R. S. 1476-1479

vents or minors, or in which minors are interested, may be made by sheriff, auctioneer or representative of succession, or insolvent, or tutor, as court directs. See Sec. 3397.

Act 21, 1890. Executor, etc., may sell bonds and stocks at private sale. See title "Successions."

1476. No suit against surety on bond of executor until necessary steps have been taken against principal. See R. C. C., Art. 3066.

1477. Testamentary executor not bound to accept trust, or to give security when he does accept, except when succession owes debts or holds property claimed by others. Failure to furnish bond when required destitutes ipso facto. See R. C. C. 1677.

EXECUTORY PROCESS.

[Prohibited on Foreign Judgments.]

1478. So much of articles seven hundred and forty-six and seven hundred and forty-seven as authorizes a creditor having obtained a judgment in another State of the Union, or in a foreign country, to proceed by executory process on the judgment, is repealed (Act, 1846, Sec. 1, p. 167). .

C. P., Arts. 746, 747.

Act 15, 1894. Executory Process upon property of insolvents, printed at p. 828.

Act 25, 1902. Executory Process upon property in hands of receiver, printed at p. 261.

EXPROPRIATION.

Const., Arts. 166, 167. R. C. C., 2626, et seq.

[For Certain Purposes, Proceedings.]

1479. Whenever the State or any political corporation of the same, created for the purpose of exercising any portion of the governmental powers in the same, or the Board of Administrators or directors of any Charity Hospital, or any Board of School Directors thereof, or any corporation constituted under the laws of this State for the construction of railroads, plank roads, turnpike roads, or canals for navigation; or for the con

R. S. 1479-1482

struction or operation of waterworks or sewerage to supply the public with water and sewerage, or for the purpose of transmitting intelligence by magnetic telegraph, cannot agree with the owner of land which may be wanted for its purchase, it shall be lawful for such State, corporation, board of administrators, directors or person to apply by petition to the District Court in which the same may be situated, or if it extends into two districts, to the judge of the District Court in which the owner resides, and if the owner does not reside in either district, to either of the District Courts, describing the land necessary for the purposes, with a plan of the same, and a statement of the improvement thereon, if any, and the name of the owner thereof, if known at present in the State, with a prayer that the land be adjudged to such State, corporation, board of administrators or directors upon payment to the owner of all such damages as he may sustain in consequence of the expropriation of said land for such public works; all claims for lands or damages to the owner caused by its taking or for expropriation for such public work shall be barred by two (2) years' prescription, which shall commence to run from the date at which the land was actually occupied and used for the construction of the works. (As amended by Act 227, 1902, p. 457).

SEC. 2. Be it further enacted, etc., That all the existing laws for the forms and processes of expropriation of property shall be applicable to the said act and section thus amended and re-enacted. (Sec. 2, Act 227, 1902, p. 457.)

SEC. 3. Be it further enacted, etc., That all laws or parts of laws in conflict with or inconsistent with the provisions of this act be, and the same are, hereby repealed. (Sec. 3, Act 227, 1902, p. 457.)

This section was originally identical with Sec. 698. Sec. 698 as 698 was amended by Act 125, 1880, Sec. 5, p. 170, and Sec. 1479 as 1479 was amended first by Act 117, 1886, and again by Act 96, 1896. Under Rills vs. Barrow, 30 An. 657, the acts of 1886 and 1896 amended Sec. 698, as well as 1479, and the act of 1880 amended Sec. 698. These sections, as they stood before the legislation noted here, were identical with R. C. C. 2630; it will be noted that Sec. 1479 was eo nomine amended by Act 227, 1902. See Fusilier vs. Police Jury, 109 La. 553.

Act 111, 1900, gives municipal corporations the right to expropriate gas, electric light, waterwork plans belonging to private persons, etc. Printed under title "Municipal Corporations.”

Act 73, 1902, gives railroad companies organized under the laws of this or any other State, the right to expropriate, etc. Printed under title "Railroads."'

