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otherwise be without them, but not in order that it should exercise jurisdiction specifically conferred on other courts.

that purpose, and has the effect of prevent- jurisdiction thereby granted was conferred ing the judgment from becoming final. The on this court in order to enable it to afford proposition that, under such circumstances, remedies, in cases in which litigants would a judgment becomes final so as to pass entirely beyond the control of the court as to some part of it and not as to other parts is untenable, and the granting of a rehearing with a restriction should, and must, be construed to mean merely that this court desires further enlightenment upon particular points, and not upon others. The object of the application for rehearing in this case was to prevent the judgment from becoming final, because the applicants desired that, either upon rehearing, or by an order of court without a rehearing, it should be amended, and it was felt that it would be too late to amend it if it were allowed to become final, and, in fact, it is to late if it has become final. The court, however, never intended to render two judgments in the case, nor yet, to leave it partly decided and partly undecided.

The law provides that the judgment of this court shall become final on the 15th calendar day after rendition, unless the last day shall fall on a legal holiday; "provided, that, in the interval, parties in interest shall have the right to apply for rehearing," etc. Act No. 223 of 1908.

Code of Practice:

"Art. 912. In the interval between the day on which the judgment is rendered and that on which it becomes final, a party dissatisfied with the judgment may apply to the court for a new hearing in the cause, and for this purpose shall present a petition, in which he shall state substantially, the reasons for which he thinks the judgment erroneous."

Finally, it is said that, by relegating relators to their appeal, they will be subjected to unnecessary hardship and delay, and that, however it may be decided by the Court of Appeal, the case will, in all probability, be again brought to this court. If, however, the views which we have expressed are well founded, the hardship and delay are not unnecessary, but are the inevitable consequences of the law, rightly interpreted; and if, as a further consequence, the case is again brought here, we shall endeavor to dispose of it, as we are now endeavoring to do, according to our understanding of the law.

For the reasons thus assigned, it is adjudged and decreed that this proceeding be now dismissed, without prejudice to the rights of the litigants upon either side, whether from the fact of the application for, and issuance of, the writ of certiorari, the action heretofore taken by this court in the matter, or its present action. It is further decreed that relators pay all costs.

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MELCHER v. NEW ORLEANS & N. E.
R. CO.

"Art. 913. The court shall consider of the reasons adduced in such petition, without argument, and if it grants a new hearing of the (Supreme Court of Louisiana. March 16, 1914.) cause, shall state the points on which it wishes to hear the parties anew. While the court is

(Syllabus by the Court.)

deliberating on this application, the three days 1. PARTITION (§ 103*)-SALE-RIGHT OF CO(now fifteen days) allowed for rendering a judgment final do not run." (Italics by the court).

We have examined the cases of Levy v. Levy, 117 La. 779, 42 South. 267, and Lahn Co. v. Carr, 120 La. 797, 45 South. 707, to which we have been referred, and, whilst there is, perhaps, some unguardeḍ language used, we do not find that they sustain the views that, pending an application for rehearing in this court, the judgment becomes final, in whole or in part.

3. It is said that the petition to recall the writ of certiorari came too late; that this court will not, on rehearing, consider points not previously urged, and that defendants acquiesced in the judgment as rendered.

OWNERS TO PURCHASE.

There is nothing in Act No. 25 of 1878 which prevents a co-owner from purchasing the property sold under this act to effect a partition, unless there has been some fraud practiced on the minors.

Cent. Dig. § 339; Dec. Dig. § 103.*]
[Ed. Note. For other cases, see Partition,

2. PARTITION (§ 103*)-SALE-RIGHT TO PUB

CHASE.

The fact that one has been a member of a family meeting which recommended the sale of minors' property at private sale does not preclude him from acting as an agent for the purthat at the time of the family meeting he was chase of the property, unless it can be shown acting as the agent of the one who subsequently purchased the property, thereby perpetrating a fraud on the minors.

