Viering v. N. K. Fairbanks Co.

His Honor, EMILE GODCHAUX, rendered the opinion and decree of the Court, as follows: Defendant first pleaded to the jurisdiction of the Civil District Court; and upon this plea being heard and overruled, filed the exception of no cause or right of action. This latter exception was sustained and plaintiff thereupon prosecutes the present appeal. The plea to the jurisdiction, which simply raises the question of whether defendant should be used in the Civil District Court of Orleans Parish or in the District Court of Jefferson Parish, has been waived and need not be considered here, for in its answer to the appeal in this Court, defendant has prayed for an affirmance of the judgment maintaining its exception of no cause of action, without first reserving its plea to the jurisdiction. Plaintiffs are seeking a mandatory injunction ordering the removal of certain posts placed and maintained in and on the sidewalk in front of their property in the City of Gretna by defendant and used by the latter for the purpose of anchoring guy ropes or wires leading to and supporting the smoke stacks of its plant or enterprise for the manufacture of lard and other products located directly across the street from plaintiff’s property. It is charged that the petition states no cause of action because plaintiffs fail to allege any damage or injury peculiar to themselves and not suffered by the public at large by reason of these obstructions in the sidewalk and street. . Plaintiffs, however, do allege that these posts, measuring some twelve inches in diameter and ten feet in height, each laid in a concrete bed of a superficial area of more [132] than 10 feet, are unsightly, interfere with and are a menace to the full anid free use of the sidewalk and prevent the planting of trees and grass in and' about that portion of the sidewalk in which these obstructions are placed. While it is true that plaintiffs in their petition do not use the words “special or peculiar injury,” or like expression indicating merely their appreciation of the effect of the conditions stated, yet the natural anid necessary consequence of the facts alleged to exist, that is, of maintaining unsightly poles and wires on the sidewalk and street directly in front of their property, impeding the full and free use of the public thoroughfare anid interfering with its embellishment by the planting of trees, grass and the like, is not- only to depreciate the value of their property but to retard its enhancement — a consequence clearly not common to others whose property is not similarly situated. The cases in this State are numerous where the right of the proprietor to abate a nuisance on the public thoroughfare in front of his property has been sustained and in at least one case it has been directly held that no special or peculiar injury need be alleged or proved. Dudley vs. Tilton, 14 A. 283. Herbert vs.. Benson, 2 A. 770. Bell vs. Edwards, 37 A. 475. Kuhl vs. St. Bernard, 117 La. 86. Porche vs. Barrow, 134 La. 1090. Bradley vs. Pharr, 45 Ann. 426. The defendant’s further contention is that no right to an injunction is disclosed because the petition affirmatively recites that plaintiffs’ injury is susceptible of compensation by a money judgment. [133] But the principle that an injunction will not lie when a suit at law in damages affords an adequate remedy has no application here. For in this State, at least, the alleged unauthorized erection and maintenance upon the public thoroughfare in front of an individuals property of a permanent obstruction devoted exclusively to a strictly private purpose, constitutes a violation of a property right of the individual; and the strictly statutory remedy expressly granted to him of a mandatory injunction to suppréss the nuisance is not exclusive but cumulative, and merely supplementary to his ordinary action in damages for the injuries sustained. Dudley vs. Tilton, Supra. Kuhl vs. St. Bernard Co. Supra. Finally, even if it be true as suggested, that as to some of the posts and wires at least, defendant is acting under an express grant from the City of Gretna, this nevertheless would afford it no protection. For the authority reposing in said municipality “to exercise full jurisdiction in the matter of streets, sidewalks,” etc., (Section 15, Act 136 of 1898, as amended by Act 11 of 1912), would not sanction the grant of the right, such as is alleged here, of erecting and maintaining the permanent obstructions devoted exclusively to a strictly private enterprise. Mayonne vs. Keegan, 117 La. 670, and authorities heretofore cited. The judgment is accordingly set aside and reversed, the exception of no right or cause of action is rejected and dismissed and the suit is now remanded for further proceedings according to law, defendant paying the costs of appeal, and all other costs awaiting the final determination of the cause. [134] Opinion and decree December 18th, 1916. Rehearing granted January 22nd, 1917. Reversed and remanded.