The New Orleans daily Democrat. [volume] (New Orleans, La.) 1877-1880, 1878-04-25
IMPORTANT SUIT.
JUDGMENT FOR THE CITY IN THE
JEFFERSON AND LAKE RAIL-
ROAD CASE.

Company vs. City OF New Oreans.-On q rule
nisi q preliminary Injunction was granted,
and subsequently, defendant applied for and
obtained an order to bond, from which order
! plaintiff took SuSpensve appeal, which is
| still pending. 1t Is not denied that The canal
| in question has been dug on plaintiffs land.
1t was commenced by the drainage commits
sioners OF the former second drainage district
in 1869, and finished by their successor, the
city OF New Orleans, in 1871 or 1872, anu has
been used by the city continuously ever since
rs one of the many drainage canals.
The evidence shows that it drains all the
upper districts Of the city, and that i'm mense
damage would result should its use for drain
age purposes be interrupted.
The city claims that the drainage commits
sioners and she, as their successor. were
authorized and empowered under the pro-
visions of the fourth section Of act No 165 of
1853, aud act No. 80 of 1861 (lmendatory there
OF, to enter upon the said land and dig the said
canal, subject only to the conditions provided
| by the said act of 1858.
| Section of the said act provides: THAT
the said board OF commissioners are hereby
invested with all the rights and powers neces-
sary to thoroughly drain the several draining
districts, as expressed in the first section OF
| this act, and to that end shall have the right
at all times OF entering on the lands within
the limits OF the districts aforesaid, and Of
placing thereon their engines and machinery,
aud Ut freely passing over and using the same.
and of digging all necessary embankments
and levees and Of doing all things lawful to
be done, which may be useful or neces-
sary in draining cleaning and reclaim
ing the land within said districts.
Said boards of commissioners are authorized
to cut their canals and drains through the
streets and squares, and in the event OF any
street selected for the location OF q canal be-
! ing too narrow for drainage canal and
public highway, the said board OF commits
siOners may cause said street to be widened;
provided, however, that any person or corpor-
alton shall have the right, by petition, ad-
dressed to any court OF competent Jurisdic-
| ton, to oppose any acts OF the board in the
exercise of the powers conferred by this sec
tion on said boards, and it shall be the duty Of
such court summarily t0 hear and determine
the same after d full hearing of both parties,
and such court shall limit the action OF the
boards to the exercise Of the powers herein
conferred in carrying into effect the prOvi-
sions Of this act, according to its true intent
and meaning, and where the same cannot be
done without H. Jury or loss to the complain
ant, said court shall award adequate compen-
satiun.'
Act No. 33 Of 1861 extended the limits of the
second drainage district, so as to comprise
therein the land upon which the canal in ques-
ton has been dug, and under act No 80 Of
/ 1871 the city was Subrogated to all the rights
Of the drainage commissioners.
The language OF the act OF 1853 is plain and
unambguous. 1t gave the right to the drain
age commissioners to enter upon land within
the drainage district necessary for the public
charged, and to dig thereon such canals and
make such EN- (nkmentS as might be neceS-
sary for the drainage Of the lands within the
district
1t was not an arbitrary and unlimited power
The party whose lands were taken or, as in
this case, used, had res rived to him the right
to compel the drainage commissioners to
prove before competent court OF his own Sc
lection that the use of the land was necessary
for the public purpose for which it was taken,
and had the further right to claim and recover
full and adequate compensation for all injury
or damage done to his property, in q sum-
mary manner and before court OF his own
choice
The constitution of 1868, which was in force
at the time this land was entered upon and
the canal dug did not require that where
property was taken or appropriated for pub
lie use that compensation should be pre-
viously made. Art. 40, constitution Of 1858
J In the decision on the rule for preliminary
Injunction, the court was led into error by
supposing, without examination, that the
!, article in question was similar to Art 1O5 OF
words, previously made" are left out OF the
constitution of 1868, and If las am not pre-
, pared to say the provisions of section 81 the
act of 1853 were obnoxious to the consti-
tuition OF 1852, they were in perfect har-
mony with the constitution of 1868. The act
of 1858 was in full force in 1869 and has never
, been repealed. 1t forms peculiar statute OF
appropriation for the purposes for which it
constitution of 1868, which, AS / have said,
was in force at the time this canal was dug In
: accordance with its provisions.
l On the contrary, it provided full and ade-
improperly used and furnished it with the
proper remedy for the reco very of compensa-
ton for any loss or damage to be suffered by
the proper taking or use Of the property.
nudge GGoey says msa time when s1t the
upon the Pec.nIar constitutional provisions Of
rectly by the State or by any municipal cor
poration by State authority it has been re-
peatedly held not to be essential to the valid.
ty OF a law for the exercise OF the right Of
eminent domain, that it should provide for
making compensation before the actual ex-
preparation. 1t is sufficient if provision is
made by the law by which the party can OBJ
tribunal is provided for assessing it. The de-
cisions upon this point assume that when the
State has provided remedy by resort to
which the party can have his compensation
assessed adequate means are afforded for it's
satisfaction, since the property OF the NUM-
cipalty or OF the State is fund to which he
can resort without risk of loss" Cooley's
Constitutional Limitations, page sci; "a Ala.
461: Is Gray AIT.
ct Is essential, however" says Cooley,
chat the remedy be one to which the party
can resort on his own motion If the pro-
vision be such that only the public authori-
ties appropriating the land are authorized to
take proceedings for the assessment 1t must
equate, and the party is allowed to pursue it,
it is not unconstitutional to limit the period
in which he shall resort to it, and to provide
that unless he shall take proceedings for the
assessment OF damages within a specified
time all right thereto shall be barred. The
right to compensation when property Is ap-
propriated by the public may always be
waived; and failure to apply for and have
h0 Hon yxyhn k,la
time and opportunity and proper tribunal
are afforded for the purpose, may well be con-
5dered waiver" Cooley Constitutional
Limitations, p. sci; 2 Dillon Municipal Cor
porations 554.
Believing, as 1 do, that the act of 1853 is
constitutional. l am of the opinion that the
drainage commissioners, created under that
act, had legal right to enter upon the land
Of plaintiff and dig draining canal, and