Boyce Cottonseed Oil Mfg. Co. v. Board of Com'rs of Red River

• Decision Date: 06 October 1925
• Docket Number: 26748
• Parties: BOYCE COTTONSEED OIL MFG. CO. v. BOARD OF COM'RS OF RED RIVER, ATCHAFALAYA AND BAYOU BOEUF LEVEE DIST
• Court: Louisiana Supreme Court

107 So. 506

160 La. 727

BOYCE COTTONSEED OIL MFG. CO. v. BOARD OF COM'RS OF RED RIVER, ATCHAFALAYA AND BAYOU BOEUF LEVEE DIST

No. 26748

Supreme Court of Louisiana

October 6, 1925

No Rehearing, March 1, 1926

Appeal from Thirteenth Judicial District Court, Parish of Rapides J. A. Williams, Judge.

Suit by Boyce Cottonseed Oil Manufacturing Company against Board of Commissioners of Red River, Atchafalaya & Bayou Boeuf Levee District. Judgment for plaintiff and defendant appeals.

Judgment affirmed as amended.

Thornton Gist & Richey, of Alexandria, for appellant.

Overton & Hunter, of Alexandria, for appellee.

ST. PAUL, J. LAND and ROGERS, JJ., O'NIELL, C. J., and THOMPSON, J. BRUNOT, J., concurs. OVERTON, J., recused.

OPINION

ST. PAUL, J.

In 1921 plaintiff owned 5 1/2 acres of land on the west bank of Red river near the town of Boyce, on which it had a cottonseed oil mill and gin. In that year it returned its property for assessment at a valuation of $ 500 for the land and $ 14,500 for the mill; and the assessment was made accordingly.

In the following year the defendant built a levee for the protection of the adjacent lands, and so constructed that levee that the land and improvements of plaintiffs were left between said levee and the river.

Thereafter plaintiff sold its mill for $ 15,000 to the Mansura Cotton Oil Mill, which removed it and installed it elsewhere at an additional cost of about $ 20,000.

And thereupon plaintiff brought this suit to recover from defendant the sum of $ 15,000, under the provisions of Constitution of 1921, art. 16, § 6, p. 115, reading as follows:

"Sec. 6. 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, this shall not apply to batture, nor to property control of which is vested in the state or any subdivision thereof for the purpose of commerce.

"If the district has no other funds or resources out of which such payment can be made, it may levy, on all taxable property situated therein, a tax sufficient to pay for said property so taken, not to exceed one-fourth of one mill on the dollar, to be used solely in the district where collected. This shall not prevent the appropriation of said property before payment."

I.

Comparing the language of the first paragraph of said section, to wit, "lands and improvements thereon actually used or destroyed for levees," with the language of the second paragraph thereof, to wit, "property so taken," we readily perceive that lands used or destroyed for levees means simply lands taken for levees. And since to take is to appropriate, and vice versa, it follows that land taken for levees has precisely the same meaning in the foregoing section as land appropriated for levee purposes has in article 312 of the Constitution of 1898.

The General Assembly which met in 1898 immediately after the adjournment of the constitutional convention, many of whose members had also been members of said convention, clearly understood that property appropriated for levee purposes included property "damaged or destroyed" for such purposes. See Act 79 of 1898, p. 101.

In La. Society, etc., v. Board of Levee Commissioners, 78 So. 249, 143 La. 90, this court held that land had been appropriatedfor levee purposes which had been thrown out between the levee and the river.

In Ward v. Board of Levee Commissioners, 92 So. 769, 152 La. 158, this court again held that land and improvements thrown outside of a levee, i. e. between the levee and the river, had been appropriated for levee purposes, and that the levee board must pay for said lands and for a mill situated thereon.

In Russell v. Board of Commissioners (La.) 105 So. 361, 159 La. 330, our No. 27040, decided June 22, 1925, we held that land thrown outside a levee was land destroyed for levees, within the meaning of Const. of 1921, ut supra, citing inter alia Bickham v. City of Shreveport, 101 So. 8, 9, 156 La. 648, 650.

And our conclusion is that plaintiff's land and mill were actually destroyed for levees, within the meaning of Const. 1921, ut supra.

