65 So. 638 | La. | 1914
The plaintiff corporation is now, and has been for a long term of years, operating a railroad in this state, passing through the parish of St. James, wherein the property of defendant is located. It alleges that owing to the building of a new levee paralleling the present levee along the Mississippi river in said parish, made necessary by caving banks on property located above that of defendant, that it has become necessary to remove its tracks, and to relocate its roadbed by constructing another roadbed, as shown on a blueprint, plan, or diagram attached to the petition. The map embraces the property of defendant, together with that of other owners above defendant, over whose plantations or sugar cane fields the newly located roadbed and tracks are' placed. It further alleges that it is necessary to expropriate a certain portion of defendant’s property, sufficient for its roadbed.
Defendant filed certain exceptions, which were overruled; and they are not urged now.
Defendant denies that plaintiff is compelled to remove and locate its present roadbed and tracks on and over the plantation owned by it, and that the line proposed by plaintiff is the only feasible and practicable line to be followed, and it alleges that the expropriation of any of its property would be an arbitrary taking of its property without due process of law. It further alleges that the plaintiff now enjoys, and has enjoyed for thirty years, a right of way over defendant’s property for a distance of about 3,500 feet, which affords every facility for the proper handling of its trains; that a new levee has been built in front of defendant’s plantation, and outside of the present roadbed and tracks of plaintiff; that plaintiff’s present roadbed is equipped; and that there is no public necessity whatever for the expropriation of any of defendant’s property.
In the alternative, defendant pleads, if it should be found necessary that plaintiff should expropriate any of its property, that
Again, in the alternative, defendant pleads that, if plaintiff is allowed to expropriate the land described by it in its petition, that-it (defendant) be awarded for said land, and for damages arising from the expropriation and use of said land, the sum of $5,190.53.
There was judgment in favor of plaintiff, based upon the verdict of the jury in favor of plaintiff, recognizing that it was entitled to expropriate the right of way prayed for in its petition, and in favor of the defendant, and against the plaintiff, in the sum prayed for in defendant’s answer; costs to be paid by plaintiff. ■
Plaintiff appeals; defendant also took a devolutive appeal. Plaintiff has moved to dismiss the appeal of defendant.. It is unnecessary to dispose of this motion, for the reason that defendant has answered the appeal of plaintiff, and has asked for an amendment of the judgment in respect to those parts whereof it complains. These matters are set up in the pleadings, and they will be disposed of in the opinion of the court. ’
The first law qf society being that the general interest shall be preferred to that of individuals, every individual who possesses, under the protection of the laws, any particular property is tacitly subjected to the obligation of yielding it to the community, wherever it is necessary for the general use. C. C. 2626. And the law specially gives to railroad corporations, constituted under the laws of this state, the right to expropriate property necessary for their use. But defendant contends that plaintiff is now in possession of a roadbed, and has been operating its railroad over defendant’s plantation for the past thirty years, and that the cause urged by plaintiff in its petition does not make it necessary for plaintiff to abandon its present location and relocate its railroad along the line sought for in this case. The evidence is very clear and positive that plaintiff was compelled to abandon its roadbed for some distance above defendant’s plantation, as it
The jury has found that it" was necessary for plaintiff to take defendant’s property for its use, and the trial judge approved the verdict. The finding will not be disturbed.
Defendant has suggested and argued that plaintiff might have so transferred its roadbed to a line suggested by it (defendant) running diagonally through the plantations of adjacent owners on the north side of its plantation, which would have rendered it unnecessary for plaintiff to have taken more than a small triangle of its property, containing about 1.14 acres, and valued at $500. But we have seen that the plaintiff has already acquired one right of way over the adjacent pieces of property, and, besides, the line suggested by defendant would be rather close to the present new levee, and very close to the levee which the state engineer testifies will have to be built in the near future. Under such circumstances, plaintiff might be compelled to remove its roadbed again very soon, with great loss to itself, and with inconvenience to those owners of land over which it would pass. We agree with the jury which tried the case that in a level country, such as is that of St. James parish, it is necessary for a railroad to run on a straight line, or as nearly straight as is practicable. This is evident and almost imperative.
(1) The first item is the value of 4.39 acres, taken by plaintiff, and valued at $150 an acre. One witness testifies that, while plantation property in the neighborhood of the Longview plantation might be bought for about $50 or $60 an acre, he thinks that a strip for a right of way is worth from $100 to $150 for the naked land. This estimate appears to have been concurred in by most of the witnesses, and $658.50 will be allowed.
(5 and 6) These claims are for bridges and the building thereof, amounting to $324. Plaintiff admits that these items should be allowed for $248, and as that figure is in excess of the cost, according to the evidence of one of defendants’ witnesses, it will stand.
(8, 11, and 13) These items are for labor, etc., in rearrangement of the lay,of lands on each side of roadbeds, for 4.39 acres of cane standing in the field, and for damages caused by throwing up of roadbeds through cane, etc. These amounts will not be allowed, and a judgment of nonsuit will be entered as to them. The plaintiff had not entered upon defendant’s property at the time of the suit, November, 1913, and it was not shown, and could not be, what amount of cane might be destroyed when it afterwards entered thereupon; the cane may have been cut by defendant before plaintiff entered upon the land. It is the same with reference to the rearrangement of the lay of the land, and the throwing up of a roadbed through the cane and forcing the hauling over turn roads. If plaintiff entered upon the land of defendant before the crop was harvested, and caused the expenses claimed by defendant, it, the defendant, should be permitted to make claim for same in another suit.
(10) This claim is for obnoxious seeds which may be scattered by the railroad company. The right will be reserved to defendant to make claim for any damage arising from- such cause, if obnoxious seeds should be scattered and weeds grow and damage defendant’s property.
It is therefore ordered, adjudged, and decreed that the judgment appealed from be amended in the following respect: That the amount in favor of defendant and against plaintiff be reduced to '$2,269.46, with interest.
It is further ordered, adjudged, and- decreed that a judgment of nonsuit be entered in favor of defendant and against plaintiff in the sum of $1,366.60, for the items of damage claimed by defendant and indicated in the foregoing opinion. And as thus amended the judgment appealed from is affirmed; costs to be paid by plaintiff.