Cent. Dig. § 339; Dec. Dig. § 103.*]
[Ed. Note. For other cases, see Partition,

Appeal from Civil District Court, Parish of Orleans; E. K. Skinner, Acting Judge.

It is, however, conceded that, if the court was stripped of its jurisdiction by the Constitution of 1913, the delay of defendants could not confer jurisdiction; and, as we have already shown, the constitutional provision on which relators rely has uniformly, since its incorporation in the Constitution of 1879, been authoritatively construed to mean, and hence does mean, that the supervisory Affirmed.

Action by Mrs. Louise Melcher against the New Orleans & Northeastern Railroad Company, to compel specific performance. From judgment for plaintiff, defendant appeals.

Hall, Monroe & Lemann, of New Orleans, for appellant. Suthon & Loomis, of New Orleans, for appellee.

BREAUX, C. J. The purpose of the suit was to compel the defendant to accept title to property sold by plaintiff to defendant.

There is no dispute about the description of the property; it is fully described in plaintiff's petition.

Petitioner, on October 14, 1911, entered into an agreement of sale with the defendant railroad company, by which the defendant agreed to buy the property described in her petition, for the sum of $4,500. Plaintiff's averment is that defendant now refuses to comply with its agreement, evidenced by copy annexed to her petition; that her suit to compel specific performance has become necessary.

The defendant does not specially deny the allegations in the petition. It, through learned counsel, in its answer, questions the validity of the title tendered on the following grounds:

That plaintiff acquired the property from Sumpter D. Marks, who asserts that he bought it from plaintiff herself and certain minor joint owners; that the recital in the act by which Marks acquired the property is precisely the same as that recited in the act by which Marks sold to plaintiff 24 hours after his purchase.

Defendant then recites the particulars of a partition of the property effected in the proceedings conducted in the civil district court for this parish, No. 84,306, Succession of Charlotte Hoelzel, wherein the court ordered that the property be sold at private sale for the purpose of effecting the partition.

The property prior to the petition was owned by the plaintiff and certain minors, in the following proportion: Twenty-nine thirty-seconds to plaintiff, and the remainder, one thirty-second, jointly to Charlotte and Edward Schlagel, minor children of Christian Schlagel; two thirty-seconds to Katie, Lottie, and Caroline Hoelzel, minor children of Louis Hoelzel.

Defendant urged that a family meeting was held for the purpose of recommending a private sale of the property; that upon its recommendation it was sold.

than she could if she had directly become the purchaser of the interest of the minors.

The defendant charges that Sumpter D. Marks was a member of the family meeting held on the 20th of May, 1908, in behalf of the Hoelzel and Schlagel minors, respectively, recommending the sale of the property at private sale; and defendant averred that for this additional reason the said Marks did not acquire a legal title to the property herein involved and could not transfer title to plaintiff.

Defendant urged another objection, which was that the name of Alfred Merchand ap pears as the owner in the chain of titles, whe appears to have bought at sheriff's sale dated December 29, 1873, at which time Henry Kloppenberg, the defendant in the seizure, or seized debtor, was dead, as will appear by reference to proceedings in the late district court, No. 33,264 of the Succession of Henry Kloppenberg; that in 1869 the title had passed from this Kloppenberg to his heirs, and that this last deed was, therefore, null. As to the facts:

There is no question but that the property described in plaintiff's petition formerly belonged to Mrs. Charlotte Hoelzel, widow of Schlagel; that her succession was duly opened, and that Mrs. Melcher, the plaintiff, was one of her legatees; that she became the owner of twenty-nine thirty-seconds of the estate, and that the Schlagel minors owned one thirty-second, and the Hoelzel minors the remainder, two thirty-seconds; that in the proceedings the Schlagel minors, although absent from the state, were duly represented by their guardian and tutrix, Mrs. Clara A. Schlagel, who was in turn represented by John R. Loomis, her duly recognized agent, and that the Hoelzel minors were duly represented by their tutrix, Mrs. Sophia Hoelzel, as evidenced by judgment of the court, dated May 8, 1908; that Mrs. Melcher, as twentynine thirty-seconds owner of the estate, brought suit for partition against the Schlagel minors and the Hoelzel minors, as stated above, April 16, 1908. The two sets of minors answered the suit for a partition, and asked for a family meeting to decide whether the property should be sold at private or public sale to effect a partition. The proceedings were held and have all the appearance of regularity.

