
    JUNG AND SONS VS SEWERAGE AND WATER BOARD
    No. 8844
    OHARLES E.CLAIBORNE .Judge
    December 11th 1922.
    
      
    
   JUNG AND SONS CO.Appellant. VS. SEWERAGE AND WATER BOARD AND HAMPTON REYNOLDS.

NO.8844

CHARLES P.CLAIBORNE,Judge.

This is damage suit resulting from excavations alleged /N to have been made in front of plaintiff's property by the Sewerage and Water Board to improve a pumping station.

Plaintiff Alleged that for a number of years he had been engaged in the eoal business and for that purpose operated a eoal yard on St.Louis Street near the comer of Broad in the square bounded by Dorgenois and Toulouse ( Conti )y'that said yard served as a substation from which it delivered coal to its customers;that he had golhs to considerable expense in building said yard,by placing in it a wagon scale,laying of plank floor over the ground,fortifying the fences around it by driving pil0B sixteen feet deep to bear the weight of the coal, and building an incline over the sidewalk to facilitate driving into ^and out of the yard;that about the first day of September 1915 the Sewerage and Water Board and Hampton Reynolds began to excavate in front of the pump/ing station of the Sewerage and Water Board on St.Louis and Broad Streets and piled the spoils from said excavations in front of petitioner^ coal yard in such quantity as to prevent all ingress and egress to and from said yard,and to completely hide it from view,notwithstanding petitioners protest;that in order to minimize damages and to prevent a complete suspension of petitioner's business he removed from said yard,the pilings,the scale^and the coal; *■'' that petitioner had to pay the rent of said yard after he had bees deprived of the use of it;that about the 15 th of September all ingress to oiCfrom said yard had been effectually shut off -«fc: by the accumulation of the spoils,and the defendants destroyed his signs in front of his yard;that in order not to lose his identity as a coal dealer and not to discontinue his business petitioner leased' and equipped another coal yard at great expense)that the defendants could have piled their spoils elsewhere and could have carried them away while they were being excavated without injury to petitloner;that the spoils remained piled in front of his yard several monthsjthat in consequmee of those obstruction he has suffered a loss of Seven hundred, and fifty dollars which he claims from both defendants.

The Sewerage and Water Board filed a general denial and futher averred that all excavations were done by virtue of a contract dated Hay 15th 1916 with Hampton Reynolds who was .an independent contractor and for whose aots in executing his contract the Board is not llablejand it annexed the contract to the answer.

For answer 't&s Hampton Reynolds aUmgmkaUmHh, denied all the allegations in plaint if f-Spetition contained . r ' and futher answering averred:" That during September 1915 under oontraot with the Sewerage and Water Board,and under the directions of its engineers,he began an excavation in front of the pumping station of the Sewerage and Water Board at St.Louis and Broad Streets,and piled the spoils from the said excavation on the sides of said excavation and denies the allegations i // contained in the remainder of this paragraph.

*'Further^defei^dant avers that 1^ at no time did he keep on the side of aiti exoavation.more spoils than was absolutely < // necessary to refill the said exoavatlon.

^Further answering defendant avers that whatever work was done by him in the area of drainage pumping station Ho.2 was exeouted under a oontraot with the Hew Orleans Sewerage and Water Board dated May 15th 1915,and under the actual direction of the engineers of that Board j that your defendant is not in any way responsible for any negligence on the part of said/ engineers or of the said Hew Orleans Sewerage and Water Board/ that neither he nor any of his employees have been guilty of.

There was Judgment for -one defendants and the plaintiff has appealed.

In this Court the defendants have rested their defense upon two grounds:

First: That it was not the interferenoe with his bisinesa that Caused the plaintiff to move away from his yard on St. Louis,hut the faot that,prior to any interference^th» plaintiff had intended to move and had leased another yard before any Interiórense,and

Second : that there had been no sufficient interference with his business a*. Justified his moving away^and that the wort had been done with all“proper care and deligenoe. 1st. The conclusions which we have reaohed upon the second point render it unnecessary for us to consider the first point.

It Is a general 4*«b4i44y rule ini' law that no legal liability results from the exercise of a legal right,unless that right has been exercised in a negligent manner or through malice.11 A 711-35A 646-28 A 424-15 A 559-27-A 442-15 A 618 38 A 753 ( brief ) 46 A 521-146 La 818- Cooley onjéorts.P 81 39 Dalloy P 293.

Thus, a ooproprietor of a wall may demolish it and build a higher and whicker wall to support a- heavier building.In the case of Levy vs Fenner 48 A 1389 the Supreme Court, said on Page 1404 : "

*In demolishing the old and building the new party wall, under the conditions .fully proved in this oase,the plaintiff exercised an absolute right conferred upon him by the law. Under the maxim: Ifaminem laedit qui Jure suo utitur" they were not.bound to indemnify their neighbor for any inconvenience or. injury necessarily o'ocasioned by the exercise of the right » i^uch a-work must necessarily incommode the'neighbor.lt cannot be -prosecuted without an entry upon^ and partial occupation of his premises.lt must disturb his enjoyment and that of his tenants.lt may give ground for the annulment of his leases, of for'a diminution of the rente;It may prevent the renting of his property.lt may injure him in many ways.But so long and in so far aB these injuries are lnseperahle from the exercise of the rights,the neighbor is bound to submit to them and oan olaim no indemnity therefor" see also 30 A 30. So an owner may build a fence as high as he pleases between his property and that of Ms neighbor,if his .necessities require it,even through he injures his neighbor’s property 28 A 424.

