10 La. Ann. 255 | La. | 1855
In 1809 a sale was made of a tract of land in the parish of Plaquemines to T. B. Bobertson and William Wilson, who are described in the deed as residents of New Orleans. Preston subsequently purchased the undivided moiety of Robertson, and sold it in 1847 to the plaintiff, who took possession of the land, then in a state of waste, made ditches, fences and levees, erected cabins, and planted orange trees, all at his own expense, and has also paid the taxes. Meanwhile nothing is known of Wilson. Residents of the parish advanced in years, say they never saw or heard of him; his whereabouts, and even existence, for a long time past, remains under the evidence, unknown.
In 1853, Smith brought this suit, and obtained an attachment upon affidavit of his belief that Wilson resided permanently out of the State of Louisiana. He is represented in this proceeding by a curator ad hoe, appointed by the Court. The petitioner alleges that he has made various improvements, paid taxes, &c., at his own expense, to the value of $30,000, that he has increased, by $30,000, the value of the property, and that Wilson, as the owner of the other undivided moiety is, therefore, indebted to him in the sum of $15,000, for which he prays judgment, with privilege on the land. The suit was dismissed by the District Judge, and the plaintiff has appealed.
The claim of the plaintiff not only seems unreasonably exaggerated, but is also based upon an obvious misapprehension of his rights. Smith and Wilson were owners in common of this land. From this relation, and in the absence of any express agreement, the law implied certain mutual rights and duties.! Of these, the mostprominent are the right of partition, when either desires it; the right of mutual participation of the fruits and revenues, and the consequent duty to account to each other therefor; the duty of the co-proprietor who is present and in actual possession, to take the same care of the property as if it were wholly his own; the right of incurring expenses necessary for the preservation of the common property, and consequent obligations of reimbursing one another for such outlays. If one of the proprietors make some change in the property in the other’s absence, not necessary for its preservation, which occasions the co-proprietor a loss, or which he has just cause not to approve of, the former does so at his own risk and under the obligations of an equitable restoration. It is not, indeed, a partnership, as erroneously characterized by the District Judge, but it is controlled in some respects by analogous rules. See Domat, book II. tit. 5, sec. 2. Merlin Rep. verbo indivis. Civil Code 2777,
The theory of the plaintiff’s claim is obviously inconsistent with a just application of the principles which control the relations of proprietors in common. If the expenditures he has made were such as it was lawful for one proprietor to make in the absence and without the knowledge of his co-proprieter, then the liability of the latter is for an equal share of the expense, accompanied with an equal participation in the resulting benefit. But the proposition that Wilson is indebted to Smith $15,000, because the land, as he alleges, has been increased $30,000 in value, by the improvements, is inadmissible. The
The unreasonable character of Smith's pretensions may be illustrated by entering somewhat into details. For example, he desired the Court below to fix upon the absent defendant a liability for one half of the present value of certain orange trees planted by him, a value not due, as the District Judge correctly remarked, to the plaintiff’s capital and labor alone, but to the nutriment of the soil, one half of which the defendant owned.
The District Judge was of opinion that the evidence was entirely too general and vague to enable him to state an account between the parties, and in this opinion we fully concur. The vigilance which the District Judge thought proper to exercise for the protection of an absent defendant is creditable to the administration of justice.
In affirming the judgment it has not been necessary to express, and we do not express any opinion upon the question what works or expenditures were necessary, or within the authority of an owner in common, whose co-proprietor is absent. If this litigation should be renewed, it would be well that evidence should be taken upon the comparative advantages of leaving lands so situated exposed to overflow, and improvement by alluvion, or excluding the inundation by levees, and upon other matters pertinent to the subject.
The intervention on the part of the State requires little comment. The petition of intervention is vaguely framed, but seems to suggest an interest on the part of the State, present or prospective, upon the supposition of Wilson's death without heirs. There is no evidence that Wilson is dead, and the mere lapse of time is still insufficient to raise a presumption of his death..
Judgment affirmed with costs.