The special objection will be hereafter con

The family meeting recommended a sale on behalf of each set of minors, and it reeommended that the property be sold at private sale, for cash, for not less than the appraisement fixed by experts duly appointed.

It appears that Sumpter D. Marks became the owner on May 26, 1908, at private sale. The contention of defendant is that it was not possible for plaintiff to acquire the prop-sidered. erty under the pretense of effecting a parti tion sale in accordance with the provisions of Act 25 of 1878; that to obviate, or in attempting to obviate, this fatal objection, which arose at this time, plaintiff caused the title of the property to be transferred first to Sumpter D. Marks, and the next day by Sumpter D. Marks back to plaintiff, for the same consideration which was recited in the first deed (which had not been paid); that Marks was merely a person interposed for plaintiff, and

One of defendant's objections to the regularity of the actions of the family meeting and its recommendation was that Sumpter D. Marks was a member of the family meeting held on April 27, 1908.

We are informed by the record that on

nizing the different parties as owners of an undivided ownership in the proportions above, also homologating the declarations of the family meeting held in behalf of the two sets of minors, and a full and final partition of the property to be effected by private sale was duly recommended and duly ordered. All parties in interest were referred to a notary to complete the partition.

On May 26, 1908, in compliance with the judgment rendered, plaintiff, Mrs. Louise Melcher, and the two sets of minors, represented as above mentioned, joined in an act of sale of the entire property to Sumpter D. Marks for the price of $6,207.26, which represents the full appraised value of the property as fixed by the experts and by the family meeting.

The funds realized were partitioned, twenty-nine thirty-seconds to Mrs. Melcher, one thirty-second to the Schlagel minors, and two thirty-seconds to the Hoelzel minors.

On May 27, 1908, Sumpter D. Marks conveyed the property, bought the day before, to plaintiff, Mrs. Louise Melcher, for the same price as that recited in the act by which Marks bought the property. The property was bought by Marks to transfer it as he did to Mrs. Melcher, and this has afforded to defendant opportunity to raise the point that he was a person interposed. Of this later.

A joint owner may buy at private as well as at public sale. Nothing to the contrary. Section 2 of Act 25 of the Acts of 1878.

See Fahey v. Fahey, 128 La. 513, 54 South.

973.

[2] Marks had no interest whatever in the property. Why could he not buy as agent? He could also be a member of the family meeting, for he had no interest, and his consenting afterward to act as plaintiff's agent was not contrary to law. He was not plaintiff's agent at the date that he was a member of the family meeting.

It does not appear that the minors' interests were affected in the least. There is no allegation of fraud, and it does not appear that there was either in any part of the proceedings before noted. As Marks had no interest, and committed or sanctioned no fraud, his acts as a member of the family meeting or as agent cannot be successfully pleaded as ground for annulling any part of the proceedings.

As the agency did not exist at the date that he became plaintiff's agent in buying the property, no good reason for setting aside the proceedings which culminated in a sale and partition suggests itself. Nothing suggests that at the time he became a member of the family meeting he had the least idea of subsequently appearing for the plaintiff purchaser and buying the property really for her and not for himself. As a member of the family meeting, he received his appointment from the court. About a month afterward, in buying the property as before stated, his

It remains as a fact that the whole property was sold. There is no question regarding the sale of minors' property, separately and solely, and, if there is, it presents no fatal objection to the title. The price realizact was not inconsistent with his prior served from the sale has been received by the minors. As they have the price, they are without right to the property.

