The opinion of the court was delivered by
Spencer, J.
This is a proceeding under the charter of said company and acts amendatory thereof, to expropriate a certain lot of ground In New Orleans for the use of said company.
The lot in question is owned by J. B. Trescazes and others. It is xmder lease to the firm of H. J. Montagnet for a term of three years, with privilege of renewal for three years more, at a rental of sixty dollars per month. The lessees keep thereon a coal-yard, and have con-structed upon it certain buildings for their own use and convenience.
Commissioners were appointed, and after hearing the various parties in interest, made their report, awarding compensation as follows :
First — To the owners of the lot, its value. $8000 00
Second — To the owners of the lot, the right of accretion, which they value at. 500 00
IPhird — To the lessees, the value of their improvements. 1200 00
Fourth — To the lessees, the value of their lease. 4020 00
Total to be paid’ by company.$13,720 00
The report of the commissioners was opposed in the court a qua, which, on hearing, confirmed it as to the first and third items and rejected the second and fourth.
The company and the lessees appeal. The owners pray for the affirmance of the decree below.
We think the evidence abundantly establishes that the rights of the •¡owners in and to said lot are worth $8000. We deem it unnecessary to xecapitulate it. The company must therefore pay, for the rights held by -these owners and thus expropriated, the sum of $8000.
Perfect ownership consists of the use, the enjoyment, and the disposal of the thing — the usus, fructus, and abusus.
The Code, article 490, says : “ Ownership is perfect when it is perpetual, and when the thing which is the subject of it is unencumbered with any charges toward any other person than the owner.” It is imperfect * * * “if the thing which is the subject of it being an immovable is charged with any real right toward a third person, as an -aasufruct, use, or service.”
[375]*375Perfect ownership gives the unlimited right of disposal and enjoyment. C. C. 491.
Imperfect ownership gives these.rights only “when it can be done without injuring the rights of others, that is, of those who may have real or other rights to exercise upon the same property.” C. C. 492.
The rights of use, enjoyment, and disposal are said to be the three •elements of property in things. They constitute the jura in re. The right of a lessee is not a real right, i. e. a jus in re. In other words, the lessee does not hold one of the elements of property in the thing. His -right is a jus ad rem, a right upon the thing. While therefore, tech-meally, the lease of real estate does not operate a divestiture of any •elements of property, it does by the express terms of article 492 C. C. •prevent or encumber the exercise of the right of perfect ownership. 'That article says that not only real rights but “ other rights,” vested in 'third persons, limit the exercise of full ownership. The right of a lessee is substantive, and is independent of changes in the ownership of the 'thing. C. C. 2733. The purchase or expropriation of the rights of the •owner does not therefore necessarily embrace or operate upon the right -of the lessee. That right in order to be affected must be itself the object of purchase or expropriation. If the rights of the owner are alone the objects of the purchase or expropriation, the right of lease is unaffected and continues. The purchaser gets only the thing encumbered '■by the lease. That is all he can get, for that is all the owner has. In •other words, the purchase or expropriation of the owner’s rights gives simple subrogation thereto, no more, no less. This of course gives the right to take any sums, falling due, in futuro, for rents of the thing.
We find therefore that the rights of the owner, expropriated by the company, constitute the measure of its rights against the lessee. What are those rights ? They are: i
First — The full ownership of the thing encumbered by a lease.
Second — The monthly rents, at sixty dollars per month, during the term of the lease.
But the company has also demanded the expropriation of this right of the lessee — this encumbrance upon the full ownership. If that right is worth no more than the lessee has agreed to pay for it, then, as the •price, or rent in futuro, is yet to be paid, and as the company, holding the owner’s rights, is the payee thereof, the company would owe the 'lessee nothing. But if this right is worth more than the sum so agreed to be paid for it, the lessee is certainly entitled to be paid the amount of this excess. He must have the value of the right which is taken away irom him.
But it is said that the company having paid the owners the value of j •the property in full ownership, the amount to be allowed the lessee J [376]*376must be taken out of the sum awarded to the owners. This would be-just in the case when the owners had received in advance the rents, and-where the right of lease was worth no more than the sums paid for it.. But where the value of the property has been fixed, as in this case, by-reference to the rent stipulated, and not by reference to the actual present value of the lease, and where the company becomes subrogee-of the owner of the stipulated rents, it would be exceedingly inequitable-to charge the owner with this difference between the stipulated rent and actual value of the lease. Such a process might result in giving the-owner absolutely nothing where he had granted a lease at a small price,, and when from unforeseen and temporary causes the leasehold had acquired an extraordinary and unexpected value. In this case all the experts, the commissioners, and the court evidently fixed and predicated' the value of the lot by reference to tíje rental stipulated in the contract-of lease. If the price of the fee is to be charged with and diminished. by the difference between the stipulated rents and the actual present. value of the leasehold, then the price of the fee should have been calculated on a rental equal to such actual present value — a process which would have largely increased the amount to be paid the owners of the-fee.
