ORLEANS NAVIGATION COMPANY vs. ALLARD ET ALS., 6 La. 485

Mathews, J., delivered the opinion of the court. In this case the plaintiffs claim the forfeiture of the lake Pontchartrain road, which had been made and constructed by the defendant, Allard, under an agreement entered into between him and the company, in pursuance of rights granted in the charter of incorporation. They pray a judgment ordering that he may deliver up the road to them.. Rabassa, is also made a defendant in the suit, and judgment asked, requiring him to desist from claiming tolls, and to surrender a toll-gate and house in his possession.

The defendants separated in their answers, and the cause was tried separately against each by juries. The defendant Rabassa obtained a verdict in his favor on the first trial. But no verdict was returned in favor of Allard until after two or three mistrials, in consequence of juries not being able to agree. He, however, finally obtained a favorable verdict. Judgments were rendered in favor of both defendants, from which the plaintiffs appealed. The suit is founded on the fourth

section of the agreement entered into between the plaintiffs and Allard, as above stated. The company having authority granted them by the thirteenth

section of the act of incoi-poration, to make a road on each side of the bayou St. John, and after completing and causing to be constructed and completed a road of a specified description on either side of the Bayou, to demand tolls according to a tariff estáblished by the law, contracted with the defendant Allard who undertook to make and construct a road on one side for and in consideration of a right conferred on him to receive the tolls for the term of twenty-two years, áre.

The act which authorised the construction of these roads, required that they should be made of certain materials designated, and constructed in a particular manner and form, which were to be judged of by their commissioners under oath, who were to receive their appointments from the Governor. The work after having been completed by the contractor, was submitted to the inspection of commissioners duly appointed, who reported favorably upon it. The road was received, and tolls collected for the benefit of the undertaker without opposition or interception, until the commencement of the present action.

Where it is clear from the testimony of the case, that a road was not made in conformity to law; but it had been examined and received by persons duly authorised for that purpose. It was held that its origistructure could not be inquired It is clear from the testimony of the cause, that the road in question never was made in conformity with the requisitions of the law. But as it was examined and received by persons duly authorised for the purpose, we are of opinion that its original structure is not to be inquired into in the present case.

The main question on which the decision of this cause rests, arises out of the

section of the contract upon which the action seems to be based. We shall leave out of view the private association under the title of the Pontchartrain Road Company, in which the plaintiffs appear to have taken part, and which was composed of the defendant Allard and others, by agreement subsequent to his contract with the company, as having no bearing on the decision of the case. Nor is it necessary, according to the opinion which we have formed on the merits of the cause, to examine the bills of exception found in the record.

The forfeiture of the defendant’s rights acquired under the contract, and consequent surrender of the road to the plaintiffs, are claimed in consequence of its having been suffered to remain in bad order and condition for want of necessary repairs, which the contractor continued to neglect to make or cause to be made. It is easy to perceive that the question involved in this statement is merely one of fact, to which the jury have the best right to answer. Many witnesses were examined as to the condition of the road at various periods; all persons who had travelled bn it.

The result of their testimony seems to be, that when the weather was dryihe road was good, and that when much rain had fallen or the water from the lake had been blown over it by storms, it was bad, sometimes impassable. These facts, assumed from the testimony, do not, however, clearly establish the main fact, on which alone the plaintiffs have a . right to recover m the present form of action, since the undertaker and constructor continued to neglect to make the necessary repairs. Being a question of fact, the verdict of the jury, as it is not clearly contrary to evidence, ought not to be disturbed.

The verdict and judgment in relation to the defendant Rabassa, may be considered in the light of laries of the main proposition, touching Allard’s rights. of “¡Sact^uTieS tilden™,‘win he distulbed' Strawhridge, for the plaintiffs and appellants. Dennis and Preston, for the defendants and appellees. It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be affirmed with costs.