Opinion
No. 36106.
April 28, 1941.
Action by George D. Baird against F.E. Thibodo for the alleged difference in value of a sidewalk formerly lying along certain streets, and a sidewalk constructed by defendant to replace the original sidewalk. To review a judgment of the Court of Appeal, 199 So. 585, plaintiff applies for a writ of certiorari or review to the Court of Appeal.
Writ recalled and judgment of the Court of Appeal reinstated and made final.
F.S. Weis, of New Orleans, for applicant.
W.H. Sellers and Edward Rightor, both of New Orleans, for respondents.
This is a suit by George D. Baird, owner of four lots of real estate abutting on Loumor Avenue and Arlington Drive in what is known as the Beverly Knoll Subdivision in the Parish of Jefferson, against the drainage construction company owned by F.E. Thibodo, to recover the alleged difference in the value of the sidewalk formerly lying along these streets and that constructed by the defendant to replace the former sidewalk after its irreparable damage by his company.
The defendant filed a general denial and, on the day of the trial, excepted to the plaintiff's petition on the ground that it disclosed neither a cause nor a right of action. The judge of the First City Court of New Orleans overruled the exceptions but rendered judgment on the merits in defendant's favor, dismissing plaintiff's suit. On appeal to the Court of Appeal for the Parish of Orleans, where the case was tried "de novo," the presiding judge maintained the exceptions. We now have this judgment before us for review on a writ of certiorari or review to the appellate court.
Counsel for plaintiff conceded in his oral argument before this court that at the time he purchased the four lots the sidewalks were already constructed and that while they are adjacent to and abut his property, they form no part thereof, being located on and forming a part of the public streets or thoroughfares of the Parish of Jefferson.
A careful reading of plaintiff's petition discloses that he has not alleged his property was physically damaged by the action of the defendant nor that his property has depreciated in value because of the replacement of this sidewalk with another of inferior quality. Furthermore, there is no allegation in plaintiff's petition from which a conclusion may be drawn that there is any obligation on plaintiff's part to replace the inferior sidewalk by one comparable to that formerly existing along these streets in the event the inferior sidewalk proves inadequate and unsubstantial, or that he will ever in any way be subjected to the payment of any costs because of the inferior construction of the replacement sidewalk. We must, therefore, conclude that the decision of the Court of Appeal maintaining the exceptions of no cause and no right of action is correct.
The authorities cited by the plaintiff in support of his claim have no application to the case at bar, all being cases dealing with the abatement of nuisances.
For the reasons assigned, the writ is recalled and the judgment of the Court of Appeal for the Parish of Orleans is reinstated and made final.
O'NIELL, C.J., takes no part.
HIGGINS, J., concurs in the decree and assigns reasons.
The plaintiff in his petition alleges: "That on a date between August 14, 1939 and August 26, 1939, the exact day being unknown to petitioner, the said Thibodo, entirely without the knowledge and consent of your petitioner, through his agents and representatives, trespassed and entered upon and remained upon and in possession of the above described property (four lots of ground in Beverly Knoll Subdivision, forming the corner of Arlington Drive and Loumor Avenue, Metairie Ridge), belonging to petitioner for two or three days, the exact length of time being unknown to petitioner, and placed upon said property and upon the sidewalks adjacent thereto, above described, large power digging machines and other hand and power machinery and broke and damaged said sidewalk adjacent to petitioner's said property to the loss and detriment of petitioner, * * *."
If these allegations were the only ones in the plaintiff's petition, he might reasonably argue that he is claiming damages for trespassing upon his land. These allegations might also be construed as a claim for damages for depreciating the value of his lots as a result of the destruction of the paved sidewalks, which were later replaced by inferior ones. However, the plaintiff has made other specific allegations which modify and limit these general ones, because he states that his loss was sustained "* * * in the following respects, to-wit: by damaging and breaking the said sidewalks to such an extent as to make it necessary to reconstruct them." The remaining allegations in the petition show that petitioner limits his claim for damages to the difference between the value of the paved sidewalks which were destroyed and the costs of the inferior paved sidewalks with which they were replaced.
I, therefore, agree with the conclusion that the petitioner is claiming reimbursement as a result of damages to the paved sidewalks and not damages for trespassing on his lots or causing their value to be depreciated.
For these reasons, I concur in the decree.