City of Thibodaux v. Louisiana Power & Light Co., 5121

• Decision Date: 19 December 1960
• Docket Number: No. 5121,5121
• Citation: 126 So.2d 24
• Court: Court of Appeal of Louisiana — District of US
• Parties: CITY OF THIBODAUX, Plaintiff-Appellee, v. LOUISIANA POWER & LIGHT COMPANY, Defendant-Appellant.

Page 24

126 So.2d 24

38 P.U.R.3d 231

CITY OF THIBODAUX, Plaintiff-Appellee, v. LOUISIANA POWER & LIGHT COMPANY, Defendant-Appellant.

No. 5121.

Court of Appeal of Louisiana, First Circuit.

Dec. 19, 1960.

Rehearing Denied Jan. 30, 1961.

Certiorari Denied March 13, 1961.

Monroe & Lemann, Andrew P. Carter, New Orleans, Harvey Peltier, Donald L. Peltier, Thibodaux, for appellant.

Theo. Cangelosi, Baton Rouge, Remy Chiasson, Thibodaux, for appellee.

Before ELLIS, LOTTINGER, HERGET, LANDRY, and JONES, JJ.

ELLIS, Judge.

Appellant has appealed from a judgment rendered by the Seventeenth Judicial District Court signed on December 23, 1959, in favor of the City of Thibodaux in its action for a declaratory judgment as to its right to expropriate 'all of defendant's electric distribution system located within the city of Thibodaux, as described in the detailed statement of property attached hereto, which said statement is made a part hereof, and is marked 'Exhibit D' for identification, together with any and all rights and privileges defendant may have to operate an electric distribution system within the said City * * *' under and by virtue of the provisions of Act 111 of 1900, now LSA-R.S. 19:101 to 19:107, inclusive, and LSA-Revised Statutes of 1950, Title 13, Sections 4231--4246.

On February 4, 1957, the city filed a petition for expropriation under the authority of LSA-R.S. 19:101 et seq. in the Seventeenth Judicial District Court, which was timely removed by the appellant to the United States District Court for the Eastern District of Louisiana, New Orleans Division. A hearing was held by the United States District Court, and, based mainly upon the fact that 'no authoritative interpretation of the statute, (Act 111 of 1900, LSA-R.S. 19:101 et seq.) has ever been made by the Louisiana court all proceedings were stayed in the case until an interpretation had been obtained from the Supreme Court of Louisiana. See City of Thibodaux v. Louisiana Power & Light Company, 153 F.Supp. 515, 517.

An appeal was taken to the United States Court of Appeal for the Fifth Circuit, 255 F.2d 774, which reversed the District Court but the United States Supreme Court granted certiorari and the judgment of the District Court was affirmed and the city was directed to bring a declaratory judgment action to obtain a declaration of its right to expropriate under the law. Louisiana Power & Light Company v. City of Thibodaux, 360 U.S. 25, 79 S.Ct. 1070, 3 L.Ed.2d 1058. Accordingly the city brought this declaratory judgment action on August 7, 1959. Some exceptions were filed which have passed out of the case and after answer filed by the appellant the case was duly tried and resulted in a judgment for the plaintiff-appellee, granting the right to the City of Thibodaux to expropriate in accordance with its prayer. Hence this appeal. ¹

The plaintiff owns and operates electrical, gas and water plants within its municipal boundaries in order to serve the inhabitants therein, and in 1954 it annexed additional territory, or extended its limits, and thereupon extended its gas and water systems into this new area. Prior to the extension of its limits in 1954, the Louisiana Power and Light Company had been operating therein under a franchise from the Police Jury of the Parish of Lafourche. The plaintiff desired to furnish electricity to the inhabitants in the extended limits of the City, and in order to do so first attempted to acquire the facilities of the appellant within the extended limits with the exception noted, and upon its failure, the plaintiff instituted these expropriation proceedings.

Plaintiff, in oral argument and brief, contends that the following statutes of the State of Louisiana completely authorize and empower it to construct, own, lease, and operate and/or expropriate electric light, gas, a water works plant, within its corporate limits, in this case, within the extended limits of the City of Thibodaux, and we quote such statutes:

LSA-R.S. 19:101

'Electric light, gas, or waterworks plants, expropriation; prescription of damage claims.