All the proceedings were conducted in accordance with the form of law, and there is no question about the sale on that score, and, we will add, not the least ground for objecting.

All parties interested were regularly and legally parties to the suit. All are bound by the result, and there is no merit for consider

ation.

We stated above that we would take up the objection of the defendant urged on the ground that Sumpter D. Marks was a member of the family meeting of April 27, 1908. The charge particularly is that Marks was a person interposed for convenience sake, and that in taking title he was the agent of plaintiff, and that, as Mrs. Melcher, plaintiff, could not buy the property, neither could her agent, Marks.

[1] It is error to say that plaintiff, Mrs. Melcher, could not buy. A major joint owner is not prohibited from buying. There is no prohibition under the act of 1878, under which the property was sold to effect a partition, nor in any other statute. It must be remembered that the whole of the property was sold and the whole of the proceeds realized were properly distributed.

ice as a member of the family meeting. He had no personal interest at any time.

It follows that, as Mrs. Melcher could buy the property, so could Sumpter D. Marks, who in reality acted as her agent as the testimony shows. The whole property, as above mentioned, was sold to effect a partition under the act of 1878, and the amount realized was properly distributed. The case of Fahey v. Fahey, is determinative of the question. It was held that a co-owner could buy property held in common either at private or at public sale. The owners, who were majors, who held the property in common, had the right to have it sold at private sale to effect the partition, and one of the co-owners of the property had the right to become the adjudicatee at the sale, if a public sale, and to become the owner at private sale, if a private sale. The interest becomes the property of the adjudicatee or the buyer. This was expressly held in the cited case. If any other meaning can be wrested from the text in Gallagher v. Lurges, 116 La. 755, 41 South. 60, and Moore v. Gulf Refining Co., 124 La. 607, 50 South. 596, that meaning is entirely overruled and done away with by the decision in the Fahey Case and also in the present case.

We have stated the other grounds urged by defendant. They are averments only,

and give rise to the unavoidable inference | there is no evidence whatever going to show that that they are not sustained by the facts of

the case.

As to the acts of many years previous, doubtless, the effect of the many years that have elapsed has been to cure all defects, if any ever existed. They are not sustained at all.

We have considered the different propositions of defendant, and have arrived at the conclusion that the title can be safely accepted.

For reasons stated, the judgment of the district court is affirmed.

MONROE, J., concurs in the decree. PROVOSTY, J., absent on account of illness, takes no part.

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FOR
VALUE.

In an expropriation suit for railroad purposes the market value of property taken, viewed both with reference to its use at the time, and with reference to the uses to which it is plainly adapted, will be considered in fixing the value of the land. Dillon on Municipal Cor., vol. 2, p. 617.

[Ed. Note. For other cases, see Eminent Domain, Cent. Dig. § 353; Dec. Dig. § 131.*] 2. EMINENT DOMAIN (§ 134*)-CONDEMNATION FOR RAILROAD-COMPENSATION.

the plantation will be depreciated in value because of such cutting in two.

[Ed. Note.-For other cases, see Eminent Domain, Cent. Dig. § 544; Dec. Dig. § 205.*] 5. EMINENT DOMAIN (§ 111*)-CONDEMNATION FOR RAILROAD-DAMAGES.

Damages might be allowed in expropriation proceedings if the evidence showed that lands in value because of danger to crops, improvealong the track of a railroad were depreciated ments, etc., from fire from passing engines, or from other causes. Lewis on Eminent Domain (3d Ed.) § 740, pp. 1314, 1315.

[Ed. Note. For other cases, see Eminent Domain, Cent. Dig. §§ 294, 298; Dec. Dig. § 111.*]

Appeal from Twenty-Seventh Judicial District Court, Parish of Saint James; Charles T. Wortham, Judge.

