Board of Com'rs of Red River, Atchafalaya and Bayou Boeuf Levee Dist. v. Trouille

• Citation: 31 So.2d 700,212 La. 152
• Decision Date: 16 June 1947
• Docket Number: 38438.
• Parties: BOARD OF COM'RS OF RED RIVER, ATCHAFALAYA AND BAYOU BOEUF LEVEE DIST. v. TROUILLE et al.
• Court: Supreme Court of Louisiana

31 So.2d 700

212 La. 152

BOARD OF COM'RS OF RED RIVER, ATCHAFALAYA AND BAYOU BOEUF LEVEE DIST. v. TROUILLE et al.

No. 38438.

Supreme Court of Louisiana

June 16, 1947

Rehearing Denied July 3, 1947.

Appeal from Twenty-Seventh District Court, Parish of St. Landry; Kenneth Boagni, Judge.

C C. Wood, of New Orleans, and J. Harry Henderson, Jr., of Alexandria, for plaintiff-appellant.

L. Austin Fontenot and L. Austin Fontenot, Jr., both of Opelousas, for appellees-defendants.

BOND Justice.

The plaintiff, Board of Commissioners of the Red River Atchafalaya and Bayou Boeuf Levee District, is appealing from a judgment of the district court maintaining the exception of no cause or right of action to a petition filed by plaintiff against defendants, Ferdie Trouille and John F. Wartelle property owners along Bayou Cocodrie, Parish of St. Landry La., seeking an injunction to prohibit the defendant from further interfering with certain levee construction improvements over the lands allegedly appropriated by the plaintiff for that purpose.

The well-pleaded facts in the case, which according to the jurisprudence of this State, must be accepted as true in the disposition of the exception of no cause or right of action, are substantially set forth as follows:

That the federal government under the Flood Control Act, Public Law 228, 77th Congress, 1st Session, 55 Stat. 638, in authorizing the construction of the project known as 'Improvement of Bayous Rapides, Boeuf and Cocodrie' required that local interests should provide the necessary right of way without cost to the United States; that the Board of Commissioners of the Red River, Atchafalaya and Bayou Boeuf Levee District under Act 287 of 1940 is authorized to appropriate rights of way for accomplishment of improvements outside of its own levee district; that acting under the provisions of said statute the Board proceeded to pass a resolution appropriating lands necessary for the project after recording the required proces verbal approved by the Director of Public Works; that the federal government, after having received assurances from the plaintiff that the necessary rights of way would be provided, let the contract for the construction of said project to Forcum-James Company; that when this company entered the appropriated lands for the purpose of commencing operations for the deepening and widening of Bayou Cocodrie as a part of the project, the defendants interfered with them, threatening verbally and in writing to use force to eject them; that specific acts of interference included the arrest of the superintendent and two employees of the construction company, who were charged with criminal trespassing; and that because of these interferences of the defendants, the work could not be continued, and plaintiff will suffer irreparable injury, loss and damage.

Plaintiff prayed for injunctive relief prohibiting further interference by the defendants with the construction of the project over the appropriated lands. A rule nisi issued and on the return day defendants filed an exception of no cause or right of action. An answer was filed by the defendants, but the record shows that it was apparently disregarded.

After argument on the exception, the district judge, filing written reasons, maintained the exception of no cause or right of action on the ground that Bayou Cocodrie was not a navigable stream and therefore the plaintiffs were not entitled to the servitude granted under Article 665, Revised Civil Code, discharged the rule nisi, refused the injunction prayed for, and dismissed the plaintiff's suit. The plaintiff has appealed.

Section 1 of Act 287 of 1940 provides:

'* * * That the Board of Commissioners for the Red River Atchafalaya and Bayou Boeuf Levee District is hereby authorized and empowered to acquire the necessary right of way for the proposed improvement of the Bayous Rapides, Boeuf, Cocodrie and the watersheds thereof from their source in Rapides Parish to their outlet in St. Landry Parish, Louisiana, in such places where said waterway will be outside the limits of said Levee District, particularly West of Bayou Boeuf in St. Landry Parish and through the Eastern part of Evangeline Parish; right of appropriation outside of the geographical limits of the District being absolutely necessary to the accomplishment of the above improvements sought within the District; and there is hereby conferred upon said Levee Board the right of appropriation under Section 6, Article XVI, Louisiana Constitution of 1921, in acquiring said right of way, provided that before said right...