104 La. 74 | La. | 1900
The opinion of the court was delivered by
In relator’s petition io this court he alleges that since the 19th of December, 1894, up to about the 10th of September, 1900, he was in the quiet, peaceable and undisturbed possession as owner, having been in possession as universal legatee and instituted heir of all the property left by Mrs. Julia Roe, widow of John Creen, by judgment of the Civil District Court of the 14th December, 1894, and among said property that which he described in his petition; that 'on or about the 10th of September, 1900, the Illinois Central Railroad Company, claiming to be the lessee or assignee of the Chicago, St. Louis and New Orleans Railroad Company, was about to throw or had thrown earth and trespassed on relator’s said property, by putting earth thereon, and was about to lay ties and rails and thus take possession of his property, in violation of his constitutional right, protecting him in his right of properly, and especially of the article of the State Constitution which prohibits the taking of property for public purposes, without compensation previously paid, and in violation of the Constitution of the United States, 14th Amendment, which prohibits the taking of property without due process of law; and although the city ordinance providing for the opening of the street along the river front was passed and promulgated about the 1st of March, yet no expropriation proceedings had been taken to- expropriate relator’s property, of which he was in possession as owner; that the said railroad companies were further threatening to trespass upon relator’s property, by laying ties and rails thereon, when, on the 10th of Sep
In view of the premises, relator prays that an alternative writ of mandamus issue, directed to the said judge, commanding him to allow
Upon the reading and consideration of the application, this court, on the 25th September, 1900, ordered the district judge to show cause why the mandamus sought should not issue as prayed for. In obedience to this order he answered that on February 28th, 1899, the City Council, in and for the Parish of Orleans, adopted Ordinance No. 15,080, C. S., which ordinance was approved March 1st, 1899, which would fully and at large appear by a copy of said ordinance annexed to the answer; that the object of said ordinance was the opening and widening of Water and Front streets, and that the Supreme Court, in the case of City of New Orleans vs. Steinhardt, 52 Ann. 1043, held that said ordinance was valid and that the city had the-power and right to purchase or expropriate the land necessary to carry out the object and purposes of said ordinance; that soon after the decision in the case of City of New Orleans vs. Steinhardt, 52 Ann. 1043, became final, the City of New Orleans and the Illinois Central Railroad Company organized a large force of labor for the purpose of laying out and widening Water and Front streets, and to lay the track of said Illinois Central Railroad Company on said street when thus laid out and widened as provided for in said ordinance; that when the property of relator, mentioned and described in petition herein, was reached, all of which property was and is vacant and necessary for the opening, and widening of Front and Water streets, as provided for in said ordinance, relator insisted upon being paid an exorbitant value for his property, which the city declined to pay, and thereupon plaintiff applied for and obtained the writ of injunction, the effect of which was to retard and stop the work of public improvement necessary and essential to the
On the 5th of October, 1900, the district judge filed a supplemental answer or return in which, after reiterating the averments which he had previously made, he alleged that in accordance with the verdict of the jury rendered in the case of the City of New Orleans vs. Chas. O. Cotting, a judgment was rendered and signed, in open court, October 3, 1900, as would appear by a copy of the judgment which he annexed ; that under the law of Louisiana, the verdict, the judgment, thereon, and the fact that the money fixed by tihe verdict was paid into the hands of the sheriff, subject to the orders of Charles O. Cotting, had operated a complete and absolute transfer of the property in question to the City of New Orleans, and the relator was without further interest to further prosecute any proceedings in the injunction suit, and any decision rendered by the Supreme Court would be simply the decision of a moot question, and that under the jurisprudence of the Supreme Court, in an unbroken line, it had always refused to decide moot questions where no real issues were involved.
In view of the premises, he prayed that the application for the writ of mandamus be refused.
Accompanying this paper was an affidavit of B. R. Forman, relator’s attorney, in which he declared that he had no notice of the application of the Illinois Central Railroad Company dissolving the injunction on bond; that he was not present and had no opportunity to examine the witnesses, or contradict or disprove the facts Judge Sommerville; in his answer, sets up; that if such facts were before the judge, in his opinion, they were before him illegally, and he could take no cognizance of them without an opportunity on the part of Cotting and his counsel to cross-examine the witnesses and to offer rebutting testimony, and, therefore, that the legal effect of the order of Judge Sommerville, dissolv
Opinion.
