
    Henry Lawrence v. The Second Municipality of New Orleans.
    The owner of land illegally taken for public use by the authorities of a city, may recover its value at the time it was taken, in an action for damages. On the receipt of the damages the property will cease to belong to the plantiff.
    Appeal from the Parish Court of New Orleans, Maurian, J. The plaintiff alleges, that the defendants are indebted to him in the sum of $4100, with legal interest from 1st of December, 1836, for this, that said defendants did in or about that day take possession of a lot of ground belonging to him without any right so to do, converting it to their own and the public use, by making it part of a paved street called Roffignac street; “ so that said lot of ground is no longer the property of petitioner, who has a right to be paid the price and value thereof, by said Municipality, which 'price at the date of said conversion of the property to the public use by defendants, was $4100, &c.” The petition concludes with a prayer for general relief.
    The defendants answered by a general denial: denied that plaintiff had any title to the land in controversy ; averred that it formed part of the land taken to form Roffignac street, in virtue of certain proceedings before the District Court of the First District and that said proceedings had been discontinued.
    
      There was a judgment below declaring that the land belonged to plaintiff, at the time it was taken possession of by defendants; that such conversion to the public use, raised an implied promise on defendants’ part to pay its value at the time, with interest from that time ; and that its value was $4100. From this judgment the defendants appealed.
    Benjamin, for the plaintiff.
    
      Rawle, for the appellants.
   Bullard, J.

In the case of Hullin and Richardson, Syndics of Barrett and Cannon v. The Second Municipality, (11 Rob. 97,) we held, that there was no implied contract on the port of the defendant, arising out of the inchoate proceedings to open Roffig-nac street, and the taking possession of the lots, to pay the sum sued for, as the price of the property, — but that, in our opinion, the plaintiffs might claim the property, or damages for the injury resulting from their having been deprived of it, and that none of the parties could claim any rights under those inchoate proceedings.

In the present case, the owner of another lot, which was taken by the defendants, and retained by them and converted into a street, and thus devoted to public uses, sues for damages, which he estimates at the value of the lot, and that value is shown by proofs independently of the proceedings to open RofBgnac street.

The defendants answered to the petition, that Lawrence, the plaintiff, has no title to the property described in his petition ; and they deny all the allegations. In a supplemental answer, they repeat their denial of the plaintiff’s title, and further allege, that the proceedings to open Roffignac street have been discontinued.

The action is one of trespass, and the only defence is, first, that the property never belonged to the plaintiff; and secondly, that the Municipality has desisted from its plan of improving Roffig-nac street. But the plaintiff has shown that the lot was his property ; that it is worth four thousand one hundred dollars ; that it has been taken by the defendants, made part of a public thoroughfare, and dedicated to public uses. He sues for damages resulting from those unauthorized proceedings, and not for the price as agreed upon, either expressly or tacitly, by the defendants. It is not pretended, as in the case of Hullin, syndic, &c., against the same defendants, that the property is subject to incumbrances, and that the plaintiff is acting en auter droit. It is true, that if the plaintiff in this action of trespass, should recover the value of his property, it would cease to be his; because his recovery and receiving the amount of damages, would imply his assent to the dedication of the lot to the public uses for which it was taken by the defendants. If the defendants had offered to make restoration, and to pay reasonable damages for the detention of the property, as in the last named case, the result might have been different. But they have chosen to rely exclusively on a defence, which is unsustained by the evidence, and we conclude that they are liable for the damages claimed.

Same Case. — Ok a Re-heariNg.

Bullard, J.

A re-hearing was granted in this case on a suggestion, that we had overlooked a bill of exceptions taken to the admission of certain evidence to prove the value of the lot in question. We have reconsidered attentively the questions which the case presents, and are still of opinion, that the pleadings are sufficient to authorize the plaintiff, whose property has been taken for public uses without legal forms, to recover its value; and the only doubt we entertain is, as to the sufficiency of the evidence to prove that value as to the Municipality. We have said, and still think, that the appraisement by the commissioners, which was set aside, and the proceedings to open the street discontinued, is not sufficient evidence of its value, and that the parties can acquire no rights under those inchoate proceedings; nor is the price recited in the conveyances, strictly speaking, legal evidence against the defendants. The value of the lot, at the time it was taken for public uses, ought to be shown distinctly, by legal evidence given in the case. It is for this purpose alone, that we think justice requires the case to be remanded.

The judgment is, therefore, reversed and the case remanded for a new trial; the costs of the appeal to be borne by the ap-pellee.  