New Orleans Republican. [volume] (New Orleans, La) 1867-1878, 1872-12-13
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OFFICIAL JOURNAL OF THE UNITED STATES
OFFICIAL JOURNAL OF NEW ORLEANS
THE COURTS.
lied Fstares Circuit Court.


sixth District Court.
The following is the opinion Of Judge
Saucer in the case OF William stevens vs.
John A. TurneN ct ais,
This rs an application for new trial.
The original judgment was rendered W my
nradecessOr during the last days OF his IN
eumbencY Of this bench, and l presume
that the pressure of business at that time
preyented him from giving US the benefit OF
his reasons for that Judgment.
The facts of the case seem 70 pc these
One Poindexter leased from the Widow
Deyereux q one-st0ry frame building, and
fhe dependenoies thereof, situated on Ba-
rome street. between Common and Grayicr
streets, in this city.
The lease was to commence on the hrst
of August, 1857. and to end on the thirty
first of July, 1858. One of the clauses IN
the lease was that POindexter the lessee
should have the right to erect Dulldlngs
and constructions on the premises, and
that these should be held as MS per,
sonal property and that he should
have the right, at the expiration Of
+ba lease. to remove them. This
lease was renewed for two years from the
frs+ of August 1858, to terminate on the
thirtv. first of July, 1866 There is an allie
cation in the petition that this lease was
again renewed for period of three or four
Years but ! have seen no such lease, nor
any evidence on that point. 1t is clear,
b rwever, that POindexter remained in
D possession Of the property up to 1863, at
which time it, was taken possessi of
Nv the military authorities of the United
States 1t seems that in 1865 the i'm
proyements erected on the premises by
Poindexter stiil remained and that those
improvements were Of some magnitude. 1t
seems that he conferred with his lessor in
regard to those constructions, but what the
agreement was between them was not IN
evidence. In 1863, the lessor, Mrs. De7e-
reux, died, and the heirs were put III posses
sion Of her estate 1t seems that on the
twenty-ninth OF April, ITO, the heirs of
Deyereux sold the property, including the
improvements erected by PoindeXter to r,
A. LuIing, of this city, and it is also in proof
that on the twentieth of January, 1871, Lu-
ling sold to John A. Turnell. This suit is
brought against Luling and Turnell, the
plaintiff claiming the buildings erected by
Poindexter to be his by virtue of sale
made toshim by Poindexter on the fifteenth
of January, 1872. lis prayer is that he
shall be recognized as the owner Of those
buildings, and that the defendant be con
demned to pay him the sum Of $500, being
the value of the materials and work
manship expended in the construction
of said buildings and improvements; and
it is. stated in the prayer that the
erection of those buildings was completed
on the seventh Of March, 1868. Plaintiff
had Judgment against the defendant for
$500. What is now to be said on this APP
plicatiOn ia not to be considered as the final
opinion of the court on the merits Of this
controversy. ! have simply directed my
inquiry to the'questi0ns necessary for the
disposal of this application. The authOri-
ties cited by the learned counsel
who appeared for the parties, find not
to be strictly applicable to this case,
aud, therefore, it will be- necessary for rs
10 dispose of this application under our
own legislation and under general pTin-
ciples of law. Our code, article j0j, pro-
vides that "the ownership of the soil car
ries with it the ownership of all that is
directly above and under it," Article $780,
provides that tall the constructions, plan
tatiOns and works made ON or within
the soil are supposed to be done by
the owner and at the expense, and
to belong to him unless the contrary
he nrnved ~ z Article sos provides
that "when plantations, constructions and
works have been made by third person,
and with such persons Own materials the
owner Of the soil has right to keep them
or to compel this person to take away or to
den1oligh the same If the owner
keeps the works he owes to the owner Of
the materials nothing but the REIN
bursement Of their value and of the price
Of workmanship, without any regard to the
greater or less value which tho soil may
have acquired thereby" 1t is evident,
therefore, that the provisions of the article
sos stand as between the owner OF the soil
and the owner Of the materials that went
to the construction of the improvements.
This article nodifes the right OF aces
sion or acquisition of the owner OF the SOIL
and qualities the ownership Of the lessee in
the buildings and other constructions erect
ed by him on the leased premises.
Now, the owner of the land, as we have
seen is presumed to be the owner of all the
improvements and buildings on that land.
tam The lessee, who has constructed
works on the premises leased, has what
is called the ROniHltnl attic, and this dGHtt- !
nam lttHe is the right to possess and
enjoy tho premises leased, including the
that ne placed there himself |
Bat it is evident that this sd0n'tHum attic |
conveys only precarious title to the
and improvements erected by |
aim. 1t is an imperfect ownership, and the |
act is that it is nothing in the world but |
movable right which is not susceptible Of |
)eing encountered or alienated.
Having the EdOn'inum dicecttnI and with |
he presumption of the law in his favor, the |
,wner of the land has the right to ALLEVIATE
md cucumber, even to the extent OF the |
erected on the property, provided
ne makes proper compensation to the lessee.
Now, it is true that article AGA declares
hat Glands and buildings or other cOnstruC.
ions, whether they have their foundations
n the soil or not, are immoyable by
heir nature" but they are immOvable in
elation to the SOIL with regard 20 the
wner of the material with which they
ave been erected. / consider this sufficient
or the disposal of this motion for a new
rial, and, therefore, l shall withhold my
anction Of the judgement heretofore rem
cred, by granting the new trial prayed
or. Let the order be so made.
Eighth District Court
In this court, which was abolished
Wednesday morning, on motion Of W. w.
lowe, Judge Elmore yesterday morning
,sued the following writ Of arrest in the
ase Of II. G. Warmoth vs.. 2. 2. s. Pinch.
aclz:
o ". P. Harper, Civil Sheriff Of the Parish OF
Orleans:
You are hereby commanded, in the name
( the State Of Louisiana and of the Eighth
District Court for the parish Of Orleans, to
ttach the body OF p. d. S. PinchbaCk, so
hat you have him before our said court
to answer for q contempt and
eglect to obey the injunction issued in the
bove entitled cause.
Witness the Hon. w. \. Elmore, Judge Of
ur said court, this twelfth day Of Deem
er, 1872.
I'D. TAYLOR, Deputy Clerk.
The writ of attachment was placed in the
ands Of the sheriff for execution at HAS
a. NJ. ALP. N, Mr.. Dick, DEPUTY sheriff,
rived the writ of arrest on Governor Pinch
ack. at tho Office Of the Governor, 10 Me
lanics' Institute, who refused to recognize