Dickson v. Board of Com'rs of Caddo Levee Dist.

• Decision Date: 22 April 1946
• Docket Number: 37953.
• Citation: 26 So.2d 474,210 La. 121
• Parties: DICKSON v. BOARD OF COM'RS OF CADDO LEVEE DIST. et al.
• Court: Louisiana Supreme Court

26 So.2d 474

210 La. 121

DICKSON v. BOARD OF COM'RS OF CADDO LEVEE DIST. et al.

No. 37953.

Supreme Court of Louisiana

April 22, 1946

Rehearing Denied May 27, 1946.

Appeal from First Judicial District Court, Parish of Caddo; James U. Galloway, Judge.

A S. Drew, of Minden, and A. M. Wallace, of Benton, for appellants.

Herold Cousin & Herold, of Shreveport, for appellee.

FOURNET Justice.

The plaintiff, C. Bickham Dickson, is seeking to recover from the Board of Commissioners of the Caddo Levee District and the Board of Commissioners of the Bossier Levee District, in solido, the suma of $22,400 (with reservation of his right to sue for further damages) as compensation for that portion of his plantation, known as Sunflower Plantation, situated on the left descending bank of the river lying on the river or unprotected side of the levee and the pecan trees and crops thereon destroyed by repeated and constantly increasing erosion caused by the artificial current created in the river and thrown against his plantation at a right angle by reason of the cutting by these levee boards under joint agreement of two straight channels or cut-offs across two tracts of land peninsular in shape lying within the river side of the levees approximately a mile above his property, one being in the bend of the river on the west or Caddo parish side and known as Fire Point, the other being in the bend of the river on the east or Bossier parish side and known as Shreve's Island.

The defendants, after their exceptions of no cause and no right of action were overruled, filed separate answers which, in substance, are identical, it being admitted that the channels were cut as alleged in plaintiff's petition but asserted that this action was taken for the mutual benefit of the two levee boards and for the good of the public generally. They averred further that despite the expenditure of large sums of money for the building and protection of levees and banks they were confronted with a serious situation involving the loss of all of the levees and properties in the vicinity of the two cut-offs, including the plaintiff's, if something was not done immediately and that it was to solve this situation that, upon the recommendation and with the approval of the State Board of Engineers these cut-offs were made and that they not only corrected the mischief sought to be remedied but also enured to the benefit of all of the properties along these cut-offs including the plaintiff's, whose loss by erosion on the southern portion of his plantation was compensated by the accretions forming on the northern portion thereof. The defendants further averred that the plaintiff acquired this property with full knowledge of the existing conditions as well as with full knowledge of the law of this state relative to the obligation of a riparian owner abutting this river. They also specially pleaded the prescription of one year.

The case was tried and submitted on the issues as thus made up and the trial judge rendered judgment against the defendants jointly and in solido in the sum of $5,000. The defendants appealed and answering this appeal the plaintiff asks that the judgment rendered in the lower court be amended to award him the amount originally sued for.

It is the contention of the appellants, which not only forms the basis of their exceptions but also the defense set out in their answers, that since the plaintiff's claim is for the loss of his property due to the destruction thereof by the action of the defendant boards in the performance of a legal duty to prevent the collapse of the levees along this river and the ultimate protection of the properties abutting thereon in their respective districts behind these levees, his right to recover therefor is under Section 6 of Article XVI of the Constitution of 1921 providing that lands and improvements 'actually used or destroyed for levees or levy drainage purposes * * * shall be paid for at a price not to exceed the assessed value for the preceding year,' and since the plaintiff has failed to avail himself of the rights given him thereunder by specifying in his petition the assessed value of his land, he has no cause of action under the holding of this court in the case of Lacour v. Red River, Atchafalaya & Bayou Boeuf Levee District, 158 La. 737, 104 So. 636.