The only question before us on this application is whether the relator was entitled to a suspensive appeal from the action of the district judge dissolving on bond the injunction which had been issued in his favor.
The authority of a district judge to dissolve on bond an injunction which he has granted to a party applying for the same is derived from Article 307 of the Code of Practice, which declares that, “whenever the act prohibited by the injunction is not an irreparable injury to the plaintiff, the court may, in their discretion, dissolve the same provided the defendant execute his obligation in favor of the plaintiff, with the surety of one good and solvent surety residing within the jurisdiction of the court, for such sum as the court may determine according to the nature of the case, as security that he will deliver the property in dispute in the same state in which it was at the moment of issuing the injunction, and that he will pay besides to the plaintiff all damages he may have sustained by his act, if a definitive judgment be rendered against him in the suit pending.”
The district judge is entitled to decide, primarily, whether an act prohibited by an injunction is one which may work an irreparable injury to the plaintiff, and when he has exercised the right so vested in him in favor of the right of the defendant to have the same dissolved on bond, it is not surprising that he should decline to grant a suspensive appeal from his decision on that subject. The discretion vested in him of passing upon the character of the injury which might result to the plaintiff-from a dissolution of the injunction,- is subject to be reviewed, as to its correct exercise, by the Supreme Court, and where this right of review, claimed by the plaintiff to be open to him through a suspensive appeal, is denied by the judge, the issue so raised is properly referred to this court under an application for a writ of mandamus to the inferior judge.
It is true that the right of the city to expropriate property, under the ordinance referred to, for the purposes .therein stated, and its right to expropriate the property of the defendant in that particular case, was affirmed in the case cited as against the objections urged by that defendant, but the scope and effect of that judgment is not as sweeping and radical as is urged for them. Questions as to the application of this recognized right of eminent domain to the particular property belonging to the relator, and the terms, conditions and circumstances under which its title and possession should pass from its owner,- were matters left open by the decree in the case cited. These were left to be determined in the special proceedings which would be directed against relator and his property on the special issues which would be raised therein.
Granting that in point of fact and law the property was properly subject to expropriation for the purposes stated and on the lines claimed by the parties desiring expropriation, and that proceedings instituted for that object would result in a judgment for money, easy to be gauged as to value, it by no means followed, from these facts, that possession of the property should be taken from its owner prior to payment for the same under the verdict of a jury.
The Constitution of this State declares, in Article 167, that “private property shall not be taken nor damaged for public purposes without just and adequate compensation being first paid.” The retention of one’s property, even in expropriation proceedings, until just and ade
There is no basis whatever for a contrary contention in the proposition that the bond furnished would fully and amply protect the owner from ultimate loss, and, therefore, no irreparable injury to him would accrue. A court is bound to assume that the deprivation of a right secured to a person by constitutional guarantee works him per se an irreparable injury.
Flow can a court order or permit an act to be done which the Constitution declares shall not be done? If relator’s allegations be true, a tort and a trespass has been committed.
A court cannot authorize the continuance of such an act by and through the giving of a bond.
It has been repeatedly held by this court, independent of any question of constitutional right, that an order dissolving on bond may work an irreparable injury, and is appealable when the act, as alleged, amounts to a trespass, and the effect of dissolving the injunction would be to change the possession of immovable property. ((33 Ann. 133, State ex rel. Sigur vs. Judge; Ruckette vs. Flicks, Judge, 39 Ann. 901; State ex. rel. Hake vs. Judge, 52 Ann. 105.)
The District Court states that at the time that he ordered the dissolution of the injunction on bond, proceedings had been instituted to expropriate this property in the suit of the City of New Orleans vs. Charles C. Cotting, and he made the order, with evidence before him that $2,i00 had been deposited in that suit by the city. Flow, and under what circumstances, the District Court came to receive this evidence is not shown, but the order to dissolve was made ex parle.
The court evidently considered this deposit of money made by the city equivalent to the prior payment of the price required by the Constitution as a condition precedent to the shifting of the title and possession of the property, but we are of opinion that this view of the situation was erroneous.
