
    No. 8551.
    New Orleans & Pacific Railroad Co. vs. Mary J. Robertson.
    The obvious meaning and intent of Section 4 of Act 14 of 1876, the legislative charter of the plaintiff Company, were to secure Shreveport as the northwestern terminus, and to prevent the Company from evading this requirement by building connections to other possible termini, under the name of branches, before completing the line to Shreveport. The Company had the right to begin its route at Baton Rouge, or to build via that point, and the construction of the Baton Rouge branch, while the main liuc was in process of completion, did not violate the spiiit or meaning of the law.
    Our expropriation laws and the summary proceedings therein, are not violative of the present Constitution of the State.
    The route to he pursued by the road is not among the issues submitted to the jury under the expropriation proceedings.
    APPEAL from the Twenty-third Judicial District Court, Parish of West Baton Rouge. Oole, J.
    
      Kennard, Howe & Prentiss, for Plaintiff and Appellee :
    1. Expropriation proceedings are conducted under a special law, which prescribes exact formalities, and are not to he governed by the general rulesprescribed by Code of Practice. Rev. Stats., Secs. 1479 to 1493.
    2. The Corporation of the New Orleans Pacific Railway was created under the general law, and confirmed and extended by Act of Legislature — right to expropriate not derived from the special act; amply provided for under the general law.
    3. Line to Baton Rouge not a branch line in the legal sense of the term. Under Charter, Company could have commenced originally at Baton Rouge. Charter, Art. 3, Sec, 1, Acts 1876, No. 14. At all events, defendant has no standing in Court to complain, if Company-bad no right to build so-called biaueh road. Possibly State might have complained.
    4. Art. 258, Const. 1879, misconstructed by defendant.
    5. Question as to proper line to be selected is not for jury to decide ; this privilege granted specifically to the Company in Charter, Art. 3, Sec. 1.
    6. Where right of way only is claimed, benefits may offset price of same.
    7. The rulings of the Judge ila quo," ou admissibility of evidence correct — except in regard to fences. He allowed the jury to consider whether fences are necessary. This is an error. There is no law in Louisiana requiring railroads to fence, and until the Legislature requires fencing, no damages can he allowed against Railroad Companies for not fencing.
    
      Barrow & Pope, for Defendant and Appellant:
    1. The proceedings authorized by Arts. C. 0. 2630 to 2641 to expropriate property, do not authorize summary proceedings. Summary proceedings must be expressly permitted. C. P. Arts. 754, 755; 22 An. 245; 14 An. 390; 32 An. 474. In summary proceedings time is granted to plead and procure evidence. 4 R. p. 59.
    2. When an act of the Legislature creates a corporation, and authorizes it to expropriate lands, this object must be expressed in the title. Const. 1868, Art. 114; Const. 1879, Art. 29.
    3. Where a charter authorizes a railroad to construct such branch railroads “ as a majority of the directors of the company should deem proper, expedient and to the interest of the company,” the company seeking to expropriate lands for a branch, must show “ a resolution of the board authorizing its construction.” This is neither averred or proved.
    4. Where the charter, authorizing the construction of a railroad to Shreveport, La., from New Orleans, as the main line, provides “the main line shall be completed to Shreveport before any branches are constructed,” (it being admitted the main line is not completed) the corporation cannot expropriate land for a branch. The exercise of the power is ultra vires. Field on Corporations, p. 66, Sec. 53; Sec. 248, p. 270; 13 Peters, 519 ; Firemen’s Loan, etc., Co. vs. Carroll, 5 Barb., 613.
    5. The completion of the main line to Shreveport is a condition precedent to the right to undertake a branch road. Hen. Dig., No 2,,p. 1152, B. 3; Bank of Augusta vs. Earle, 13 Peters, 519. The provision is prohibitory and any one can plead it. C. C. 12 ; Stevens vs. Erie R. R. Co., 51 N. J. Eq., 259.
    6. Under the restrictive provisions of the Constitution of 1879, the Legislature cannot delegate to a railroad, a private corporation in which the State has no stock or interest whatever, authority 1 o expropriate private property. The reason for the law having ceased, the law itself ceases. The Const. 1879, Art. 258; Mills on Eminent Domain. § 48; 46 N. Y., 546.
    7. When defendant avers the ronleselected by a railroad through bis lands are “not necessary” for the railroad, but another less injurious to defendant is equally as convenient for the railroad, the pleadings present a question of fact, which should be submitted to the jury. C. C. 700 (696); 32 An. 475.
    8. Only such benefits, prior to the Constitution of 1879, as were peculiar to the lands remaining, after the Company bad taken a part, could be offset against the damages done; but underthe Constitution of 1879, bolh value of the land taken and damages to that remaining must be previously paid. Consequently there can be no offset. It is error to charge, therefore, that benefits which are common to defendant and others'along the road can be offset. 15 An. 482; Const 1879, Arts. 156 and 155.
    9. It is an error to charge the jury that they can substitute their individual knowledge for or against the evidence in an expropriation case. C. C. Arts 2632 2634. The elements of damages claimed are sustained by the following authorities: Winona, etc , R. R. Co. vs. Denman, 10 Miün. 267; Raleigh, etc., R. R. Co. vs. Wicker, 74 N. C. 220; Louisville, etc., R. R. Co. vs. Glazebrook, 1 Brush. 225; Cooley, Const! Lim. p. 566, and note; Somerville and Easton R. R. Co. vs Doughei’ty, 2 Zeb. 495; Mills on Em. Domain, § 166 ; Field on Corporations, Sec. 450 ; R. S. Sec. 1481.
   The opinion of the Court was delivered by

