The New Orleans daily Democrat. [volume] (New Orleans, La.) 1877-1880, 1877-07-21

twenty-five per cent when he g. sa1ly allowed
lowed forty per cent Is overri IA V'i' nave oi-
The defendants s,t 4 have pr odnced before the
.nsgoa fr",y u,heh cunts, supported by
shown that the amo mt en n1 a W.
them In improyep enfa and I,atferrac,ats ,,, -
o.lo aoa m,,v ~ sum Of STAT 1866 o. and they
| except Deeaus> ID the master has not reported
e,s -, 40 I'm their favor The exception
taallos .evatl 1t does not concern the court
s,, aifo what sums were expended by the de-
!e sa &ssts. The inquiry directed to the master
w - what sum was expended by the defend
ants IN improvements which still remain
{ aFhn the goad and which can be turned over
A 70 the GQmplainantS.
4 The etmplainants are not required to pay
for cross-tfes and other perishable materials
which have been put upon the road and have
I persisted or been consumed For instance,
the life Of O cross-tie put down on O railroad
averages about five years. The account SUBJ
mitted by the defendants contains charges
for cross-tes, commencing as curly as March
8, 1866 and this Is constantly recurring
item throughout the account. These cross
ties have persisted, and those by which they
were replaced have persisted, Tho complain
ants cannot be called upon to pay for what
has thus disappeared.
The account furnished by the defendants
l does not profess to show the cost of their i'm
provements which still remain upon the road
and which they are ready to turn over to the
complainants Ii Is an account Of what they
have, paid out. not only for improvements
aa psa and st for sa whs
was therefore right in not reporting the sum
Of that account as the value Of the improve
ments remaining upon the railroad:
Upon the question referred to the master,
the witnesses, Green and Richardson, who
gave list Of oil the improvements put upon
The road by the defendants and which still
remained. Upon this list the master based
s,f
| The evidence seems to be accurate and trust
| worthy, and it is the only evidence on this
| point to be found In the cause. The exception
| under consideration must be overruled.
The defendants except to the calculation of
| interest made by the master on the ground
| that no has assumed an average period OF
| four and q half years us the time for wiEch
| interest should be computed. They. COM
plain that their account shows when each item
Of expenditure was made and that interest
should be calculated from the dates 80 fur
nished.
It 10 evident that the master could not use
the dates In the account filed by the defend
ants, as furnishing the dates from which to
calculate interest, because large part of
that account consists Of items which cannot
be allowed and there are no means of decid-
ing what particular items have been disal-
lowed. The master has reported that the i'm
provefnents remaining on the road are de-
scribed In schedule attached to the evidence
OF Green and Richardson. and that 1t Is inn
possible to ascertain the dates when such inn
provements were respectively made. The
only course left for the master was to take
an average time and calculate interest for
that period.
This the master has done; but as the de-
PENDANTS are entitled to interest only up to
placed in the hands Of the receiver, think
the master has allowed interest for aperiod Of
six months too long. This exception to the re-
port must be overruled.
There. appears to be mistake made by the
master in his computation of interest Tho
Interest on $431, POI 81 for four years and q
half Is, at five per centum per annum, $780,
605 AZ and not S54.275 12ll9. The parties have
submitted some questions to The master,
which he has referred to thecourt, and which
1t is now necessary to pass upon.
l. The compliments claim that they have
tho right, under article 505, Civil Code, to elect
whether they will acceptand pay for the inn
provements put upon the railroad property by |
the defendants. or require the defendants to |
ttke away or demolish the same, and they |
ask for forty days in which to make their
election.
Under the circumstances of this case this |
right of election does not, in my judgment, |
exist for two reasons
First-The right of election is, by the terms |
of the code. confined to the owner Of the
property and does not extend to an incum-
brancer 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 de-
molish the same" Civil Code, art. sos.
Now whoever may be the owner of this |
property, one thing is certain that the com
plainants are not. All of them hold bonds, |
and some of them are the owners Of stock In |
the beneficiaries OF O mortgage deed, and, by |
the Jurisprudence OF Louisiana, the trustees
to whom the mortgage deed was made have |
no estate In the mortgaged property. The |
mortgage to the trustees does not convey
Code, 1874; Conrad VS.. Prieur, Rob, 40;
Duclaud vs Rousseau, La. Annual, 1863. It |
is clear therefrom that mere bondholders can
not, In any sense, be called the owners Of the
property. Stockholders In the railroad COM
pany are In no stronger position. The owner
ship Of stock In an incorporated company
does not give the stakeholder any title to the
property OF the corporation; Morgan vs. the
plainants cannot therefore claim, by reason
of the fact that they are bondholders and
stockholders, that they are owners OF the
property on which the improvements have
been placed, and are therefore entitled to exer
else the election authorized by article 505.
SecOnd.-But Ii the complainants were the
owners of the soil, the subject matter of this
suit, and the nature of the improvements is
such as to exclude the case from the operation
Of article sos.
It Is clear that there are many improve
ments placed on real estate which are not sus-
ceptible Of being removed. For instance, the
clearingsand ditching of a plantation entered
upon by the posseesor in bad faith, when the
lands were In wild state. For the owner to
say to the possessor, remove your clearings
and your ditches," would be mockery So
in this case the evidence shows that tho inn
provements are such that their removal or
demolition Is impossible When the defend
ants took possession of the property 1t could
not be called railroad It was q right Of way
on which were the ruins of what had been q
railroad. Entertainments had to be made now,
and in some cases raised and repaired; new
ties were laid down; the track was cleared of
briers and other underground; new
timbers were put in bridges where
they were needed, and new bridges
were built when necessary; the stations and
other buildings along the line Of the railroad
were repaired with new materials and in
some cases rebuilt, part OF the old materials
being used in the new structure. 1t Is evident
that such improvements are, not susceptible
Of removal, nor can they be demolished with
out demolishing The railroad itself. In such
case the application Of article sos Of the Civil