On Motion to Dismiss Appeal.
MONROE, C. J.
Plaintiff brought this suit for the expropriation of certain lots of ground, and prosecutes the appeal from a judgment decreeing said lots “to be expropriated and adjudged to plaintiff, * * * for its use and purposes, upon the payment by it to defendants * * * of the sum of $25,000, in accordance with law, as their interests may hereafter be determined.” Plaintiff moved for and was granted “an appeal * * * upon its furnishing bond, conditioned as the law directs, in the sum of $100.”
The motion to dismiss is predicated upon the grounds:
(1) That plaintiff, having failed to deposit in court the $25,000 at which the property to be expropriated has been valued in the verdict and judgment appealed from, is not entitled to an appeal on a bond for costs, or for $100, but should have furnished a bond for the amount called for by the judgment or for one-half over and above that amount.
(2) That plaintiff has acquiesced in the judgment sought to be appealed from, in this, that movers are informed and believe- that it has compromised the matter in dispute with movers’ coappellees, Jasmin Feitel and Willis J. Roussel (the last named acting individually and as administrator of the succession of movers’ ancestor, Nicholas Lavergne, and of Allen Lavergne)—
“for tbe sum of $30,000, to be paid to said Roussel and Feitel * * * for tbe property sought to be expropriated; * * * that said Roussel and Feitel and said * * * company entered into a conspiracy * * * to defraud your movers of tbeir rights in and to said compromise and in and to the amount of said verdict and judgment, whereby tbe said Roussel and Feitel are to receive from the said * * * company tbe full amount of said verdict and judgment and any excess thereon as compromised, irrespective of what may be finally adjudged in tbe case on appeal; that tbe question of title to the property * * * and * * * 'of the interests of tbe several codefendants therein, and of the title to said fund and tbe amount of said verdict and judgment, is in controversy between said Roussel and Feitel, on tbe one side, and your movers, on the other side, and accordingly movers aver that in law and equity, said compromise and adjudgment is, and has been, made for movers’ benefit, and operates ,as an acquiescence in the verdict and judgment appealed from,” etc.
[1] 1. The judgment appealed from does not condemn plaintiff to pay defendants $25,-000, but merely makes such payment a condition precedent to the passing of the title to the property, which is in accordance with article 167 of the Constitution, declaring that:
“Private property shall not be taken nor damaged for public purposes without just and adequate compensation .being first paid”
—and with C. C. 2634, and R. S. 702 and 1483, declaring that:
“Any appeal to tbe Supreme Court from the verdict of the jury and judgment of the lower court [in an expropriation case], made by either party, shall not suspend tbe execution of such judgment, but tbe payment of tbe amount of the verdict by the company to the owner, or the deposit thereof subject to the owner’s order, in the hands of the Sheriff, shall entitle the corporation to tbe right, title and estate of tbe owner in and to the land described in tbe petition in the same manner as a voluntary conveyance would do. But in the event of any change being made by tbe final decree in the decision of the cause, the corporation shall be bound to pay tbe additional assessment, or be entitled to recover back tbe surplus paid, as tbe case may be.”
Defendants’ counsel say in their brief:
“Considering article 167 of the Constitution, * * * and considering that plaintiff and appellant, prior to tbe appeal, has ‘taken’ the property sought to be expropriated, there can be no appeal or right of appeal, because of the failure to comply with the provisions of C. C. 2634; R. S. 702, 1483,” etc.
But, while the law cited requires the payment of the amount of the judgment as a pre[953]*953requisite to the taking of the property, and though such “taking,” under the authority of the judgment, without the making of the payment, might be regarded as an acquiescence in the judgment which would cut off the right of appeal, defendants do not allege such taking as a ground for the dismissal of the appeal; the alleged acquiescence of plaintiff being attributed (in the second ground of its motion to dismiss) to altogether different circumstances.
It is true that it may be inferred from the record that plaintiff is in possession of the property, but, if that be the fact, it must also be inferred that it had been in possession long before this suit was instituted, and was allowed by defendants to remain in possession, though defendants, or those who were acting in their interest, had obtained a final judgment from this court, under which that possession might at any time have been ousted. Roussel et al. v. Railways Realty Co., 137 La. 616, 69 South. 27. It will loe observed, too, in this connection, that plaintiff did not ask for, and was not granted, a suspensive appeal, and hence that, if defendants had the right to execute the judgment appealed from, they were not prevented by the appeal from exercising that right; and hence also, since the amount of the bond was fixed by the court, the appeal cannot be dismissed on account of its alleged insufficiency.