Condemnation proceeding by the Yazoo & Mississippi Valley Railroad Company against Mrs. Noemie Teissier, wife of Charles V. Frey. Judgment for plaintiff condemning the land and for defendant for damages, and plaintiff appeals. Modified and affirmed. See also 64 South, 928.

Guion, Lambremont & Hebert, of New Orleans, for appellant. Teissier & Teissier, of New Orleans (Pugh & Himes, of Lutcher, Burt W. Henry, of New Orleans, and Louis Le Bourgeois, of Convent, of counsel), for appellee.

SOMMERVILLE, J. Plaintiff, alleging that its right of way on the front of defendant's plantation has been encroached upon and destroyed by the levee board for the purpose of building a levee along the banks of the river, and that it is necessary for the purposes of carrying on its business to con"A 'strategic value' might be realized by nect its line of rails which come up to ela price fixed by the necessities of one person ther side of defendant's plantation, seeks to buying from another, free to sell or refuse as the price suited. But in a condemnation pro- expropriate a piece of ground 3,410 feet in ceeding the value of the property to the gov-length by 60 feet in width, and containing ernment for its particular use is not a criterion. The owner must be compensated for what has been taken from him, but this is done when he is paid its fair market value for all available uses and purposes." United States v. ChandlerDunbar Co., 229 U. S. 53, 80, 33 Sup. Ct. 667, 678, 57 L. Ed. 1063.

[Ed. Note. For other cases, see Eminent Domain, Cent. Dig. § 356; Dec. Dig. § 134.*] 3. EMINENT DOMAIN (§ 134*)-CONDEMNATION FOR RAILROAD-COMPENSATION-ADAPTABIL

ITY.

Compensation cannot be recovered for the "adaptability" of a strip of land expropriated by a railroad company, where such strip is like the other land on a plantation, and is not a high ridge running through a swampy place, or is more level than other places, or has some special and material advantage for the purpose to which it is to be put. Boom Co. v. Patterson, 98 U. S. 403, 25 L. Ed. 206.

[Ed. Note. For other cases, see Eminent Domain, Cent. Dig. § 356; Dec. Dig. § 134.*] 4. EMINENT DOMAIN (§ 205*)-CONDEMNATION FOR RAILROAD-DAMAGES - DIVISION OF LAND.

In the absence of a preponderance of evidence going to show that damage results to the remaining portions of a plantation by the dividing of it by a railroad track, compensation cannot be allowed therefor, and specially where

4.79 acres, which is described in its petition; and it asks for judgment condemning said strip of land for a sum to be fixed by a jury in the district court.

Defendant answered, setting up that the right of way sought to be expropriated by plaintiff was unnecessary for its railroad purposes, and that some other route than the one indicated could be used by plaintiff with less inconvenience and loss to defendant, and praying that if the right of way should be granted, plaintiff be condemned to pay her the sum of $11,390, with interest and costs.

There was trial by jury, and a verdict was found, and judgment rendered in favor of plaintiff condemning the land, and in favor of defendant against plaintiff in the sum of $8,475, with interest and costs.

Plaintiff has appealed, and defendant has answered, asking for an amendment of the judgment, increasing the amount allowed to the sum of $11,091.97, with interest and costs, and that the judgment appealed from be affirmed as amended.

In her answer defendant claims $3,206.50

ants claimed an increase of value for the "adaptability" of the land sought to be expropriated for a factory site, in the following language:

as the value of the land to be expropriated by We disposed of a similar claim in the plaintiff, and $8,093.50 for damages result-case of Louisiana Ry. & Nav. Co. v. Sarpy, ing to her plantation by reason of the ex- 125 La. 393, 51 South. 434, where defendpropriation. A great many questions were argued and submitted in the course of the trial which become unnecessary to consider here for the reason that the defendant has asked for an increase in and an affirmance of the judgment appealed from. We shall confine our discussion to the points of difference between plaintiff and defendant as to the value of the land expropriated, and the value of the damages.