We understand that the $8000 awarded to the owners is compensa- ’ tion for what the company takes and acquires from them. We have-’seen that this consisted of,, first, the ownership in fee, encumbered by a. ¡lease, and, second, the rent stipulated in that lease. What the owners-.have not cannot be taken from them. They are to be paid only for what was taken from them, and are. to be charged only with what they have-received. The right of the lessee did not belong to the owners of the fee. It was a substantive right vested in him, and its acquisition by the company is derived from and through him. He is to be paid its value,, i. e. the excess of what it will bring over what he has agreed to pay for it, and that excess cannot, in this case, be justly charged upon the amount awarded the owners.
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The opinion of the court was delivered by
Spencer, J.
This is a proceeding under the charter of said company and acts amendatory thereof, to expropriate a certain lot of ground In New Orleans for the use of said company.
The lot in question is owned by J. B. Trescazes and others. It is xmder lease to the firm of H. J. Montagnet for a term of three years, with privilege of renewal for three years more, at a rental of sixty dollars per month. The lessees keep thereon a coal-yard, and have con-structed upon it certain buildings for their own use and convenience.
Commissioners were appointed, and after hearing the various parties in interest, made their report, awarding compensation as follows :
First — To the owners of the lot, its value. $8000 00
Second — To the owners of the lot, the right of accretion, which they value at. 500 00
IPhird — To the lessees, the value of their improvements. 1200 00
Fourth — To the lessees, the value of their lease. 4020 00
Total to be paid’ by company.$13,720 00
The report of the commissioners was opposed in the court a qua, which, on hearing, confirmed it as to the first and third items and rejected the second and fourth.
The company and the lessees appeal. The owners pray for the affirmance of the decree below.
We think the evidence abundantly establishes that the rights of the •¡owners in and to said lot are worth $8000. We deem it unnecessary to xecapitulate it. The company must therefore pay, for the rights held by -these owners and thus expropriated, the sum of $8000.
Perfect ownership consists of the use, the enjoyment, and the disposal of the thing — the usus, fructus, and abusus.
The Code, article 490, says : “ Ownership is perfect when it is perpetual, and when the thing which is the subject of it is unencumbered with any charges toward any other person than the owner.” It is imperfect * * * “if the thing which is the subject of it being an immovable is charged with any real right toward a third person, as an -aasufruct, use, or service.”
[375]*375Perfect ownership gives the unlimited right of disposal and enjoyment. C. C. 491.
Imperfect ownership gives these.rights only “when it can be done without injuring the rights of others, that is, of those who may have real or other rights to exercise upon the same property.” C. C. 492.
The rights of use, enjoyment, and disposal are said to be the three •elements of property in things. They constitute the jura in re. The right of a lessee is not a real right, i. e. a jus in re. In other words, the lessee does not hold one of the elements of property in the thing. His -right is a jus ad rem, a right upon the thing. While therefore, tech-meally, the lease of real estate does not operate a divestiture of any •elements of property, it does by the express terms of article 492 C. C. •prevent or encumber the exercise of the right of perfect ownership. 'That article says that not only real rights but “ other rights,” vested in 'third persons, limit the exercise of full ownership. The right of a lessee is substantive, and is independent of changes in the ownership of the 'thing. C. C. 2733. The purchase or expropriation of the rights of the •owner does not therefore necessarily embrace or operate upon the right -of the lessee. That right in order to be affected must be itself the object of purchase or expropriation. If the rights of the owner are alone the objects of the purchase or expropriation, the right of lease is unaffected and continues. The purchaser gets only the thing encumbered '■by the lease. That is all he can get, for that is all the owner has. In •other words, the purchase or expropriation of the owner’s rights gives simple subrogation thereto, no more, no less. This of course gives the right to take any sums, falling due, in futuro, for rents of the thing.
We find therefore that the rights of the owner, expropriated by the company, constitute the measure of its rights against the lessee. What are those rights ? They are: i
First — The full ownership of the thing encumbered by a lease.
Second — The monthly rents, at sixty dollars per month, during the term of the lease.
But the company has also demanded the expropriation of this right of the lessee — this encumbrance upon the full ownership. If that right is worth no more than the lessee has agreed to pay for it, then, as the •price, or rent in futuro, is yet to be paid, and as the company, holding the owner’s rights, is the payee thereof, the company would owe the 'lessee nothing. But if this right is worth more than the sum so agreed to be paid for it, the lessee is certainly entitled to be paid the amount of this excess. He must have the value of the right which is taken away irom him.
