New Orleans Republican. [volume] (New Orleans, La) 1867-1878, 1870-05-03
THE COUNTS. :.
Eighth District Court,


writ Of mandamus TO compel the State
Auditor of Public Accounts to issue to each
of them a warrant for the sum OF one
thousand $4,000 dollars. They aver that
they were elected as State Asse ssors for the
parish of Orleans, have continued to
discharge their duties up to the present
| time, and are now entitled to receive the
warrants, which the auditor refuses to
deliver to them, and which they now seek
| to compel him to issue. The respondent
| alleges In his return that the relatOrs are
not the Board OF Assessors, as they claim TO
be, and that he has no authority to draw
the warrants in their favor.
The judge in concluding his Judgment
said: | express no opinion upon the right
OF Swords and others 0 the ofhces for which
| their commissions run. It will be time to
decide that question when it is presented in
| proper form. But in view of the legal pre-.
sumption OF the cOnstitutionality of the
law under which the governor acted, and
of the official propriety of bis act in issuing
these last commissions, think the return
| of the respondents that the REALTORS are not
| entitled TO the warrants asked for, is good
| and sufficient.
1t is therefore ordered that the peremp-
tory writ OF mandamus prayed for be re-
| fused, and the petition OF relators be dis
missed with costs.
The Chattanooga Railroad Again In
| Court
| Chattanooga Railroad vs.. The City of New
| Orleans. - The Chattanooga Railroad,
| through their attorneys, Campbell, Spotford
& Campbell, obtained an injunction against
the city authorities, restraining them from
| obstructiDg or IN any way interfering with
| the laying of the tracks OF the said Chatta
nooga Railroad, upon grounds prescribed in
maps of survey now on file, and the spaces
Of ground mentioned in the first section of
| the act OF the Legislature Of the twenty
| first Of February, 1870, being the cen-
tral banluette or waking avenues
which line the space of ground reserved
| by Bernard Marigny, being. two strips
| of ground twelve feet in width one upon
each side of and adjoining the land said to
| be owned by the Pontchartrain Railroad,
| in the central portion of Elysian Fields
| street, with the requisite curves to and from
| the same, from the levee and from Clai-
borne street. The city authorities are also
restrained from hindering and obstructing
| the removal of any structure or material
| thereon that may in any manner hinder or
| obStrUct, or impair the location. mainten
ance, construction and use Of the tracks of
New Orleans, Mobile and Chattan ooga Rail
road.
The Chattanooga Railroad Case.
Judge DIbbie yesterday rendered the fol.
| lowing decision:
New Orleans. Mobile and Chattanooga
Railroad Company VS.. the city of New Or
| leans, ct as.-The New Orleans, Mobile and
| Chattanooga Railroad Company aiiege in
their petition herein, that they have owned
| il fee simple for more than one year, certain
real estate at or near the foot Of CalliOpe
| street in this city; that as front proprietors
| they have riparian rights: that by an act of
| the General Assembly they are authorized
| to inclose their said property and to use
| their rights and title as riparian owners.
The aver that, in the construction of their
railroad they are inclosing the said land for
the purpose of receiving their necessary
supplies, and for the convenience OF theH
puolic business as common carriers, but
they are threatened with interruption from
the Mayor aud Administrators of the city of
New Orleans, Charles A. Whitney and 4. c.
Hutchinson.
They prayed for an injunction to restrain
said defendants from hindering, molesting,
disturbing, or in any manner interfering
with the enclosure and occupancy of their
said property for the purposes OF their busi
ness aforesaid. The ii unction was granted
upon bond of twenty thousand dollars.
Tie city of New Orleans. through the
City Attorney, has taken rule to dissolve
the III lanctlon upon the ground that the
allegations of the petition, if taken for true,
do not warrant the issuance OF the writ, and
has furthermore made q motion to set the
injunction aside as if bond were given under
the provision Of article 507 Of the Code of
Practice.
l. have no hesitation in saying that the
allegations Of the petition justify an injunc,
ton. "a party may always claim the aid OF
the laws of his country to prevent a wrong,
which. if inflicted, he could claim damages
for" (CarraDy ct al. VS.. Morgan. 5 n. s.,
500.) The writ of injunction will be to pro-
hibit one from doing an act which may be
injurious to him, or impair right which he
claims. Code of Practice, article 1861 The
fifth enumeration in article 295 Code of
Practice, expressly provides for this remedy
to prevent an interference with the owner
ship, possession and enjoyment of real estate
or seal rights. Assuming. then, that it is
true, as alleged in the petition, that the
plaintiffs do own the real estate described
and have the right under q grant from the
State, to possess and use their front upon
the river, and that defendants are threaten
ing to interfere with their said rights, the
injunction was properly granted. and should
not be dissolved On the face of the petition.
2. have heretofore taken the view, in a
case in which the present plaintiffs were de-
PENDANTS. that an injunction ought not to be
dissolved on bond, or as if bond were given,
under the provisions OF article 307 Z. F.,
when the writ has been obtained to prevent
interference with rights of ownership and
the use of property. When a man owns
thing, and it be taken away from him by
force, the wrong thus committed can rot be
repaired by the return of it's value. To be
deprived of the use of ones property, or to
be driven from ones home is ar irreparable
injury. On the contrary, when man owns,
and is in possession of a thing, and he be
euioined aud restrained in its use, he ought
to be permitted to set aside the writ on bond.
This is the position taken by our Supreme
Court II An. S47; IA An. 81; IL An. so. See
also Hilliard on IDjunctions, page so.
1t has been said by the Supreme Court
that an il junction ought to lie, to prevent
violation of right to use property, although
there should be no ground for damages. IA
An, 283. It would be difficult to determine
the amount of bond upon which such an
Injunction could be set aside.
1t is settled that an injunction ought not
to be dissolved under this article, when the
injuries apprehended and complained of
could not be remedied by final decree. IA
An, 81.
It is therefore ordered that the rule taken
by the city of New Orleans, April Ia. 1870.
to dissolve the in njunction herein, be dis
charged, and that the motion by said city,
of same date, to set aside the said iDjunC.
ton under the provisions of article 307, c.
P. without bond, as permitted to the said
city in such cases, be overruled.
TI%G AsD CHASGE.-W'e copy the follow