Nicol v. Illinois Central Railroad, No. 11,006

No. 11,006 | La. | May 15, 1892

The opinion of the court was delivered by

McEnery, J.

The plaintiff alleges that she is the owner of a certain lot of ground on which a building has stood for more than thirty years, situated in Areola, Tangipahoa parish, fronting on the Illinois Central Railroad, formerly the New Orleans, Jackson & Great Northern Railroad, and occupied by Alfred Rhody June 26, 1878, and that she had been in peaceable possession of said property for more than thirty years prior to October, 1890; that in said month of October, said house was burned to the ground, and that in the month of November of said year 1890 she was procéeding to rebuild said house, and for this purpose had employed a carpenter, had purchased lumber, bricks and other materials, and placed the same on said lot of ground; that the foundation of said building was laid when the defendant corporation, domiciled in the city of New Orleans, through its agents and employees, acting under instructions from its officers, forcibly and unlawfully entered on said lot of ground, ejected the workmen of petitioner, removed and destroyed the brick and other building material placed thereon to be used in the construction of said store house.

She avers that she was receiving $25 per month rent for said house,, and when rebuilt could have leased it for a larger sum.

She prays for damages for the loss and destruction of the material, for vexation, annoyance, and the wanton trespass by said defendant corporation, aggregating §5000.

The defendant corporation in its answer claims title to said property as being within the limits of the right of way granted to it.

It insists that the action is a petitory one, and that the plaintiff has shown no title to the property as against the world.

The recitals of ownership by the plaintiff are only incidental to the possession which she alleges, and which she claims had been disturbed by the defendant corporation. Her titles to the property were received in evidence over the objections of the defendant. The titles to the property were proper evidence to show possession and in aid of her allegations that she had been in possession for more than thirty years. The objections went only to the effect of the evidence. Whether the defendant owned the property or not, it was not justified in disturbing the possession of the plaintiff, and forcibly and unlawfully destroying the material which she had placed on the lot, even destroying that portion of the building in course of erection.

There was judgment for the plaintiff for the sum of §250 attorney’s fees, $80 for damage to material, $200 as punitory damages, and $25 per month from November, 1890, until the final termination of the suit.

The defendant has appealed.

There is no real conflict in the testimony. The plaintiff was a possessor of the property, and the allegations in her petition as to the unlawful acts of the defendant corporation are fully sustained by the evidence.

The courts were open to defendant to assert and prove title to this property. It ignored their existence, and took the law in its own hands.

The law jealously protects the possession to property against invasion and violence. It punishes with severity the trespasser, although he may believe he has some right which he can enforce by violence. Public order and the highest interest of society require that no violence shall be done to one in peaceable possession of property. As against the lawful owner, the possession of immovable property must be protected against the unlawful disturbance of his possession.

The acts of the defendant were without the slightest palliation or excuse.

While we may differ from the trial judge in his apportionment of damages, we are of the opinion that the amount allowed is not excessive for actual loss and the annoyance and vexation to the plaintiff by the unlawful conduct of defendant.

Judgment affirmed.