Board of Com'rs for Atchafalaya Basin Levee Dist. v. St. Landry Parish School Bd.
| Citation | 130 So.2d 692 |
| Decision Date | 22 May 1961 |
| Docket Number | No. 281,281 |
| Parties | BOARD OF COMMISSIONERS FOR the ATCHAFALAYA BASIN LEVEE DISTRICT, Plaintiff- Appellant, v. ST. LANDRY PARISH SCHOOL BOARD, Defendant-Appellee. |
| Court | Court of Appeal of Louisiana — District of US |
Charles H. Dameron, Port Allen, for plaintiff-appellant.
J. Y. Fontenot, Opelousas, for defendant-appellee.
Before TATE, FRUGE and SAVOY, JJ.
This is a declaratory judgment action brought to determine whether the plaintiff levee board is required to pay the defendant, a parish school board, the sum of $182 for school lands actually used and destroyed by the plaintiff's appropriation of them for a right-of-way for levee and levee drainage purposes. The plaintiff state agency appeals from judgment declaring that the defendant school board is entitled to compensation for such public lands.
We are principally concerned in this appeal with the construction and application of Article XVI, Section 6, Louisiana Constitution of 1921, LSA, with relation to the facts of the present case. Such constitutional enactment, insofar as pertinent hereto, provides as follows:
'Lands and improvements thereon hereafter actually used or destroyed for levees or levee drainage purposes * * * shall be paid for at a price not to exceed the assessed value for the preceding year; provided, that this shall not apply to batture, nor to property the control of which is vested in the state or any subdivision thereof for the purpose of commerce; * * *.'
The public lands in question, being in the name of a public agency, are not assessed on the parish assessment rolls. The value of the right-of-way taken for levee purposes is stipulated, and the defendant school board does not contest the appropriation for levee purposes. It is further stipulated that the right-of-way was acquired for and at the request of the federal government and that the latter will be requested to reimburse the plaintiff levee board for the actual value that the board is required to pay for any lands so taken.
The school board land was taken for flood control purposes and is in Section 16, Township 6 South, Range 6 East, which is within one mile east of the Bayou Courtableau, about three miles west of the Atchafalaya River, and about thirty miles west of the Mississippi River. The land so taken is just east of the West Atchafalaya Basin Protection Levee, and it was appropriated at the request of the federal government in connection with the West Intercepted Drainage Bayou Courtableau Outlet Channel and Levee made necessary because of the intercepted drainage caused by the construction of the West Atchafalaya Basin Protection Levee. It is conceded that the land taken is needed in connection with national flood control plans relating to the Mississippi River and those watercourses connected therewith, with the basic plan of preventing the flooding of lower lands along the Mississippi and its connected water courses by diverting or preventing the accumulation of excess waters from upper sources. See Mississippi River Flood Control Act of 1928 and subsequent amendments, 33 U.S.C.A. § 702a et seq.; see, for early history, also United States v. Sponenbarger, 1939, 308 U.S. 256, 60 S.Ct. 225, 84 L.Ed. 230 and Kincaid v. United States, D.C.W.D.La.1929, 35 F.2d 235.
Solely at issue is whether, under the circumstances of this case, the levee board is required to reimburse a public agency for unassessed lands taken and actually used for levee or levee drainage purposes in connection with the national flood control program.
As the authorities to be cited at the conclusion of this paragraph show: Since ancient times a servitude has existed in favor of the public on lands in Louisiana adjacent to navigable rivers and streams for the purpose of constructing and repairing levees to confine the waters of such rivers or streams. The State through its levee boards may appropriate for levee purposes riparian lands burdened with this servitude, without prior judicial proceedings and without compensating the owners for the actual value thereof; and this appropriation does not offend due process or other constitutional guarantees for the reason that riparian ownership is subject to the superior public servitude which came into existence at the time the property was separated from the public domain. The servitude affects not only land actually bordering on the navigable stream but also land within the reasonable necessities of the situation as produced by the forces of nature unaided by artificial causes. The servitude does not, however, affect land along man-made watercourses in the absence of a showing that such land was subject to the levee servitude sought to be exercised at the time the property was separated from the public domain. See: Board of Commissioners, etc. v. Baron, 236 La. 846, 109 So.2d 441; Delaune v. Board of Commissioners, etc., 230 La. 117, 87 So.2d 749; Dickson v. Board of Commissioners, etc., 210 La. 121, 26 So.2d 474; Louisiana Society for Prevention, etc. v. Board of Levee Commissioners, etc., 143 La. 90, 78 So. 249.
As these authorities further note, property subject to this servitude and appropriated for levee purposes was not paid for (outside the Orleans Levee District) until after the adoption of the 1921 constitutional section above-quoted, which provided for payment for land actually used for such purposes at a price not to exceed its assessed value for the preceding year--a payment described by the jurisprudence as a gratuity paid for what the State already owned and not a yard-stick of compensation for such lands. 1
Under the facts before us, it is our opinion that the owner of the land is entitled to compensation for the actual value of the land here taken for levee and levee drainage purposes. For the appropriating levee board was not in this instance exercising the...
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