
    No. 1353.
    City of New Orleans, for the use of C. Connell, v. Mrs. Lydia Wire.
    One who has the right to sue in his own name may sue for the use of another.
    A surviving widow, owning one-half of the property of her deceased husband in community, and having a usufructuary right over the other half, under the statute of 1844, is bound personally for the taxes on the property, and she may be sued for the same before any court of competent jurisdiction.
    Where a contractor, in laying the pavement on the banquette in any one of the streets in the city of New Orleans, destroys or takes up the shade trees which have been planted there, he is liable in damages to the owner of the property that owes the taxes for making the pavement. The amount of the damages is a question of evidence.
    APPEAL from the Sixth District Court of New Orleans, Buplanlier, J.
    
      Buchanan & Gilmore, for plaintiff and appellant.
    
      M. M. Cohen, for appellee.
    
      Brief for plaintiff and appellant.
    
    The plaintiff sues the defendant for one-half of the cost of paving with square blocks, and for new curbstones, relaying banquettes, etc., in front of her property on the west side of Tivoli Circle, between Triton Walk and St. Charles streets, done under a contract with the city of New Orleans, bearing date the 19th of September, 1860.
    As the proof is ample that the work was done according to contract, and that the amount sued for is due to the contractor, there is in reality no defence to the main action.
    It is true the defendant denies that she is the owner of the property, which she says belongs to the succession of her deceased husband. But she admits tliat she is widow in community, and as the husband died after the passage of the act of 1844, which gives the usufruct of the share of the pre-deceased spouse to the survivor during widowhood or life, as the case may be, it follows that she is personally liable as owner and usufructuary for the cost of the work in question.
    By her answer, filed on the 16th December, 1865, page 30, she claims, in reconvention, $300 for the value of six trees, alleged to have been removed by the plaintiff»
    
      By a supplemental answer, filed on tlie 29th May, 1866, this demand is increased to §600.
    It is from the judgment of the District Court, allowing the defendant this latter claim in reconvention, that the plaintiff appeals.
    These trees were planted by a tenant of the defendant, on the outer edgeof the banquette, (the public thoroughfare) and had to be removed, it being necessary to do so to lay the new curb and gutter and relay the banquette.
    Thomas, a witness for the defendant, gives it as his opinion that the removal of the trees was unnecessary, and “that the work could have been done without touching the roots, except those of one.”
    * * * Now, we say that the defendant cannot recover for these trees. The very aet of planting them on the public highway is an abandonment of the property in them to the public, and in relaying the banquette, under a contract with the city, the plaintiff had the right to remove them, and was obliged to do so to complete his contract.
    The article 500 of the Civil Code seems to us to dispose of the question. See, also, Digest, book 41, title 1, L 7, § 12. Institutes, book 2, title 1, | 30. Moreau and Carleton’s partidas, vol. 1, p. 359, law 43.
    No claim was made by the defendant for the trees after they had been taken up. They were suffered to lie in the street, in front of her property, until they became worthless.
    This Court will readily perceive that it would have been much easier for the plaintiff to have paved around the trees than to have uprooted them. By taking them up, he was obliged to fill the holes with earth, and cover with bricks — an expense which, could he have permitted the trees to stand, might have been avoided.
    This Court, we feel satisfied, cannot sanction the fanciful and exorbitant value given to these tallow trees by the judgment appealed from. We ask that the judgment on the reconventional demand be reversed, and the demand itself be rejected.
    
      Brief for defendant and appellee.
    
    For answer to said appeal, Mrs. Wire denies that there is any error in the final judgment rendered in the above entitled cause, on the 19 th, and signed on the 25th ult., in so far as the said judgment allows the defendant the sum of §600 in reconvention.
    Wherefore, appellee prays that said judgment for §600 be affirmed, and appellant be decreed to pay costs.
    Further answering, appellee alleges that there is error to her prejudice in the judgment of said Sixth District Court, in so far as said judgment decrees that plaintiff’s suit be maintained, and decrees that he shall recover any sum of money whatever, or have judgment against her; and for the points in which she thinks she has sustained wrong, she respectfully begs leave to refer the Honorable Court to the record in this case, and to the exceptions and bills of exception and rules taken by her in said case in the court below.
    Wherefore, appellee prays that said judgment, so far as it is in favor of appellant, be set aside and reversed, on the points, bills of exception, exceptions and rules taken in the Sixth District Court by her, and that said judgment, so far as it is in her favor, be confirmed, with costs. And she prays for general relief. (See above answer, filed in the Supreme Court, April 8th, 1867.)
    This brief has already become so long that I must apologize for saying so much, by stating the fact that although the amount involved in this case may appear to be small, yet it is not so to this widow, at her time of life, with her limited resources, and her (I might almost say unlimited) age.
    But, as the best apology I can make for trespassing on that time which Your Honors so diligently dedicate to the public service, I will abridge the remaining portion of my brief.
    First, then, as to my exception that the suit is improperly instituted in the name of the city.
    
