[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.]
Plaintiff brought a possessory action, and enjoined the city of New Orleans,
its agents and employees, from trespassing upon the property described in her petition. From a judgment dissolving the injunction, rejecting her demands, and decreeing the city of New Orleans to be the owner of the property, she appealed.
For convenience, we quote the petition, the answer, and the judgment:
"To the Honorable the Civil District Court in and for the Parish of Orleans:
"The petition of Mrs. Amelia J. Becker, widow of Theodore W. Bruning, formerly of this city, with respect, shows:
"I. That petitioner is the owner of a certain portion of ground, together with the buildings and improvements thereon, situated in the parish of Orleans, on the shore of Lake Pontchartrain, bounded by the projection of the line of the property formerly belonging to the New Orleans Canal and Banking Company, known as Metairieville, the projection of the line of the property belonging to the New Orleans, Jefferson and Lake Pontchartrain Railroad, and by the sidewalk along the south driveway of West End Park, measuring 584 feet front on said sidewalk by 952 feet on the line of Metairieville, and 829.9 feet on the line of the projection of the New Orleans, Jefferson and Lake Pontchartrain Railroad.
"Being part of the same property, purchased by petitioner from Henry A. Seiler, by act before John Bandernagle, on the 30th day of September, 1899.
"II. That petitioner and her authors in title have had actual, physical possession of said property, with buildings and enclosures thereon, as owners, for more than 75 years, and petitioner is now in actual physical possession of said property.
"III. That during the late World War, the United States, with the consent and permission of petitioner, occupied said property as a naval encampment or cantonment, and, immediately upon the United States vacating said property, petitioner caused fences to be built, and resumed her actual, physical, corporeal possession thereof.
"IV. That the city of New Orleans and one Wilbert Black, commissioner of public property of the city of New Orleans, have announced their intention to wrest petitioner's lawful possession of her aforesaid property from her, by force and violence, and, to that end, have instructed their agents and employees to destroy petitioner's fences around said property, and take possession thereof for the city of New
Orleans by force, in direct violation of petitioner's property rights.
"That, even were petitioner not the owner of said property by title going back by an unbroken chain of conveyances to a government exercising sovereign authority in Louisiana, prior to the treaty of Paris, the city of New Orleans would be without any right, title, or interest in and to said property, whatsoever:
"(1) Because the city of New Orleans pretends that it has a right to take petitioner's said property away from her, by reason of Act No. 209 of the General Assembly of the state of Louisiana, for the year 1906; that the city of New Orleans is entirely without any interest whatsoever in said property, because said property does not fall within the description of the land or property described in said act.
"(2) Because said Act 209 is unconstitutional, null, void, and of no effect, because the object of the act, which was to donate or place the administration of property of the state of Louisiana in the city council, is not expressed in the title, and therefore the said act is violative of the Constitution of Louisiana.
"(3) That said Act 209 is also null, void, unconstitutional, and of no effect, because in the body of the act, although no such intention is expressed in the title, it attempts to donate to the city of New Orleans, or the people of the city of New Orleans (which is the same thing), the property owned by the state of Louisiana in violation of article 58 of the state Constitution of 1898.
"VI. That, in furtherance of instructions given by said Wilbert Black, commissioner of public property, the employees of the city of New Orleans have, on two occasions within the past week, violently and by force destroyed petitioner's fences on the front of said property, and entered thereon, and dumped refuse, to the great damage and distress of petitioner.
"VII. That a writ of injunction is necessary in the premises to adequately protect petitioner's property rights, and, unless an injunction is issued enjoining and restraining the city of New Orleans and Wilbert Black, commissioner of public property, their agents and employees, from further violating petitioner's rights of possession and ownership of said property, petitioner will suffer irreparable injury.
"Wherefore, petitioner prays that an injunction be issued herein enjoining and restraining the city of New Orleans, Wilbert Black, commissioner of public property, their agents and employees, from entering upon or disturbing petitioner in her possession of the property above described; that the city of New Orleans and Wilbert H. Black, commissioner of public
property, their agents and employees, from entering upon or disturbing petitioner in her possession of the property above described; that the city of New Orleans and said Wilbert Black may be cited to answer this demand, and, after due legal proceedings had, that there be judgment herein in favor of petitioner over and against defendants perpetuating said writ of injunction. And for all costs and general relief."
"Answer.
"To the Honorable the Civil District Court for the Parish of Orleans:
"Now into court, through undersigned council, comes the city of New Orleans and Wilbert H. Black, commissioner of public property, made defendants in the above numbered and entitled cause, and for answer to plaintiff's petition says:
"I. Respondent denies the allegations contained in paragraphs I and II in plaintiff's petition.
