The New Orleans daily Democrat. [volume] (New Orleans, La.) 1877-1880, 1880-04-12

the caae on appeal before the Superior Court,
Gen. Benjamin II. Butler and Roger A. Pryor
appearing for the plaintiff and Messrs.
Porter, Lowrey, Soren and Stone for the
defendant The Judgment In the lower court
had been against DR.. Caro-, and as
the case was regarded as O test one and In
volved large interests, there was great
anxiety to learn what the decision of the
court would be. The announcem ent by the
Chief Justice, az soon as the Judges had taken
their seats, that the Judgment In the case
had been reversed caused great excitement.
and will no doubt seriously affect the value of
the Elevated Railway stock Even before the
decision was announced from the bench the
stock went down from 1o2 to 80, fact that
was commented upon as not very creditabIe
to the Judges.
There can be no question Of the righteous
ness of the decision, which s sustained by the
provision In the State constitution, which de-
| clares that 'private property shall not be
taken for public use without Just compensa-
tlon." Here are great private corporations
deriving enormous revenues from traffic
which sariously damages private property and
yet refusing to compensate such unfortunate
persons for the Injuries they inllct, but this
decision, though not final, az 1t has yet TO be
passed upon by the Court of Appeals, will
cause the property holders, who have en-
dured the nuisance 30 long, to take heart of
hope and vigorously press their claims The
following extracts from the synopsis of the
opinion OF Judge Speir as reported In the
Herald, will prove interesting.
Judge speir writes very elaborate and ex-
haustive opinion In which he defines the law
bearing upon the Issues, He starts out by re-
that he is the owner of the premises In Fifty
third street and IL entitled to the undlu,inlshed
enjoyment and advantage of the same, from
which he cannot be deprived without just com
pensation or due process of law. The action
he says. is brought on the equity side of the
court to restrain the committing Of nuisance.
and FOR the REDRESS Of wrongs and injuries
whsh woHa Involve ha the Is.g a In II
erisna on hasea ,o tba Of lay
whereof the facts are properly pleaded and ad-
mitted. The plaintiff is the owner of house
to the use of such property free from In vasion
and be. claims thai the def ndant's Invasion OF
his rights eopstitntes such taking of property
az comes within the constitutional inhibition;
and second, that the injury inflicted upon his
p raa h constitutes wrong emitting him to
He then adds that it is claimed when the injury
and plainly peroeptibe that II heonnpa the
duty of the law making power to distribute the
burden among the general public rather than
leave 1t to be borne by those upon whom It
THE COURTS THE ARnrrER
He holds that the constitution being nara
mount to The Legislature and intended t. nro-
tect the citizen In the enjoyment of his property
70 every possible relation of life, II would seem
That the courts alone can dispose Of the question
when and how payment shall be made for pri-
vate property taken for PUBLIC use, II may be
admitted that Legislative burdens may become
TOO oppressive to he patiently borne but the
remedy must only be found with the law. max.
Ing power. of the government To this g,,es ion
here can be no soutiqn but by gu appeal to the
bxed and permanent principles of law and
equity The term property" is Of the largest
impott The courts will interfere by Injunction
by statute. 1t Is elementary law that the cor
rupting the air of mans dwelling is null
a thin :. In word; "saFs Judge Speir I'VE
ab o!ute right Of property In every man, which
oonHlats 10 the free use, enjoyment and dispne- |
n Of all bis acquisitions, without control or
save only by the laws of the land >,
HIS DWELLING HIS CASTLE.
Although continued his honor. there are
many Individual possessions Ia life demon.
mated In con mon use and by law private |
re, r whe nv we come to speak of mans dwelling
ne, the word private seems TO have been sed
sy the early writer's In anothe5 and more ssn
vstsy ls a mere naked inoor porate pisbt
claimed by the plaintiff to enjoy hls home Tree |
from the Invasion arising from the operating of |
an elevated railroad producing noises, stencil. |
obstruction of light and air. rendering his resi-.
dence undesirable and greatly reducing ita |
market |, p value II the plaintiff s 30. disturbed
aludes to the fact of The Defendants In |
solvenov. and its inability to pay a |
Judgment for, damages. In which case he |
saye the court will grant an Injunction He |
holds that the company will be protected In |
all It's statutory rights, but not against claims
or Injuries to adjacent owners. The company
inifeotly or indirectly iniure private rights -
| ne defendant admits the Injury aud wrongs
lone to the plaintiff. ae alleged in bis com.
1latnt, and its want OF ability to make repara-
Ion We are Of opinion that The appellant Ia
untitled to relief, and that the judgment should |