      Ia support of this position, I content myself with submitting to Your Honors the reasons for sustaining the exception given by the Judge below, who cites Succession of D’Aquin, 9 Ann., 400, and Succession of Fletcher, 12 Ann., 498, to which I add U. S. v. Ilelty Smith, 7 Ann,, 185.
    
    Secondly: On the defendant’s exception to the jurisdiction of the court, I will only say that she is not sued as usufructuary; the petition does not allege that she is enjoying the usufruct; and there is no proof of that fact. Indeed, as it was not alleged, it could not be proved. She is sued for paving done in front of her property. She specially denies that she was owner of the property, and in her ¡Fea furnished the name of all the owners. lYe do not deny the obligations of an usufructuary, wlieu sued as such. But, because an act of tire Legislature gave her the right of usufruct, plaintiff presumes she availed herself of that act, and presumes that she is, indeed, the usufructuary. And this presumption is made to stand in lieu of proof, not only that she is usufructuary, but also owner. Now, we did not come to trial prepared with proof whether she was or not usnfructuary, for no such issue was raised by the pleadings, and she cannot be condemned as usufructuary, on an allegation that she is owner. To say that the usufructuary is owner is a confusion of ideas and an abuse of terms.
    If the foregoing be correct, our other position must follow, viz: that the Second District Court has exclusive jurisdiction m all demands for money against successions. And as plaintiff’s claim is not alleged against the usufructuary, hut against the owner of the property, and the property belongs to the succession, the Sixth District Court has no jurisdiction.
    The authorities on this point are too numerous, and too familiar to this court, to justify me in citing them.
    Thirdly: On defendant’s claim in reconvention.
    Defendant proved on the trial, as this record shows, that prior to the ■8th of May, 1860, (from which date she claims legal interest on $600,) plaintiff illegally removed from said property six trees, worth $100 each, without notice to her; that said trees did not require to be taken up; that he was requested to leave them, but unlawfully refused so to do; that some of said trees were planted in front of his house, and that the other trees were never replaced on said property on Tivoli Circle, and never returned to defendant.
    On the trial, plaintiff contended that defendant could not recover for these trees, because the city had a right to remove them.
    But, if the city had such right, the city never exercised it, nor authorized any one else to exercise it.
    And, there is just here one proof of the impropriety of the suit being ■instituted in the name of the city.
    By this illegal mode of bringing his action, plaintiff seeks to confound all just distinctions, and to blend himself with the city, and with her rights.
    If it be true that the owner of the soil has a right to keep or demolish constructions made by a third person, and if he keeps the works, he owes to the owner of the materials nothing but the reimbursement of their value, and of the price of workmanship.
    Still, as Connell was not the owner of the soil, he had no such rights. Least of all had he the right to appropriate the widow’s trees to his own use, and the adornment of his own private residence.
    In conclusion, I solicit leave to repeat the prayer of my answer to the appeal, pages 12 and 13 of this brief, and to refer Your Honors to the case of De La Croix v. Villere, 11 Ann., 39, in which the Court says:
    “ The injury to real estate is a very different thing from, that apprehended in the cases cited. It is often the case that a present estimate in money, by witnesses, of the damage done by cutting down trees belonging to another, would furnish no adequate compensation to the proprietor.” Ibid, page 40.
    
      And again: “It may be tliat the tree threatened to be cut, is one which he values as an ornament to his dwelling, or one which, in his eyes, is sacred by its associations. There are some things which bonds will not cover, and which cannot be estimated in dollars and cents, and if our laws cannot fully protect the proprietor, in cases like these, it but poorly earns the encomiums which are bestowed upon it. But we have no doubt that it does furnish that protection,” etc. Ibid, p. 41.
   Labauve, J.

The petition of the City of New Orleans, for the use and benefit of Christy Connell, declares that Mrs. Widow Lydia Wire is indebted to petitioner in the sum of $919 78, for one-half of the square blockpaving of the street in front of her property, on the west side of Tivoli Circle, between Triton Walk and St. Charles street, and for new curb-stones, bricking relaid, etc., as per bill, duly certified by the city surveyor.

The defendant excelled to the petition, on the .following grounds:

1. That the suit is improperly instituted in the name of the city, for the use of C. Connell.

2. That the said suit is not instituted by the City of New Orleans.

3. That if said suit be instituted by the city, it should be done by the City Attorney.

4. That C. Connell has no right to institute this suit in the name of the city, because ho thereby gains privileges which the law conferred solely on the City of New Orleans.

