The daily crescent. [volume] ([New Orleans, La.]) 1848-1851, 1849-04-05
Supreme Court of Louisiana.



Condensed Deeisions-Nlw ORLEANS. April q 1919.
Where erected miIdam on creek and the Legislature
by act, recognized his right to the of the stream
for his mill thus giving him advantage for his labor
and expense in clearing the stream. and he continued
for several years to exercise such right without opposition
from the public authorities neighborng propeors
held. that when another of land the creek,
above the mill.dam of sought to have it removed
the ground of the navigabty of the stream. and the
evidence unsatisfactory in enabling the Court to de-
eide upon the public right involved, nonsuit is the
proper Judgment.
THOMAS B. HARPER Us. Moses MOORE. No.
1920. Appeal from the Eighth Judicial District
Per Curiam: The plaintiff and the defendant each
own a saw.mill erected on the Chappapela Creek,
in the Parish of st. Tammany; that of the plain
tiff is some six seven miles above that of the de-
fendant. The plaintiff asserts his right to free
passage in the creek for the lumber, sawed at his
mill, to the river Tanchipaho, which empties into
Lake Pontchartrain, on the ground that the creek
is navigable stream. The Jury found that the
Chappapela was a navigable stream, and, by the
judgment of the District Court the Instructions to
the free passage of the creek were ordered to be
removed and the defendant was prohibited from
after obstructng said passage from the mill of
the plaintiff down TO the junction of the creek with
the river Tanchipaho. From this judgment, requir-
ing the milldam which the defendant erected across
the creek to be removed, he has taken an appeal.
Inc pldnliH, III his EetltIOI, Ddscs Ills right upon
the navigabity of the stream in legal sense, and
the question has been argued at bar whether, in
that sense, the Chappapela is or not a navigable
stream 1t results from the act of the Legislature,
passed in 1910, entitled act to improve and keep
in repair the Bayou Chappapela, that at thai time
above the mill erected by the defendant. The OBJ
ject of the Legislature, by that law, was to give
the defendant an advantage for his labor and ex-
pense in clearing out the stream below his mill and
the law itself is recognition of his right to the
of the stream for his mill, so far as the public right
was concerned, at least until the expiration of the
act of 1910.
BY the 9Th and 9th sections of the Act of March
Is, 1918, Police Juries have full power to make
such regulations as they may deem expedient for
the clearing of the banks of the river and of other
navgable streams, for the purpose of securing
free passage for boats and other small crafts and
for the towines of the same, and of causing to be
opened again such ancient natural drains as have
been obstructed by the owners and to prescribe the
mode to be observed in that respect, etc.
Had the Chappapela been, in 1890, in the view
of the Legislature public bayou, it having that
name in the act, the erection of the mldam by the
defendant would have been nuisance and liable
to be destroyed on the judgment of the Court, and
the defendant himself liable to fine and imprison-
ment. (Act of March 10, 1879 By the first Sec
ton of the Act of March, 1884, the wful obstruc-
ton of any navigable river bayou, creek, bay or
imprisonment; and by the next section of the Act
it is povided that thereafter when any person shall
construct mill-dam on any of the streams Of the
Eighth Judicial District it shall be his duty to leave
lock passage of certain dimensions for the pas
sage of RATS or boats, etc. 1t does not appear that
there has been any attempt to effect the removal Of
the defendants mill-dam by any of the public au-
thorities, nor any complaint against it as an in
fringement of the public right. The Grand Jury,
the prosecuting officers of the State, the Police
T,,,v ~f L. 1f A.
land on the stream, have never called in question
the right of the defendant it is now exercised.
The plaintiff bought his mill in 1874. The evil
dence by which the proposition is supported, on
which his case has been presented, that the Chap
parela is navigabe stream does not relate further
back then that time, and is entirely inconclusive
and unsatisfactory. 1t is obvious that in determin
ing on public right, in which many proprietors
have an interest, the inquiry ought TO be thorough,
and all doubt and uncertainty, if possible removed
The evidence which the defendant has brought
forward weighed against that addueed by the plain
tiff, when taken into consideration with the origin
and uninterrupted exercise of his right, would,
under ordinary circumstances, justify in render
ing an absolute judgment in his favor. But we
do not think it would be proper give any defntve
Judgment which might be considered as affecting
a public right. If this stream had been navigabe
by law, or by the removal of its distractions be
made so under the proper authority, and the public
right be asserted and legally established the remedy
cannot be withheld; nor is it probable that any
citizen would attempt to resist it. The judgment
Of the District Court is therefore reversed and udg
ment rendered against the plaintiff, as in case Of
non-suit, with costs in both Courts.
When an Attorney is absent on the trial of case owing to
his installing the time at which the term of the Court
to be held, it is good ground for granting
new trial to his client.
THEoDULE RICHARD u.s. EDMUND P. DWIGHT.
No. ll59. Appeal from the Fifth Judicial District
Court, Parish Of Assumption. .. .SLIDELL, j..
Per curiam: Richard sold Dwight his interest in
paid at maturity, Richard obtained an order Of
seizure and sale. Dwight then arrested the order
by injunction, alleging outstanding titles and dis
turbance, etc. An order of survey was granted in
March, lS48, on Dwight's er parte motion and upon
that survey was necessary to show the
quantity of land covered by adverse claims. On
the second day of the May term, lS43, the defend
ants counsel moved that the be set for trial
for that day. This having been done, the cause
was taken up on that day; and the plaintiff lin in
Junction. having been called and not appearing,
judgment was rendered in favor of the defendant
in injunction, with two Per cent interest in add-
tion to the interest which the amount enjoined
bore and twenty per cent. damages. On the third
day of the term the plaintiff applied for a new
trial, supporting his application by the adavlts of
himself and his attorney. The new trial was re-
fused, and the plaintiff has appealed.
The principal ground of the application is the
absence of the attorney The plaintiff deposes that
his attorney, who lived in another parish, had the
sole charge of the case that he wrote to him on
the 9th and 14th of May, urging his punctual at
tendance, but that his attorney did not receive the
letters until the 10th. The attorney deposes that
he had been under the impression that the term
was to be held in June, but feeling certain that
i was not to be in May, he wrote on the I'd Of
May for information, and received from his client
on the 10th the two letters; that he Immediately
sta rted, and by travelling day and night was ena-
bed to reach the Court the third day of the term
Although there seems to be hardship in this case
we have concluded that we could not relieve the |
plaintiff by reversing the judgement and remandng
the cause for new trial. without establishing a |
dangerous precedent. The rules which govern |
courts in the administration Of justice are framed
with reference to general results, and must be |
respected and enforced, although in particular cases
hey may operate harshly. We do not think we |
IAN relieve this party because his case was taken
up and disposed of er parte, through the mistake |
# his attorney. The term Of the Court was estab-
shed by statute the attorney and his client were
bound to know the law, and can not plead ignor- |
anco of If Rosdoe the nj in tbo /