In Reynolds vs Shreveport 13 A 426 the Court said that the plaintiff had no cause of action against the Oity"for digging down several feet in front of Ms lots,thus leaving his building Mgh above the level of the street,causing the sidewalk inv front of them to crumble away,thus rendering them difficult of aooess,destroying or impairing Ms rents, and making it neoessary for him to go to great expense in excavating Ms lots and lowering Ms buildings" The reason of the ¡decision was that the City had the right,in the exercise of its authority,to lower the grade of the streets and any damage suffered by any citizen was " damnum absque injurie*!-".

In Hamilton vs EBD. 84 A 9S!0 the Court said s

■" A railway company having authority to build or rebuild a bridge across a navigable stream is not responsible ine damagce for the temporary obstructions of the stream by scaffolding or by the construction of a temporary stationary bridge,and for unavoidable, delay in the completion of the bridge."

In Vidalat vs City 43 A 1130 the Court said s

"This olaim of $16,000 damages because access to the Pilie Market on the Foydras Street side was temporarily obstruo- • ted,on-aocount of the banquette adjaoent to the market house being torn up during some two or three months,while the street-WAsr.Uadergoing.repalrSjia wholly without any foundation.
^ UMle it is true that 'tMs. condition of things was suffered to continue much longer than seemed necessary flor a speedy tod-energetic, accomplishment of. the work,yet we cannot detect anything in . the '’evidence that would justify ús in the belief .that teither .the City .pr the..paling company were grossly negligent of their Obligations,or willfully did the plaintiff an injury and it is well established by authority,that such inconveniences as may fairly and legimately result from the making of needed public Improvements,must be submitted to by all citizens of incorporate towns and cities-without compensation; each individual citizen^ being supposed to be recompensed by the enhancement of the general welfare of the community 2 Dillon Mun.Corp.4th Ed.Sec 990 .xxxx This is clearly a case of " damnum Absque injuriáS-” in this respect ".

See also 28 Cyo.1065 ( D ) P.1074 " Unless negligent in the proseoution of the work,a municipality will not be liable for injury to property resulting from the construction of the- a seifter." p.1096 S 11-1315 P 1078 : nor for injury -to business or for the temporary loss of the use of the property during the construction of a public improvement^1 if the work is prosecuted with reasonable diligenoe. *

P.1086 " If the contractor keeps within the terns of his contract and performs the work with proper care and skill he is not liable for damages resulting to contiguous property See P.1316.1340 S 19\\fl But when the subject matter is within the scope of the corporate powers and duties of municipal o'” L. corporations the presumption is even, in favor of the propriety and good faith of their conduct,and the complainant must make out a cleaisfcase of willful oppression to obtain relief from the Counts.See Police Jury of West Baton Rouge vs Bogman 11 A 94 Dubose vs Levee Couirs 11 A 166-167 Avery vs Police Jury 12 A 554 "

The defendants were engaged in. constructing a public improvement,in digging out an excavation-for installing a Bewerage pump.The only question therefore is,did they use proper care and exercise reasonable diligenoe in the performance of their work?

Mr Jung,who was President and manager of the Plaintiff Company which waB in the hands of a reoeiver at the time of the trial of tMa oaaa is the only witness for plaintiff .At the time a that the plaintiff wasAgoing concern they had a dark and also wagons and drivers.Neither the Clerk nor any one of the drivers was called as a witness.We are not satisfied that Mr Jung makes it clear that ingress and egress to and from his ooal yard was at any time necessary for the purpose of his business,or was made impassible while the defendants were at work.Kor do the photographs oonvinoe us that the gate was made impassable.But ifi it was^lt was such temporary inoomrenience as he was compelled to endure.While on the other hand three witnesses testify for the defendants.¡they are s 1.Hyman Rabino-wita^an^ engineer,who was the resident engineer for the Sewerage and Water Board,while the exoavations complained of were going on.He was at the time of the trial working'for Lockett and Co.} 2. Henry F.Webb,an engineer who was,at the time of the excavations ,assistant engineer of the Board^Ln charge.Of the oonstrue-tionj S.Uarcel, Saraaud,an engineer subcontract*» ,who was superintendent for Hampton Reynolds,contractor,for doing the excavating work.They all three testify that there were oarts and men to remove the surplus earth that was excavated and was not needed to refill^and that suoh earth was continuously removed and that,at no time was the gate obstructed for any length of time^and that in the spaoe of one hour they could have removed the mud shown in'photograph P.S^and that Mr Jung never complained to them of obstructions}that the obstructions, if any were all of a temporary character.

In the language of Major Sarsaud:* What I did was what I was required to do,and that was to oxoavate the dirt and placo it on St.Louis Street as it was being excavated,and at the same time have the necessary óarts,eaoh and every day that the dredge'was working,in order to remove the dirt which would, not be later-on necessary to back fill around the completed station^"

The trial judge thought defendants were entitled-to'd-judgment and we think so also.  