Board of Com'rs of Tensas Basin Levee Dist. v. Franklin

• Decision Date: 28 May 1951
• Docket Number: No. 39793,39793
• Citation: 219 La. 859,54 So.2d 125
• Court: Louisiana Supreme Court
• Parties: BOARD OF COM'RS OF TENSAS BASIN LEVEE DIST. v. FRANKLIN et al.

Page 125

54 So.2d 125

219 La. 859

BOARD OF COM'RS OF TENSAS BASIN LEVEE DIST. v. FRANKLIN et al.

No. 39793.

Supreme Court of Louisiana.

May 28, 1951.

Rehearing Denied June 29, 1951.

Appeal Dismissed Oct. 15, 1951.

See 72 S.Ct. 80.

Warren Hunt, John C. Morris, Jr., Rayville, for defendants-appellants.

Harry N. Anders, Dist. Atty., Winnsboro, John F. McCormick, Monroe, C. C. Wood, Baton Rouge, for appellee.

PONDER, Justice.

The plaintiff brought suit against the defendants seeking to enjoin them from interfering with the works being done on the Little Bayou Boeuf drainage project. At the hearing of a rule nisi for a preliminary injunction, all the evidence was adduced and the opposing parties agreed that judgment be rendered on the merits of the case. The trial court gave judgment granting a permanent injunction. The defendants have appealed.

In 1946, the Chief Engineer of the Department of Public Works of this state advised, by letter, the President of the Mississippi River Commission that certain streams in Louisiana, including Little Bayou Boeuf were greatly in need of clearing and snagging and asking for them to be included in his program. It appears that the Mississippi River Commission is an agency whose duty it is to keep Congress informed as to conditions and to make recommendations for flood control upon the reaches of the Mississippi River. Approximately a year later, the Board of Commissioners of the Tensas Basin Levee District was advised by the Department of Army Corps of Engineers, New Orleans Office, that $25,000.00 had been allocated by the Secretary of War, under the provisions of the Flood Control Act, 33 U.S.C.A. § 701 et seq., for the cleaning, snagging and straightening the channel of Little Bayou Boeuf, Morehouse and Ouachita Parishes, from its mouth to Perryville, provided there be furnished 'satisfactory assurances of local co-operation which levee boards are authorized to furnish on drainage projects as well as on levee improvements.' The Chief Engineer of the Department of Public Works informed the board by letter in 1948 that the location and plan of the proposed work, showing limits of the rights-of-way required, had been examined and approved by the district engineer of the department and recommended that the necessary rights-of-way be furnished. By resolution, dated March 8, 1949, the Levee Board formally agreed to the conditions imposed by the Corps of Engineers and notified the property owners by registered mail on April 1, 1949 that the rights-of-way were appropriated across their lands; among those notified were the defendant, George B. Franklin and Chess & Wyman Company. George B. Franklin, Jr. subsequently acquired from Chess & Wyman Company the property through which this bayou runs.

Pursuant to the assurances furnished by the Levee Board, the Secretary of the Army made a contract with the Delta Equipment & Construction Company for the improvement of the channel of Little Bayou Boeuf. After the work had progressed to a point on lands claimed by the appellants, the contractor was forcibly prevented by the appellants from proceeding further with the work. The Levee Board brought this suit to restrain the appellants from interfering with the construction of the works.

From the maps offered in evidence and the testimony of the District Engineer of Public Works, it appears that the improvement of the channel of Little Bayou Boeuf will facilitate the flow and drain of waters from the Partholomew Levee. The District Engineer, who acts in an advisory capacity to the Levee Board, testified the improvement would remedy the situation existing at Bayou Bartholomew. He described the Horse Bayou condition as a bad one which has not only affected the security of the levee but has in recent years inundated considerable farm lands and an important highway. He stated that the Police Jury has awarded a contract for a canal that will further hasten the flow of waters from the vicinity of Horse Bayou into the watershed of Little Bayou Boeuf, which makes the over-all improvement of Little Bayou Boeuf more important. The Levee Board takes the position that the area north of Bastrop can only be drained through flood gates situated where Horse Bayou intersects the levee on the left descending bank of Bayou Bartholomew and this drainage, during seasons of lower water in Bayou Bartholomew, flows through these flood gates by force of gravity, while, during periods of high water in the bayou, the drainage in the area flows southerly through Little Bayou Boeuf into Bayou LaFourche. The board takes the position that the construction of the levee on the left descending bank of Bayou Bartholomew, during periods of high water, when the flood gates are necessarily closed, has created a serious drainage problem, resulting in the land-side of the levee being submerged by water, thus making it impossible to detect sand-boils and weak spots in the levee and that the diversion of the water caused by the construction of the levee has brought about the inundation of considerable farm lands in the vicinity of Horse Bayou and has raised the level over lands over which the water is forced to travel along the course of Little Bayou Boeuf to Bayou LaFourche. The board states that the improvement program on Little Bayou Boeuf will provide drainage that would minimize or eliminate the high water stages on Bayou Bartholomew.

The evidence offered for the plaintiff shows that the Levee Board and the Department of Public Works consider this drainage project is a necessary part to an over-all drainage plan for the area and that it is necessary for the protection of the Bayou Bartholomew Levee. We cannot substitute our judgment as to the feasibility of the project or say that it is unrelated to the Bartholomew Levee. To do so, we would have to reject the testimony of the District Engineer of the Department of Public Works. It is hard to believe that the United States Government would have appropriated the money if it were not necessary for flood control. Moreover, the Levee Board has great latitude in locating levees with the right to protect them in a manner found to be most expeditious from an engineering, economical and practical standpoint. Its action is jurisdictional and is not subject to review unless there has been some palpable abuse. Dickson v. Board of Commissioners of Caddo Levee District, 210 La. 121, 26 So.2d 474, and authorities cited therein.

The defendants contend that the plaintiff has no authority in law to appropriate the property involved in this suit. They take the position that the plaintiff can only obtain this property through expropriation proceedings. Their contention is based on their argument that Article 665, Revised Civil Code, and Section 6 of Article 16 of the Constitution do not grant the plaintiff authority to appropriate property not situated on navigable streams. They say that an interpretation of this constitutional provision, when construed with a provision of a prior Constitution, Article 312 of the Constitution of 1898, demonstrates that this provision of the present Constitution deals only with the right of compensation. It is further argued that this provision of our Constitution does not extend the servitude granted under Article 665, R.C.C., to property not situated along navigable streams. To support their contention that the right of appropriation...