Fairex vs. Railroad Company.

leaving a large community estate, including, amongst other property, two hundred shares of stock of the defendant company, of one-sixth of which, by virtue of her heirship, she became owner, and entitled to the interest and dividends therein; that her mother, Mrs. Schiller, qualified as executrix and as natural tutrix of petitioner, that she has recovered judgment against her mother, as late tutrix and executrix, for $30,000 due as her share of the rents and revenues of the property left by her said father, not including her share of the stock aforesaid, upon which judgment execution has been issued and returned nulla bona ; that she has applied to her mother for possession of her share of said stock, without effect; that she is informed that the defendant company has unlawfully and without authority permitted one hundred and thirty-four shares of said stock to be transferred by her mother to parties unknown, which transfers, as to petitioner's one-sixth thereof, are null and void, wherefore she prays to be recognized to have been owner of one-sixth of said one hundred and thirty-four shares, together with the dividends accrued thereon, and for judgment for the market value of the same and for said dividends.

The defendant answers, in substance, admitting the ownership of two hundred shares of stock in John B. Schiller at his death, of which plaintiff, as heir, became entitled to thirty-three and one-third shares, while Mrs. Schiller, as surviving partner in community, became owner of one hundred shares, or one-half of the whole, and was recognized and put in possession thereof by competent judgment of the probate court; that of the thirty-three and one-thir shares owned by plaintiff, she has actually received twenty-two shares, and that she had sanctioned the transfers made by her mother of her remaining interest; and that the dividends were properly paid to her mother, or her transferrees, as legal usufructuary of the entire property. As to the stock, it is unquestionably true that plaintiff never owned and does not pretend to have ever owned but thirty-three and one-third shares. It is equally true that she has received twenty-two shares thereof. The attempt of defendant to establish her consent to the transfer by her mother of her remaining interest, has not, in our judgment, been successful, and she is therefore entitled to the remaining eleven and one-third shares, or their value.

We have nothing to do in this case with the disposition made by her mother of the other property of the estate and of its revenues, nor with the judgment which she obtained against her mother on that account. This is not an action for partition of the community, nor to subject property to the judgment rendered against her mother. It is a simple

Fairex vs. Railroad Company.

claim to ownership, as heir, of her portion of particular community property, and the very claim admits like ownership in her co-heirs and her mother to their shares thereof. The alienation by her mother must be considered as the alienation of her own share to the extent thereof, and to that extent valid. No formal partition of property of this character was necessary. Being composed of numerical units, each necessarily and absolutely equal in value to the other, it partitioned itself, and the sale of one hundred shares was the entire equivalent of the sale of an undivided one-half of two hundred shares. The remaining sixty-six shares belonged to the three heirs solely, being twenty-two shares to each, and each one of them had a claim for the rest of their respective shares, viz: eleven and one-third shares each against the company, if it had permitted their unauthorized transfer.

Plaintiff having received twenty-two shares, the limit of her claim is for eleven and one-third shares, or their value.

As to the dividends, by judgment of the probate court, competent, final and never appealed from, the mother was recognized and sent into possession, not only as owner of one-half of the entire community estate, but also as usufructuary of the other half inherited by the children.

It is true that long afterwards, plaintiff on reaching her majority brought suit to annul this judgment, and in January, 1881, this Court rendered its decree annulling the same.

This, however, did not destroy the validity of the payments of dividends made to the mother by the defendant during the existence of the judgment; and even independently of the judgment, the payments during minority of plaintiff were properly made to the mother in her capacity as natural tutrix. The judge a quo gave plaintiff judgment for the value of eleven and one-third shares of stock and for the dividends accruing after January, 1881. Although both parties complain

of his decree, we think he did exact justice.

The plea of prescription of one year, interposed by defendant, is without merit.

The action is not one sounding in damages for a quasi offense, but one for the property or its value. As to the relation of the corporation to the stockholder, we recently had occasion to enunciate the well established doctrine that "the corporation is the custodian and trustee of the corporate property, funds and stock, for the stockholder." The law would be in strange case if such a custodian and trustee, when called upon for the property entrusted to him, could say to the owner,

Howell vs. Butchers' Union Slaughterhouse and Live Stock Landing Co.

"you cannot get the property, because I have disposed of it, and you
cannot get its value because my wrongful disposition was made more
than a year ago and your action is prescribed."

Judgment affirmed at appellant's cost.
Rehearing refused.

No. 8925.

STODDARD HOWELL VS. THE BUTCHERS' UNION SLAUGHTERHOUSE

AND LIVE STOCK LANDING COMPANY.

The constitutional prohibition of monopolies is absolute and effective, and therefore abro gated the exclusive privilege of slaughtering animals for food, given by the legislature of 1869 to the Crescent City Stock Landing and Slaughterhouse Company, and invested the municipal authorities of the city with power to regulate the matter, subject to the approval of the Board of Health.

A slaughterhouse is prima facie a nuisance, and therefore until the municipal authorities regulated the location of such buildings by fixing the limits within which they should not be placed, no one could lawfully locate one within the city boundaries.

After those authorities had thus regulated the matter, a company may locate its abattoir and appurtenances in conformity thereto, and an injunction will not lie to restrain it in the absence of proof of nuisance.

A'

PPEAL from the Civil District Court for the Parish of Orleans,
Lazarus, J.