[2] 2. The record discloses the following offer made by defendants’ counsel during the trial of this case, to wit:
“This witness [referring to W. J, Roussel] is tendered for the purpose of proving that the plaintiff company offered him and Mr. Eeitel $20,000 for the ten lots in contest, together with the right to suppress a suit having reference to a street running through the property, and a suit for about $20,000 in rents, and this offer was to have been in complete compromise and settlement of whatever rights Roussel and Feitel then claimed as to the ten lots in contest and all other rights therein involved, and that the" suit filed by the Lavergne heirs against Roussel and Feitel recently, and now pending before division D [of the civil district court] obstructed the proposition and prevented the compromise or purchase of their rights from going through.”
After quoting as above from the record, counsel for plaintiff say in their brief:
“As a matter of fact, * * * a compromise was pending, but not on the terms alleged by movers up to the filing of the suit by the Lavergne heirs against Roussél and Eeitel, by way of a petitory action, which is now on trial before division B of the civil district court; but a compromise was never carried through, for the reason stated by Mr. Alpha, as aforesaid. In fact, the filing of the above suit by the Lavergne heirs and the recording of lis pendens, in the mortgage office of this parish was the cause of the railway’s company’s bringing this suit against all parties claiming an interest in this property for the purpose of expropriating the same and putting an end to the litigation concerning the ownership of this property so far as the plaintiff railway company is concerned; and the counsel, writer of this brief, emphatically denies .and states that there never has been an offer of compromise to any party in interest since the filing of this expropriation suit; that the allegations of the motion to dismiss the appeal are not warranted in fact or in law,” etc.
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On Motion to Dismiss Appeal.
MONROE, C. J.
Plaintiff brought this suit for the expropriation of certain lots of ground, and prosecutes the appeal from a judgment decreeing said lots “to be expropriated and adjudged to plaintiff, * * * for its use and purposes, upon the payment by it to defendants * * * of the sum of $25,000, in accordance with law, as their interests may hereafter be determined.” Plaintiff moved for and was granted “an appeal * * * upon its furnishing bond, conditioned as the law directs, in the sum of $100.”
The motion to dismiss is predicated upon the grounds:
(1) That plaintiff, having failed to deposit in court the $25,000 at which the property to be expropriated has been valued in the verdict and judgment appealed from, is not entitled to an appeal on a bond for costs, or for $100, but should have furnished a bond for the amount called for by the judgment or for one-half over and above that amount.
(2) That plaintiff has acquiesced in the judgment sought to be appealed from, in this, that movers are informed and believe- that it has compromised the matter in dispute with movers’ coappellees, Jasmin Feitel and Willis J. Roussel (the last named acting individually and as administrator of the succession of movers’ ancestor, Nicholas Lavergne, and of Allen Lavergne)—
“for tbe sum of $30,000, to be paid to said Roussel and Feitel * * * for tbe property sought to be expropriated; * * * that said Roussel and Feitel and said * * * company entered into a conspiracy * * * to defraud your movers of tbeir rights in and to said compromise and in and to the amount of said verdict and judgment, whereby tbe said Roussel and Feitel are to receive from the said * * * company tbe full amount of said verdict and judgment and any excess thereon as compromised, irrespective of what may be finally adjudged in tbe case on appeal; that tbe question of title to the property * * * and * * * 'of the interests of tbe several codefendants therein, and of the title to said fund and tbe amount of said verdict and judgment, is in controversy between said Roussel and Feitel, on tbe one side, and your movers, on the other side, and accordingly movers aver that in law and equity, said compromise and adjudgment is, and has been, made for movers’ benefit, and operates ,as an acquiescence in the verdict and judgment appealed from,” etc.
