The Ouachita telegraph. [volume] (Monroe, La.) 1865-1889, 1877-08-03
THE RAlLROAD DECISION.

ltracts-one covering the point as to de
fendants' claims to be paid for improve
ments made on the road, they being
fraudulent possessors; the other as tc
the right of plaintiffs to elect whethe,
they would take the improvements al
the valuation fixed by the master in
chancery, or require the defendants to
have the same removed.
| Judge Wood decided as follows on
THE FIRST POINT:
The complaintants except to the report
because the improvements having beer,
made by the defendants during the
peEdancy OF the suit, and after they
had been charged with II fraudulent s,l,-
preparation of property they were NOT
, entitled to ,and Of which fraud they were
found guilty, they We're not entitled IT,
| compensation therefor, and becaus Sc
| interest was allowed on the cost Of
such improvements.
The question raised by these excep-
| tions were argued and passed upon by
! the court upon the former hearing bt
| the cause. It was then held on the
! authority of the case of Gaines vs.. New
Orleans, Woods, lO4, and the same
case ON appeal in l5 Wallace, G24, that
the defendants were entitled to the
value OF their improvements, notwith-
standing they were made after suit
brought to recover the property on
which they were placed.
On further investigation I am unable
to find any distinction made either in
the Civil Code, or in the commentators
or decisions of the courts between iln-
provements made before and improve
49, ,A><
The Civil Code, Art. sos, makes no
such distinction. The fact that suit
has been brought may tent to show
that the defendant was q poesessor ih
bad faith when he made his improvel
ments, but that is all. 1t has already
been decided in this case, as it has
been before decided by the Supreme
Court that the possessor in bad faith
was entitled to the cost of his improve
ments remaining ON the land. (Gaines
vs.. New Orleans, Is Wallace. 624.)
The same remarks apply to the
second exception. The question has
been decided adverse to the exception,
both by this court and the Supreme
Court of the United States. See Gaines
VS.. New Orleans, 1 Woods, lOS: and
same case, Is Wallace, 624 and Jack
son VS.. Ludeling, 2 Woods, 254. This
exception, therefore, cannot prevail.
The opinion of Judge Woods is as,
follows on
THE RIGHT OF ELECTION:
l. The complainants claim that they
have the right, under article sos, Civil
Code, to elect whether they will accept
and pay for the improvements put upon
the railroad property by the defen-
dants, or require the defendants to take
away or demoiish 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 tor 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 incumbrancer. "When plantations,
constructions and works have been
made by a 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 salne." Civil Code, art. sos.
Now, whoever may be the owner OF
this property, one thing is certain that
the complainantsa are not. All of them
hold bonds, and some of them are the
owners of stock in the railroad Com
pany. The bondholders are the bene-
ficiaries of mortgage deed, and, by the
jurisprudence of Louisiana, the trustees
to whom the mortgage deed was made
have no estate in the mortgage pro
perty. The mortgage to the trustees
does not convey title. 1t is only :
security for a debt. Civil Code, 1874
Conrad vs.. Prieur, Rob-, 49; DuclauG
vs. Rousseau, 2 La. Annual, l6S, 1t il
clear therefore that mere bondhOlders
| cannot, in any sense, be called the
! owners of the property. Stockholder
in the railroad company are in no stron
ger position. The ownership of stock
| in an incorporated company does no
give the stockholder any title to thu
property of the corporation. Morgan
VS.. the Railroad Company, Woods
IS. The complainants cannot therefore
| claim, by reason of the fact that the,
are bondholders and stockholders, tina,
they are owners Of the property OF
which the improvements have beer
placed, and are therefore entitled t.
| exercise the election authorized b.,
article sos.
Second.-But if the complainant
were the owners OF the soil, the subjec
matter of this suit, and the nature o
the improvements are such as to exclude
the case from the Ot,eratiOn OF articlt