New Orleans Gaslight Co. v. Drainage Commission

Citations

• 111 La. 838
• 35 So. 929
• 1903 La. LEXIS 572

Syllabus

<p>GAS COMPANY—FRANCHISE—USE OP STREET-REMOVAL OP MAINS—ACTION POR DAMAGES.</p> <p>1. The plaintiff company was authorized by an act of the General Assembly prior to the Constitution of 1879 to lay pipes and conduits on any of the public ways, alleys and streets of New Orleans where same might be required in such manner as might produce the least inconvenience to the city or its inhabitants. It must be held to have accepted this privilege subject to the paramount and inalienable right of the state to construct or authorize to be constructed by the city sewers or drainage canals under the streets whenever, in its judgment, the public</p> <p>' interests demanded, and in aid of the construction of such sewers to cause the plaintiff company, at its own expense, to change the location of its own mains. The state, in requiring the shifting of .the position of the mains, simply enforced in its own favor one of its reserved rights.</p> <p>2. The rights and obligations of parties are to be tested by the provisions of the Constitution of 1808.</p> <p>3. The plaintiff had no vested right to occupy any particular position in the streets. Such right as it had was ab initio; not an absolute, but an imperfect, right, contingent and conditional in its nature, controlled by law and the regulation of the police authorities.</p> <p>4. The only damage claimed in this action is the sum of money expended by the plaintiff in changing the position of its mains. It is not asserted that the pipes of the plaintiff have been injured by removal, nor that any of its work or material have been or will be utilized by the state or city for their own purposes, or that the value of the franchise has been lessened, or that there has been any physical “taking” of its property.</p> <p>The demand of the plaintiff falls under the rule of damnum absque injuria.</p> <p>Breaux, J., dissenting.</p> <p>(Syllabus by the Court.)</p>