
    (57 South. 782.)
    No. 18,551.
    STANDARD CHEMICAL CO. v. ILLINOIS CENT. R. CO. et al.
    (Oct. 16, 1911.
    On Rehearing, Feb. 26, 1912.)
    
      (Syllabus by the Court.)
    
    1. Railroads (§ 79*) — Use of Streets — Grants of Rights by City.
    A grant by a municipal corporation to a private corporation of a right of way through the public streets is a privilege personal to the grantee, and not disposable, and the privilege cannot create the relation of landlord and tenant between the grantee and one using the right of way without the consent of the grantee. If the rights of the grantee are invaded by another using his right of way, he has an action in tort, but cannot maintain an action for rent because that can arise only from the relationship of landlord and tenant.
    [Ed. Note. — For other cases, see Railroads, Dec. Dig. § 79.*]
    2. Limitation of Actions (§ 30*) — Prescription — Limitations Applicable — Contract or Tort.
    The plea of three years prescription applies only to cases arising from contractual relations, but the plea of one year prescription is the proper one to be applied to this case as the deprivation charged by the plaintiff is tor-' ■tious, and the latter plea is therefore sustained.
    [Ed. Note. — For other cases, see Limitation «of Actions, Gent. Dig. § 141; Dec. Dig. § 30.*]
    On Rehearing.
    :3. PARTIES (§ 27*) — Joinder—Defendants.
    The allegation that two persons have committed identically the same tort is sufficient, •upon its face, and in the absence of evidence to the contrary, to convey the idea of co-operation and of such identity of interest- as to warrant their being joined as defendants in an action for the recovery of damages alleged to have '■been sustained as the result of the tort.
    [Ed. Note. — For other cases, see Parties, ■Cent. Dig. § 35; Dec. Dig. § 27.*]
    ■4. Injunction (§ 65*) — Subjects of Relief —Interference with Franchise.
    The allegation that defendant has, without plaintiff’s permission, taken possession of rights of way, switch track privileges, switch tracks, and other property pertaining thereto, of which plaintiff is owner, and tortiously, wrongfully, and illegally holds such possession, to the ex-clusion of plaintiff, discloses a cause of action for the issuance of the writ of injunction for the protection of plaintiff’s property rights.
    [Ed. Note. — For other cases, see Injunction, Cent. Dig. § 134; Dec. Dig. § 65.*]
    •5. Railroads (§ 79*) — Use of Streets — Grant of Rights — Interference—Remedy.
    Whilst the grantee of a right of way and ^-switch track privileges on a public street has ordinarily no right of action to recover rent, ;as such, for being tortiously and wrongfully deprived of the enjoyment of such right and privileges, he may be entitled to recover damages, resulting from such deprivation, based upon the rental value of the property, and a petition alleging the tortious dispossession and deprivation and claiming such damages discloses a ■■cause of action for their recovery.
    [Ed. Note. — For other cases, see Railroads, Dec. Dig. § 79.*]
    «6. Limitation of Actions (§ 32*) — Limitations Applicable — Tort — Action Ex Delicto — Prescription.
    An action for damages for the alleged tor■tious, wrongful, and illegal taking and holding possession of a right of way and switch track -and other property connected therewith is an action ex delicto, and the claim for all dam■ages save those which were sustained within the year preceding the service of citation is 'barred by the prescription of one year.
    [Ed. Note. — For other cases, see Limitation of Actions, Gent. Dig. §§ 143r-145; Dec. Dig. =§ 32.*]
    Appeal from Civil District Court, Parish ¡of Orleans.
    Action by the Standard Chemical Company against the Illinois Central Railroad Company and another. From a judgment for defendants, plaintiff appeals.
    Reversed and remanded.
    Solomon Wolff, for appellant. Gustave Lemle and Hunter C. Leake (Blewett Lee and C. L. Sivley, of counsel), for appellees.
   BREAUX, C. J.

Plaintiff sued the defendant to recover $2,500 annually for a period of 15 years on the ground that defendant has taken and usurped a privilege to run through certain streets, which privilege plaintiff claims it owns.

