
    No. 11,790.
    New Orleans, Fort Jackson & Grand Isle Railroad vs. Mrs. Ada C. McNeely.
    
      Effect of Remittitur on Appeal. — A. remittitur by defendant of part of bis claim in reconvenfciott, after the verdict has been rendered, does not prejudice the ap - pellant’s right of appeal.
    
      Filing of Transcript. — The transcript of appeal was filed within the delay allowed.
    
      Jury’s Valuation of Property. — Although the defendant does not interpose an answer, or file any claim for the value .of property, a decree of expropriation must be preceded by and based upon a valuation of the property by the jury.
    
      Verdict. — A jury’s verdict is entitled to great weight in the expropriation proceedings, fixing the value of land sought to be expropriated, and will be annulled only when manifestly erroneous.
    APPEAL from the Civil District Court for the Parish of Orleans. Rightor, J.
    
    
      James Wilkinson for Plaintiff, Appellant.
    
      Thomas F. Maher for Defendant, Appellee.
    Argued and submitted May 8, 1895.
    Opinion handed down June 3, 1895.
    Opinion refusing rehearing June 21, 1895.
    On Motion to Dismiss.
   The opinion of the court was delivered by

Breaux, J.

The plaintiff sues to expropriate a small triangular lot of ground situated in Algiers. Plaintiff tendered to the defendant the sum of fifty dollars for the lot, which the latter declined to accept.

The defendant denies plaintiff’s allegation, and reconvened for damages and attorney’s fees, which she fixes at more than three thousand dollars. The jury’s verdict sustained the prayer to expropriate the land and assessed the value of the land expropriated at five hundred dollars. After the verdict the defendant abandoned his demands in reconvention for damages, and entered a remittitur of one dollar, thereby reducing the verdict tn four hundred and ninety-nine dollars, and judgment was signed for the amount last stated.

The defendant moves to dismiss the appeal on the ground that this court is without jurisdiction ratione materise; on the grounds, further, that the transcript was not filed in time, and, lastly, that the plaintiff did not deposit the amount of the judgment with the sheriff.

With reference to the jurisdiction of this oourt, ratione materise, it is settled that a remittitur after the verdict has no more effect on the rights of the appellant than a remittitur has after judgment in a ease not tried by jury. It is governed by the same rule in so far as relates to appellant’s right of appeal.

In Gayden vs. Railroad Company, 39 An. 269, 271, the court decided that a remittitur entered after the verdict did not prejudice the defendant’s right to appeal, and cited several decisions in support of the court’s conclusion.

RELATIVE TO THE FILING OF THE TRANSCRIPT.

The delays had not elapsed, and the plaintiff was within the required time when it was filed in this court on the 4th of April.

The order of appeal was granted on the 19th day of March. The plaintiff’s transcript was filed within the three judicial days allowed by this court and the delay of fifteen days provided by a special statute. R. S. 1490; C. P. 589.

REGARDING A DEPOSIT OF THE AMOUNT OF THE JUDGMENT WITH THE SHERIFF.

The effect of the deposit by the corporation is to pass title from the owner to the corporation. It does not relate to the right of appeal. It remains unaffected by the deposit.

On the Merits.

The defendant, having abandoned her reconventional demand, must be confined to the amount of the verdict and judgment of the District Oourt. She having formally entered an abandonment of all damages can not claim more than the amount allowed by the jury.

The plaintiff urges that the defendant having confined his pleadings to allegations of damages, and not having pleaded that the propertysoughtto.be expropriated was of greater value than the amount tendered, the jury was without power in law to give a verdict for a larger amount than that tendered, viz.: fifty dollars.

Under the statute the jury “shall, by a verdict in which at least three-fourths of their number shall concur, determine, after hearing the parties and the evidence, what is the value of the land.” Sec. 1481, R. S.

The law’s provision is that they shall fix the value of the land sought to be expropriated. Moreover, all of defendant’s witnesses were heard under the plea of general denial regarding the value of the property, without any objection on the ground urged. There was a joinder of issue regarding the value of the land in question, but even if there had not been, on a confirmation of default, without claim on part of the defendant for its value, the jury would have to determine the value of the land. It is a prerequisite to a decree of expropriation.

This brings us to the question of the value of the property.

The learned judge was inclined to view the estimate of the jury as exaggerated. But he added in his reasons for overruling the motion for a new trial that the jury was exceptionally intelligent and a careful body of men; that they visited the premises at the request of both the plaintiff and the defendant.

He approved the verdict by the judgment.

The plaintiff invokes the fact that the property owned by the defendant was bought for much less than the appraisement of the value fixed by the witnesses for the defendant.

The last deed of purchase dates from several years prior to the suit for expropriation.

Several of the witnesses testified that the property has of late ap - predated in value.

The plaintiff claims that by locating its track and by improving and draining its road, it reclaimed defendant’s property and removed from it the dampness and seepage.

We infer that this betterment was not considered as a basis for a claim against the defendant, prior to the suit for expropriation.

The witnesses greatly differ in their estimates of the value of the' property — i. e., the two lots and improvements.

It varies from twenty-eight hundred to less than five thousand dollars.

