New Orleans & Carrollton Railroad v. Second Municipality of New Orleans

The judgment of the court was pronouced by Edstts, C. J.* The railroad company claim the right of malting a turn-out, near the terminus of their steam transportation in Nayades street, in the neighborhood of Tivoli Circle, in the Second Municipality, leading from the main track to a lot belonging to the company, situated at the termination of Nayades street, near Tivoli Circle. It is proved that they have erected the necessaiy buildings, and prepared the requisite machinery on this lot for reversing the steam engine and other purposes, and that a communication by railway to the main track is necessary for the public convenience and for the preservation of the engines, cars, &c.; and that without this communication, the cars, with the engine attached, are obliged to be backed a distance of eight squares; which is attended with risk to passengers and very injurious to the rails. The right to establish the railroad on Nayades street is granted to this company by the fourth section of the charter. By an ordinance of the Council of the Municipality of 1833, the privilege of extending the road down Baronne street to Canal street was granted. Some dissatisfaction having been manifested by the citizens residing on Ba-ronne street, the company ceased to run their steam engine on that street, and terminated the steam route near the Tivoli Circle, notwithstanding an act of the legislature of 1843 gave the company the right to run their locomotives through Baronne street as far down as Canal street. We thought it but just that the company should have some place at the terminus of their steam route for a depot, and suggested that a subject of this kind could be much better settled by the good judgment of those charged with the administration and police of the Municipality and those to whom the interests of stockholders are committed, than by a decision of a court of law, inasmuch as we believed the interests of the company and the public convenience were identical. We also were averse to interfere with the police power, which the [129] government of the Municipality possesses over the streets and pubiic ways, but which- must always be exercised with proper regard to the rights of others. . , , , , J. ins suggestion being unheeded, the case must therefore be decided. Benjamin and Micou, for the appellants. Rawle, for the defendants. We consider that the right to establish a dUptt, suchas that asked in this case, necessarily results from the right the company have to establish and keep in operation the railroad, but that the communication with the main route must necessarily be subject to the police power of the Municipality, and so constructed and used as to interfere as little as possible with a free use of the public way. As no objection exists to the construction and use of a turn-out at this particular spot, and as the company have established this as a dépót as near as convenience requires to the end of the road on Nayades street, there is no reason why it should not be permitted. The judgment of the District Court is, therefore,, reversed ; and it is ordered that the plaintiffs be permitted to construct a turn-out from their main route in Nayades street to their lob at the termination of Nayades street near Tivoli Circle, which is to be used as a depot for their engines, cars, &c., and that the defendants pay the costs in both courts. The injunction, so far as it covers the subject of this decree, is maintained. Footnotes [*] Slidell, I., having been of counsel, did not sit on the trial of this case.