CARROLLTON RAIL ROAD COMPANY. vs. AVART ET AL., 9 La. 205

Mathews, J., delivered the opinion of the court. The present suit is instituted in pursuance of the 5th

section of tire act of incorporation approved on the 9th of February, 1833. This

section of the law áuthorises the corporation, in the event of not being able to obtain from the proprietors of land, through which the road might necessarily pass, a title by purchase or in any other manner, to apply to the District Court of the first judicial district, or to the Parish Court of the parish and city of New-Orleans, for the purpose of having a jury summoned to assess the damage which may be occasioned to proprietors for such extent of land taken from them as is deemed by the law necessary for the construction of the road, and in this way to obtain titles. rail road compa-sessecT^them-striP the plantation of an(i constructed the road through dude their in-terwards,SUItand adjudfed16 lai£| them, on^assessment of the dam-according to the provisions of their charter, Previous to the commencement of the present proceedings, the Rail Road Company had obtained possession of a quantity of land sufficient for their purposes in making the road, on parcels of ground or small tracts of land belonging to the defendants, and had actually made the road through these premises.

This circumstance is made the basis of an exception to the legality of the present proceeding of the plaintiffs, to obtain title to the property of which they are thus in possession. The exception was sustained by the court below and the plaintiffs appealed. The evidence of the case does not show the manner in which they obtained possession, whether forcibly or by consent of the defendants. But it must be presumed from the present pursuit to obtain title, that the possession which the plaintiffs now hold is not based on any title.

How this naked possession can preclude them from taking the steps authorised and prescribed by the act to obtain titles, we cannot conceive. There is no penalty of this kind denounced in the law itself as a consequence of taking property, nor are we acquainted with any provisions of the general laws now in force in this state from which such penalty or prohibition may be deduced.

It is, therefore, ordered, adjudged and decreed, that the judgment of the Parish Court be reversed and annulled ; and it is further ordered, adjudged and decreed, that the cause be , remanded to said court to be tried on its merits, and that the appellees pay the costs of this appeal.