II.

In 1892 and in 1894 (Acts 41 of 1892, p. 46; and 25 of 1894, p. 28), the General Assembly authorized the Orleans levee board to compensate certain property holders whose property had been appropriated, taken, or damaged, for levee purposes; but with this proviso, that in no case should the amount paid to such owners exceed the assessed value of the property at the time. And the Act of 1898 (No. 79, p. 101) contains a similar proviso, although the Constitution of 1898 gave a right of action to such property holders for "the value of said property."

Evidently therefore the General Assembly thought that in such cases the assessment would constitute the fair measure of value between the state and the property holder.

And moreover, since the Constitution directed that the property holder should receive "the value" of his property, and presumably the General Assembly meant to obey the Constitution, it follows that the limit fixed was not a mere arbitrary refusal to allow the value of the property, but a legislative declaration that the measure of such value should be the assessment.

And whether or not such acts were or were not wholly constitutional even under that aspect is neither here nor there at present, since the Constitution itself in the very grant of compensation has itself fixed the assessed value as the limit thereof. But manifestly the constitutional convention had in mind the very same idea as had the General Assembly, to wit, that the assessment should be the test of value between the state and the property holder.

For presumably the Constitution meant to deal fairly not only as between the state and the property holder, but also between all property holders. And such would not be the case unless the proviso that compensation should not exceed the assessed valuation were intended as a measure of values, and not a mere limit of compensation.

For where two persons might be assessed each for half the value of his property, and one were damaged to the extent of only half his property, whilst the other were damaged to full extent thereof, it is clear that if the assessment were a mere limit of compensation, the former would be compensated twice as well as the latter; since he would receive compensation in full for his loss of half his property whilst the latter would receive only half compensation for his whole loss. But such would not be the case, and there would be no inequality between them, if the assessment be considered as the mere measure of values. For in that case the one would receive compensation only to the extent of half his assessment, whilst the other would be compensated to the full amount of his assessment; but in both cases the compensation would be in the same proportion, to wit, one-half the loss. And since both parties had it within their power to receive full compensation by returning their property for assessment at its true value, we do not see that either would have any just cause for complaint.

Our conclusion is that the Constitution means that the assessed value of the property taken for levee purposes shall be the measure of value of such property, and does not mean merely to fix a limit of compensation.

And the reason why the assessment should be the measure of value in such cases is well stated in Board of Levee Commissioners v. Jackson's Estate, 36 So. 912, 113 La. 124, wherein this court said, on rehearing:

"It is further to be observed that the plaintiff in this case is a levee board acting for the prevention of overflow, the property sought to be expropriated being property which until very recently, and when acquired by the defendants, being subject to a servitude for levee purposes without compensation. It is said that the smallness of the valuation placed upon the property for taxation ought not to enter into consideration as a factor in this case, but we think otherwise in this particular class of cases. The defendants have for a number of years past escaped their proper extent of contribution for tax purposes, and the state has lost to that extent. There may have been no element of moral wrong in this particular case, but certainly when the state herself comes to claim what rightly belongs to her, as she does now in the case at bar, we scarcely think it lies in the mouth of the owners to say that the matter of assessment is not a matter to be taken into view. If the owners for these many years have with propriety paid taxes upon a valuation of $ 10,000, we are of the opinion that valuation plays a very important part in this matter. If the valuation stated was the proper standard by which the owners should pay money to the state, it certainly should not be ignored when they call upon the state to pay money for it." (Italics ours.)

III.

As the assessed value of the land was $ 500, and that land has been destroyed for levee purposes, i. e. thrown into the bed of the river, we think plaintiff is entitled to recover of defendant that amount with legal interest from judicial demand.

On the other hand, the mill was clearly worth $ 35,000, since the purchaser thereof paid plaintiff $ 15,000 and spent nearly $ 20,000 in re-erecting it. But it was assessed only $ 14,500 and as we have said, that is the measure of its value between plaintiff and this defendant. But since plaintiff has received more than that sum from the sale thereof, we are of opinion that it can recover nothing herein on that account. In other words, plaintiff had the right to abandon the mill and claim its assessed value from defendant, or do as it did. But in that...