Municipality No. Two

7 La. Ann. 72

• Court: Supreme Court of Louisiana
• Decided: February 15, 1852
• Status: Published

Opinions

The judgment of the court was pronounced by

Preston, J.

This is an application by the Second Municpality of New Orleans, to open Euphrosine street, from Hercules to Liberty streets, in pursuance to the act of the 3d of April, 1832. For that purpose, a parcel of ground belonging to Francois Saulet, having forty-five feet on Hercules street, and extending through to Benton street, on which it has the same front, is to be taken.

By commissioners of estimate and assessment, duly appointed and sworn, the portion of ground was appraised at two thousand dollars ($2000), and the buildings and improvements on the same, at three thousand five hundred dollars (3500) — $5500.

Provision for his payment was made, by estimating the advantages of the improvement of the municipality to him and to others, in which the advantage of the improvement to the square, from which the property was to be taken, and to other lots belonging to him, was estimated at $1623 50 ; leaving to be paid to him, $3876 50.

He and others opposed the report, and on the 23d of January, 1849, it was referred back to the commissioners for amendment.

After long investigation and consideration, on the 1st of October, 1849, they filed an amended report, in which they estimate the lot, to be taken from Franpis Saulet, for the contemplated improvement, at $3000, and the buildings and improvements on the same, at $3000 — aggregate, $6000; and estimated that his square and other property would be benefited to the amount of $1947, leaving to bo received by him, $4053.

Francois Saulet, also opposed this report, alleging, that the property to be taken from him was valued too low; and without denying the right of the cipalify to assess his property for the improvements to be made, alleged, that the amount assessed was too high.

He also claimed, under article 109 of the Constitution, that he should be paid, in cash, before the property was taken from him, its value.

The additional value that would be added to Francois Saulet’s property, by the contemplated improvement, is fully proved by his own witnesses. Moore, a real estate broker, Souihmayd, a vendor of lots in the vicinity, and William, Stackhouse, who, by the particulars he mentions, is manifestly well acquainted with the value of property in the neighborhood, and its advantages and disadvantages, all agree that he would be benefited about two thousand dollars.

The Commissioners allow him six thousand dollars for the aggregate value of his ground and buildings, to be taken for the improvement. Stackhouse, his own witness, states, that it is a pretty high estimate, and none of the witnesses prove that the estimate, in the aggregate, is too low; although Souihmayd and Rub think the lots, to be taken separately from the buildings, should be estimated higher than three thousand dollars.

The testimony of the witnesses satisfies us, that the commissioners, on the whole, have done Mr. Saulet full justice. If, however, the evidence left any doubt on the subject, it is to be considered that the commissioners of estimate and assessment, in the words of the act of 1832, “ are discreet and disinterested persons, competent to serve as juroi's in the court, and sworn, faithfully, impartially, and according to the best of their skill and judgment, to perform the trust and duties required of them by the act;” that they are not chosen by lot, as ordinary jurors, but selected and appointed by the judge, and should be so appoint-" ed, on account of their great skill and competency to perform the special duties Required by the act, and are to be allowed four hundred and fifty dollars, with the fees of a clerk, for their services in this very case; that they made two reports, or rendered two verdicts, if we may so speak, for the law likens them to jurors; the last of which, being more favorable to Mr. Saulet, was approved by the court, after hearing witnesses in opposition, for reasons which are entirely satisfactory to us. "VVe are bound to give as much weight to his judgment, approving the report, as we would to an ordinary judgment, based upon the verdict of a jury, and the refusal of a new trial, after examining new evidence, in opposition to the verdict.

We do not think, however, that the district court should have altered the report, by allowing Haywood Stackhouse any part of the appraised value of the buildings. If the evidence had justified it, the assessment should have been referred back to the assessors, for the purpose of making the amendment under' the decision of this court, in the application for the opening of Claiborne street. 4th Ann. 7. We think, however, the evidence would not justify the reference. The buildings became the property of Saulet on the 1st November, 1848, as appears by the contract between them. For the building? erected underthe first lease, were estimated in the second lease, made the 5th of October, 1847, at three thousand dollars, and to be insured at that sum. We presume, these are the buildings to be taken for the improvement, as we have no evidence that Stack-house had erected the additional buildings contemplated by the second lease, and to cost a thousand dollars. On the contrary, he left the premises, the first of February, 1848, a few months after the second lease was signed.

Had Stackhouse presented a distinct claim for damage, which the conteJnplated improvement would cause him as lessee, it is possible something would have been allowed him by the commissioners, because he was. entitled by the lease, from Saulet, to occupy the buildings until 1852, upon the conditions of paying four hundred and eighty dollars rent per annum, and erecting other buildings of the value of one thousand dollars, to become Saulel’s at the expiration of the lease.

But instead of claiming indemnification, as a lessee in case of eviction, he left the premises, even before the second lease was to commence, and claimed the value of buildings, which, did not belong to him, because erected under the first lease, and became Saulet’s before his claim was filed.

The demand of Saulet, to be paid in cash the value of his ground and buildings, before the municipality is put into possession of the same for the purposes of public utility, is clearly accorded by article 109 of the Constitution. The provisions of the act of 1832, to the contrary, are repealed by article 142 of the Constitution ; and the strict enforcement of this equitable and salutary provision of the Constitution, is not only a sacred duty of this court, but will, probably, greatly tend to restrain the waste and extravagance growing out of public improvement, which, we fear, will become a burden to this, as it has been to many other cities.

The judgment of the district court is therefore reversed, and it is decreed, that the report of the commissioners of estimate and assessment of damages and benefits, made on the first of October, 1849, be approved and homologated; and it is further decreed, that the delivery of the property to Municipality No. Two, for the purpose of opening Euphrosine street, shall not be enforced, until payment to Francois Saulet, of four thousand and fifty-three dollars ; and that the municipality pay one-half the costs of this appeal, the other half to be paid by JHaywood Stackhouse.