It is true that Article 2634 of the Civil Code authorizes the execution of a judgment for the expropriation of particular property, either by the payment of money or the deposit thereof, subject to the owner’s order in the hands of the sheriff, but this payment is not of money
Referring to the latter case, he says it was therein held that where a corporation illegally entered upon land and constructed works thereon, without previous expropriation, the owner, on a perpetuation of an injunction prohibiting the entry before expropriation, was only entitled to a monied judgment for the value of the property illegally taken.' An examination of this decision does not sustain the view taken of it, nor the action of the court predicated upon it. So far from justifying the entry of the railroad company upon plaintiff’s property prior to payment to the owner, the Supreme Court reinstated the injunction which the latter had taken out and which the District Court had dissolved.
The court did, in the matter of the Jefferson and Lake Pontchartrain Eailroad Company (30 Ann. 971), sustain the District Court in dissolving on bond the injunction which the plaintiff had caused to be issued “restraining the city from using and maintaining on land belonging to it, a canal running from Northline street to the lake, and from draining into said canal, and over said property, and from entering upon his land and from trespassing thereon, and from preventing the plaintiff damming said canal, so as to prevent the city’s draining therein,” but the judgment of the court was based upon the special state of facts disclosed by the evidence taken in that case, which brought prominently into it, as factors affecting the decision, the doctrines of .estoppel, waiver and acquiescence, doctrines which play no part in the case now before this court.
Other cases might be cited where the owner of property, having stood by and permitted works of a public character to be entirely
If relaior was entitled, under the constitution, 'to retain possession of his property during expropriation proceedings instituted under the right of eminent domain until just and adequate compensation should be first made to him, that right could not be defeated by mere consideration of public convenience. In Bruning vs. New Orleans Canal and Banking Company, 12 Ann. 541 (repeated in Dudley vs. Tilton, 14 Ann. 286, and Kirk vs. Kansas City, Shreveport and Gulf Railway-Company, 51 Ann. 682), it was held that “usurpations and wrongs to private rights of properly cannot be justified by any considerations of benefits to commerce, and the right of expropriation of private property can only be exercised according to the forms of law.”
The district judge urges that we should not grant the present application, for the. reason that since his refusal of an appeal the suit of the City of New Orleans vs. Charles C. Cotting, Relator, has gone to judgment; this particular property has been legally expropriated and the amount fixed by the jury as being a just and adequate compensation ■for the same has been deposited in the hands of the sheriff, subject to the present relator’s order; that under such circumstances the city was authorized to take possession of the property.
He contends that if the injunction which has issued at relator’s instance should be reinstated, it could not be presently executed, in view of the fact that the city would be now found in legal possession; that the injunction was sought as a preventive remedy, and it would be futile to reinstate a preventive injunction as against accomplished facts; that to pass upon the issues raised would be to pass upon merely abstract moot questions. The case before us differs in some respects from those where courts have refused to grant a m'andamus, in view of
The original injunction, with the questions raised thereby, has not abated by the fact that subsequent thereto expropriation proceedings touching this particular property have been brought to an end, and that under the same the city may have taken possession of the same. The issues raised were as to the rights and obligations of parties as arising from an alleged unauthorized and illegal taking possession of the property, prior to the expropriation.
We think a writ of mandamus should issue, as prayed for, leaving to be hereafter determined what shall be the result of the suspensive appeal herein ordered to be granted.
For the reasons assigned, it is hereby ordered, adjudged and decreed that a writ of mandamus issue, as prayed for herein, commanding Walter B. Summerville, judge of the Civil District Court for the Parish of Orleans, Division D, to grant the relator a suspensive appeal to this court from the order or decree rendered by him on the 11th of September, 1900, dissolving on Fond injunction issued at the instance of the relator Charles C. Cotting, on September 10th, 1900, in the matter entitled Charles C. Cotting vs. The Illinois Central Railroad Company and the Chicago, St. Louis and New Orleans Railroad Companies, and that the costs of this proceeding be paid in solido by the Elinois Central Railroad Company and the Chicago, St. Louis and New Orleans Railroad Companies.