The facts are, as relates to this privilege, that on February 16, 1894, the city of New Orleans granted to the Southern Chemical & Fertilizing Company (the author of plaintiff) the privilege to construct and operate a switch track from Broad street to Hagan avenue, connecting there with the switch track of the Yazoo & Mississippi Yalley Railroad Company.

The Southern Chemical & Fertilizing Company subsequently conveyed the southwestern part of the square, bounded by Clark, Perdido, and Hagan streets, to the city.

On this part of the square granted there were two switches constructed by the Southern Chemical & Fertilizing Company.

In the conveyance the Southern Chemical & Fertilizing Company reserved the use of the switch tracks for a period of 20 years from the 5th day of January, 1898.

Thereafter the Standard Chemical Company, plaintiff in this case, acquired from the Southern Chemical & Fertilizing Company the rights and privileges which the Southern Chemical & Fertilizing Company had acquired from the city of New Orleans (including the roadbed and other property and privileges) located on said lots.

Plaintiff alleged that on the 24th day of October, 1906, the city approved and confirmed the transfer made by the Southern Chemical & Fertilizer Company to the plaintiff, the Standard Chemical Company, and that for adequate consideration the city gave to the plaintiff company the privilege of conducting and operating a switch track over the street before named for a period of 21 years from the 27th day of November, 1906.

Plaintiff’s complaint is that the Illinois Central and the Yazoo & Mississippi Valley Railroad Companies have unlawfully taken possession of its right of way and also of the switch track privilege and of other property, and are using this property to their advantage and to the detriment of plaintiff’s interest.

Plaintiff charges that these acts are wrong and tortious.

Plaintiff claims rental, and the question presented here is whether plaintiff is or is not entitled to rental.

We do not think that it is entitled to rental.

The questions presented for decision grow out of defendant’s exception, which was maintained by the district court, in which defendant alleged misjoinder; no cause of action, and the prescription of one and three years.

First, as to misjoinder:

Plaintiff does not allege that defendants have a common interest of any kind. They are referred to substantially as distinct corporations, owing a common amount for rent.

Although it does not appear that there was a common interest, we will not decide the casé on that ground.- As to the rent itself as claimed, there was misjoinder. In view of the issues as presented together with other' grounds, we will not dispose of the case on the ground of misjoinder, for it is different as to the wrongful and tortious acts alleged. As to these, there was ground sufficient'to join defendants in one suit. All the different grounds lead to one conclusion, that the plaintiff has no cause of action.

We leave this point, and take up the issue raised by the plea of prescription of three years.

There is no ground upon which to maintain that prescription for the reason that there-are no contractual relations between the parties.

We have seen that plaintiff claims rent.

Were we to sustain the plea of rental due, it would be subject to.the three years prescription.

This is not possible, for such is the nature of the ease that no rent can be recovered, and therefore the prescription just mentioned cannot be of any avail to defendant.

This brings us to the consideration of the plea of one year prescription.

Plaintiff'alleged that defendants wrongfully and tortiously continued in using the property of petitoner.

As relates to this improper use, as alleged, the plea of one year prescription bars the claim, if anything be due for any act by defendant of a date one year anterior to the date the suit was brought.

The unlawful deprivation of possession of premises is subject to the prescription of one year. ■

Prescription runs from the day on which the injury or damage was sustained. Lizardi v. N. O. Canal & Banking Co., 25 La. Ann. 414. The plea of one year’s prescription is sustained.

Defendant in the exception sustained by the district court pleaded that plaintiff al-leged no cause of action.

To the extent that the plea of prescription does not bar acts within a year prior to the suit, we will consider this exception.

We have scanned plaintiff’s petition, and have not found that plaintiff owns a fee in the soil on which the roadbed is. constructed.

Although plaintiff has a privilege, as we have seen, granted by the city, it has no right to dispose of that claim. It is revo- ■ cable. This revocability shows the restrict•ed condition of the right.

A privilege may be granted that does not ■grant the right to recover rent.

Plaintiff has a right to remuneration for its expenses, its work, and services as a public service corporation.

That does not give it the right to claim rental.

It has a right to a possessory or a petitory action.

They do not confer the right of collecting for rent on account of the occupancy of the ground over which it claims it had a privilege, and which it never claimed before this ■suit was brought.

