The Police Jury of the Parish of Pointe Coupée v. Charles Gardiner and another, Syndics, 2 Rob. 139

BullaRD, J. Morgan having made a new levee on the front of a tract of land belonging to S. Hiriart, under an adjudication by authority of the Police Jury of Pointe Coupée, obtained an order of seizure and sale from the Parish Judge, in pursuance of the act of the legislature of 1831. That order was opposed, on the ground of irregularity in the proceedings by which the work was adjudicated. The opposition was successful both in the District and the Supreme Court. See 5 La. 43.

Failing in his proceeding in rem, Morgan brought his action against the Police Jury, through the fault of whose agent he had not been able to enforce his lien upon the land. In that action he succeeded in recovering the amount of the price at which the work had been adjudicated. 11 La. 157. The tract of land which had been benefited by the work thus done, was sold by the then owner to Marguerite.A.

Muse, and in the act of sale it is recited, that according to the records of mortgages, no other exists upon the land except the inscription made on the 6th of December, 1831, of the proces-verbctl of an adjudication to Charles Morgan of work to be done on the land for $6000, against the effect of which inscription the vendor agrees to warrant. The land was afterwards sold to Smith, whose syn-dics are the defendants in this case.

The present action is brought by the Police Jury against the syndics of Smith, to cause them to sell the tract of land, that the plaintiffs may be reimbursed out of the proceeds of the sale, they alleging that they have, by law, a privilege on the land for the value of the improvement. M. A. Muse was cited in warranty by the syndics, and she, in her turn, has cited in warranty Hiriart, her vendor.

The parties are, therefore, all before us ; and the pleadings present the question, whether the Police Jury, under all the circumstances of the case, and according to the provisions of the Code, are entitled to be reimbursed, so far as the levee has added to the value of the land. Hiriart, in his answer, denies being bound at all. He says that M. A. Muse has no right to call him in warranty, because at the time of the sale she knew of the situation of the parties, and the alleged claim upon the plantation.

He avers, that if he should owe any thing, which he denies, he owes only the amount which •he has profited, and not the extravagant and enormous sum alleged to have been paid by the Police Jury. He further says that the Police Jury have lost all their claim on him, by their own carelessness and neglect in not giving notice of the repairs rendered necessary. In the case of the Police Jury of New Orleans v.

Hampton, this court held, that although no action could be maintained against the owner for a breach of police regulations, without strict legal notice, yet the jury may recover the value of the repairs put on his property, if they were useful and necessary. The court proceeded upon the great principle of equity, that no man should be permitted to enrich himself at another’s expense. Although this decision was given before the passage of the act of 1831, in virtue of which the adjudication in this case was recorded, the principle remains unaltered. That act gave a

summary remedy to the undertaker employed by the parish, and extraordinary power to the Parish Judge to issue an order of seizure and sale for any amount in such cases. But whenever, by reason of informalities in the notices or other proceedings, the

summary prodess cannot be issued, no good reason suggests itself to our minds why the Police Jury, considered in the light of a negotionm gestor, making repairs to a levee which not only the interest of the proprietor but the general safety required, should not be reimbursed, so far at least as the work had been advantageous to the owner of the land. The question could not be presented in that aspect in a proceeding commencing with an order of seizure and sale, by changing the executory into the via ordinaria, because the Parish Judge has no jurisdiction of such a question.

His power is confined to the is suing of the process in rem, when all the forms of law have been previously complied with. But a privilege upon land for improvements made to levees, bridges, &c., exists independently of the act of 1831. It is recognized by

article 3216, No. 4, of the Code, in these words : “ Those who have worked by the job, or by employing their slaves in the manner directed by the law, or by the regulations of the police, in making or repairing the levees, bridges, ditches, and roads of a proprietor, on the land, the levees, bridges, and roads which have been made or repaired.” The privilege is given, not only to one who by contract or job has repaired levees or bridges, but to any one who has applied his own labor to that purpose, when authorized by the police regulations.