"II. In answer to paragraph III of plaintiff's petition, respondent avers that during the late World War, the United States occupied the said strip of ground, and denies the other allegations contained in this paragraph.
"III. Respondent denies the allegations contained in paragraphs IV, V, and VII of plaintiff's petition.
"IV. Further answering, your respondent, the city of New Orleans, avers, by virtue of the act of Legislature, that it is the owner and has full jurisdiction and control over the above-described property, and that petitioner, Mrs. Bruning, has no interest whatever in said property.
"Wherefore, respondent prays that there may be judgment herein dismissing petitioner's suit, dissolving the injunction herein granted and recognizing the ownership of and jurisdiction and control over the property described in the original petition by the city of New Orleans, and for all costs and general and equitable relief."
"Judgment.
"This case having been heard and submitted to the court, and the court considering the law and the evidence to be in favor of defendants, for the written reasons on file:
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[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.]
Plaintiff brought a possessory action, and enjoined the city of New Orleans,
its agents and employees, from trespassing upon the property described in her petition. From a judgment dissolving the injunction, rejecting her demands, and decreeing the city of New Orleans to be the owner of the property, she appealed.
For convenience, we quote the petition, the answer, and the judgment:
"To the Honorable the Civil District Court in and for the Parish of Orleans:
"The petition of Mrs. Amelia J. Becker, widow of Theodore W. Bruning, formerly of this city, with respect, shows:
"I. That petitioner is the owner of a certain portion of ground, together with the buildings and improvements thereon, situated in the parish of Orleans, on the shore of Lake Pontchartrain, bounded by the projection of the line of the property formerly belonging to the New Orleans Canal and Banking Company, known as Metairieville, the projection of the line of the property belonging to the New Orleans, Jefferson and Lake Pontchartrain Railroad, and by the sidewalk along the south driveway of West End Park, measuring 584 feet front on said sidewalk by 952 feet on the line of Metairieville, and 829.9 feet on the line of the projection of the New Orleans, Jefferson and Lake Pontchartrain Railroad.
"Being part of the same property, purchased by petitioner from Henry A. Seiler, by act before John Bandernagle, on the 30th day of September, 1899.
"II. That petitioner and her authors in title have had actual, physical possession of said property, with buildings and enclosures thereon, as owners, for more than 75 years, and petitioner is now in actual physical possession of said property.
"III. That during the late World War, the United States, with the consent and permission of petitioner, occupied said property as a naval encampment or cantonment, and, immediately upon the United States vacating said property, petitioner caused fences to be built, and resumed her actual, physical, corporeal possession thereof.
"IV. That the city of New Orleans and one Wilbert Black, commissioner of public property of the city of New Orleans, have announced their intention to wrest petitioner's lawful possession of her aforesaid property from her, by force and violence, and, to that end, have instructed their agents and employees to destroy petitioner's fences around said property, and take possession thereof for the city of New
Orleans by force, in direct violation of petitioner's property rights.
"That, even were petitioner not the owner of said property by title going back by an unbroken chain of conveyances to a government exercising sovereign authority in Louisiana, prior to the treaty of Paris, the city of New Orleans would be without any right, title, or interest in and to said property, whatsoever:
"(1) Because the city of New Orleans pretends that it has a right to take petitioner's said property away from her, by reason of Act No. 209 of the General Assembly of the state of Louisiana, for the year 1906; that the city of New Orleans is entirely without any interest whatsoever in said property, because said property does not fall within the description of the land or property described in said act.
"(2) Because said Act 209 is unconstitutional, null, void, and of no effect, because the object of the act, which was to donate or place the administration of property of the state of Louisiana in the city council, is not expressed in the title, and therefore the said act is violative of the Constitution of Louisiana.
"(3) That said Act 209 is also null, void, unconstitutional, and of no effect, because in the body of the act, although no such intention is expressed in the title, it attempts to donate to the city of New Orleans, or the people of the city of New Orleans (which is the same thing), the property owned by the state of Louisiana in violation of article 58 of the state Constitution of 1898.
"VI. That, in furtherance of instructions given by said Wilbert Black, commissioner of public property, the employees of the city of New Orleans have, on two occasions within the past week, violently and by force destroyed petitioner's fences on the front of said property, and entered thereon, and dumped refuse, to the great damage and distress of petitioner.
"VII. That a writ of injunction is necessary in the premises to adequately protect petitioner's property rights, and, unless an injunction is issued enjoining and restraining the city of New Orleans and Wilbert Black, commissioner of public property, their agents and employees, from further violating petitioner's rights of possession and ownership of said property, petitioner will suffer irreparable injury.