The witnesses for the plaintiff estimate it at much less. They fix the value of the lot, unimproved, at about four hundred dollars, and upon that basis of valuation the triangular lot expropriated would be of very little value, as it is quite small as compared with the lot from which it was taken.

If the preponderance of the testimony regarding the value of this lot were with the plaintiff, the calculation of plaintiff’s witnesses would not be an exclusive method of establishing value.

In estimating the value of a fractional part of a tract of land, the locality of the fractional part, the inconvenience it occasions to separate it from the main tract and the value it may have, without reference to the whole, may be considered.

“ Where there is evidence to sustain the verdict and the testimony is conflicting, the court will not interfere; and especially is this the case where the jury have viewed the premises.” Lewis on Eminent Domain, p. 824.

In addition to the testimony of witnesses — experts—as to value of the land; a lease made by the defendant to the plaintiff of the land sought to be expropriated, has some bearing upon the question.

The plaintiff, during three years, paid to the defendant fifty dollars per annum rent for the property.

It is explained that it was deemed preferable, as it was important to proceed without delay in laying the track, to enter into a lease with the defendant in 1891 than to incur the delay and expense of expropriating the property.

This explanation has great force; indeed, it is conclusive as to the first year of the lease.

But the plaintiff, in the contract of lease, reserved the right to cancel the lease at any time, and yet continued without attempting to exercise that right, to pay rental in an amount which proved that the property had considerable value.

The jury examined the property, after having heard the witnesses.

In expropriation proceedings juries have, in some respect, the character and authority of experts. Their verdict will not be annulled on appeal, unless manifestly erroneous. New Orleans, Fort Jackson & Grand Isle Railroad Company vs. Eugene Rabasse, 44 An. 178, 183.

Under the law and the evidence, the verdict and judgment appealed from seems to have done substantial justice.

Judgment for defendant, and affirming the judgment of the District Court, at appellants’ costs.

On Application por Rehearing.

The gravamen of plaintiff’s'complaints in the application for a rehearing are: That the court has not passed on the bill of exceptions taken by it to the judge’s charge contained in the record and referred to in the original brief;

That the court and jury decided issues not presented by the pleadings, and ultra petitem;

That the decision is not accordant with a former decision, New Orleans, Fort Jackson & Grand Isle Railroad Company vs. Mrs. Elizabeth Barton, 43 An. 171;

That the amount allowed is too large.

The District Court refused to charge the jury that any damages suffered by the defendant could be offset by any improvements or advantages accruing to defendant by reason of the construction of plaintiffs on or near the property sought to be expropiiated.

During the examination of the witnesses the plaintiff introduced evidence of a change made by it, in the location of a levee, of the drainage of property, and other improvements beneficial to defendant (it was alleged). The District Judge was not impressed by the evidence of drainage and improvements. He determined that whatever benefits were realized by the plaintiff were not chargeable to the defendant as an offset to the value of the property plaintiff sought to expropriate.

The issue was the “value of the land described in the petition with its improvements and what damages, if any, the owner would sustain in addition to the loss of land by expropriation.” Sec. 1481 R. S. The theory and conclusion of our original opinion were that the District Judge did not err in confining the issue under the terms of the statute and in refusing to give the instructions requested.

WITH REFERENOE TO THE DECISION BEINI ULTRA THE ISSUES OF THE CASE.

The facts are that although the defendant after the verdict discontinued her demand for damages in order to defeat plaintiff’s right of appeal; the jury had not allowed any damages, as will be seen by the verdict.

“ We fix the value of the land expropriated at $500.”

The defendant abandoned'a claim rejected by the jury, also one dollar on the value of the land expropriated.

The question of the value of the land remained an issue.

The defendant was not committed by an admission as to the value.

There was a defence interposed.

Even without a defence on the confirmation of a default in expropriation proceedings it would have been the jury’s function to assess the correct value of the land.

RELATIVE TO THE DECISION IN THE BARTON CASE CITED AND COMMENTED UPON, AND TO THE AMOUNT OE THE VERDICT.

The facts are not absolutely the same in the case cited and the case here.

It was in proof that the land in controversy in the Barton case • was part of the batture and subject to overflow every year.

In the case here there is no such damaging proof.

We thought and still think that the jury, commended by the District Judge as “ exceptionally intelligent and a careful body of men,” who had visited the premises in question at the request of both parties,” had correctly fixed the value of the land.

The verdict of the jury was unanimous.

In Telegraphic Cable Co. vs. Railway Co., 43 An. 522 and 523, this court said:

“ It has long been held in this State that the jury of freeholders, authorized by our laws to act in expropriation proceedings, have, to some extent, the character and authority of experts supposed to have some personal knowledge of the matters submitted to them, and authorized to rely in their opinions as well as on the testimony adduced before them. Their verdicts are, indeed, subject to review by appeal, and may be amended when manifestly inadequate or excessive, but they are entitled to great respect, and will Dot be interfered with, except in cases of gross or manifest error.” Citing Carrollton Railroad vs. Avart, 11 La. 190; Remy vs. Municipality, 12 An. 500.

Here, as in that case, the award has no feature “ of gross and manifest excess.”  