Laviosa v. Chicago, St. Louis & New Orleans Railroad , 1 McGl. 299 ( 1881 )

The opinion was delivered by Thomas Gilmore, Esq., -member of the bar, judge ad hoc, vice Rogers, judge, recused, having decided the case below.

Gilmore, judge ad hoc.

This is a suit to recover four hundred dollars, as damages, for the alleged wrongful act of the defendant in tearing down an awning erected by plaintiff in front of his house on Euphrosine 'street, and also to remove the track of the defendant to a greater distance from the plaintiff’s house, it being alleged that the track, as at present located, interferes with the use and enjoyment by plaintiff of his property. There was judgment for the defendant in the lower court and plaintiff appealed.

It is suggested on the part of the defence, that the Supreme Court, to which the case was returnable, was without jurisdiction, by reason of amount, and that as no bill of exceptions appeared in the record, this Court cannot pass upon this case. Const., Art. 129.

The ruling in State ex rel. Darcy v. Parle, 25 La. An. 61, appears to be in point, and sustains the jurisdiction.

The question of the right of the defendant, under its contract with or license from the city to use Euphrosine and Magnolia streets for its track, does not properly arise; for, granting the right of the defendant to the use of those streets, still the question remains, whether the defendant, as owner of the adjoining lot, has the right to use its property in such a way as to be a cause of injury and disturbance to its neighbor, and whether it is liable for the injury and damage thereby caused, and the injury and damage caused by the demolition of the awning. Whether the plaintiff had permission from the city of New Orleans to erect the awning, or whether it was erected in violation of a city ordinance, in no manner justified the act of the defendant in tearing it down ; and the countenance which it appears to have had from an employee of the city, in so doing, cannot excuse the act or exonerate it from liability.

The evidence establishes that the track of the defendant across its lots were in dangerous proximity to the plaintiff’s house, and that the defendant is thus using its property in a way to injure its neighbors, the plaintiff.

The latter has been damaged, in consequence, by the reduced rental value of his property and by the tearing down of the awning erected by him. Eor this he is entitled to recover. But the pleadings and evidence in the cause do not enable the court to determine what further relief the plaintiff should have.

It is, therefore, ordered, adjudged and decreed that the judgment appealed from be reversed and annulled; and proceeding to render sucli judgment as should have been rendered by the District Court, it is further ordered, adjudged and decreed that plaintiff recover of defendant the sum of one hundred and twenty-five dollars, with legal interest from judicial demand until paid; and that in other respects the cause be remanded to the Civil District Court for the parish of Orleans for such further proceedings as may be necessary to effect the removal of the defendant’s track to a reasonable distance from plaintiff ’s property, defendant to pay costs of both courts.