1480-1482, inclusive, prescribe method of proceedings, what elements to be considered in assessing value of property; rights of various persons interested, etc., and are now R. C. C., Arts. 2631 to 2639, inclusive.

R. S. 1489-1490

[Preference in District Court.]

1489. Whenever proceedings for the expropriation of land or other property for the use of any corporation or public work shall be stayed by injunction of any court of this State, the suit shall have preference in the District Court over all other cases, except those in which the State is a party, and shall be fixed for trial on motion of either party as soon as issue shall be joined.

TRIALS DURING VACATION.

Act 132, 1890, p. 174.

AN ACT to give district courts throughout the State authority and power to try cases for expropriation of lands for public purposes during vacation.

SECTION 1. That whenever any proceeding is instituted in the district courts of this State, under Secs. 1479, 1480 and 1481 of the Revised Statutes of 1870, for the expropriation of land for public purposes, the suit may be tried during vacation if the court before which the proceeding is instituted is not in session.

SEC 2. That any and all judgments rendered by the district courts in vacation in a suit for expropriation of land for public purposes, shall have the same force and effect as rendered in open court, and shall be subject to the same provisions of law as now exist as provided for in Secs. 1483, 1488, 1490 and 1491 of the Revised Statutes of 1870. SEC. 3. That all laws inconsistent with the provisions of this act are hereby repealed.

Expropriation cases cannot be tried in the Civil District Court for the Parish of Orleans during vacation. State ex rel. Morgan's L. & T. R. R. & S. S. Co. vs. St Paul, 109 La. 9, but they may be so tried in other parishes. Williams vs. Judge, 45 An. 1298. As to Orleans, see Morgan vs. King, No. 1500 Sup. Court.

[Preference in Supreme Court.]

1490. In case any appeal shall be taken to the Supreme Court from any judgment or order in such suit the said appeal shall be made returnable within fifteen days, and shall be taken up and tried in the Supreme Court by preference over all cases except those in which, the State being a party, preference is already given by law.

New Orleans, etc., R. R. Co. vs. McNeely, 47 An. 1299.

[Mortgages on Property Expropriated.]

R. S. 1491-1493

1491. Whenever any immovable property which is incumbered with mortgages or privileges of any kind, whether conventional, legal or judicial, shall be expropriated by any corporation, the same shall pass to such corporation free and clear of all incumbrances, but the amount decreed to be paid therefor shall be paid by such corporation into the court by which the expropriation shall be made, and shall be a fund to be distributed to the mortgaged and privileged creditors according to their priority.

[School House Sites.]

1492. Where lands shall be required for erection of a school house or for enlarging a school house lot, and the owner thereof shall refuse to sell the same for a reasonable compensation, the District Board of School Directors shall have the power to select and possess such sites embracing space sufficiently extensive to answer the purposes of school house and grounds (Act 121, 1869, 188).

[Rights of Land Owners.]

1493. Should such land owner deem the sum assessed too small, he shall have the right to institute suit before any proper judicial tribunal for his claim, but the title shall pass from him to the school corporation.

Payment a Condition Precedent.-Expropriation for railroad purposes is authorized by the Const. 1879 (Art. 156) on previous payment of the value of the land and damages, if any have been sustained (Shreveport & Arkansas R. Co. vs. Hollingsworth, 42 An. 749); and an ordinance of a police jury which authorizes the taking of land for a public road must make provision for the payment of the compensation which may be found by the jury of freeholders, or the ordinance will be void. Calder vs. Police Jury, 44 An. 173.

Private property cannot be taken under expropriation proceedings, unless just and adequate compensation has been first made. The deposit in court of an amount probably larger than the value of the property sought to be expropriated, is not payment and will not authorize the plaintiff in expropriation proceedings to take possession of the property. State ex rel. Cutting vs. Judge, 104 La. 74.

