
    No. 12,481.
    Armand Bossu, Dative Testamentary Executor, vs. New Orleans, Fort Jackson & Grand Isle R. R. Company.
    Conceding that the proof is clear to the effect, that an orange orchard was set on fire hy the sparks emitted from a passing locomotive, or by the Are having been communicated to it in a railroad company’s employees carelessly burning off its right of way,no damages can be awarded the owner who has abandoned it, and allowed it to run to waste and become so dilapidated and overgrown with weeds and grass that the extinguishment by Are would prove a benefit rather than an injury to him.
    APPEAL from the Twenty-second Judicial District Court for the Parish of Plaquemines. Hingle, J.
    
    
      Henry Chiapella for Plaintiff, Appellant.
    
      James Wilkinson and E. Howard MaOaleb for Defendant, Appellee».
    Argued and submitted June 18, 1897.
    Opinion handed down June 29, 1897.
    Rehearing refused December 13, 1897.
   On Motion to Dismiss Appeal.

The opinion of the court was delivered by

Watkins, J.

The grounds of the motion are (!) that'this court has no jurisdiction ratione material over this cause; (2) that the amount of damages claimed by the plaintiff is fictitious, exaggerated and inflated, far more than he had reason to believe had been sustained, and only made for the purpose of giving this court appellate jurisdiction of the controversy.

This suit is for damages the deceased is alleged to have-sustained by the destruction of his orange orchard by ñre through the fault and negligence of the defendant, its servants and agents, which are placed at the sum of five thousand two hundred and one dollars; and on the trial there was judgment in favor of the defendant rejecting the plaintiff’s demands, and from which the latter prosecutes this appeal.

While it may be possible — aye, probable — that we may, upon a consideration of the evidence, come to the conclusion that the judgment should be affirmed, we do not regard it as a case which should be summarily dismissed without an examination.

The suit presents all the insignia of a serious demand and an appeal seriously prosecuted.

The motion is denied.

ON the Merits.

Plaintiff alleges that the succession was damaged by the negligent burning by the defendant of three hundred and forty-one bearing orange trees worth twelve dollars each — four thousand and ninety-two dollars, and three hundred and three younger trees worth three dollars each — nine hundred and nine dollars; that is to say, five thousand two hundred and one dollars. The trees are alleged to have been situated in the decedent’s orange grove, about sixty miles below New Orleans, and which was divided by the track 6f the defendant company — the burnt area covering that portion of the orchard which is situated in the rear of the track, constituting about half of the same.

It appears from the record that, shortly previous to the institution of this suit, two gentlemen who resided in the neighborhood of the burnt premises paid a visit thereto at the request of the executor, and made the following estimate of the damages which the deceased had sustained by the fire, viz.:

8(0 large orange trees, -worth 15o. apieoe.$5t no
SOU smaller ones, worth 25u. upieee. 76 00
Total.$126 00

The testimony explains that the orange orchard of the deceased Was completely devastated by a great storm or tidal wave which occurred in the Gulf of Mexico in October, 1893, and which disaster was succeeded by the intense and extreme cold of 1895, whereby the remaining vitality of the orange trees, old and young, was almost completely annihilated — the few surviving being of insignificant value and scarcely worth cultivation, and altogether unproductive.

The testimony shows that subsequent to the aforesaid disasters the deceased took little or no iuterest in his orange orchard, and did not attempt to prune or cultivate it; but, on the contrary, allowed it to grow up in grass and weeds.

Photographs taken of the locus in quo soon after the fire very clearly exhibit the neglected and abandoned condition of that portion of the orchard which was not destroyed by fire, aDd witnesses at the trial supplement the mute evidence furnished by the pictures to the effect that the portion of the orchard which was destroyed by fire was in a similar condition.

It is established by the testimony of witnesses that the fire proved rather a benefit than a disadvantage to the orchard, for the reason that same could not have been otherwise reduced to a cultivatable condition, and in that view the judge a quo seems to have coincided.

It is unnecessary to go into a further detail of the evidence, all of which is of the same character.

The plaintiff has not made out a case for damages.

Judgment affirmed.  