Cogswell v. BOARD OF LEVEE COM'RS, ETC.
| Decision Date | 18 May 1944 |
| Docket Number | No. 10704.,10704. |
| Citation | 142 F.2d 750 |
| Parties | COGSWELL v. BOARD OF LEVEE COM'RS OF ORLEANS LEVEE DIST. et al. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Benjamin M. Goodman and David Gertler, both of New Orleans, La., for appellant.
Francis P. Burns, Walter B. Hamlin, Severn T. Darden, and Harry McCall, all of New Orleans, La., for appellees.
Before HOLMES, McCORD, and WALLER, Circuit Judges.
This suit was brought by appellant against the Board of Levee Commissioners of the Orleans Levee District, the Texas & New Orleans Railroad Company, and the City of New Orleans, to secure (1) a mandatory injunction requiring said defendants to restore North Peters Street in the City of New Orleans as a paved thoroughfare, and (2) a money judgment against said defendants, jointly and in solido, in the sum of $30,000, as damages for wrongfully depriving appellant of the use of the street and rentals from her property abutting thereon. This appeal is from a judgment dismissing the suit for lack of jurisdiction.
The asserted cause of action arises from these alleged facts: North Peters Street was dedicated to public use prior to 1865, was made into a paved thoroughfare, and was used by the public as such. Appellant owned property fronting on the street; on the opposite side was built a levee that confined the waters of the Mississippi River, and the defendant Railroad Company operated switch tracks on or at the base of the levee. Several years prior to the institution of the suit the Board of Levee Commissioners of the Orleans Levee District, an agency of the State of Louisiana, determined that the levee should be reconstructed. It was not necessary that North Peters Street should be used for such purpose, but the Levee Commissioners, after negotiations with and for the accommodation and convenience of the defendant Railroad, determined that the base of the levee should occupy a sufficient portion of the street to enable the Railroad to build tracks thereon. The City of New Orleans aided in the undertaking, and adopted an ordinance granting to the Railroad the right to occupy a portion of the street and maintain a switch track thereon.
The changes effected pursuant to these arrangements closed North Peters Street to all vehicular traffic, shut off ingress and egress to and from appellant's property, and deprived appellant of valuable rights therein. It was also alleged that appellant considered erecting improvements upon her property that would have yielded a monthly rental of $200, and that she desisted from so doing because the appropriation of North Peters Street denied access to the property.
The complaint bases federal jurisdiction upon the existence of a federal question, alleging that appellant's property was taken from her without due process of law in violation of the Fifth and Fourteenth Amendments of the Constitution of the United States, and that the requisite jurisdictional amount is in controversy.
The Fifth Amendment is a limitation upon the powers of the United States, and it is not charged that any act on its part caused injury to appellant; manifestly no federal question is presented with respect thereto. It also appears that the relief sought has been cut off, in whole or in part, by Louisiana statutes of prescription,1 since the property right was taken in 1926 and this suit was not instituted until January 18, 1943. It is, therefore, doubtful whether an amount essential to federal jurisdiction is involved. It is also pointed out that the Fourteenth Amendment applies only to states and agencies acting for and pursuant to authority from the state, whereas the Railroad Company, joined as a party defendant, is not in any wise a state agency. In order for jurisdiction to exist on the ground of a federal question, the federal question must be an essential element of plaintiff's cause of action and must form an integral part of the case.2
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