
    NO. 8359
    COURT OF APPEAL PARISH OF ORLEANS
    FRIEDRICHS & DUPAS versus HIBERNIA BANK & TRUST CO. ET AL.
    
      
    
   Dinkelspiel; J.

In order to properly determine the questions in-Ived in this litigation, we give a portion of the plaintiff's petition, which asserts!

"That on Ootober 1, 1930, KKiixpaxtiurtkly plaintiff leased the'premises 335 Carondelet Street and 804 Union Street; oomprising a portion of the lower floor of the building, forming the oorner of Carondelet and Union Streets, in the square bounded by Carondelet, Union, inti» Perdido and. Beronne Streets,
That said premises, 804 Union Street, were leased by said partnership for the purpose of sub-leasing the same, and that5'said partnership could have obtained tenants therefor at a-monthly rental of $150.00 a month, but for the faot that th.e Hi- ’’ bernia Bank.& Trust Company was having constructed by the George A. Fuller Company, a corporation doing business in this City, a 30-story building direotly aorose Union Street from.said prem- ' ■lses, 804 Union'Street, and, in connection with said work, erect-. ■ ed in front of and above said premises, á structure, and also' ' erected bins and/'oontinually piled building matoneas on said ' . 1 sidewalk, thereby rendering said premises uninhabitable or unsuited, for oarryong on-any business therein; that on or about January 11, C 1931, the said George A. -Fuller.. Company, .contractors .of the' Hibernal la Bank A Trust Company,- as aforesaid, removed said structure fro*..'J; Union - Street add plaoed. immediately in front of said premise* -a ohut$/ leading to the upper story of the hew Hibernia Bank A.-Trust Com- • ■ ,;->N pany building, whioh ohute was used to carry all the deferís ,fr«s:; -sj said 30-story building to the street.surf.aos and rendered it.impost - eible to use said premises for any purpose -whatever, and at /or: about that time, said George A, Fuller Company boarded up the.' glass doors of said premises, in order, to prevent the debris frws'j said building across the street breaking the glass thereof»-/; ''

That by the aots hereinfeefore. rbolted of the-said; ■ ‘. •Hibernia Bank A Trust Company, and the /George A» Fuller. Company: petitioner has been deprived of the vise of the said premises, 804 Union Street, since Ootob,er 1, 1920, and is still unable to use the same.

That the construction Of said new Hihernia Bank & Trust Company building aoross the street caused the ground to rise under the floors of said premises, 804 Union Street, and make them buokle up in such a way as to make it impossible to use said premises for any purpose whatsoever, even if the said chute and the purposes for which it is used did not prevent the use thereof.

That petitioner is entitled to a judgment, in solido, against said Hibernia Bank & Trust Company and said George A. Fuller Company, for the rental value of said premises, 804 Union Street, at the nte of $150,00 a month from October 1, 1930, to such time eta said premises are repaired, restored and put in suoh condition that they can be used by tenants, and the said ohute is removed from the street in front of the said premises.

To this petition the Hibernia Bank & Trust Company filed an exception ofi the ground that the petition discloses no right or cauae of aotion. . On the trial of this exception came wrs maintained and the suit dismissed. Hence this appeal.

In support of the exception filed by...the lrsrned counsel for the defendant in this case, they refer us to the case of Heine et al, vs. Herrick st.als, tc be found in the 41st Ann. at from page 195 to 309, wherein the question mainly of party walls end the rights of the owners were fully discussed and the question there was as to the right of the contiguous owners claiming damages. Under the olrcumstences end articles of the Civil Code applicable to same the owners dh03e property had been invaded had not a right to sue in deniegas for such invasion, and it was held:

"In'demolishing the old and building the new p;rty wall, under the conditions fully proved in this case, plaintiffs exero ised an absolute right oonf erred, upon them by the law. Under the maxim neminem laedit q.ui jure suo utitur, they were not bound to indemnify their neighbor for any inconvenience or injury neoee-sarily occassioned by the exeroise of th6 right. Such a work must of necessity incominode the neighbor. It cannot be proseouted without an entry upon and partial occupation of his premises. It must disturb his enjoyment and that of tenants. It may. give ground •for the annulment of his lease or for a diminution of rents. It may prevent the renting of his property» It may injure him in many ways. But so long and in so far as these Injuries are in-eeppar&ble from the exefcise Of the right, the neighbor is bound tc-submit to them and oan claim no indemnity therefor."

