DeSambourg v. Board of Com'rs for Grand Prairie Levee Dist.

• Decision Date: 02 July 1993
• Docket Number: No. 93-C-0167,93-C-0167
• Citation: 621 So.2d 602
• Parties: Warren DeSAMBOURG and Mary DeSambourg v. BOARD OF COMMISSIONERS FOR the GRAND PRAIRIE LEVEE DISTRICT.
• Court: Louisiana Supreme Court

Page 602

621 So.2d 602

Warren DeSAMBOURG and Mary DeSambourg v. BOARD OF COMMISSIONERS FOR the GRAND PRAIRIE LEVEE DISTRICT.

No. 93-C-0167.

Supreme Court of Louisiana.

July 2, 1993.

Rehearing Denied Sept. 2, 1993.

Mack E. Barham, Robert E. Arceneaux, and Matthew K. Brown, Barham & Arceneaux, for applicant.

Jack P. Brook, Norman F. Pizza, and Michael A. Stroud, Brook, Morial, Cassibry & Pizza, for respondent.

ORTIQUE, Justice ¹.

We granted writ to determine the meaning of "batture" as it is used in the context of the batture exemption from compensation for the state's appropriation of riparian lands pursuant to its levee servitude. ² Riparian landowners at Shingle Point filed eleven suits, which have been consolidated, against the Board of Commissioners for the Grand Prairie Levee District, now Plaquemines Parish Government ("PPG") ³ claiming fill dirt was appropriated from their lands without compensation. PPG denies liability claiming the landowners are not entitled to compensation because the appropriated fill dirt was batture taken for levee purposes and, therefore, exempt from compensation pursuant to LSA-Const. Art. 6, Sec. 42 and LSA-R.S. 38:301(C)(1)(a). After a bench trial on the merits, the court determined all of Shingle Point is batture, found no compensation is due for the taking of the batture, and dismissed plaintiffs' suits. The court of appeal affirmed. 608 So.2d 1100 (La.App. 4th Cir.1992). In the context of the batture exemption from compensation, "batture" is alluvial accretions annually covered by "ordinary high water," the highest stage the river can be expected to reach annually in seasons of high water. Applying that precept to the factual findings of the trial court, we find no error in its conclusion that all of the land taken by PPG, pursuant to its levee servitude, was batture within the meaning of the constitutional exemption from compensation and, therefore, exempt from the payment of compensation.

I.

Shingle Point, near English Turn in Plaquemines Parish, is an area of approximately fifty acres. It lies between the Mississippi River and the levee on the river's left descending bank at River Mile 78. When the river is at its ordinary low stage, the distance between the toe of the levee and the water's edge is about 900 feet. It is wooded and composed of alluvion. Its artificial levee is 18.0 feet or more high and topped with concrete upwards from 8.3 feet. Borrow pits ⁴ had previously been excavated in the area. These consolidated suits concern borrow pit excavations for two levee projects involving approximately sixteen acres of Shingle Point.

The two levee improvement projects were initiated and supervised by the United States Army Corps of Engineers ("COE"). The COE specified the locations of the levee projects and the areas to be appropriated, including the appropriation of portions of Shingle Point for borrow pits. ⁵ Accordingly, in 1982 and 1983, a six acre area at the southern end of Shingle Point was appropriated by Plaquemines Parish Commission Council for the Grand Prairie Levee District for the Scarsdale-Stella Levee Set Back and Road Relocation Project, a project 2.1 miles from the borrow pit site. An additional ten acre area of Shingle Point was appropriated for excavation in 1986 through 1988 for the English Turn Levee Enlargement and Concrete Slope Pavement Project, a project adjacent to the borrow pit site. Both excavations involved the clearing of shrubs and trees and the removal of fill dirt or borrow material. The pit was located 100 feet from the toe of the levee and extended 700 feet across.

Plaintiffs Warren and Mary DeSambourg, Albert and Rosalie Schell, Sadie, Joseph, JoAnn and Linda Perino, Charles and Angelina Mancuso, and Mary and Joseph Seibert, Jr., filed their suits in July and August, 1984, seeking damages for the fair market value of the property taken for the Scarsdale project, severance damages and attorneys fees. Plaintiffs Anthony and Marie LaGreco, Joseph LaGreco, Emile LaGreco, Salvadore DiCarlo, Henry Heier and Charles and Ina Miller, filed their suits in 1987 seeking damages for the fair market value of the property taken for the English Turn Project, severance damages and attorney's fees.

PPG filed a motion for summary judgment, claiming all the property appropriated is batture and exempt from compensation. The trial court referred the motion to trial on the merits. At trial, after the plaintiffs presented their evidence and rested, the court granted summary judgment in the suit of Charles and Ina Miller because the levee servitude appropriated was not utilized, as borrow was not taken from their property. Since the property appropriated was not "actually used, damaged or destroyed" as is required by LSA-R.S. 38:281(B), as amended by Acts of 1979, No. 676, the trial court found the Millers had no basis for claiming compensation. The judgment against the Millers, dismissing their suit, is now final.

