
    No. 3539.
    Dominick Koelmel v. New Orleans, Mobile and Chattanooga Railroad Company.
    The plaintiff claims damages from the defendants on the ground that they have located their railroad so near his dwelling as virtually to destroy its usefulness to him ior the purpose for which it was built.
    It is a valid defense that defendants were authorized by the Legislature and the City Council to plaoe their track where they did.
    APPEAL from the Seventh District Court, parish of Orleans. Oollens, J. Jury trial.
    
      Lyman Hardin, for plaintiff and appellee. John A. Campbell, for defendants and appellants.
   Morgan, J.

The defendants, in curving their track, cut off a portion of the banquette in front of plaintiff’s property. He avers that the building of the railroad in such close proximity to the front of his house and door and the frequent passage of the train thereon have rendered his dwelling extremely uncomfortable and unsafe and dangerous to his wife and children, and that his house is liable to be set on fire on the passage of every train. For this he seeks damages, and a jury awarded him eight hundred dollars.

The answer to his demand is that the defendants were authorized by the Legislature and the City Council to place their track where they did.

This makes it unnecessary to consider the bills of exceptions found in the record.

It is therefore ordered that the judgment of the district court be avoided, annulled and reversed, and that there be judgment in favor of the defendants, with costs in both courts.

Wyly J.,

dissenting. Under act No. 28 of the acts of 1868, the defendants obtained the grant of the right of way along Elysian Fields street and certain other streets of New Orleans, provided said company shall not unnecessarily impair the usefulness and convenience to the public of such streets as its railroad may pass upon.

The grant of the right of way in general terms along the street of a city does not, in my opinion, authorize a railroad company to construct its road on the banquette, devoted to the exclusive use of foot passengers and to the special service due the adjoining property. I do not find from the evidence that the location made by defendants of the road was authorized by law. In my opinion, they had no authority from the State to build their road on the sidewalk on Elysian Fields street, and so near the dwelling house of plaintiff as virtually to destroy its usefulness to him for the purpose for which it was built. In principle there is no difference between destroying the house and destroying its usefulness to the owner.

The plaintiff recovered judgment on the verdict of a jury for eight hundred dollars, which was nearly the value of the property, and I think that judgment should not be disturbed. I therefore dissent.  