[1] 1. The judgment appealed from does not condemn plaintiff to pay defendants $25,-000, but merely makes such payment a condition precedent to the passing of the title to the property, which is in accordance with article 167 of the Constitution, declaring that:
“Private property shall not be taken nor damaged for public purposes without just and adequate compensation .being first paid”
—and with C. C. 2634, and R. S. 702 and 1483, declaring that:
“Any appeal to tbe Supreme Court from the verdict of the jury and judgment of the lower court [in an expropriation case], made by either party, shall not suspend tbe execution of such judgment, but tbe payment of tbe amount of the verdict by the company to the owner, or the deposit thereof subject to the owner’s order, in the hands of the Sheriff, shall entitle the corporation to tbe right, title and estate of tbe owner in and to the land described in tbe petition in the same manner as a voluntary conveyance would do. But in the event of any change being made by tbe final decree in the decision of the cause, the corporation shall be bound to pay tbe additional assessment, or be entitled to recover back tbe surplus paid, as tbe case may be.”
Defendants’ counsel say in their brief:
“Considering article 167 of the Constitution, * * * and considering that plaintiff and appellant, prior to tbe appeal, has ‘taken’ the property sought to be expropriated, there can be no appeal or right of appeal, because of the failure to comply with the provisions of C. C. 2634; R. S. 702, 1483,” etc.
But, while the law cited requires the payment of the amount of the judgment as a pre[953]*953requisite to the taking of the property, and though such “taking,” under the authority of the judgment, without the making of the payment, might be regarded as an acquiescence in the judgment which would cut off the right of appeal, defendants do not allege such taking as a ground for the dismissal of the appeal; the alleged acquiescence of plaintiff being attributed (in the second ground of its motion to dismiss) to altogether different circumstances.
It is true that it may be inferred from the record that plaintiff is in possession of the property, but, if that be the fact, it must also be inferred that it had been in possession long before this suit was instituted, and was allowed by defendants to remain in possession, though defendants, or those who were acting in their interest, had obtained a final judgment from this court, under which that possession might at any time have been ousted. Roussel et al. v. Railways Realty Co., 137 La. 616, 69 South. 27. It will loe observed, too, in this connection, that plaintiff did not ask for, and was not granted, a suspensive appeal, and hence that, if defendants had the right to execute the judgment appealed from, they were not prevented by the appeal from exercising that right; and hence also, since the amount of the bond was fixed by the court, the appeal cannot be dismissed on account of its alleged insufficiency.
[2] 2. The record discloses the following offer made by defendants’ counsel during the trial of this case, to wit:
“This witness [referring to W. J, Roussel] is tendered for the purpose of proving that the plaintiff company offered him and Mr. Eeitel $20,000 for the ten lots in contest, together with the right to suppress a suit having reference to a street running through the property, and a suit for about $20,000 in rents, and this offer was to have been in complete compromise and settlement of whatever rights Roussel and Feitel then claimed as to the ten lots in contest and all other rights therein involved, and that the" suit filed by the Lavergne heirs against Roussel and Feitel recently, and now pending before division D [of the civil district court] obstructed the proposition and prevented the compromise or purchase of their rights from going through.”
After quoting as above from the record, counsel for plaintiff say in their brief:
“As a matter of fact, * * * a compromise was pending, but not on the terms alleged by movers up to the filing of the suit by the Lavergne heirs against Roussél and Eeitel, by way of a petitory action, which is now on trial before division B of the civil district court; but a compromise was never carried through, for the reason stated by Mr. Alpha, as aforesaid. In fact, the filing of the above suit by the Lavergne heirs and the recording of lis pendens, in the mortgage office of this parish was the cause of the railway’s company’s bringing this suit against all parties claiming an interest in this property for the purpose of expropriating the same and putting an end to the litigation concerning the ownership of this property so far as the plaintiff railway company is concerned; and the counsel, writer of this brief, emphatically denies .and states that there never has been an offer of compromise to any party in interest since the filing of this expropriation suit; that the allegations of the motion to dismiss the appeal are not warranted in fact or in law,” etc.
Plaintiff having brought this suit against defendants, as owners of the property to be expropriated, and the question of the amount to be paid having been submitted to, and passed upon, by a jury and by the trial judge, and a judgment having been rendered to the effect that the property “be expropriated and adjudged to plaintiff * * * upon the payment by it to the defendants * * * of the sum of $25,000, in accordance with law as their interest may hereafter be determined,” we are at a loss to understand how the interests of the defendants can be affected by any such compromise as is alleged in their motion ; the more especially as, according to the averments of their counsel, such compromise was “prevented” by the suit brought by them against their coappellees, Roussel and Feitel, in which their respective interests .in the property here in question are to be determined.
The motion to dismiss the appeal is therefore denied.