, O. P. Romero, on the south, and that the water supply for the use of O. P. Romero is intended to go over, and does go over, said dam, but that the defendant built the dam which is here complained of on his southern boundary, and in such a manner as to cut off O. P. Romero’s supply, and that O. P. Romero complained that he was not getting the water to which he was entitled under' his contract with the plaintiff. During the trial of the case, the defendant did not take the stand, and but little testimony was offered on his behalf. He has, however, appealed from a judgment perpetuating the injunction as issuéd.
Opinion.
The propdsitions upon which the defendant’s counsel rely will be stated and considered seriatum:
1.
That the plaintiff alleges that the' defendant had “at a point proximate to Ms field” dammed, without right of legal warrant, the irrigating canal of the plaintiff corporation, used by it to furnish water to
• There is no merit in this complaint. That which had been a “ditch” had been converted by the plaintiff, with the knowledge and concurrence of the defendant, into an irrigating canal. As to the location of the dam, the plaintiff does not undertake to say whether it is on defendant’s land or not. The allegation is that “at a point in said canal proximate to the rice fields of Honoré Eomero * * * has dammed said canal, etc.” This averment does not suggest that the canal is not on the defendant’s property, but merely that the dam is near his rice fields, which is not denied.
2.
It is said that a written document containing propositions from one party to another is not binding as a contract until accepted either expressly or impliedly. This is a sound proposition, but finds no application to this ease. If no evidence had been introduced except the written instrument bearing the signatures of the rice growers, but unsigned by the plaintiff, the latter would, necessarily, go out of court. But the evidence shows that the plaintiff has done what it was called upon by that instrument to do, with the knowledge and concurrence of the defendant and has thereby accepted the contract as expressed in said instrument.
3.
It is also said, “a permit to use a ditch for certain purposes and the right of way for that purpose is a real servitude” and cannot be established by parol evidence. No doubt if such a permit is granted and imposed as a burden upon one estate in favor of another estate it becomes a real servitude. But, where a business corporation, owning no real estate, but for the purposes of its business, acquires, by contract, the right to use such ditch, the right so acquired no more resembles a real servitude than does that of a lessee, who, by virtue of his lease, acquires the right to use the entire property.
4.
The objection is urged that the mandatory injunction should not have issued, save after hearing on the merits. The injunction was is
“ By the prima facie ease presented by the plaintiff he shows that he “ is the owner of a lot having a front of more than one hundred feet on “ a way, or passage, laid off more than twenty years previously as com- “ mon; that without its use there is no ingress or egress to or from the “houses on said passage, and that the occupants cannot get in or out; “ that the defendants, without any legal authority, have fenced up and “ obstructed said passage, and that those obstructions continue to the “ injury and inconvenience of the plaintiff and his tenants, who are de- “ prived of the free use of the property.”
A motion was made to dismiss the appeal on the ground that it had been taken from an interlocutory order, and that the injury was not irreparable, but the motion was denied. And in passing upon the merits, the court said: “ The law has not left parties remediless in such cases, nor the courts powerless for the correction of such evils, and we think
This ruling was categorically affirmed in the ease of Pierce vs. City of New Orleans, 18 Ann. 242, in which the plaintiff complained that thccity had caused certain openings to be made in a wall held in common and prayed that it be ordered to close them. Eeferring to the case of McDonough vs. Calloway (supra), the court, through Mr. Justice Illsley, said: “ It is true that in the case just referred to, the nuisance com- “ plained of was rather of a public than private nature, but from the “ whole tenor of the opinion pronounced in that case by the court, it is “ evident that such a case as the one at bar would come, under tne rules “ of law, within the scope of the principles therein contained.”
In State ex rel. Yale et als. vs. Judge, 41 Ann. 516, it appeared that relator’s “Home” plantation had enjoyed a servitude of drain over the “Arlington” plantation, owned by J. P. St. Martin, and relators had built levees and established a draining machine with reference to the enjoyment of said servitude. That being the situation, St. Martin obtained an injunction, prohibiting the use of said machine, which injunction was released on bond, upon the application of the relator. Thereupon, St. Martin built a levee in front of the machine, so as to prevent its effective operation, and the relator applied for an injunction “ prohibiting and restraining the defendant, St. Martin, from disturb- “ ing them in the free use and enjoyment of the right of drain through “the 'Arlington’ plantation to the Bayou Joe Eose, coupled with a “prayer for an order commanding the sheriff to demolish and remove “ the obstructing levee”. This order the judge: refused to make save after hearing St. Martin upon a rule nisi, and the relators then applied to this court for a writ of mandamus.
It was held that it was the absolute duty of the district judge to have issued the prohibitory injunction as prayed for, and the court, through Mr. Justice Eenner, then said: “We consider that the additional order “ prayed for, to remove the levee which operates the disturbance, was á “natural and necessary corollary and concomitant of the injunction “ against disturbance.” And, after referring to the case of McDonough vs. Calloway, and other cases, the opinion proceeds as follows, to-wit: “The later case of Black vs. Good Intent Co., 31st Ann., reviewed “McDonough’s case above cited, and, aá we understand the decision, “ approved and confirmed it, as an exception to the general rule, ex- “ pounded in the body of the opinion, that the writ of injunction, in the
5.
The suggestion is made, in argument, that the plaintiff corporation was established for the purpose of milling rice and that contracts for the supplying of water for the irrigation of rice lands are, therefore, ultra vires, and hence, that the president of the corporation has no right to use the corporate name for the purposes of this suit. These are questions which should have been raised in the pleadings.
Judgment affirmed.
Rehearing refused.