We are by no means disposed to give a narrow construction to this article. The general principles of equity, the best interests of agriculture, and considerations connected with the public safety, alike require, in our opinion, a liberal construction. Wherever, under circumstances contemplated by the police of the parishes bordering upon the Mississippi, an individual or the parish has done any work contemplated by the

article above recited, by which the land on which the improved levee, road, or bridge exists,'has been rendered more valuable — work which the regulations of the police required should be done by the owner himself, that owner is bound ex cequo et bono to -make a proper remuneration; and the land itself is affected by a privilege, and if recorded in the proper office, it passes with the land into the hands of third persons.

If the work has been done by job, the sum is liquidated ; if otherwise, as contemplated in the second clause of the article, the amount is necessarily not ascertained by any previous agreement, and will depend upon the proof of its utility to the proprietor. We find nothing in any previous decisions of the court relative to this case, which militates against the views now expressed of the rights of the parties. On the contrary, the court remarked, in overruling the plea rei judicatce, that such an action appeared to have been expressly reserved. 14 La. 72.

Having thus expressed our views as to the principles which ought to govern in this case upon the merits, we can better understand the force of a bill of exceptions, upon which it is now before us ; for it appears thát on the case being remanded, a new trial took place, during which certain evidence was rejected, and that a judgment was rendered for the defendant, as in case of non-suit, from which this appeal is prosecuted.

The bill of exceptions shows that certain depositions of witnesses were ^ejected on the opposition of the warrantors, on the grounds : first, that the evidence tended to prove the value of the of the work done on the levee, and that such evidence could not be received against third persons, because such third persons could be made indirectly responsible for the value of said work only if á lien attached to the land, and that lien was lost in this case according to the decisions of the Supreme Court in the case of Morgan against The Police Jury; and second, that a part of the evidence tended to show the manner in which the adjudication was made to Morgan, and that that contract was, as to the defendants, res inter alios acta.

We do not think it our duty to notice the attempt made by rule to amend this bill of exceptions, further than to say, that such a proceeding is wholly irregular after judgment signed, and that in our opinion all the objections made to the admission of the depositions are sufficiently before us, whether embodied in the bill, or in the written objections annexed to the interrogatories. It will have been perceived already what our opinion is upon this bill of exceptions. We think the court erred in rejecting.the evidence to show the value of the work, and that it was done under the authority of the Police Jury.

This matter is certainly not decided, as is stated in the bill of exceptions, in any of the cases which have come before this court. If the evidence were offered. to show that the adjudication was conformable to the act of 1831, when on the face of it the contrary is shown, it would be inadmissible. But being of opinion that the land is bound for what has been added to its value by work done under the authority of the Police Jury, we think that, in an action upon a quantum meruit, the evidence to show the increased value of the land ought to have been admitted.

The legal obligation of riparian proprietors to construct levees cannot be questioned. The authority of the Police Juries of the different parishes to regulate the police of levees is eqúally clear, and although the contract made by the parochial authorities may be so defective in form as not to authorize a

summary proceeding to be ordered by the parish judge, yet we have already said that the useful work done by such authority creates a privilege on the land, according to our construction of

article 3216 of the Code. The last inquiry is, what is the amount which the plaintiffs are entitled to' demand 1 It is not necessarily the price at which the work was adjudicated in an informal manner. The value is estimated variously by witnesses, from $6000 to $2000. According to the evidence, the land was rendered more valuable by at least the latter sum. In dubiis, id quod minimum est sequimur.

The judgment of the District Court is therefore reversed, and proceeding to render such judgment as should have been given below, it is further ordered that the defendants, the syndics of Smith’s creditors, pay to the plaintiffs two thousand dollars out of the price of the tract of land; that the syndics recover over against M. A. Muse the same sum; and that she also recover over against Sebastian Hiriart, her warrantor, the said sum of $2000, with interest at five per cent from judicial demand, and the costs in both courts.