B. R. Forman for Plaintiff and Appellee.

Robert Mott and T. J. Semmes for Defendant and Appellant.

The opinion of the Court was delivered, by

MANNING, J. The suit is an injunction by a resident of New Orleans to restrain and prevent the erection of a slaughterhouse and its adjuncts, hog pens, stock yards, etc., for the reason that they would be nuisances, and would destroy the health of the neighborhood, and impair the value of his property, and also to prohibit the cutting of the levee, which he alleges the defendant was about doing for purposes connected with its slaughtering.

The answer denies that a slaughterhouse at that particular spot would be prejudicial to health or hurtful to property, and avers that the plaintiff has all along encouraged and invited its location there, and continued acquiescent up to and during the time the buildings were erecting.

A slaughterhouse is prima facie a nuisance, but it does not follow that it is a nuisance to all the world. To those who are remote from it, or not near enough to be affected by it, it is as if it did not exist

Howell vs. Butchers' Union Slaughterhouse and Live Stock Landing Co.

The spot selected for this building is on the verge of the city limits. Its location has been approved by the Board of Health, and the plaintiff welcomed it to his neighborhood.

The main ground of contest on the trial seems to be that the location was within the city limits, which the plaintiff claims is prohibited by the Act of 1869, Sess. Acts, p. 170. The prohibition in that Act of slaughtering animals for food within New Orleans is coupled with the permission to the company mentioned therein to do it. It was but a form of expression by which a monopoly of that business was given to the Crescent City Stock Landing and Slaughterhouse Company. Since then, the Constitution has interposed a prohibition of monopolies, and delegated the regulation of this particular business to the municipal authorities of this city. This was an abrogation of the exclusive privilege heretofore granted, and a conferring upon the local government the right to say how and where it should be exercised in future. This right was legally conferred. Cres. City L. S. L. Co. vs. New Orleans, 33 A. 934.

The city authorities had not acted on the matter when this injunction was obtained, but since then and before the trial they enacted ordinances that had been approved by the Board of Health, under which the location of a slaughterhouse at this point is permitted. The plaintiff anticipated the Board of Health in the permission he gave, and the City Council, in fixing the limits beyond which a slaughterhouse might be placed, only confirmed the opinion already expressed by the plaintiff upon the appropriateness of this spot.

The supplemental answer charges that he does not now apprehend a nuisance, or believe that the location of a slaughterhouse will create one, but is lending his name to the Company which has long exercised the exclusive privilege of slaughtering animals for food under the Act of 1869, to assist it in continuing the enjoyment of that monopoly. The boundary of his property is four hundred and eighty feet distant from the boundary of the tract or parcel of land upon which the defendant was erecting its buildings, and it does not yet appear that this is not sufficiently remote to avoid any annoyance from the business the defendant proposes to conduct in them.

The second ground of injunction is that the defendant intended to cut the levee, which would expose the plaintiff's property to danger from inundation. The record is barren of proof to sustain the charge, except that a ditch or drain was digging from the buildings to the river, and a discharge pipe was to be inserted through the base of the levee, both to serve as a vent for the liquid from the abattoir. This is

Zimmermann et al. vs. Langles.

one of the appliances designed by the defendant to prevent the creation of a nuisance, and is similar to that used by the company now engaged in slaughtering. An experienced engineer is employed by the defendant to construct this necessary outlet for impure liquids, and every precaution is taken to avert the consequences suggested by the plaintiff. It seems inconsistent and querulous for him to complain of an apprehended nuisance, and in the same breath to try to prevent the precautions that are taken to prevent the nuisance.

The lower court dissolved the injunction as to the slaughterhouse, and perpetuated it as to cutting the levee, at the defendant's costs. The defendant was without authority to place the slaughterhouse at this spot until the city authorities had exercised the power delegated to them in the matter, but after they had acted, the company should not be mulcted in costs for availing itself of the permission granted, in the absence of proof that any damage has resulted therefrom.

It is therefore ordered and decreed that the judgment of the lower court is set aside, and the injunction of plaintiff is dissolved, the defendant to pay all costs incurred before the passage of the city ordinances in the record, and the plaintiff to pay those incurred thereafter.

No. 8963.

C. ZIMMERMANN ET AL., EXECUTORS, VS. JUSTIN J. LANGLES.

A purchaser of real estate and other property, on time, is relieved from the obligation of making a tender and consignment, to relieve himself from interest after maturity, where the vendor himself brings, before maturity of the notes, an action to annul the sale; but owes such interest from the finality of the judgment rejecting the demand in nullity in default of a tender and consignment. Article 2559, R. C.C., applies to cases in which the suit to evict is not brought by the vendor, but by others.

The executors of a surviving wife have no right to sue for the recovery of the whole amount of notes belonging equally to her succession and to that of her husband, whose heirs of age are recognized and put in possession. They can sue only to recover the half of the notes accruing to her succession.

The purchaser failing to pay at the termination of the suit to annul the sale, a suit became necessary to coerce payment.

In the event of such suit, the fees of the attorneys employed must be paid by the purchaser

at the rate agreed upon in the aggregate of the capital and interest due at the time of the filing of the petition and due the succession represented by the executors.

A

PPEAL from the Civil District Court for the Parish of Orleans,
Rightor J.

W. B. Koontz and T. Gilmore & Sons for Plaintiffs and Appellees.
Henry Denis and A. B. Phillips for Defendant and Appellant.