"Wherefore, petitioner prays that an injunction be issued herein enjoining and restraining the city of New Orleans, Wilbert Black, commissioner of public property, their agents and employees, from entering upon or disturbing petitioner in her possession of the property above described; that the city of New Orleans and Wilbert H. Black, commissioner of public
property, their agents and employees, from entering upon or disturbing petitioner in her possession of the property above described; that the city of New Orleans and said Wilbert Black may be cited to answer this demand, and, after due legal proceedings had, that there be judgment herein in favor of petitioner over and against defendants perpetuating said writ of injunction. And for all costs and general relief."
"Answer.
"To the Honorable the Civil District Court for the Parish of Orleans:
"Now into court, through undersigned council, comes the city of New Orleans and Wilbert H. Black, commissioner of public property, made defendants in the above numbered and entitled cause, and for answer to plaintiff's petition says:
"I. Respondent denies the allegations contained in paragraphs I and II in plaintiff's petition.
"II. In answer to paragraph III of plaintiff's petition, respondent avers that during the late World War, the United States occupied the said strip of ground, and denies the other allegations contained in this paragraph.
"III. Respondent denies the allegations contained in paragraphs IV, V, and VII of plaintiff's petition.
"IV. Further answering, your respondent, the city of New Orleans, avers, by virtue of the act of Legislature, that it is the owner and has full jurisdiction and control over the above-described property, and that petitioner, Mrs. Bruning, has no interest whatever in said property.
"Wherefore, respondent prays that there may be judgment herein dismissing petitioner's suit, dissolving the injunction herein granted and recognizing the ownership of and jurisdiction and control over the property described in the original petition by the city of New Orleans, and for all costs and general and equitable relief."
"Judgment.
"This case having been heard and submitted to the court, and the court considering the law and the evidence to be in favor of defendants, for the written reasons on file:
"It is ordered, adjudged, and decreed that there be judgment herein in favor of defendants, the city of New Orleans and Wilbert H. Black, commissioner of public property, and against plaintiff, Mrs. Amelia J. Becker, widow of Theodore W. Bruning, dismissing plaintiff's suit at her cost, and dissolving the injunction issued herein and recognizing the ownership
of and jurisdiction and control of the city of New Orleans over the following described property, to wit:
"`A certain portion of ground, together with the buildings and improvements thereon, situated in the parish of Orleans, on the shore of Lake Pontchartrain, bounded by the projection of the line of the property formerly belonging to the New Orleans Canal Banking Company, known as Metairieville, the projection of the line of the property belonging to the New Orleans, Jefferson Lake Pontchartrain Railroad, and by the sidewalk along the south driveway of West End Park, measuring 584 feet front on said sidewalk by 982 feet on the line of Metairieville, and 829.9 feet on the line of the property of the New Orleans, Jefferson and Lake Pontchartrain Railroad.'"
In appellant's assignments of error we find the following:
(1) The suit is purely a possessory action, and title to the property cannot be legally adjudged in such an action.
(2) The court erred in its appreciation of the force of the proof offered by plaintiff to show possession and the disturbance thereof.
(3) The court erred in holding that possession for more than one year is necessary to support a possessory action when the possessor is evicted by force and violence.
We have read the record carefully, and we note that, while defendants made several offerings during the trial of the case, for the purpose of proving title in the city of New Orleans, to the property in question, all these offerings were promptly objected to, each of said objections was sustained, and the proffered proof was rejected. Hence there is no proof in the record upon which to base that part of the judgment decreeing the city of New Orleans to be the owner of the property. The court's rulings in limiting the introduction of proof to the fact of possession and to the act of disturbance or eviction are correct and in accord with the letter of article 53 of the Code of Practice, which is as follows:
"The plaintiff in a possessory action needs only, in order to make out his case, to prove
that he was in possession of the property in question, in the manner required by this Code, and that he has been either disturbed or evicted within the year previous to his suit.
"So that when the possession of the plaintiff, or the act of disturbing him is denied, no testimony shall be admitted, except as to the fact of the possession, or as to the act of disturbance, and all testimony relative to property shall be rejected."
The jurisprudence of this state is uniform in sustaining the letter of article 53 of the Code of Practice. The mere fact that the petition alleges that plaintiff is the owner of the property does not affect the nature of the action. The allegation is proper and some times necessary to fix the extent and capacity in which the plaintiff possessed the property. The following cases are in point: Depassau v. Winter et al., 7 La. 1; Thomas v. Baillo, 7 La. 415; Gleisse et al. v. Winter, 9 La. 152; Kemper's Heirs v. Hulick, 16 La. 45; Hood v. Segrest, 1 Rob. 110; Mrs. Ann Huyghe v. Henry Brinckman, 37 La. Ann. 240; Williams et al. v. Harmanson, Agent, et al., 41 La. Ann. 704, 6 So. 604.
