City of Alexandria v. Morgan's Louisiana & T. R. & S. S. Co.

Citations

• 109 La. 50
• 33 So. 65
• 1902 La. LEXIS 107

Syllabus

<p>TRIAL — ISSUES — BREACH OF CONTRACT — OBJECTIONS TO EVIDENCE — RAILROADS—RIGHT OF WAY — REVOCATION OF GRANT — LOCATION OF TRACK.</p> <p>1. Issues not raised in the pleading's and as to which evidence, when offered, is objected to, are not entitled to consideration in the determination of the case.</p> <p>2. The passive violation of a contract cannot be taken advantage of without allegation and proof of the putting of the obligor in mora in respect to the thing not done.</p> <p>3. It is error to overrule objections to evidence offered to prove such passive violation where there is no allegation of violation in the particular sought to be proved, and none of putting- in default.</p> <p>4. Where a municipality grants a franchise right of way over certain streets to a railway company, on certain specified conditions, and the grant and conditions are accepted by the company and acted on, and the streets occupied by its tracks, over which cars are operated for years, the power does not exist in the municipal authorities to adjudge a breach of the condition of the grant and revoke the same without notice to the company or opportunity to defend. Certainly so where the ordinance granting- the right did not stipulate such power, or reserve it to the municipality.</p> <p>5. The power to adjudge a breach of contract, or of a grant with conditions, and deprive of vested rights by forfeiture, is judicial in character. It pertains to the courts and not to the grantors of the rights claimed under the grant.</p> <p>6. Where a municipal ordinance grants to a railway company the right to lay a track on a street extending along a river front, provided the inner rail of the track so to be laid shall not be nearer to the outer curb line of the sidewalk of the street than 40 feet, and subsequently a levee is constructed in the street by the state leree authorities, who grant permission to the company to put their track on the top of the levee, the permission cannot be made available wi