Eldridge v. Trezevant

• Decision Date: 06 January 1896
• Docket Number: No. 62,62
• Parties: ELDRIDGE v. TREZEVANT et al
• Court: U.S. Supreme Court

160 U.S. 452

16 S.Ct. 345

40 L.Ed. 490

ELDRIDGE

v TREZEVANT et al.

No. 62

January 6, 1896.

William B. Eldridge, a citizen of the state of Mississippi, filed in the circuit court of the United States for the Western district of Louisiana a bill of complaint against Henry B. Richardson, chief of the board of engineers of the state of Louisiana, and Peter J. Trezevant, citizens of Louisiana, whereby he sought to have the defendants enjoined from the construction of a certain public levee through a plantation belonging to the complainant, and situated in Carroll township, state of Louisiana.

An answer was filed admitting that the state board of engineers had projected and laid out a public levee through the complainant's plantation, and that a contract to construct said levee had been awarded to Peter J. Trezevant, but claiming that such proceedings were in pursuance of an act of the general assembly of the state of Louisiana, approved February 10, 1879, and were therefore lawful

The case was heard upon the issues presented by the bill and answer, supplemented with an admission that none of the acts complained of in the bill were wanton, malicious, or arbitrary.

On June 20, 1891, a decree was rendered adjudging the sufficiency of the answer, and dismissing the bill, from which decree an appeal was taken to this court.

Wade R. Young, for appellant.

[Argument of Counsel from pages 453-461 intentionally omitted] M. J. Cunningham and T. M. Miller, for appellees.

Mr. Justice SHIRAS, after stating the facts in the foregoing language, delivered the opinion of the court.

By an act of the general assembly of the state of Louisiana approved February 10, 1879, there was created a board of state engineers, whose duty it was to make a survey of the water courses, public works, and levees of the state. They were to report to the governor of the state the improvements which they should deem necessary, and the construction of such levees as were of prime importance to the state at large and were beyond the means of the parochial authorities. They were also, in said report, to furnish estimates and specifications of work necessary to be done. It was thereupon made the duty of the governor to advertise for proposals to make such improvements and construct such levees as were recommended, and to award the contracts to the lowest responsible bidder, under proper and sufficient bonds for the faithful performance of their contracts; and, upon completion of said works, it was made the duty of the board of engineers to examine and measure the work, and to certify to its correctness; and, upon approval by the governor, the auditor of public accounts of the state was to draw his warrant therefor, payable out of the general engineer fund, or such fund as should be provided by law.

In the exercise of the powers thus conferred, the board of engineers reported to the governor that it was necessary to construct a levee across complainant's plantation; that such levee was of prime importance to the state at large; would have to be of large size; that the river front was a dangerous and constantly caving bank; and that, necessarily, the levee had to be located some distance from the river; and they furnished estimates and specifications of the work necessary to be done. Subsequently, after advertising for proposals, the governor awarded the contract for constructing the levees proposed to the defendant Peter J. Trezevant, as the lowest responsible bidder, who was, at the time of filing of the bill, proceeding with the work.

The plaintiff expressly admits, in his bill, that, although the constitution of the state of Louisiana contains a provision that private property shall not be taken or damaged without adequate and just compensation being first paid, the laws of the state, as interpreted by the supreme court of the state, provide no remedy for cases of proceedings under the levee laws, and that the supreme court of the state has decided that such taking, damage, and destruction of property for the purpose of building a public levee is an exercise of the police power of the state, and damnum absque injuria, because the state has a right of servitude or easement over the lands on the shores of navigable rivers for the making and repairing of levees, roads, and other public works. But he contends that as he cannot sue the state for compensation, and as an action at law, if such would lie, would not furnish that just and adequate compensation first paid contemplated by the provision of the state constitution, he has a right, as a citizen of another state, to invoke, in the circuit court of the United States, the protection of the Fourteenth amendment of the constitution of the United States, which provides that no state shall deprive any person of life, liberty, or property without due process of law, nor deny to any person within its jurisdiction the equal protection of its laws.

The concession distinctly made by the complainant, in his bill, that the state courts refuse to recognize that owners of lands abutting on the Mississippi river and the bayous running to and from the same, where levees are necessary to confine the waters and to protect the inhabitants against inundation, are entitled, when a public levee is located upon such lands, to invoke the application of that provision of the state constitution which provides that 'private property shall not be taken nor damaged for public use without just and adequate com- pensation first paid' (Const. La. art. 156), and repeated in the brief filed on his behalf in this court, relieves us from an extended examination of the origin and history of the state enactments, constitutional and legislative, and of the decisions of the state courts on this subject.

It is important, however, to observe the ground upon which the state legislative and judicial authorities base their action. That ground is found in the doctrine existing in the territory of Louisiana before its purchase by the United States, and continuing to this time,—that lands abutting on the rivers and bayous are subject to a servitude in favor of the public, whereby such portions thereof as are necessary for the purpose of making and repairing public levees may be taken, in pursuance of law, without compensation. This doctrine is said to have been derived from the Code Napoleon, whose 649th and 650th articles were as follows:

'Servitudes established by law have for object the public or commercial utility, or the utility of private persons. Those established for the public or commercial utility have for object the towpaths along the navigable or floatable rivers, the construction or repairing of roads and other public or commercial works. All that concerns this kind of servitude is determined by laws or particular regulations.'

But whether the servitude in question was derived from French or Spanish sources, or from local and natural causes, we need not inquire, because it is explicitly asserted in the Civil Code of Louisiana (article 665), in the following terms:

'Servitudes imposed for the public or common utility relate to the space which is to be left for 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.'

In the case of Zenor v. Parish of Concordia, 7 La. Ann. 150, where the legislature had enacted that the police jury of a parish exposed to inundation should have plenary power to locate and construct levees, and where such police jury, in pursuance of these powers, had placed and built a levee on the lands of the complainant, greatly to his detriment, it was held that the enactment was valid, and that no liability for damages was caused by a bona fide proceeding under it. The court said:

'In this state, so much exposed to ruinous inundations, the public have the undoubted right, on the shores of the...