
    Orleans Navigation Co. v. Municipality No. 2.
    Whore the plaintiffs take nothing by their suit, the defendants should be allowed all their costs.
    When the injury complained of is damage done to the plaintiffs’ works, and the matters in contest arc the actual damages or injury done and sustained, the court will not inquire into the plaintiffs’ titles or chartered rights to make the public works in question.
    Appeal from the parish court for the parish and city of New Orleans.
    This suit commenced by injunction. The plaintiffs allege they have power and authority conferred on them by the laws of the late Orleans Territory, and an act of Congress passed the 3d March, 1807, to dig and make a canal from Lake Pontchartrain to the MississippiKiver. Thatin 1837, they resolved to continue the construction of this canal, from the basin at Canal Carondelet, extending through Basin and Oanal streets to the river, and actually commenced digging and excavating said canal in the middle of Oanal-street, near the river, when the Municipality No. 2 sent a body of men and by force of arms drove petitioners’ agents and workmen away; prevented them from prosecuting said work, and filled up the canal or excavations to a considerable extent; injuring and causing damages to thoir work. That the officers who directed this force are liable, togother with the defendants for the trespass. They pray that the defendants and their officers or agents he perpetually enjoined from molesting and hindering them in prosecuting their works; that their authority and right to make their canal through the middle of Oanal-street he recognized and decreed; and that they have judgment for their damages and costs.
    The defendants pleaded a general denial, and expressly averred that the space of ground running through the middle of Oanal-street is and has been for more than 30 year's, in the exclusive possession and enjoyment of the late mayor, aldermen and inhabitants of the city of New Orleans, and of the public generally, first as part of the commons and now as a public street; [270] and the plaintiffs having acquiesced in said enjoyment, have thereby lost any rights they might ever have had to the same. That the defendants have succeeded by the division of the city to its right of regulating the police of so much of said highway or street, as lies within their limits; and the plaintiffs having illegally taken possession and caused a large hole, or trench or ditch to he dug therein, which they abandoned, and which was filled with stagnant water, injuring and endangering the health of the inhabitants in its neighborhood, they were notified to fill it up, and on failing or refusing, the defendants caused it to be filled up; and that this expense and the illegal acts of the plaintiffs caused them damage to the amount of 500 dollar's, for which they pray judgment in reconvention; and for general relief.
    
      Upon these issues the case was tried. The plaintiffs produced in evidence all their titles, charters, grants, &e., showing their rights and privileges to make the work in question. It appeared that after digging a large ditch in the middle of Oanai-street, near the river, the plaintiffs suspended their work, upon which the ditch filled with water, and in the month of June, on the return of warm weather, the municipality notified them to fill it up, as it had become a nuisance. Upon refusal, the municipality sent its officers with a sufficient force and filled it up at the plaintiffs’ expense.
    The parish judge-was of opinion, upon summing up the case, that the evidence was not sufficient to establish on either side, the damages claimed; and gave judgment dismissing the suit, each party-paying their own costs. The defendants appealed. The plaintiffs prayed an amendment of the judgment in their favor.
    
      Iiennen for the plaintiffs.
    
      darter for the defendants.
   Marti», J.

delivered the opinion of the court.

[271] The plaintiffs in this suit allege that they are owners of a strip of land in the middle of Oanai-street in the city of New Orleans, convoyed to them by the mayor, aldermen, and inhabitants of said city, in pursuance of an act of Congress, for the purpose of digging a canal, connecting the navigation of Lake Pontchartrain with that of the river Mississippi. That they lately began to dig and excavate the canal, and after having progressed therein they were obstructed and prevented by some of the inhabitants; and after-wards the defendants caused the excavations they had made to be filled up and levelled with the ground, to their great injury and damage. They pray for damages and that their title to this strip 'of land may be recognized, and the defendants for ever enjoined from disturbing them in the possession and use thereof.

The defendants pleaded the general issue; and aver that the premises have for upwards'of thirty years been in the exclusive possession and onjoyment of the mayor, aldermen and inhabitants of the city of New Orleans, first as part of the commons of said city, and now forming a part of one of the public streets; that the premises being within the jurisdiction of the defendants ; and the plaintiffs having made a large and deep excavation, which they afterwards abandoned, and left filled with stagnated water, that during the hot season became a great nuisance, they were ordered by the defendants to have it filled up: and on their neglect and refusal, this was effected by the defendants. They pray that they may be allowed the expenses incurred therein, which they claim in reconvention.

The parish court dismissed both parties and ordered that each should pay his own costs. The defendants appealed.

The plaintiffs and appellees have prayed the amendment of the judgment, so that this court may decree to them their title to the premises; and that the defendants he enjoined from disturbing them in the possession and use thereof.

The defendants can have no other ground of complaint than the refusal of the court to give them judgment for the damages occasioned by the [272] wrongful acts of the plaintiffs and their costs.

The record does not containany evidence as to the extent of the damages claimed; the court therefore properly refused to allow any. The dismissal of the petition entitled the defendants to their costs. The court in our opinion erred in not allowing them. Costs are always to be paid by the party cast. The only exceptions to this rule, are perhaps, that stated in the Code of Practice, article 370, and when there is no amicable demand.

The plaintiffs have not stated in their petition any fact which authorizes them to ask that the title claimed by them to the premises be recognized; and that the defendants he prohibited from disturbing them, except the filling up the excavations which they had made and left, by the order of the- defendants, after they (the plaintiffs) had been notified and required to fill them up. The order given for filling up the excavation is not stated as a measure in opposition to the plaintiffs’ title, and the right which they claim to make a canal. The answer and evidence show on the part of the defendants, that it was a regulation of the police calculated to prevent an injury to the health of the inhabitants, resulting from an accumulation of stagnant water, in consequence of the plaintiffs having abandoned the work whioli they had begun.

The answer avers that the premises have been for upwards of thirty years in the exclusive possession and enjoyment of the inhabitants of the city, and now forms a part of one of its principal streets. This is literally true; but the alleged possession and enjoyment stated to have heretofore existed, is not inconsistent with the right which the plaintiffs claim to dig a canal; for the conveyance of the premises to the plaintiffs, is expressly made for this purpose ; and the defendants contend that the possession and enjoyment of them cannot he disturbed by any other means, than those which are intended to carry into effect the object of the conveyance.

It does not appear to us that the parish court erred in refusing to [273] recognize the plaintiffs’ title and perpetuate the injunction which had been granted. The amendment of the judgment asked for by the appellees cannot therefore he allowed.

It is ordered, adjudged and decreed, that the judgment of the parish court be annulled, avoided and reversed; and ours he, that the petition of the plaintiffs be dismissed; and that the rights of the defendants to damages on their plea of reconvention be reserved; the plaintiffs and appellees paying costs in both courts.  