This exception was overruled.

'In the contract between the city and said C. Connell, in relation to said work, we find the following clause:

“ The proportion tobe paid by the city in cash, and the proportion to be.paid by the property holders in bills against said property holders, to be made by the city surveyor in conformity with sections 119 and 120 of the new city charter; said bills to be collected by the contractor who shall be subrogated to all the rights of the city to sue and seize the property in case of non-payment of any or all of said bills, and the City o,f New Orleans not to be held liable or responsible for any of said bills, should the same not be paid. ”

Under this stipulation, and the general rule, that one who has the right to sue in his own name, may sue for the use of another. C. Connell is the real plaintiff. We are of opinion that the Court did not err.

The defendant also excepted to the jurisdiction of the Court, upon the following grounds, in substance:

1. Because the defendant is not the owner of the property against which plaintiff’s claim is sought to be enforced; that said property belongs to the succession of David Gould Wire, deceased, her husband, who left several children as his heirs, and this defendant, widow in community; that said succession was opened in the Second District Court in the year 1846, and is now in course of administration and unsettled.

2. Because this Court (District Court) has no jurisdiction in such cases.

3. Because the Second District Court has exclusive jurisdiction in all demands for money against successions.

This exception was properly overruled by the Court.

This is not a claim against the succession; it is a debt of the defendant, who shows that she owns one-half of the property, and that she is usufructuary of the other half under the act of 1844, and is therefore bound for the tax. C. C., Art. 572.

The answer pleads the general issue, and in reconvention the defendant avers that plaintiff is indebted to her in the sum of three hundred dollars, for this; That prior to the 8th of May, 1800, he illegally removed from said property six trees, worth fifty dollars each; that said trees did not require to be taken up; that three of said trees were planted in front of her house, and the other three were never replaced on said property on Tivoli Circle, or returned to defendant. By a supplemental answer, defendant alleges the said six trees to be worth §100 each. She prays accordingly.

The court below gave judgment in favor of plaintiff for the amount of his demand, and also in favor of the defendant, for her reconventional áemand in full, six hundred dollars.

The plaintiff appealed.

We are satisfied that plaintiff made out his case, and that the judgment of the Court in his favor is correct.

The difficulty is in regard to the reconventional demand, for the value of the six trees.

From the'evidence, we are satisfied that the removal of the trees was unnecessary, and their value is the only question.

These trees were on the edge of the banquette, and were taken up by the plaintiff; they had been planted there 4, 5 or 6 years before the paving was done, and were about 7 years old.

One witness, Pagaud, says: “He has such trees planted around his lots, and would not take §200 apiece to have them cut down; that it would take 7 years to replace them. This witness supposes that the trees Cost 2, 3, 4 or §5 apiece.”

Another witness says: “Last year at this time, I bought 97 young tallow tree? which were 5 to 7 feet high, and paid §1 25 apiece; and this year, about 10 days ago, I bought 11, about ten feet high, at §2 50,”

On cross-examination by defendant, he says: “ Trees which had been planted 7 years gave shade, and were an ornament to a property; are worth more than the trees I bought. Such trees are matter of taste, fancy, affection. Some people don’t like such trees at all; some people like a tree they plant better than those planted by another.”

Filié testified that this banquette is 12 feet. “Trees are placed on banquettes of such width, but there is no ordinance permitting trees to be planted.”

‘Another witness, Colman, testified: “That he had tallow trees, and would not have them cut down for one hundred dollars apiece; he does not .pretend to say that they were worth that; he does not know the market value; his trees, he supposed, cost him §2 apiece.”

A witness, who was foreman of C. Connell, says: “That the trees were removed because they were in the way in setting the curb, which could not be set according to the lines given by the surveyor without removing those trees.”

Thomas testified “ that the trees, when taken up, were in a sound condition, and did not require to be taken up. That he was present when the trees were taken out, and he remonstrated with the man for taking them out. The work could have been done without destroying them, and without touching the roots, except one.”

It seems that the court below relied on the testimony of Pilié, the surveyor, and of Thomas, about the necessity of taking the trees out, and disregarded the evidence of the foreman of Connell.

But from the evidence, there was no malice on the part of C. Connell, and it is not a case where vindictive or exemplary damages should be allowed. Yet, we think that, under Art. 1928 of the Civil Code, a fair allowance should be granted the defendant for the loss of convenience and gratification, caused by the trees to the defendant. We are of opinion that one hundred and twenty dollars would be a full indemnification.

It is therefore ordered and decreed that the judgment appealed from, be so amended as to allow the defendant, on her reconventional demand, the sum of one hundred and twenty dollars instead of six hundred, and that, as amended, the said judgment be affirmed, the said defendant and appellee to pay costs of appeal.  