It is apparent that the judgment is erroneous in decreeing the city of New Orleans to be the owner of the property, the possession of which is the issue in this case.
It is not necessary to review all of the oral testimony offered to prove the fact of possession, and the acts of the respective parties to the suit indicative thereof, because our reading of the testimony has led us to the conclusion that the plaintiff has been in actual possession of the property for many years. During the late war the federal government occupied it for a time, and maintained a cantonment thereon, but, when the war ended, plaintiff resumed possession, and continued to exercise dominion and control over the property until the city of New Orleans forcibly entered it, dumped trash thereon, and removed some dirt therefrom for the purpose of filling low places in the West End
Park and for use around the rose bushes and flowers of the park.
We are led to the conclusion that plaintiff was in the actual possession of the property, because fifteen reputable witnesses, all of them past middle age, testify that they have known the plaintiff and the property for many years, some of them more than 50 years, and during that time the Brunings have lived on the property. They had two residences, several places of business, plank walks, some fences, etc., thereon. The property throughout that time was known as the Bruning property, and the Brunings had possession of it. It is also established that the defendant city took forcible possession of the property, and that the particular part of the property that was entered upon was fenced in. Mr. Charles Hemmenway, the park foreman, reported to his superior, Commissioner Wilbert Black, as follows:
"New Orleans, La., June 28, 1922.
"Commissioner Wilbert Black — Dear Sir: I beg to report I broke open gate on cantonment ground yesterday evening at about 2 o'clock. Mr. Joe Bruning came and asked me and I told him I broke it with orders. I wanted to haul in more trash. I met him again this morning and he told me that his lawyer would prefer affidavits this morning. Yours truly, Charles Hemmenway, Foreman West End Lake Shore Park."
To show that the city of New Orleans was in possession of the property, and had possessed it for several years prior to the institution of this suit, Commissioner Black, Mr. Hemmenway, and two of the park employees were sworn and testified. All of them say the city had maintained a stable and house for the storage of feed for the mules on the property for a long time, and that wagons, carts, shovels, and park equipment, etc., were kept on the ground some 8 or 10 feet from the stable. These witnesses locate the site of the stable on the ground, about ten feet from the transmission house, and the maps offered in evidence show that
the transmission house is located on an entirely different tract of land, and about 110 feet from the line of the Bruning property. It is apparent that the property of which the city of New Orleans had possession and on which it stabled its mules and parked its park equipment was not the Bruning property. The fact that the city dumped some trash on the Bruning property and removed some dirt from it are not acts which amount to possession. Macarty v. Foucher, 12 Mart. (O.S.) 11; Gardner v. Leger, 5 La. Ann. 594; Dowdell v. Orphans' Home Society,114 La. 49, 38 So. 16; Ramos Lumber Mfg. Co. v. Labarre, 116 La. 559, 40 So. 898; St. Paul v. Louisiana Cypress Lumber Co.,116 La. 585, 40 So. 906; Frederick v. Goodbee, 120 La. 783, 45 So. 606; Howell v. Metropolitan Land Co., 127 La. 403, 53 So. 664; Lacroix v. Crane, 133 La. 227, 62 So. 657.
Under the provisions of article 49 of the Code of Practice, one in actual possession of real estate who has been evicted therefrom by force or fraud is entitled to bring a possessory action, regardless of whether his possession has continued for a year or for a time less than a year. The pertinent part of article 49, C.P., is as follows:
"In order that the possessor of a real estate or one who claims a right to which such estate may be subjected, may be entitled to bring a possessory action, it is required:
"(1) That he should have had the real and actual possession of the property at the instant when the disturbance occurred; a mere civil or legal possession is not sufficient;
"(2) That he should have had that possession quietly and without interruption, by virtue of one of the titles prescribed in the 47th Article, for more than a year previous to his being disturbed; provided thepossession of less than one year be sufficient, in casethe possessor should have been evicted by force or byfraud."
Having found that plaintiff's assignment of errors, Nos. 1 and 2 and 3, should be sustained, there is no need to further consider the case, for these conclusions necessitate a reversal of the judgment.
For these reasons, the judgment appealed from is avoided and reversed, and it is now ordered that there be judgment in favor of the plaintiff and against the defendants reinstating and perpetuating the injunction issued herein, with costs of the appeal.
On First Rehearing.