City of New Orleans v. Board of Com'rs of Port of New Orleans

• Decision Date: 03 December 1962
• Docket Number: No. 769,769
• Citation: 148 So.2d 782
• Parties: CITY OF NEW ORLEANS and Audubon Park Commission v. BOARD OF COMMISSIONERS OF the PORT OF NEW ORLEANS.
• Court: Court of Appeal of Louisiana — District of US

Page 782

148 So.2d 782

CITY OF NEW ORLEANS and Audubon Park Commission v. BOARD OF COMMISSIONERS OF the PORT OF NEW ORLEANS.

No. 769.

Court of Appeal of Louisiana, Fourth Circuit.

Dec. 3, 1962.

Rehearing Denied Feb. 4, 1963.

Chaffe, Phillips, Burke, Toler & Hopkins, Leon Sarpy, Peter A. Feringa, Jr., Charles I. Denechaud, Jr., Felix W. Gaudin, New Orleans, and Alvin J. Liska, City Atty. (Charles E. Cabibi, New Orleans, of counsel), for plaintiffs-appellants.

Sumter D. Marks, Jr., Charles M. Lanier, Emero S. Stiegman, New Orleans (Phelps, Dunbar, Marks, Claverie & Sims, New Orleans, of counsel), for defendant-appellee.

Before McBRIDE, REGAN, YARRUT, SAMUEL and JOHNSON, JJ.

SAMUEL, Judge.

This suit seeks to enjoin the defendant from taking and occupying part of the bank of the Mississippi River fronting on Audubon Park in the City of New Orleans. After a trial on the rule nisi for a preliminary injunction and on the merits the District Court denied the injunction and dismissed the suit. Petitioners have suspensively appealed.

The litigation arose after defendant announced its intent to construct an upstream extension of its Nashville Avenue Wharf and commenced soil borings to ascertain subsurface conditions. The proposed extension would occupy all of the bank of the Mississippi River fronting on Audubon Park. The park occupies a large tract of land part of which was acquired from private owners in the year 1871 and part of which, lying immediately downstream and known as the 'Mengel Tract', was acquired years later from a railroad company. It is only the taking and use of the river bank fronting on the parcel of land acquired in 1871 which is sought to be enjoined by this suit. The use of the river bank fronting on the Mengel Tract is not attacked.

The record contains two volumes of testimony and over a hundred exhibits. Eight original, supplemental and reply briefs have been filed and several issues have been raised. However, our conclusion on one of those issues makes it necessary and proper for us to consider only that one.

The defendant is an agency of the State of Louisiana, created by Act 70 of 1896 (LSA-R.S. 34:1 et seq.), with authority generally to regulate, maintain and develop the commerce and traffic of the port and harbor of New Orleans and to acquire, by expropriation or by purchase, property, wharves or landings necessary for the benefit of the commerce of the port. Its claim to the river bank property here involved is based solely upon the contention that as agent of the state it has the right to exercise the servitude of use for purposes of commerce and navigation imposed by LSA-Civil Code Art. 665. No other authority is urged or relied upon by the defendant for its taking and use of the property.

LSA-Civil Code Art. 665 reads:

'Servitudes imposed for the public or common utility, relate to the space which is to be left for the public use by the adjacent proprietors on the shores of navigable rivers, and for the making and repairing of levees, roads and other public or common works.

'All that relates to this kind of servitude is determined by laws or particular regulations.' LSA-C.C. Art. 665.