'Any municipal corporation of Louisiana may expropriate any electric light, gas, or waterworks plant or property whenever such a course is thought necessary for the public interest by the mayor and council of the municipality. When the municipal council cannot agree with the owner thereof for its purchase, the municipal corporation through the proper officers may petition the judge of the district court in which the property is situated, describing the property necessary for the municipal purpose, with a detailed statement of the buildings, machinery, appurtenances, fixtures, improvements, mains, pipes, sewers, wires, lights, poles and property of every kind, connected therewith, and praying that the property described be adjudged to the municipality upon payment to the owner of the value of the property plus all damages sustained in consequence of the expropriation. Where the same person is the owner of both gas, electric light, and water works plants, or of more than one of any one kind of plant, the municipal corporation may not expropriate any one of the plants without expropriating all of the plants owned by the same person.

'All claims for damages to the owner caused by the expropriation of any such property are barred by one year's prescription, running from the date on which the property was actually taken possession of and used by the political corporation.'

LSA-R.S. 19:102

'Appointment of commissioners, duties, oath.

'Upon receipt of the petition filed pursuant to R.S. 19:101, the judge shall appoint six commissioners, who shall be property owners and residents of the parish. The commissioners shall carefully examine the property sought to be expropriated and shall make a detailed appraisal of its value, showing the separate valuation of the land, the buildings, the machinery, and the other property sought to be expropriated.

'Before beginning performance of their duties, the commissioners shall take an oath to faithfully and impartially discharge their duties.'

LSA-R.S. 19:103

'Report of commissioners; notice to show cause.

'The commissioners shall make a report to the court of their investigation and estimate of valuation within fifteen days after the notification to them by the clerk of their appointment. The clerk shall then deliver to the sheriff a notice to both parties directing them to show cause within ten days after service of this notice why the report of the commissioners should not be approved by the court, and the sheriff shall serve this notice upon all parties to the proceedings as in ordinary cases.'

LSA-R.S. 19:104

'Objections to report.

'If either party objects to the report of the commissioners, he shall file with the clerk a petition of opposition setting forth the objections and the reasons therefor. This opposition shall be tried and decided after hearing the evidence of both parties, as in ordinary cases.'

LSA-R.S. 19:105

'Appeal does not affect judgment.

'No appeal from the judgment of the lower court made by either party shall suspend the execution thereof. The payment of the amount decided on in the lower court by the municipal corporation to the owner or the deposit of that amount in the hands of the sheriff subject to the owner's order entitles the municipality to the title to the property in the same manner as a voluntary conveyance would do.

'If any change is made by the final decree in the decision of the cause, the municipality shall pay the additional assessment or may recover the surplus paid, as the case may be.'

LSA-R.S. 19:106

'Costs; when paid by owner.

'If a tender is made by the municipality of the true value of the gas, electric light, or water works plant to the owner thereof, before proceeding to a forced expropriation, the costs of the proceedings shall be paid by the owner.'

LSA-R.S. 19:107

'Encumbrances cancelled and paid; failure to pay amount fixed in due time.

'Whenever any gas, electric light, or water works plant encumbered with mortgages or privileges of any kind is expropriated by any municipality, it passes to the municipality free and clear of all encumbrances. However, the amount decreed to be paid therefor shall be paid by the corporation into the court within six months from the date of final judgment therein and distributed to the mortgage and privileged creditors according to their priority. In the event the municipal corporation fails to pay the amount fixed by the judgment of expropriation within six months after its rendition, the judgment becomes null and void and the municipality is liable for all damages suffered by reason of its failure to comply with the terms of the expropriation judgment.'

LSA-R.S. 19:1

"Property' defined.

'As used in this Part, the term 'property' means immovable property, including servitudes.'

LSA-R.S. 19:2(1)

'Expropriation by state or certain corporations.

'Where a price cannot be agreed upon with the owner, any of the following may expropriate needed property:

'(1) The state or its political corporations or subdivision created for the purpose of exercising any state governmental powers.'

LSA-R.S. 33:4621

'Authority to acquire property.

'Municipalities and parishes may expropriate and otherwise acquire any private property, within or without their limits, for any of the purposes for which they are organized, and for any works that they are authorized to own or operate, or which they are authorized to lease or donate to the United States. This Part shall not be construed to confer authority upon a parish or municipality to expropriate property in any other parish without the consent of the police jury of the parish in which the property is situated.'

LSA-R.S. 33:4162

'Power to own and operate; power to lease.

'Any municipal corporation or any parish or any other political subdivision or taxing district authorized to issue bonds under Section 14, of Article 14 of the Constitution of...