Davies v. City of New Orleans

*807The opinion of the Court was delivered by

Watkins, J.

Alleging herself to be the owner of several squares of ground situated in the sixth municipal district of the city of New Orleans, the plaintiff complains that same are annually assessed for taxes, notwithstanding they derive no corresponding benefits in the way of drainage, lights, police protection, sidewalks or bridges — all of which it is the duty of the defendant to furnish.

She represents that “some time since,” the city caused a ditch to be dug at the distance of one square from the front of her property, which is at all times filled with water, which overflows its banks and floods her land, and renders it valueless for any purpose whatsoever.. She further avers that the work performed in the construction of said ditch was so carelessly and unskillfully done that the damage complained of was caused, and which she estimates at $3,000.

She prays judgment for damages, and for a decree directing the city to perform her duty in the premises, and “to make the proper bridges, open the necessary canals, and do such other work, in connection with said property, as, under the law and the facts presented may be proper.”

The answer of defendant is a general denial, coupled with a plea of no cause of action. There was a judgment in favor of the city and the plaintiff has appealed.

The facts appear to be as follows, to wit:

The plaintiff became the purchaser of the squares of ground men. tioned, in July 1885, for the price of $415.50 and instituted this suit in the following December. They are unimproved and unoccupied. In 1884 they were assessed for tbe aggregate sum of $2400, and in 1885 for the sum of $2600; but no part of the taxes have been paid, by either plaintiff or her vendors. They are situated between two contiguous and parallel streets, Delachaise and Amelia, which extend at right angles with Dryades street. These squares lie, one in the rear of the other, No. 507 being in front, and fronting on St. Dennis street, it being just one square from Dryades street. The ditch of which the plaintiff complains was constructed in the street last named, and extends from General Taylor street to Louisiana Avenue. The evidence fails to disclose at what time this ditch was dug, or by whom the work was performed ; nor does it appear whether the work was skillfully or negligently performed. There is an accumulation of water from which three or four of the squares, on the front end of the column of squares, are flooded at some times, and which are, at all times, rendered wholly unsuited for the purposes of building, improvement or occupancy.

*808This water, in much the greater part, flows through other canals from the ice-works into the Dryades street ditch, and the remainder is rain water.

It appears that if Delachaise and Amelia streets were ditched, and the ditches kept open and free from obstructions, there would be a free passage-way for the surplus of water into the Claiborne drainage canal.

There was introduced in evidence an ordinance of the City Council which directed the opening of ditches in those streets named, with the view of establishing a connection between Dryades street ditch and the Claiborne drainage canal. But it was adopted in 1884 — nearly one year prior to plaintiff’s purchase of the property — and it does not appear why same has not been enforced.

This evidence not only does not sustain plaintiff’s demand for damages, but it clearly shows that she is not entitled to any. '

The precise condition of things existing when she brought this suit, existed at the date of her acquisition of the property, and had, theretofore, existed for many years. It is perfectly obvious that, in its present condition, plaintiff’s property requires neither banquettes, electric lighting, nor police protection. It may.well be that these vacant squares of ground are in need of drainage and bridges, quite as much as they require dwellings and inhabitants, but it is not more the duty of the defendant to furnish the former, in the manner proposed, than' it is the latter.

It may well be that the City Council should inaugurate some appropriate system of drainage, whereby those properties, and others similarly situated, might be reclaimed and made habitable.

The law provides that “it shall be the duty of the Council, as soon as practicable, to adopt a plan for the thorough draining and keeping dry, and free from river water, and the rapid carrying off of rain and storm water, for the entire area of the city of New Orleans; in adopting such plan of drainage, the Council shall impose a specific assessment for local improvements, not exceeding the increase m value of the property drained, occasioned by the drainage.” Section 43 of Act 20 of 1882, which provides a charter for the city of New Orleans.

This power is altogether different from the one that is conferred by Sec. 7 of that act; i. e., “to maintain the cleanliness and health of the city, and to this end to adopt and provide an efficient system of drainage, * * * to open and keep open and free from obstructions all streets, * * * and to keep the street crossings, bridges and canals clean and in repair.”

*809It is the former and not the latter power which the petitioner, infer•entially, invokes. It is a question, purely and simply, of drainage, and not of police or of administration.

Its exercise must appertain to the entire area of the city, and neces■sarily involves the adoption of some plan for the draining of rain, river and storm water. This is in the nature of a local improvement, and the expense must be borne by the property drained; and it must be apportioned by a specific assessment, which shall not exceed in amount -the increase in value given to the property. 2 Dillon Munic. Corp., sec. 596; 38 Ann. 326, Charnock vs. Levee Company.

The means must be provided by taxation to enable the city authorities to maintain the cleanliness and health of the city;”, and to do this, they are required to keep the streets free from obstructions, aDd the ■canals clean and in repair.

It is perfectly clear to our minds that the plaintiff’s pretensions are groundless. She has evidently sought the aid of the courts with the ■expectation of making a successful venture of a speculation, and has failed.

Judgment affirmed.