77 So. 645 | La. | 1915
Lead Opinion
On Motion to Put Case on Summary Docket.
This suit is to annul a contract by which plaintiff granted a servitude of way over his land for a skidder railroad. Plaintiff asks that the contract be annulled, and that the defendant be enjoined from operating the skidder railroad. No preliminary injunction was asked, but the prayer is simply tha^ judgment be rendered enjoining the defendant. This prayer was denied, and no injunction has been granted.
Act 17, p. 36, of 1876, provides that the following appeals shall be placed upon the summary docket: Those “from judgments against sureties upon judicial bonds and injunction cases.”
Plaintiff asks that the present case be put upon the summary docket as being an injunction case.
The order for the case to be placed on the summary docket must therefore be rescinded, and it is so ordered.
Opinion on the Merits
On the Merits.
Plaintiff sold to the defendant company the cypress trees on the back part of his plantation, and “as a part of the consideration of the sale” sold and conveyed to defendant “a servitude of way across said land for the building and operating of railroads and skidder roads for pulling and removing timber from other lands owned by” defendant; the period of the servitude to be 20 years. The contract provided that “such openings shall be left and the road shall be so constructed as not to interfere with the drainage of the lands of the” plaintiff.
The iflantation in question is on the Gulf coast. At its highest part it is but little above Gulf level. The railroad was constructed in November, 1910. During a storm in June, 1912, a tidal wave and a heavy rain flooded the plantation, and plaintiff’s crops were injured.
Plaintiff claims that the water would have receded, and been drained off, soon enough for no injury to have occurred, if the defendant’s railroad had not impeded its flow; and he claims damages, and asks that the contract be rescinded, as having been violated by the manner in which the railroad was constructed, and asks further that the roadbed be ordered to be removed. Defendant denies that the roadbed impeded materially the flow of the water; denies that the loss was near as great as pretended; avers that whatever loss there was would have occurred just the same if the roadbed had not been there, the true cause of the slow recession of the water having been the high tides in the Gulf; that the contract was not violated; and that, at all events, rescission cannot be ordered, because things could’ not be put back in the situation in which they were when the contract was entered into.
The jury awarded $1,200 damages, rejected the demand for rescission, and directed that the culverts of the roadbed have free openings.
Defendant has appealed from the award of damages, and plaintiff from the rejection of the demand in rescission.
A slough, or coulee, formerly known as the Rodriguez coulee, but which has been dredged and is now known as the Parish canal, runs along the east boundary of plaintiff’s land, and empties a short distance back of plaintiff’s back levee into Bayou Choupique, which has been dredged, and is now a 40-foot wide canal, it being one of the main canals of the Cypremort drainage district. This Bayou Choupique enters the back part of plaintiff’s land about a quarter of a mile before reaching the railroad, and continues through plaintiff’s land on its way south to the Gulf. About a mile and a quarter west of this Bayou Choupique or Cypremort drainage district canal is another 40-foot canal of the same drainage district. Defendant’s contention is that the plaintiff’s drainage is through these canals, and that these were not obstructed^ Plaintiff on the other hand contends that the drainage is through these canals only in part, that it is also directly south through the swamp, following several small sloughs or coulees, which eventually empty into the same Bayou Huger into which Bayou Choupique empties, and that these small coulees were all dammed by defendant’s railroad except one, and that the culvert in this one was badly constructed and insufficient.
The evidence shows that drainage would flow south through these small coulees if they were not obstructed by defendant's railroad; but it also shows that these coulees except the culverted one are barely noticeable to the eye, and are insignificant for drainage in comparison with the two large canals. The evidence also supports the contention that the culvert in the one coulee sought to be left open was insufficient. But at the same time it leaves no doubt, we think, that what held back the water was the high tides, and not defendant’s railroad; and furthermore, it leaves doubtful whether, in view of the saltiness of the water, the injury to the crops would not have occurred even if the flood had not been held back at all.
The ground level along the line of the railroad where it crosses plaintiff’s land is about 9 inches above Gulf level; the top of the rails varies from 1% feet to 1 foot 11 inches above ground level. The top of the rails, therefore, where highest, is not more than 2 feet 8 inches above Gulf level. The top of plaintiff’s back levee at its lowest point is 2 feet 4 inches above Gulf level. Now the civil engineer in the employ of the United States government, stationed near the outlet of this drainage into the Gulf, testified that, according to the gauge kept by him for report to the government, the tide for several days after this storm remained at 3% feet above normal Gulf level. And the evidence otherwise shows that the tide remained high owing bo prevalent south winds. The evidence also shows that on several plantations of the neighborhood, whose drainage facilities were the same as plaintiff’s, the damage to crops was as great, although defendant’s railroad did not pass between them and the Gulf, nor in any other way affect them.
