Board of Control of New Orleans Basin Canal & Shell Road v. W. W. Carre Co.

ST. PAUL, J. This is an action for damages to plaintiff’s steam tug boat, said to have been caused by a sunken log belonging to defendant. The log was in the new canal and its presence there is unexplained. There is some conflict of evidence, or rather of opinion among the witnesses, as to the cause of the damages, but [307] the District Judge concluded that the damage was caused by the sunken log, and so do we. We also agree with his finding that plaintiff has sufficiently proved the amount of it damages, and it is not seriously disputed that the log belonged to defendant. The only question of law presented is whether the presence of the log in the canal, and the fact that the damage was caused thereby, are sufficient, prima facie, to charge defendant with the liability. Under Section 12 of Act 144 of 1888, as amended by Act No. 82 of 1896, this would suffice to give the party suffering the damage a cause of action for double damages and costs together with reasonable attorney’s fees. The constitutionality of this feature of the act is attacked, however, on the ground that it is not covered by the title of the act. But as neither double damages nor attorney’s fees are claimed in this appeal, and, as we are of the opinion that under the facts stated plaintiff is entitled to recover the actual damages suffered independently of the provisions contained in the act, we find it unnecessary to express any opinion on the constitutionality thereof. Under Civil Code, Art. 2317, we are responsible for the damage caused by the things which belong to us. When those things are found where they have no right to be and damages ensue we are prima facie responsible. If a person while traveling in the night-time runs into an obstruction in the highway, and it develops that the obstruction was my property, the presumption is that it was placed there by me or by some one for whose acts I am answerable. Accordingly, I am responsible for the damage sustained unless I show that the property was carried away and placed in the highway unknown to me or against my consent. And there is no difference in this respect between a [308] highway and a waterway. It is as unlawful to obstruct the one as the other. It was no more lawful that defendant ’s log should be in the canal than that it should be in the highway; and the presumption is that it came there through some negligence on the part of defendant- or of some one for whose acts defendant is answerable. February 9, 1910. The burden of proof was on defendant to show that the log came into the canal without any fault or negligence on its part, and through the act of some third person without its knowledge or consent. This burden defendant has failed to discharge. The judgment appealed from is correct. Judgment affirmed.