Defendant, in her answer, alleges the ground to be expropriated to be worth $150 per acre, and that other lands have been damaged worth $112.50 per acre. The evidence is conflicting on this point, and we have fixed the value of the land expropriated at $125 per acre.

[3] The next claim is for $2,000 for "the adaptability of the land" expropriated for railroad purposes. In determining this valuation defendant says:

"The fact that this strip is about 2,000 feet from the present levee, that should new levees be rendered necessary in the future plaintiff will not be compelled to remove its roadbed and tracks for about 25 years to come, and that plaintiff selected this strip with that end in view, adds to the value of this strip because of adaptability for the purposes of plaintiff, and increases its value up to an additional amount of $2,000."

And the husband of defendant, while on the witness stand, testified as to this item:

"I figure that the land was worth as much for adaptability for railroad purposes in proportion to the number of times the railroad would have to purchase other rights of way had they followed the levee and moved back as the levee moved. In other words, the average distance the levee board and the government have moved their levee is 600 feet at a time, and the fact that the railroad right of way would be 2,000 feet would make it worth at least three times as much for eliminating three consecutive movings, and I made it $2,000

round."

There is no doubt that some land, because of its condition, or of its position, is better adapted to a particular purpose than other

lands.

The ground here sought to be expropriated, as is shown by the evidence, is a small strip through a sugar plantation, which is just like the other ground on that plantation, and that it is specially adapted for sugar planting. That condition fixes the market value. The strip of land sought by the railroad company is no better adapted for railroad purposes than are other portions of that same plantation. It is not shown to be any higher, or dryer, or more level than are the other parts of said plantation. The "adaptability" of the strip for railroad purposes is not shown, and a claim for the value of the "adaptability" of the strip of ground is not based upon any sound or reasonable basis,

"The evidence does not show that the land in that neighborhood is sought after for factory sites. It may be in the course of time. That is remote, and cannot be considered in forming an estimate of the value of the land at this time. The place is a large farm, and is valued as such." United States v. Chandler-Dunbar Co., 229 U. S. 53, 80, 33 Sup. Ct. 667, 678 (57 L. Ed. 1063).

[2] In the last-cited case the court say:

price fixed by the necessities of one person "A 'strategic value' might be realized by buying from another, free to sell or refuse, as the price suited. But in a condemnation proceeding, the value of the property to the government for its particular use is not a criterion. The owner must be compensated for what is taken from him, but that is done when he is paid its fair market value for all available uses and purposes."

[1] Mr. Dillon in his work (volume 2, p. 617) says:

"The inquiry in such cases must be, What is the property worth in the market, viewed not merely with reference to the uses to which it is at the time applied, but with reference to the uses to which it is plainly adapted; that is to say, what is it worth from its availability for valuable uses? * * As a general thing, we should say that the compensation to the owner is to be estimated by reference to the uses for which the property is suitable, having regard to the existing business or wants of the community, or such as may be reasonably expected in the future."

This

The next claim is for $500, because the 4.71 acres expropriated are made up of small portions of land taken from 16 acres. claim is based upon what a witness for defendant terms "a premium of selection." He says in answer to a question:

"I put it ($500) because they were selecting a strip crossing the entire property." "I would put a premium upon the selection of any strip without regard to the desire of the proprietor; I believe they should pay a premium in some shape for a strip to suit their desires."

This claim is without merit. The law is that plaintiff has the right to select an available place for its right of way without incurring any penalty for so doing, beyond paying for the property taken at its markėt value, and for such actual damages as the owner of the land may suffer.

We have allowed $125 per acre for the land expropriated because it is small in area, and is, perhaps, worth more than the testimony showed the larger body of land to be worth.

Defendant next itemizes the damages claimed by her, and she has offered testimony in support of each item. In most instances the testimony is insufficient to sustain the several amounts of alleged damages.

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