The Court gdes on,on page 207 to define the rights of the proprietor:

"But, on the other handj plaintiffs are responsible for every exaggeration of these ne.cessary 'damages, which, by any diligence, they could hvve prevented. They were bound, by every means in their power, to reduce to a minimum the injury and inconvenience occassioned to their neighbor; to occupy his property to the least extent and for the shortest time consistent with the ex-eroise of their right; and to hasten, by all practical means, the completion of the wall and the restoration of the neighbor to.the full enjoyment of his property.

They were, moreover, bound, at their peril, to replace the neighbor, at the end of the work, in a position equal in every respect to that which he occupied in the beginning, and to furnish ■ him a wall fit and.adequate to support hi3 buildings without injury.®

In the case of Levy vs. Fenner and others, 48 Ann. p. 1390, the same questions more or less wore involved. The Court a quo -in tb"t case rsserved the right of the plaintiff to claim for injury to the plastering and papering on the walls and inconvenience oausr-i by the rubbish and debris left- on his premises by defendants snd the expense of the removal of same, as well as for rents lost by the unnecessary protraction of the work — an of his claims icr these items being dismissed-as of non-suit.

The pray in that case was for the recover of $2770.00, ■ for damages incurred as already stated, and there'defendant excepted on the ground:

"That they were not answerable for the damages claimed, because .they had the legal right to build the larger and heavier building whioh they constructed on their property as alleged in the petition, and to’ tear down the old party wall separating said new building from the building of the plaintiff, and to build a new party wall of greater width,.height and thickness than the old one, necessary to support said new and heavier building; and that plaintiff was bound to submit to the loss and inconvenienoe resulting from the proper exeoution of said work.
That, in the exercise of said legal rights,they entered into a oontraot with a competent and trustworthy builder, to construct said new building, including the. demolition and reconstruction hf said party wall, .snd the restoration of the plaintiffs building, all of Whioh he hound himself to do in ^ proper end workmanlike manner; and that they yielded up to said contractor and builder the entire possession and control of said premises and work^. reserving to themselves no direction or oontrol as to the manner-of doing, the work, or ae to the persone whom he should employ therein."

In a Very elaborate opinion in that osee, the .Court finally deo'ided, that notwithetanding absolute right of the owner to do the work required in that oase, yet, if it cannot be proseouted without an- entering upon and partial occupation of the premises, it XXtKBU* may give ground for damages in annulment of leases'-or for diminution of rents, and it may prevent the renting of. his property; but on the other hand plaintiff are .responsible for any exaggeration of these neoessary damages, which, by any diligence, they could have prevented. They were hound, by every means in their power, to reducé to á minimum the' injury and inconvenienoe oooassioned ' to their belghbor; to occupy his property to the least extent and for. the shortest time consistent with the exefoise of their right; and to hasten, by all-praotioal means the completion of 'the wall and the. restoration of the neighbor to the full enjoy- - mént of his property*

They were.moreover, bounds at their .peril, to replace . the neighbor, at the end of the work, in a position equal in every respeot to that which he ocoupied in.the beginning, and ’to furnish him a wail fit and adequate;to support his buildings without injury,"

In the oe.se of Higgins Oil & Fuel Company vs. Ouaranty .defining ■ Oil Co. .145 La. p, 235, the Court la/toMBMig article 491-505 in reference to praxis*»» perfect ownership of the soil, at page 238, quoting from Pothier: "Ownership may be defined to be the right to dispose of a thing as one pleases, provided the rights of others are not thereby infringed, or some law violated."

And-on page 243»’ "When a neighbor has legitimate.' grounds of complaint against' the acts of. another owner, what is the result of the suit he brings? There can be no doubt that the •courts oan allow damages to the extent of the prejudice that has--been caused. The indemnity'must first make good the damage euf-. fered in the past, and not alone that suffered since the'putting in ' default. Article 1146 (1926 La. Code).has np application to mat--ters of offense and quasi offenses. The Courts osn, moreover, award damages in reparation of the prejudice Which will occur in the fu- ' ture, if things- remain in the same condition. So long as the injurious fact -subsists, the prejudice continues to be oertain,' and the - courts may take into consideration-the future oonsequences of this. known fact in order to save the parties from the too frequent renewal of the same suit; the judgment, it is true, in so far as relating- to the future, will-have a conditional character. The oondem- -■ ..nation will be subordinated to the continuance of the aotual pre- ", judioe, which will allow the parties to ask at any time its modi-ficaticn, accordingly as the prejudice may increase or diminish, or cease altogether."

April 30, 1923

For the reasons assigned, it is ordered, adjudged and decreed, that the judgment appealed from, is therefore set aside, the exception of no cause of action overruled, and the case is remanded for trial,

-Judgment reversed and remanded-  