Nugent v. Jordon

OPINION In this case plaintiff left an open strip of ground six feet in width between his estate and the estate adjoining, on which a like strip was left; these strips together have been used for more than thirty years as a roadway by all land-owners in that neighborhood. The plaintiff now seeks by injunction to prevent the defendant from passing over said lane. He does not allege in his petition for injunction either of the ten enumerated grounds contained in Article 298 of the Code of Practice; neither does he allege or attempt to prove an actual or impending injury. Injunctions are only designed to prevent an actual or impending injury, and defendant’s mere passage over this lane during the time it is being left open for the use of the general public could not possibly injure plaintiff. Ronnandez vs. New Orleans, 29 La. Ann. 271; Conwell vs. Commission Council, 153 La. 801, 96 South. 657 The injunction, in so far as it seeks to prevent the defendants from passing through the open lane, must be denied. [454] The injunction, in so far as it seeks to compel defendants to prevent their hogs from entering plaintiff’s pasture, must also be denied. The police jury of Rapides parish have passed an ordinance, which was introduced in evidence, defining what constitutes a lawful fence, and under general custom all hogs and stock are allowed to go upon any lands not enclosed by such a fence. It is not contended that plaintiff’s pasture is enclosed by such a lawful fence. Plaintiff’s claim for damages must also be denied. Plaintiff’s pasture was not enclosed with a lawful fence as provided by ordinance of the police jury of Rapides parish and hogs of many owners went in it at their pleasure. If any damage was done it was impossible to tell whose hogs did it. When asked what passing over his strip of ground was worth, plaintiff said it ought to be worth $50.00 if it is worth anything. From testimony, page 22, we quote from plaintiff’s evidence: "Q. How much do you say the use of this strip of ground was worth? “A. I don’t know. “Q. What do you estimate it is worth "A. I don’t know.” Under the evidence we are unable to fi any amount of damage. For these reasons the judgment appealed from is affirmed at plaintiff’s cost.