Extent of Right to Appropriate and Property Subject to Expropriation.— When the necessity exists, and to a certain extent, the property of one railroad company may be expropriated by another. Kansas City, etc., Ry. Co. vs. Vicksburg, etc., Ry. Co., 49 An. 29.

The right to expropriate property by a railroad company is dependent on

R. S. 1493

"the points between which the railroad connection is to be made; the facilities for construction offered by the ground; the directness of the route and other points naturally involved in the selection of a road-bed,'' and where the property sought to be expropriated is along the right of way granted by the municipal authorities of a city, the right to expropriate the property along that route, if reasonably exercised, "is constrained by the exigencies of the ordinance of the Council." Railway Co. vs. Railroad Co., 49 A. 29.

A railroad corporation having secured a franchise and right of way for the purpose of constructing its tracks upon a locus publicus of a city, has the right to expropriate from another railroad corporation sufficient space to enable it to pass its trains free from obstruction and hinderance from the company whose right of way it proposed to expropriate, the right must, however, be limited to the indispensable necessities of the expropriating road. Shreveport, etc., R. R. Co. vs. St. Louis, etc., R. R. Co., 51 An. 814.

The land of a railroad company not used by it, and for which it will probably have no use, is not impressed with a public use, and is therefore subject to expropriation. The facts in this case take it out of the rule that the land in public use by one corporation cannot, without legislative authority-conveyed expressly or arising from necessary implication-be taken by another. Railway Co. vs. Railroad Co., 49 An. 29; Orleans & Jefferson Ry. Co., Ltd., vs. The Jefferson, etc., Ry. Co., 51 An. 1605.

Where a telegraph company seeks to expropriate so much of the right of way of a railroad company as is necessary to plant its poles and string its wires, which the telegraph company proposes to do, along the outer edge of the railroad company's right of way, so as not to interfere with the present or probable future use of the property for which it was originally intended, nor to endanger the said use, the proper measure of damages is the "value and use of the property to be expropriated," which, under the conditions given here, is the interpretation to be given R. C. C., Art. 2623. Postal Telegraph Co. vs. Louisiana Western R. R. Co., 49 An. 1270. See also Railroad Co. vs. Railway Co., 49 An. 29; Orleans, etc., Co., Ltd., vs. Jefferson, etc., Ry. Co., 51 An. 1605.

for

Our expropriation proceedings authorize the taking of the fee, if necessary, public purposes, but if the public needs do not require it, and a less estate will meet the public wants, the fee cannot be taken. Railway Co. vs. Gay, 32 An. 471; Telegraph Co. vs. Railroad Co., 49 An. 1278. Even if only a servitude is granted, it will not be limited to the life of the grantee. The servitude will continue so long as the property is used for the purpose for which it is granted. The right once granted becomes the property of the grantee, so long as it is necessary for the continued exercise of the franchise. The value of the land taken, either in fee or otherwise, is distinct from any damage which may be inflicted on the proprietor by decreasing the value of the property which is left him, and when witnesses are questioned, care should be taken to so frame the questions as to maintain the distinction. The value of the land itself is the amount for which it would sell at private sale as part and parcel of a whole, without reference to the use for which it is intended by plaintiff in expropriation proceedings. The Shreveport & Red River Valley R. R. Co. vs. Hinds, 50 An. 781.

Property which, by its situation, is not subject to servitude for levees, must be paid for when expropriated for levee purposes (Railroad Co. vs. Levee Commissioners, 49 An. 570); compensation cannot be denied on the ground that the expropriation is the exercise of the police power. Id.

Quantity expropriated will be restricted to actual necessities. Fee cannot be taken if not necessary. New Orleans, etc., R. Co. vs. Gay, 32 An. 474; Id., 31 An. 431; Postal Tel. Co. vs. Railway Co., 49 An. 1270. Judgment should be for quantity demanded in petition, not for such portion of it as plaintiff may take.