On the other hand the plaintiff's contention is that the suit was not brought under Section 6 of Article XVI of the Constitution of 1921 for property actually taken or destroyed for levee purposes, but, instead, was brought under Section 2 of Article I of the Constitution of 1921 (as well as the similar provisions to be found in the Fifth amendment to the Constitution of the United States) guaranteeing that private property shall not be taken or damaged except for public purposes and after just and adequate compensation is paid, for his property was destroyed for public purposes under the authority of Act No. 7 of 1884 granting levee boards the authority to cut across bends of streams for the purpose of straightening them and was not used for levee purposes as contemplated by the servitude imposed thereon in our Revised Civil Code, particularly Article 665.

Despite the constitutional guarantee that one cannot by deprived of his property except for public purposes and then only after adequate indemnification in the manner prescribed by law, in this state prior to the adoption of the Constitution of 1921 property used for the construction and drainage of levees was not paid for outside the district under the control of the Orleans Levee Board (and even in that district compensation was not paid prior to the Constitution of 1898, which constitution in Article 312 provided that the owners of such land had a right of action against the Orleans Levee Board for 'the value of said property') for the very simple reason that under the express provisions of the laws of this state a servitude was imposed upon all lands bordering on navigable rivers and streams for the construction and maintenance of levees, roads, and other common or public works. As was pointed out by the Supreme Court of the United States in Eldridge v. Trezevant, 160 U.S. 452, 16 S.Ct. 345, 347, 40 L.Ed. 490, quoting with approval from Ruch v. New Orleans, 43 La.Ann. 275, 9 So. 473, "the riparian owner enjoys his property sub modo, i. e., subject to the right of the public to reserve space enough for levees, public roads, and the like. Over this space the front proprietor never acquires complete dominion. It never passes free of this reservation by a deed to a purchaser."

By adoption of Section 6 of Article XVI of the Constitution of 1921 it was specifically provided that '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.' In the case of Boyce Cottonseed Oil Mfg. Co. v. Board of Commissioners of Red River, Atchafalaya and Bayou Boeuf Levee District, 160 La. 727, 107 So. 506, this language wes compared with that used in Article 312 of the Constitution permitting riparian property owners to recover 'the value' of land used for levees and levee drainage purposes in the district under the control of the Orleans Levee Board and concluded that because of the inclusion of the above quoted provision in the 1921 Constitution it was the intention of its drafters that the test of the value of such land as between the state and the property owner would be the amount it was assessed for the preceding year; further, that since the state has always had a right of servitude over rural riparian property that it could have exercised without paying and compensation, the amounts thus awarded the owners of these lands in the Constitution of 1921 was 'purely gratuitous.' As expressed in Mayer v. Board of Commissioners for Caddo Levee District, 177 La. 1119, 150 So. 295, 296, 'It is a payment made by the agency of the state--the levee district--for what already belonged to the state at the time of the adoption of the Constitution.' This court also held in Lacour v. Red River, Atchafalaya & Bayou Boeuf Levee District, 158 La. 737, 104 So. 636, that a petition that does not allege the property thus appropriated by the state for levees and levee drainage purposes was assessed during the preceding year and the amount of such assessment, does not state a cause of action.

The plaintiff concedes this to be the law of this state but contends that the joint action of the defendants in creating these two cut-offs was neither for the repair or construction of levees but for the protection of private property in the respective levee districts from the caving banks of Red River and to relieve these defendants of the necessity of having to rebuild these levees at points some distance back from the banks.

The defendants concede these cut-offs were not made for the building or repair of any levee but they claim it was done for the purpose of preserving from further destruction the levees already in existence along these banks and to protect valuable property in their respective districts from floods; consequently, that such action comes within the contemplation of Article 665 of the Revised Civil Code creating the servitude for the making and repair of levees.

In order that the proper construction may be placed on the articles of our code relative to this servitude, it is necessary that we understand the conditions that have existed in this state and the historical background that has given rise to our laws authorizing the appropriation of riparian lands for...