On Application for a Rehearing.
McGloin, J.A rehearing is demanded in this case with much earnestness. Several grounds are set forth, and supported by able argument.
It is alleged that the railroad company is not chargeable with the destruction of plaintiff’s shed, which was the act of the city of New Orleans, said shed being by it rightfully demolished, as erected in violation of municipal laws. Ordinance No. 30, Leovy’s Digest, p. 76, Arts. 72 to 76, are referred to. We find nothing in this ordinance which renders the erection of an awning without the City’s assent illegal. What it does is to expressly forbid and to punish by fine the erection of signs or awnings, hanging or extending at a height of less than eight feet from the level of the pavement, or foot-way. The implication of this ordination is the very reverse of defendant’s contention. If it be affirmatively made unlawful to build awnings in one particular manner, it follows that the erection of them is not wrongful per se, and that, if otherwise constructed, they are not harmful.
We cannot notice the later ordinance, No. 3065, inasmuch ag it was not offered in evidence, and the Court-cannot, of its own motion, take cognizance of municipal legislation; City of New Orleans v. Labatt, 33 La. An. 107. If, however, we did take *303notice thereof, it would not help the defendant, for we see nothing therein justifying tlie arbitrary destruction of awnings, without notice, by subordinate officers of the city. It is not shown, nor does it appear, that awnings, such as the one torn down, are nuisances per se. Neither is there any legislation, State or municipal, which make them such. It has been held that, without general legislation, declaring a particular class or character of objects to be a nuisance, the government of a city cannot declare a particular thing to be a nuisance and abate it as such. Yates v. Milwaukee, 10 Wall. 497 ; First Municipality v. Blineau, 3 La. An. 688 ; Kennedy v. Phelps, 10 La. An. 229 ; De Ben v. Girard, 4 La. An. 30.
If, therefore, this power did not belong to the Mayor and Administrators, in council assembled, we are at a loss to know how a mere subordinate of the municipal government could assume to exercise it.
The demolition of this awning was therefore unlawful, and the defendant company solicited it and furnished all the labor necessary to accomplish it. . The mere fact that it obtained the sanction of a particular municipal officer and the presence of one of the city’s employés, did not make the defendant less an aetor in the wrong, and, as such, liable under the law for the damage done, which was, in this case, the value of the awning. La. C. C. 2315, 2324, 2623.
The evidence shows that the defendant, some years ago, curved its track upon its own land, without passing as close as it now does to the house of the plaintiff. It shows that the sleepers extend over the gutters, and are embedded in the banquette in front of the plaintiff’s property, filling up said gutter; that the trains in passing lap over the banquette, prevent the erection of a shed or awning in front, shake the house of and ■otherwise grievously incommode the plaintiff. Were it a matter of absolute necessity that these injuries and inconveniencies should be imposed upon him in order that this railroad might have a right of way, there might be here a case of *304damnum absque injuria, and the authorities cited would he applicable.
We believe, however, that, while a citizen cannot prevent the application of the public streets to uses such as that to which defendant seeks to apply the one in question, ho may insist that such uses shall be so regulated that, while the reasonable convenience of the railway company is consulted, the' least possible damage and injury shall be imposed upon himself. He might prevent the defendant from so running that its trains would just graze his doorway, or from constructing their track in such a manner as to render the passage of the streets unnecessarily dangerous to himself, or his vehicle, or to convert his property into a pond or swamp. To hold otherwise is to push this doctrine of the right of way much too far, and entirely beyond the reason of its existence.
Even if the city of New Orleans had authorized the defendant-to thus unnecessarily annoy and injure the plaintiff, he would not be without his remedy. -
It is now settled beyond recall, that municipal ordinances must be reasonable. Dillon on Municipal Corporations, Ed. 1881, sections 319, 328. They must not be arbitrary and oppressive. Ibid, section 320.
So is it firmly established that the' courts, although they exercise the power with extreme caution and reluctance, have thé right to annul municipal legislation which is, in its nature unreasonable and oppressive. Same authorities.
The fact that defendant had long used this portion of the track, curving further away from the property of plaintiff, satisfies'us that the injury and damage being inflicted upon plaintiff is in no manner a matter of necessity, and we believe that he has the right to insist that the track shall be moved further out; and, as we have no data wherewith to determine how far the removal should be, we are compelled either to nonsuit plaintiff upon this point or to remand. We believe the latter course is the better, under the circumstances, avoiding, as it does, expense and delay.
*305The damages accorded we do not consider excessive, and we know of no reason why we should not set this portion of the case at rest, while we remand as to the balance. Defendant, in its application for a rehearing complains of this, but its counsel cites no authorities to support his position, and we see no reason for receding from what has been done.
Rehearing is, therefore, refused.