Hamilton v. City of Shreveport

• Decision Date: 28 October 1965
• Docket Number: No. 10196,10196
• Citation: 180 So.2d 30
• Parties: William B. HAMILTON, Plaintiff-Appellee, v. CITY OF SHREVEPORT, Defendant-Appellant.
• Court: Court of Appeal of Louisiana — District of US

Page 30

180 So.2d 30

William B. HAMILTON, Plaintiff-Appellee, v. CITY OF SHREVEPORT, Defendant-Appellant.

No. 10196.

Court of Appeal of Louisiana, Second Circuit.

Oct. 28, 1965.

Rehearing Denied Nov. 30, 1965.

Writ Refused Jan. 18, 1966.

J. N. Marcantel, John Gallagher, J. Bennett Johnston, Jr., Shreveport, for defendant-appellant.

Wilkinson, Lewis, Madison & Woods, Dimick & Hamilton, Shreveport, for plaintiff-appellee.

Before GLADNEY, AYRES, and BOLIN, JJ.

AYRES, Judge.

Plaintiff in the instant case and plaintiffs in the cases consolidated with it, Tracy v. City of Shreveport, La.App., 180 So.2d 37, and Wilkinson et ux. v. City of Shreveport, 180 So.2d 37, of the docket of this court, were awarded judgments for damages arising from the City's manipulation and raising of the floodgates at the dam which it maintains to impound the waters of Cross Lake, causing plaintiffs' properties to be inundated, eroded, and washed away.

On appeal, this court sustained the City's defense of sovereign immunity and dismissed plaintiffs' appeal (La.App., 168 So.2d 380 and 388). However, on plaintiffs' application to the Supreme Court, writs of certiorari were granted limited to the respondent's immunity in view of the provisions of Section 35 of Article 3 of the Constitution, as amended by Act 621 of 1960 (246 La. 917, 168 So.2d 824). Upon trial of this issue in the Supreme Court, the plea of immunity was overruled and, accordingly, the judgment of this court was reversed and the cause remanded for further proceedings (247 La. 784, 174 So.2d 529, 533).

The issues remaining for determination concern primarily defendant's alleged negligence especially pointed up in its exception of no cause and of no right of action and the application of certain legal principles to the facts.

Plaintiffs in these consolidated cases are the owners of three contiguous tracts of land situated upon a peninsula projecting into Cross Lake and known as Willow Point. The Hamilton tract, with a lake frontage of 200.4 feet and an average depth of 189.6 feet, contains .866 of an acre; the Tracy tract, with a frontage of 50 feet, a rear width of 150 feet, and an average depth of 180 feet, .509 of an acre; and the Wilkinson tract, with a frontage of 406.31 feet and an average depth of 263.4 feet, 2.6 acres. These tracts extend down to the 172-foot contour line above mean Gulf level, below which the City of Shreveport, by virtue of Acts 31 of 1910, 149 of 1920, and 39 of 1926, owns all lands and is authorized and empowered to impound water thereon not to exceed the 172-foot contour line for the purpose of providing a water supply for the City.

Plaintiffs' causes of action are predicated on the alleged arbitrary action of the defendant on or about January 20, 1962, in closing or raising the floodgates controlling the water level of the lake, the level of which was, without notice to plaintiffs and the other owners of properties fronting on the lake, raised to a new and higher level to such an extent that plaintiffs' properties were encroached upon and inundated, the bank or shoreline of which was immediately eroded, disintegrated, and washed away. This act of the City was alleged to have been persisted in despite notice of the damage being inflicted and request for a reasonable delay to afford plaintiffs an opportunity to protect their properties.

The exceptions of no cause of action are directed at the alleged deficiency in plaintiffs' petitions, in their failure to charge defendant with negligence. It is conceded that petitioners do not, in their allegations of fact, specifically characterize or label the alleged wrongful acts charged to defendant as negligence. However, a general allegation that the City or its agent was negligent is unnecessary. It is sufficient that facts are alleged that constitute negligence.

Rauschkolb v. DiMatteo, 190 La. 7, 181 So. 555 (1938);

Chachere v. Moses George & Son, 165 So. 522, La.App., 1st Cir 1936;

Metropolitan Life Ins. Co. v. Mundy, 167 So. 894, La.App., 1st Cir . 1936;

Frierson v. Shreveport Grocery Co., 3 La.App. 44 (1925).

For instance, it was held in the Frierson case that it is not necessary to label pleadings as pleas of contributory negligence if facts are set up that constitute contributory negligence, and in the Mundy case that, to recover on the ground of fraud the amount of life insurance policies paid to avoid succession, the insurer was not required to specifically allege fraud, but that allegations of fact sufficient to establish fraud were adequate. Moreover, it is well settled that a general allegation of negligence is merely the pleader's own conclusion of law.

