Gurley v. City of New Orleans

Citations

• 124 La. 390
• 50 So. 411
• 1909 La. LEXIS 474

Syllabus

<p>1. Municipal Corporations (§§ 292, 294, 330*) — Street Pavement — Charter Requirements — Compliance With.</p> <p>Charter of New Orleans (Acts 1896, p. 46, No. 45), as amended by Acts 1902, p. 430, No. 215, providing that, where the cost of pavement is to fall in part on property owners, it can be ordered only when petitioned for, and that such owners shall have the right to prescribe what kind of pavement shall be used, and that the petition must be published during four weeks and the work done by contract awarded to the lowest bidder after advertisement, must be strictly observed.</p> <p>2. Municipal Corporations (§ 294*) — Street Pavement — Publication of Petition.</p> <p>A street pavement petition asking that the pavement be “with rock asphalt, pitch asphalt, or bitulithic” was so published, but placed, however, under an official caption which stated, both in its headlines and body, that the paving was to be with asphalt, so that any one who assumed that the caption correctly stated the nature of the petition and read it only would have been misled into the belief that the paving was to be with asphalt, and not notified of the intention to make it of bitulithic. Held, that the publication of the petition under such a misleading caption was not a compliance with the law requiring the petition to be published.</p> <p>3. Municipal Corporations (§ 319*) — Street Pavement — Estoppel of Property Owner to Object.</p> <p>An abutting owner who petitioned that pavement be with’ rock asphalt, pitch asphalt, or bitulithic is estopped to restrain the city from contracting for bitulithic on the theory that as it is a patented pavement, and requires the use of materials protected by trade-marks, there could be no competition in bidding on the contract.</p> <p>4. Abatement and Revival (§ 84*) — Waiver of Question of Abatement.</p> <p>The question whether a suit has or has not abated is waived by filing an exception of no cause of action.</p> <p>5. Abatement and Revival (§ 52*