New Orleans Republican. [volume] (New Orleans, La) 1867-1878, 1875-03-10

| 1873; that the defendant, B. 3. Carlisle, re-
sides on said street, on premises adjoini ne
gally caused an unsightly, offensive and in.
furious wooden obstruction or barrcade to
be erected on PLAINTIFF said premises,
about thirty feet high, and extending from
State street to ward the rear of said lot, a
distance of about seventy feet; that the
wind caused portion of said obstruction
or barricade to fall upon the ground, and
the remaining portion is eighteen or twenty
feet high; that tho said obstruction is
erected just inside of and is attached to the
| partition fence which separates the prop
erty of petitioner from that Of defendant,
Obstructing the view and shutting ont the
sunshine and breeze from plaintiffs house;
that said barricade is an intolerable nui-
| sance, and causes scandal in the neighbor-
| hood, and re marks to be made bv persons
| passing by in regard to the cause if its erec-
ton; that the said barricade depreciates the
| value OF plaintiffs property, and is stand
| ing libel on petitioner and his family; that
| the wind has forced said obstruction and
| the partition fence out of a perpendicular
! position toward plaintiffs house; that on
| account of the peculiar construction and
| great height of said obstruction, it is liable
to fall against and seriously ipjure plaintiffs
dwelling, which is only about two feet from
said line fence; that plaintiff would not
not been assured that said obstructi, n
would be removed; that he requested de-
! PENDANT to remove said obstruction, or to
allow him (plaintifD to do so at his own ex.
pense, but defendant refused to comply
with his umicable demand; that defendant,
in thus refusing to remove the barricade
aforesaid, was sctuated by malice and Q
desire to injure the plaintiff; that he has
suffered damage up to the date of the filing
nf thin elif in tho nf ES0O in
quence of said barricade and obstruction.
Plaintiff prays for judgment in his favor.
and against defendant, for the sum of $500
damages. and also condemniDg defendant
to remove the barricade aforesaid without
unnecessary delay.
Defendant, in bis answer, denies each and
every allegation in plaintiffs petition con-
answer afterward admit.
Defendant AYERS that he IL the owner of
certain property on State street. immediate.
ly adjoining that of plaintiff; that he.
defendant, has owned and occupied his said
property since April 80, 1870. He admits
having, in the month of March, 1872, erected
@ plank fence between his property and
that adjoining, which fence has been and is
now strong, substantial and we'll construct
ed; that the fence aforesaid is built entirely
upon his own property, and does not in any
held by said Keen, and that in the erection
of said fence he has but exercised his right
Of dominion over his said property; that his
private residence erected by him on his
own ground has several windows and doors
facing toward the house upon the ground Of
said Keen, and that defendants house was
built previous to the acquisition Of title by
said Keen, and close upon the line, 60 close
that the window blinds swing over upon
the property Of defendant, and that the
windows thereof overlook the grounds of
respondent, aud his houses being 80 stu
ated that the bedrooms of himself and
family can be looked into by the occupants
of plaintiffs house, compelling defendant
to keep his bedroom doors and windows
always closed to prevent the sacrifice of
his family privacy: Defendant further
AYERS that he has been annoyed by the
present occupants of PLAINTIFF house, by
having his bedroom, parlOr and dining
room looked into from the windows afOre-
said, previous to the erection of the said
fence, and since from gable window
higher than said fence; that the erection of
said fence was solely matter of self
defense, rende red absolutely necessary to
obtain little privacy; that since the
erection Of said fence things were thrown
into his grounds by the present occupants
OF defendants house, and that the said
fence serves as partial protection against
said annoyance, and was in existence at
the time Keen purchased the property
aforesaid; that the windows of plain titf's
house all swing over his (defendant's)
ground, and have done SO ever since the
occupation thereof by said Keen, consti-
tuting trespsss upon and injury to the
property of defendant, and causing him to
suffer annoyance and trouble of mind, and
iDflicting on him damages in the sum Of
$500.
That by the repeated ammo vance, unlaw-
tul overlooking and impertinent intrusion
on his privacy and that of his family at the
hands Of the residents of said house, under
said Keen, and composing his family guests
or servants, and the consequent inconve-
nience and annoyance aforesaid, defendant
has suffered further damages in the sum
Of $3.50, making altogether total of dam
ages in the sum OF $3.50.
Defendant prays that the petition and
demand of plaintiff be dismissed, and he
prays fOr judgment against plaintiff in re-
convention for the sum of $3.50.
You will first inquire as to the location or
position of the barricade or fence complained
of by plaintiff. II you should find that it is
on the ground of the plaintiff, or on the
ground of the defendant, but resting upon,
supported by, or attached to the partition
fence, it the partition fence was held by the
pldiutlu anu uclcuuAuU ia COuWOU, OF CudU
said fence or barricade inclines from o YER
teal position inward towards the house or
over the grounds of plaintiff, or Overhangs
the same, such facts alone would give plain
tiff right of action against the defendant
to compel him TO remove the said baricade
or fence, and to pay such damages as it
NAV have caused plaintiff.
The ownership of tie soil carries with it
the ownership Of all that is directly above
or under 1t. Rev. c. c., art. sos. II you
find that the barricade or fence aforesaid
is on defendants ground, that it does not
rest upon, and is not attached to or sup
ported by che said partition fence, then
arises the most important question that you
are called upon to determine in this
cause, to-wit: The right of defendant to
erect and maintain the structure in cohtro-
versy on its present site, because the claims
Of the plaintiff, and nearly all of the
unconventional demands Of the defendant,
are but matters incidental to that question.
A servitude is charge upon one estate
for the benefit of another. A servitude es-
tablished for the benefit of a house is called
an urban servitude. Servitude of views is
one of the principal kinds of urban servi-
tudes. Servitudes of view are of two kinds,
one of which is that comforting the right of
full view. with the power of preventing
ones heighbOr from raising any building
Wnlcn OOeCruct IL. lou are 10 examine the
averments of defendant that his house had
been buil9 prior to plaintiffs acquisition of
his property that defendants house has
several windows and doors facing towards
the house of plaintiff; that plaintiffs house
was erected so close to the property of the
that it's windows overlook the
grounds and house of the latter. and that,
from plaintiffs evidence, the interior of
the bed rooms Of the defendant may be
seen. If you find these averments
sustained by the evidence, then the prop.
erty of defendant was virtually and in
point of fact subjected to the urban servi-