The courts have decided that they will protect a right of way over streets by injunction.

That is not the action here.

If it be entitled to the right claimed, necessary protection will be given to the extent 'to which it is entitled.

Plaintiff has no authority to declare itself .landlord, and claim rent from its asserted tenant.

The streets are for the common use of the public.

The municipality has the right, for certain purposes, to restrict that right in part, to grant a privilege. But it remains, as before stated, subject to certain rights of the .grantor representing the public.

The municipality has it in its power to allow others to pass over the same road.

Plaintiff has not acquired such a right of •ownership as will enable it to stand in judgment in this case.

For reasons stated, it is ordered, adjudged, •and decreed that the judgment appealed from .Is affirmed at appellant's costs.

On Rehearing.

MONROE, J.

Defendants (the defendant not named in the title being the Yazoo & Mississippi Talley Railroad Company) filed exceptions of misjoinder, no cause of action and prescription (of one and three years), and the district court maintained • the exceptions (without specification) on the face of the papers, an.d dismissed the suit, from which ruling plaintiff appealed. On the former hearing in this court, it was held that the prescription of one year was well pleaded as to a certain aspect of the case, and the exception of no cause of action as to other aspects.

The petition, after alleging that the city of New Orleans had granted to the Southern Chemical Company rights of way, with the privilege of operating switch tracks, through certain streets, that said company, owning and operating such tracks, had conveyed the same, together- with said rights and privileges, to petitioner; and that the conveyance had been ratified and approved by the city of New Orleans, proceeds as follows:

“Your petitioner further shows that the defendant railroad companies, without the permission of your petitioner, * * * have taken possession of the rights of way and the switch track privileges and other property belonging to your petitioner, and are constantly using the same, with great profit to themselves and to the loss and detriment of your petitioner ; that, notwithstanding the protests and complaints of your petitioner, the said defendant companies, tortiously and wrongfully continue in the use of your petitioner’s property, and tortiously and wrongfully prevent your petitioner from in any way using it, and refuse asid neglect to pay your petitioner the rental value thereof, though constantly negotiating with your petitioner and inducing your petitioner to believe that a settlement would be made. Your petitioner avers that a reasonable rental for the use of the switch track and all the rights and privileges pertaining thereto and all the other property of your petitioner would be $2,500 a year; that the defendants since the 16th • day of February, 1894, and up to the 16th ■ day of February, 1909, have occupied and operated a,nd used 'the property for a period of 15 years which at $2,500 a year amounts to $37,500; * * * ^ B fl s P g; g; 2*o Qjrtf1 § ft P q © <t ST «■83 g g 8 “ ® ® Srt,'p0. 3 m 2 g b s 2 S sesw ggu. O 2 M. w« *"• ^ hi 2 fh inn; g-B B O (p Cu ft §a'%§5-*-*.B B B W § o © n 8 B ¿I b b B^ O 3 oq „ rt- , B * £

The relief prayed for is, first, a writ of .injunction (to be issued after hearing), restraining defendants from further using the property mentioned in the petition and prohibiting them from interfering with plaintiff’s use of the same; and, second, a judgment condemning defendants in solido in the sum of $37,500, with interest.

As the allegations of the petition negative all idea of an action ex contractu and fix the status of the proceeding as an action sounding in tort, the exceptions are to be considered from that point of view.

The exception of misjoinder of defendants :

The general rule established by C. C. art. 2324, that “he who causes another person to do an unlawful act, or assists or encourages in the commission of it, is answerable, in solido, with that person for the damage caused by such act” is, impliedly, qualified by the equally general rule that “parties cannot be joined in a suit unless they have an identity of interest in its subject-matter.” Gross on Pleading, p. 13.

From which it follows that, when two or more persons, by independent acts, neither of them causing, assisting, or encouraging the act of the other, commit different torts, however similar or synchronous or both, there is no identity of interest between them, and they cannot be joined as defendants in the same suit for damages. Where, however, as in this instance, it is allegd that two persons have committed, and are committing, identically the same tort, the allegation, taken by itself and in the absence of evidence to the contrary, conveys the idea of co-operation between such persons, and hence of such identity of interest as upon the face of the papers to authorize their being joined? as defendants in an action for the recovery of the damages resulting from such tort. The exception of misjoinder should, therefore, have been overruled.