Trial continued in the remaining ten suits to determine whether the appropriated lands were batture. The trial court adopted the definition of batture used in Boyce Cottonseed Oil Mfg. Co. v. Board of Comm'rs, 160 La. 727, 107 So. 506, 508 (1926), on org & reh'g, that "batture is that part of the river bed which is uncovered at the time of low water, but is covered annually at time of ordinary high water; when it ceases to be covered at the time of ordinary high water, it ceases to be batture and becomes the bank of the river." To implement that definition, the trial court relied upon Wemple v. Eastham, 150 La. 247, 90 So. 637, 638 (1922), which declared that the "ordinary high water stage" is the "highest stage that it (the river) usually reaches at any one season of the year."

In finding for PPG and dismissing the ten suits, the trial court rejected the plaintiffs' theory that ordinary high water stage is determined by examining the physical characteristics of the bank, and where physical characteristics are not clearly identifiable, by examining the types of vegetation which exist in a hydrographic environment. Instead, the trial court acceded to PPG's theory that the upper boundary of batture is the equivalent of mean high water and is determined by reviewing the statistics on the elevations the river usually reaches annually over a sufficient period of time. Utilizing that test, which it found satisfies the terms "ordinary" and "annually," the trial court calculated the mean high water at 11.0 feet, determined that Shingle Point is 97% inundated when the water reaches that stage, and concluded that all of Shingle Point is batture and subject to the constitutional and statutory exemption from compensation. The trial court accorded its conclusion with an on-site inspection of Shingle Point on March 22, 1991, when the river was at the 8.5 feet level, observing that "with the exception of a few high spots on the upriver portion, water covered the area with only the tops of trees rising above the waters."

The court of appeal affirmed. DeSambourg v. Board of Comm'rs for Grand Prairie Levee Dist., 608 So.2d 1100 (La.App. 4th Cir.1992). It found no error in the trial court's conclusion that all of Shingle Point was batture, noting the record supported the findings that, on the average, the highest point the river reaches at Shingle Point in any given year is approximately 11.0 feet and 97 to 99% of the surface of Shingle Point is inundated when the river reaches 11.0 feet, the areas not inundated being isolated spots created by man-made activity. 608 So.2d at 1108.

We granted certiorari, 614 So.2d 69 (La.1993), to determine the meaning of "batture" as it is used in the context of the batture exemption from compensation when the state appropriates riparian land while exercising its levee servitude.

II.

The constitutional guarantee that property shall not be taken or damaged by the state or its political subdivisions except for public purposes and with just compensation paid to the owner or into court for his benefit, does not apply to the taking or appropriation of property pursuant to the levee servitude. LSA-Const. Art. 1, Sec. 4 ⁶; LSA-Const. Art. 6, Sec. 42 ⁷. This "levee servitude" exception does not offend the Fifth and Fourteenth Amendments to the United States Constitution when the servitude is administered impartially since title to riparian lands have been burdened with the legal servitude for levee and road use from the time those lands were separated from the public domain. General Box Co. v. United States, 351 U.S. 159, 76 S.Ct. 728, 100 L.Ed. 1055 (1956), reh'g den., 351 U.S. 990, 76 S.Ct. 1044, 100 L.Ed. 1502 (1956); Eldridge v. Trezevant, 160 U.S. 452, 16 S.Ct. 345, 40 L.Ed. 490 (1896). See also Delaune v. Board of Comm'rs, 230 La. 117, 87 So.2d 749, 751 (1956); Dickson v. Board of Comm'rs of Caddo Levee Dist., 210 La. 121, 26 So.2d 474, 478 (1946); State v. Richardson, 140 La. 329, 72 So. 984, 989-990 (1916); A.N. Yiannopoulos, 2 La.Civil Law Treatise 3d (1991) Secs. 86, 88.

From the earliest Colonial days, when the Louisiana Territory was in the possession of France and Spain, no grants of lands were ever given without a specific reservation being made therein for the common use of the public of all rights to the shores of rivers and bayous upon which they might front. These two countries never divested themselves of title to lands lying immediately adjacent to navigable streams. This policy during the Spanish occupation of the territory, became merged with the law relative to servitudes to be found in the ancient Las Siete Partidas of Spain and, in time, found its way into the First Civil Code adopted by the Territory of Orleans (comprising what is now known as the State of Louisiana) in 1805, after the Louisiana Territory had been acquired by the United States, the basic principles relative to servitudes in Las Siete Partidas being included therein almost verbatim, thus insuring that the shores of navigable...