Pizzitola v. Letellier Transfer Co., 167 So. 158, La.App., Orleans 1936;

Loprestie v. Roy Motors, Inc., 191 La. 239, 185 So. 11, 13 (1938).

Furthermore, no cause of action is stated by alleging conclusions of the pleader or conclusions of law.

State v. Hackley, Hume & Joyce, 124 La. 854, 50 So. 772 (1909);

Moss v. Drost, 130 La. 285, 57 So. 929 (1912);

Arent v. Liquidating Com'rs of Bank of Monroe, 133 La. 134, 62 So. 602 (1913);

Vaccaro v. Favrot, 170 La. 483, 128 So. 284 (1930);

Succession of Stafford, 191 La. 855, 186 So. 360 (1939);

In re Phoenix Building & Homestead Ass'n, 203 La. 565, 14 So.2d 447 (1943);

Latham v. Latham, 216 La. 791, 44 So.2d 870 (1950);

Florida Molasses Co. v. Berger, 220 La. 31, 55 So.2d 771 (1951);

West Carroll Nat. Bank of Oak Grove v. West Carroll Par. Sch. Bd., 136 So.2d 699, La.App., 2d Cir. 1961.

Turning now to a consideration of the question as to whether plaintiffs' petitions disclose causes of action, we may first observe that similar allegations are contained in all three suits. In the instant case, plaintiff's petition contains the following allegations of fact:

'Petitioner avers that on or about January 20, 1962, defendant arbitrarily and without any notice to the owners abutting Cross Lake, closed or raised the floodgates controlling the level of Cross Lake to a new and higher level, increasing the level of the lake by a height of approximately one foot or more, above the former level of the lake.

'Petitioner avers that immediately after the raising of the height of the flood control gates, and caused thereby, the waters of Cross Lake, additionally increased in height and strength by the force of the wind, encroached upon and inundated petitioner's property, and the shoreline or bank of the property immediately began to erode and disintegrate.

'Petitioner avers that William J. Hunter, petitioner's vendor, and the owner of considerable property on Cross Lake, contacted Mr. L. E . Phelps, the then Commissioner of Public Utilities of defendant, and requested that the gates be restored to the former level at least for a short time in order to permit the property owners to take necessary steps to protect their property from the rapid erosion of the shoreline that was taking place. However, this request was denied.'

In addition thereto, it is alleged that, prior to this action on the part of the defendant, the properties of plaintiffs had never suffered any damages whatsoever by the erosion caused by the lake waters. Despite the warning given to defendant that its action was inflicting damage upon plaintiffs, and that a short delay in increasing the water level on the lake would enable plaintiffs to protect their properties, the defendant nevertheless persisted in its determination to raise the level of the water without regard for the rights of plaintiffs. These allegations are sufficient to state a cause of action for damages allegedly sustained as a result of defendant's acts. Accordingly, the exceptions referred to the merits were properly though impliedly overruled.

It may be appropriate to observe, under LSA-C.C. Art. 2315, that

'Every act whatever of man that causes damage to another, obliges him by whose fault it happened to repair it; * * *';

and that a servitude of natural drainage exists, under LSA-C.C. Art. 660, wherein it is stated:

'It is a servitude due by the estate situated below to receive the waters which run naturally from the estate situated above, provided the industry of man has not been used to create that servitude.

'The proprietor below is not at liberty to raise any dam, or to make any other work, to prevent this running of the water.

'The proprietor above can do nothing whereby the natural servitude due by the estate below may be rendered more burdensome';

and that, pursuant to LSA-C.C. Art. 667:

'Although a proprietor may do with his estate whatever he pleases, still he can not make any work on it, which may deprive his neighbor of the liberty of enjoying his own, or which may be the cause of any damage to him.'

While a finding of fault as a requisite to an award of damages may be, and is generally, predicated upon negligence, it is not necessarily so. Awards may as well be predicated upon willful, wanton, or intentional acts. Thus, it was held in Gulf Insurance Co . v. Employers Liability Assur. Corp., La.App., 170 So.2d 125, 129 (1965), that

'* * * the violation of the duty set out by Article 667 constitutes 'fault' within the meaning of Article 2315, or as said in Hauck v. Brunet supra (La.App., 50 So.2d 495 (1951)) 'the damage itself to the neighboring property constituted fault','

and that

'While negligence is an example of 'fault' within the meaning of Article 2315, it is well settled that the obligation imposed upon proprietors by Article 667 is absolute and that proof of negligence is not required in order to recover for a violation or breach thereof. (See Selle v. Kleamenakis, La.App., 142 So.2d 50, 51; Bruno v. Employers' Liability Assur. Corp. Limited, La.App., 67 So.2d 920; Hauck v. Brunet, La.App., 50 So.2d 495).' (170 So.2d 125, 127.)

Defendant contends, however, that LSA-C.C. Art. 667 has no application to municipalities, and that the courts have been reluctant to extend the application of the article, as set forth in Hauck v. Brunet,...