Postal Telegraphic Cable Co. v. Louisville, New Orleans & Texas Railway Co., No. 10,815

No. 10,815 | La. | Apr 15, 1891

The opinion of the court Was delivered by

Fenner, J.

This is an appeal from the finding of a jury of freeholders in an expropriation proceeding instituted to condemn so much of the land occupied by the defendant as its railroad and right of way, as is necessary for the establishment and erection of a telegraph line by the plaintiff company.

The appeal involves only three controverted questions, viz: (1) certain exceptions interposed by defendant; (2) the quantum of the verdict and judgment; (3) the form of the judgment.

I.

The exceptions are all waived except one, viz: absence of authority from the Board of Directqrs of the plaintiff company to-institute these proceedings. The suit is filed in the name of the corporation by an attorney of -this court. His authority to represent his client is presumed, and denial thereof, unless supported by affidavit, will not be noticed. Hennen’s Dig. Attorney, II. The allegation is unsupported, either by affidavit or proof.

II.

The jury allowed compensation- to the defendant at $50 per mile. The plaintiff complains that this is excessive. The evidence as to value found in the record is vague and unsatisfactory, and if we were to disturb the finding of the jury, it would not enable us to fix any definite value more satisfactory to our own minds.

It has long been held in this State that the jury of freeholders, authorized by our laws to act in expropriation proceedings, have, to some extent, the character and authority of experts, supposed to have some personal knowledge of the matters submitted to them, and authorized -to rely on their own opinions as well as on the testimony adduced before them. Their verdicts are, indeed, subject to review by appeal, and may be amended when manifestly inadequate or excessive ; but they are entitled to great respect and will not be interfered with except in case of gross or manifest error. Carrollton R. R. vs. Avart, 11 La. 190" court="La." date_filed="1837-05-15" href="https://app.midpage.ai/document/carrollton-rail-road-v-avart-7159338?utm_source=webapp" opinion_id="7159338">11 La. 190; Remy vs. Municipality, 12 An. 500.

The award of $50 per mile presents no feature of such gross and manifest excess as would authorise our interference. It must stand.

m.

The plaintiff joins in the appeal and complains of the judgment in several respects.

(1) It complains that the judgment, instead ordering the money to be paid to plaintiff, directs that it be paid into court, on the ground that the property expropriated is affected with liens and mortgages. There is no proof that this particular property is subject to liens and mortgages. The certificate produced exhibits sundry mortgages inscribed against defendant but without specifying the property on which they bear. Moreover, defendant claimed that the mortgagees should be made parties, which plaintiff successfully opposed. We think this amendment should be allowed.

2. It complains that the judgment only requires payment of $50 “ for each mile that petitioners shall take of said property,” thus leaving it optional with them to take as many or as few miles as they choose. This complaint is just. The petition claimed expropriation for the whole distance between the northern boundary of the parish of Orleans, and the northern boundary of the State, as an integer, and the judgment should go accordingly.

No further amendment is necessary. The references to the petition sufficiently define the character and extent of the expropriation. The amount to be paid for will be the actual number of miles between the two points indicated.

It is therefore adjudged and decreed that the judgment appealed from be amended so as to read as follows: “ Considering the verdict of the jury and the law, it is adjudged and decreed that the property described in the petition herein is hereby condemned and adjudged to said petitioner, the Postal Telegraph Cable Company, for the purposes and subject to the conditions set forth and prayed for in said petition, the same to vest in said petitioner when the payment of the amount of said verdict, viz: $50 for each mile of actual distance along the defendant’s road, between the northern boundary of the parish of Orleans and the northern boundary of the State, shall be actually paid or tendered to defendant according to law,'and not until then;, and that the said petitioner pay all costs, and that, as thus amended, said judgment be now affirmed, appellant to pay all cost of this appeal.