The exception of “no cause of action.”'

Adhering to the view that the grantee of the franchise of a right of way for the construction and operation of a switch track upon a street in New Orleans would ordinarily have no right of action for the recovery from another person of “rent” eo nomine for the-use of the street, nevertheless, he is entitled to the protection of the law against unwarranted interference with his enjoyment of his franchise; and where, as in this instance, the grantee alleges that a third person has, without his permission, taken possession of such right of way and privilege and of the-switch track itself and other property owned by him, and tortiously, wrongfully, and' illegally holds such possession, to his entire-exclusion, and that a writ of injunction is necessary for his protection in the premises, we are of opinion that a cause of action for-the issuance of the writ is disclosed.

In the opinion heretofore handed down,,, the court was led by the inartificial manner' in which the petition is drawn to conclude* that plaintiff is claiming “rent” for the use-of a public street, but, on a further consideration of the language used, we are satisfied! that such is not its meaning. By reference to the excerpt therefrom, heretofore given,, it will be seen that the petition alleges that:-

“Said defendant companies tortiously and wrongfully continue in the use, of your petitioner’s property, and tortiously and wrongfully prevent your petitioner from in any way using' it, and refuse and neglect to pay your-petitioner the rental value thereof.”

We have already held that the allegations; of the petition negative the idea of a suit on a contract, and fix the status of the action as one sounding in tort, and the complaint contained in the language above quoted is consistent with that ruling, since it is, not that defendants refuse and neglect to pay “rent,” but that defendants refuse and neglect to pay the value of the use of the property, including, not only the right of way and switch track privileges granted by the city, but the switch track, or tracks, of which plaintiff alleges that it is owner, and which were not granted by the city, which value is, in effect, alleged to be the value or “price” at which the property might be leased, if it were susceptible of being leased (for, be it noted, under our law, the consideration moving to the lessor for the use of his property, under the contract of lease, is called the “price” (C. C. art. 2669 et seq.), and the word “rent” is used only in connection with the peculiar contract (emphyteusis, in effect) provided for by C. C. art. 2778 et seq. It is true that plaintiff somewhat further along in its petition avers that a reasonable “rental” for the use of the switch track and all the rights “and privileges pertaining thereto and all the other property of your petitioner would be $2,500 a year,” but in the prayer nothing is said either of rental value or rental, and for the reasons stated we think upon a fair construction of the whole petition the intention is merely to claim compensation for the damage resulting from the alleged tortious and unlawful use. and deprivation of the property based upon the value of such use, as determined in the manner in which such value is ordinarily determined in cases of property subject or susceptible to lease. The exception of no cause of action should therefore have been overruled.

The exception of prescription of one year.

Upon this point the ease falls within the doctrine enunciated in the ease of De Lizardi v. N. O. Canal & Banking Co., 25 La. Ann. 414, in which it was held that, where a plantation belonging to one person is seized and detained under a writ of attachment issued against another, such seizure and detention constitute a quasi offense, and the claim for damages, which is barred by one year, includes that for all rents and revenues, save those arising during the year immediately preceding the filing of the suit, as, also, the claim for the value of sugar and molasses seized with the plantation. See, also, Shields v. Whitock & Brown, 110 La. 714, 34 South. 747.

The exception of the prescription of three years, as we have heretofore held, has m> application and was properly overruled.

For the reasons thus assigned, it is now ordered, adjudged, and decreed that the judgment heretofore rendered by this court be set aside; that the judgment appealed from be avoided and reversed; that the plea of prescription of one year be maintained, as barring plaintiff’s claim for any damage alleged to have been sustained more than one year prior to the service of citation herein; that the plea of prescription of three years be overruled; and that the exceptions of misjoinder and no cause of action be overruled. It is further decreed that this cause be remanded to the district court, to be there proceeded with according to law and to the views expressed in the foregoing opinion. It is further decreed that defendant pay the costs of the appeal, and that the costs of the district court await the final judgment.  