The opinion of the Court was delivered by
Todd, J.The city of New Orleans is appellant from a judgment in favor of the plaintiffs for $10,993 65, for work performed by them under a contract for the rebuilding the levee and bulkheads in front of the third district of said city, destroyed by a storm on the 6th of February, 1881.
The contract was made and the work done under the following ordinance :
“Whereas, owing to the great volume and height of water now contained within the bed of the Mississippi river, and the probable increase owing to the rapid rise in the upper rivers, and the imminent danger now apparent in the third district of this city caused by the recent heavy storm to the bulkheads and along the river front,
Be it resolved, That the honorable mayor and administrators of commerce and improvements be and they are hereby authorized to contract with any party or parties lor the reirairing of such bulkheads and levees of the third district, from Esplanade street to the lower limits of the city, as are absolutely necessary.
“ The same to be performed under the supervision of the administrator of commerce according to specifications to be furnished by the city surveyor.”
There is no question as to the work being done and its value, and the correctness of the items composing the accoimt for the same; but the city resists its payment and denies liability therefor, on the ground that at the time the work was done the plaintiffs were the lessees of the wharves and landings along the river front, and under their obligation as lessees were bound to do this work without charge to the city.
The character of this storm and the destruction caused by it, and which are proper subjects for consideration in this case, will fully appear from the following evidence extracted from the record:
Mr. Pilié testifies that he inspected the damage caused by the storm on the day of its occurrence. He was asked if there was any pressing *935need of making the repairs; he answered: “ Yes; there was pressing need, as the river was rising then.” He was asked, “Why was that need pressing to have that work done immediately V’ He answered: “To prevent an overflow of the city.”
He testifies further that this storm was a “tremendous hurricane.”
Extracts from the signal office of the United States at New Orleans:
February 5th -Gale began at 5 a. m.; highest velocity, 52 miles at 11 a. m.; on the 6th gale ended at 1:45 p. m., 6th.
February 7th — Gale began 4:25 a. m.; highest velocity, 31 miles at 3:15 p. m.j 7th, gale ended at 4:15 p. m. same day.
“Shipping remained in port; portion of city under water; watch tower blown down; railroad tracks interrupted; bridges destroyed ; 52 miles per hour is the highest velocity on record in New Orleans’ signal office for a period of ten years.”
Brosnan, city surveyor, testifies: “ I know that the levees and bulkheads were all washed away and destroyed by the action of the water caused by the wind.” “In disconnected places the damage was fearful.” “In some places the destruction was complete; in a few places it was only partial.”
The question is, whether the plaintiffs, under their contract as lessees of the wharves, were bound to do the work of rebuilding and reconstructing the levees and bulkheads destroyed by the cause aforesaid. It is apparent from the ordinance quoted above, and the contract for the work under it, and other evidence in the record, that the city authorities did not, at the time, believe that the plaintiffs were so bound.
We have carefully examined the contract under which the wharves were leased.
The portion of it bearing more directly on the question of plaintiffs’ responsibilities in the premises will appear in the following clause, being an extract from section 12 of ordinance 3121, which, by express terms, was made a part of the contract, to wit;
“The repairs of the levee, required to be made under this ordinance, shall consist in grading the same according to the grades already established ; in covering the same hard substances, such as rock, lake or oyster shells and gravel; in keeping the seme always in good order by filling up with river sand all parts of the same which may cave in or sink beloiv the grades aforesaid; and in keeping the bulkheads on the outside of same always* in good order and condition; and whenever the batture shall form so as to require the levee to be extended, the transferree shall, on the order of the City Council, fill up such parts of the batture *936and build such levees as said City Council may deem necessary, as well as all new 'bulkheads."
A fair construction of this clause, aided by an examination of other portions of the entire contract, does not seem to warrant the conclusion that the lessees were under any obligation to work on the levees except with reference to keeping the wharves in repair, and that it did not impose upon them the duty of rebuildinglevees to protect the inhabitants of the city against overflow. The only levees required to be built under its terms, and the only new bulkheads to be constructed, were such as might become necessary by the forming of new batture.
We see no reason for disturbing the judgment of the District Court, and it is therefore affirmed, with costs.
Judgment affirmed.