Fenner, J.

The defendant is appellant from the judgment of the Court a qua, rendered on the verdict of a jury of freeholders, expropriating a right of way across her lands for the construction of defendant’s railroad.

Various defenses are urged.

1. It is urged that the property was sought tobe expropriated for the purpose of building a branch road from Baton Rouge to the main trunk-line of the plaintiff’s railway from New Orleans to Shreveport; that said main line had not been completed to Shreveport, and plaintiff’s charter prohibited the construction of any branches, until after the main line liad been completed to Shreveport.

The plaintiff corporation was originally organized under the general laws of the State, with power and authority to construct a railroad, “ beginning at a point on the Mississippi river atNew Orleans, or between New Orleans and Baton Rouge, * * running thence toward and to the city of Shreveport, or the city of Marshall or Dallas, in the State of Texas, in such direction and route or routes as said Company shall fix, and with such connecting branches in the State of Louisiana as may be deemed proper.” It was further authorized to construct branch roads beyond the State of Louisiana, “ to connect their main line with any other line or lines in other States, which shall authorize the exercise of said privilege within their limits.”

In 1876, the Legislature passed Act No. 14 of that year, in which it recited at length the Notarial Charter, and then provided that its “term of existence be so extended as that the said Company, by its name, and under the aforesaid articles of incorporation, shall have perpetual succession.” It further enacted “ that Shreveport, in Louisiana, shall be the northwestern terminus of said New Orleans and Pacific Railway, and that the main line shall be completed to Shreveport before any branches are constructed.”

The obvious purpose of this provision was to secure Shreveport as the northwestern terminus of the road, and to eliminate the option reserved in the original charter of making Marshall or Dallas the terminus, and to prevent the Company from evading this requirement by building connections to Marshall or Dallas, or other possible termini, under the name or pretense of branches, before completing the line to Shreveport. The Company had the right to begin its line at Baton Rouge, or to run it from New Orleans via Baton Rouge ; and when its line to Shreveport passed within a few. miles of Baton Rouge, there was no conceivable violation of the purpose and meaning of the law, in building a connection with that point. This in no manner interfered with Shreveport as the objective terminus. There is no pretense that this connection operated or was intended to operate any evasion of the requirement to make Shreveport the north western terminus.

Moreover, tho prohibition of the law is levelled merely against the construction of any branch before completion of the main line. It is doubtful, if this wonld prevent the necessary antecedent preparations for construction, while the main line was being, in good faith, pushed to completion, such as expropriations, surveys, etc. Of course, the expropriation could be availed of only for purposes of construction, and would amount to nothing until the construction could be lawfully begun. No question of untimely construction is presented in this case.

2. The objections to the title of the Act 14 of 1876, to the summary character of the proceedings and to the constitutionality of our expropriation laws, seem to us without weight.

3. We can discover no authority under our expropriation laws for submitting to the jury the question of the propriety of the route selected. The function of the jury is expressly confined to determining what the value of tho land described in the petition, with its improvements, and what damages, if any, the owner would sustain in addition to the loss of the land by its expropriation ? ” C. C. 2632. This Court has extended that function so as to embrace the quantity of land required and nature of the estate. N. O. P. Railway Co. vs. Gay, 31 An. 430. Same, 32 An. 471.

We are now asked further to extend it, so as to enable the jury to determine the route of the road. This would be going too far. If juries might exercise this function, our railroads might be made as crooked as cow paths.

4. We have examined the charge of the Judge, and find it unobjectionhle.

5. We find no such error in the verdict of the jury on the facts, as to jnstify us in disturbing it.

Judgment affirmed at appellant’s cost.

Levy, J., absent.  