The tract of land in question was acquired in 1871 by purchase from private owners, title being taken in the name of 'The Commissioners of the New Orleans Park', a board created by the legislature by Act 84 of the Extra Session of 1870 for the purpose of managing and controlling the New Orleans Park (now known as City Park). The authority of this board was expanded by Act 83 of 1871, which conferred upon the board the right to manage for park purposes additional lands to be selected by a special committee appointed by the legislature. The land selected by the special committee is the land described in the 1871 acquisition and involved in this suit. Act 87 of 1877 transferred all the powers and duties conferred on the park commissioners by Act 84 of the Extra Session of 1870 and the amendment of 1871 to the City Council of New Orleans. Act 130 of 1896 placed Audubon Park under the control and management of a corporation known as the 'Audubon Park Association'. The next act on the subject, 191 of 1914, created an Audubon Park Commission for the City of New Orleans composed of 24 citizens and property tax payers to be appointed by the Mayor with the advice and consent of the City Council and vested control and management of Audubon Park in the commission it created. Additional authority relative to park recreational and entertainment facilities and activities was given the commission by Act 492 of 1958.

Defendant contends we must hold that Audubon Park is owned by the city which acts through its own agent, the Audubon Park Commission, (1st) because plaintiffs are bound by an allegation in their petition to the effect that the two plaintiffs 'are vested with the ownership, control and management' of the park property and cannot now assert ownership in the state, and (2nd) as a result of the fact that the case of State Civil Service Comm. v. Audubon Park Comm., La.App., 99 So.2d 920, holds that Audubon Park is owned by the city.

Even though the petition does allege ownership as above set forth it does not follow from such an allegation that we must hold ownership is in the city or that petitioners are estopped from now asserting ownership in the state. In addition to the fact that the circumstances here are quite different from a case involving the private property of a private litigant, and while a litigant may be estopped or bound by allegations of fact, he is not bound by allegations which are only pronouncements or conclusions of law or based upon an error in fact. Scurria v. Russo, La.App., 134 So.2d 679; Modicut v. Rist, La.App., 98 So.2d 268; Southern United Ice Co. v. Rapides Grocery Co., La.App., 187 So. 313; Central Sav. Bank & Trust Co. v. Succession of Brandon, La.App., 167 So. 515. The allegation here is not binding on the pleaders or the court.

The case of State Civil Service Comm. v. Audubon Park Comm., supra, decided by this court in 1958, was a mandamus proceeding brought by the State Civil Service Commission of Louisiana to compel the Audubon Park Commission to comply with the regulations and rules of the State Civil Service Commission rather than with those of the City Civil Service Commission of the City of New Orleans with which they had been complying. This court held that the Audubon Park Commission is an independent agency of the City of New Orleans and not of the State of Louisiana. The decision was concerned only with civil service and not at all with ownership of the park and is not apposite. The holding that individuals who work for an agent which manages and controls property work for the agent rather than for the owner of the property is not inconsistent with or repugnant to the views expressed in the instant case.

We are of the opinion that the above recited legislative acts do nothing more than designate successive agencies to administer, manage and control the park property which belonged, and belongs, to the state. Although title to the property was originally taken in the name of the legislative corporation which had authority to manage and control the park, it is quite clear that the state, and not the corporation, owned the property, and this is also true in connection with the later designations of other agencies. None of the legislative acts divests the state of its original ownership nor has the defendant called to our attention any other act or action by the state which could be considered such a divestiture. None of the agencies owns or has ever owned the property; that ownership has remained in the state. As the court observed in the case of Saucier v. City of New Orleans, 119 La. 179, 187, 43 So. 999, 1002:

'That the state must administer its property through some agent, that it may administer such of its property as lies within a particular municipality through such municipality, and that the investiture of a municipality with control of state property, for purposes of administration, is neither the loaning, pledging, nor granting of anything, are propositions which do not admit of discussion.'

Thus the property which defendant contends is subject to the servitude and the servitude itself are both part of the public domain of Louisiana and are both owned by the State of Louisiana.

Under LSA-Civil Code Art. 646 the servitude with which we are here concerned is a real servitude defined as follows: 'Real servitudes, which are also called predial or landed servitudes, are those which the owner of an estate enjoys on a neighboring estate for the benefit of his own estate.' The following Civil Code articles are pertinent:

'A real or predial servitude is a charge laid on an estate for the use and utility of another estate belonging to another owner.' LSA-C.C. Art....