But it is said that the company having paid the owners the value of j •the property in full ownership, the amount to be allowed the lessee J [376]*376must be taken out of the sum awarded to the owners. This would be-just in the case when the owners had received in advance the rents, and-where the right of lease was worth no more than the sums paid for it.. But where the value of the property has been fixed, as in this case, by-reference to the rent stipulated, and not by reference to the actual present value of the lease, and where the company becomes subrogee-of the owner of the stipulated rents, it would be exceedingly inequitable-to charge the owner with this difference between the stipulated rent and actual value of the lease. Such a process might result in giving the-owner absolutely nothing where he had granted a lease at a small price,, and when from unforeseen and temporary causes the leasehold had acquired an extraordinary and unexpected value. In this case all the experts, the commissioners, and the court evidently fixed and predicated' the value of the lot by reference to tíje rental stipulated in the contract-of lease. If the price of the fee is to be charged with and diminished. by the difference between the stipulated rents and the actual present. value of the leasehold, then the price of the fee should have been calculated on a rental equal to such actual present value — a process which would have largely increased the amount to be paid the owners of the-fee.
We understand that the $8000 awarded to the owners is compensa- ’ tion for what the company takes and acquires from them. We have-’seen that this consisted of,, first, the ownership in fee, encumbered by a. ¡lease, and, second, the rent stipulated in that lease. What the owners-.have not cannot be taken from them. They are to be paid only for what was taken from them, and are. to be charged only with what they have-received. The right of the lessee did not belong to the owners of the fee. It was a substantive right vested in him, and its acquisition by the company is derived from and through him. He is to be paid its value,, i. e. the excess of what it will bring over what he has agreed to pay for it, and that excess cannot, in this case, be justly charged upon the amount awarded the owners.
The only true test of this excess of the value of the lease over the* stipulated rental or price, thereof, is to ascertain what sum the right of' lease, or leasehold, will bring over and above the rent stipulated to b'e-’paid. In the case before us the rental is sixty dollars per month. If the right of lease would sell for seventy-five dollars per month of its. term, then the excess of its value over its price is fifteen dollars per-month.
The right of expropriation being a legal one, its exercise does not: give rise to any other than actual damages ; consequently, damages are-not to be considered. The law fixes these actual damages where the whole of a thing or right is taken at the fair value of that thing or-[377]*377right. The fact that the owner or lessee might build a store, or a factory. or warehouse on the lot, and derive large profits from that business,, would not make those contemplated profits a proper element in fixing-its present value. So the fact that the lessees, by keeping a coal-yard, on the lot, and having free access to the wharf (which they have not, by-reason of the privileges accorded to this company by the city), might realize large profits from that business, would not justify us in taking the amount of these prospective and problematical profits as the value - of the lease.
The true question is, what advance could the lessees get for the" lease over the price or rent they are to pay ? In other words, if the lease was put on the market for sale, what sum in excess of sixty dol- “ lars per month could be obtained for it, the improvements put thereon* by the present lessees being excluded from the calculation? These improvements belong to the lessees, the lessor or owner having the right;1 of electing to keep them at an estimation. The owner and not the lessee has this right of election, and he cannot be compelled to take-them, it being by law a matter of option on his part. The commissioners and the court erred, therefore, in charging unconditionally these improvements as part of the amount to be paid by the company. C. C... 2726,608.
We think the evidence shows that the right of lease is worth more-than sixty dollars per month. We are satisfied, however, that some of' the witnesses exaggerate it when they fix it as high as $120 per month. They make too many conditions to that estimate, some of which have-already been rendered legally impossible by the action of the city in granting the use of the wharf to the company, and in removing the-Third District ferry-landing.
We think that the interests of all parties will be subserved by a-final determination of this controversy. The lessees formerly paid seventy-five dollars per month, but induced the owners, under the-present lease, to reduce the rental to sixty dollars. We see nothing in,: the present condition of affairs, as disclosed in the record, to justify the belief that the right of lease would sell at a greater price than seventy-five dollars per month, which would be fifteen dollars per month advance ■ over the sum to be paid. We think, therefore, that an allowance to the-lessees of fifteen dollars per month for the unexpired term of the lease-will do justice.
It is therefore ordered, adjudged, and decreed that the judgment-appealed from is amended as follows :
First. By fixing the amount to be paid the lessees for value of' their lease at fifteen dollars per month from the- date- of the company? [378]*378taking possession to the expiration of the term for which said lease ■may continue.
Second. By fixing the value of the improvements put by lessees on the lot at twelve hundred dollars ; by giving the company the right, to elect •whether it will take said improvements at that price, said election to be made in writing within thirty days from the date this decree is filed in the court a qua; said improvements to be removed by the lessee, if the company elect not to keep them; that as thus amended .said judgment is affirmed. The costs to be paid by the company.
Beliearing refused.