Baird v. Thibodo , 197 La. 688 ( 1941 )

This is a suit by George D. Baird, owner of four lots of real estate abutting on Loumor Avenue and Arlington Drive in what is known as the Beverly Knoll Subdivision in the Parish of Jefferson, against the drainage construction company owned by F.E. Thibodo, to recover the alleged difference in the value of the sidewalk formerly lying along these streets and that constructed by the defendant to replace the former sidewalk after its irreparable damage by his company.

The defendant filed a general denial and, on the day of the trial, excepted to the plaintiff's petition on the ground that it disclosed neither a cause nor a right of action. The judge of the First City Court of New Orleans overruled the exceptions but rendered judgment on the merits in defendant's favor, dismissing plaintiff's suit. On appeal to the Court of Appeal for the Parish of Orleans, where the case was tried "de novo," the presiding judge maintained the exceptions. We now have this judgment before us for review on a writ of certiorari or review to the appellate court.

Counsel for plaintiff conceded in his oral argument before this court that at the time he purchased the four lots the sidewalks were already constructed and that while they are adjacent to and abut his property, they form no part thereof, being located on and forming a part of the public streets or thoroughfares of the Parish of Jefferson.

A careful reading of plaintiff's petition discloses that he has not alleged his property was physically damaged by the action of the defendant nor that his property has depreciated in value because of the replacement of this sidewalk with another of inferior quality. Furthermore, there is no allegation in plaintiff's petition from which a conclusion may be drawn that there is any obligation on plaintiff's part to replace the inferior sidewalk by one comparable to that formerly existing along these streets in the event the inferior sidewalk proves inadequate and unsubstantial, or that he will ever in any way be subjected to the payment of any costs because of the inferior construction of the replacement sidewalk. We must, therefore, conclude that the decision of the Court of Appeal maintaining the exceptions of no cause and no right of action is correct.

The authorities cited by the plaintiff in support of his claim have no application to the case at bar, all being cases dealing with the abatement of nuisances.

For the reasons assigned, the writ is recalled and the judgment of the Court of Appeal for the Parish of Orleans is reinstated and made final.

O'NIELL, C.J., takes no part.

HIGGINS, J., concurs in the decree and assigns reasons.