Hamilton v. City of Shreveport

Decision Date28 May 1964
Docket NumberNo. 10196,10196
Citation168 So.2d 380
PartiesWilliam B. HAMILTON, Plaintiff-Appellee, v. CITY OF SHREVEPORT, Defendant-Appellant.
CourtCourt of Appeal of Louisiana — District of US

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

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

Before GLADNEY, AYRES and BOLIN, JJ.

GLADNEY, Judge.

This is one of these consolidated suits. Plaintiff brought this suit in tort alleging that on or about January 20, 1962, his property situated on Cross Lake was damaged by high water caused by the City of Shreveport in the operation of its flood gates which control the height of the water level on Cross Lake. The claims asserted are for reimbursement for expenses incurred in the repair and restoration of property above the 172-foot contour line which divides private property from that of the City along the water line of the lake. For cause of action the petitioner relies upon LSA-C.C. arts. 2315 and 667, the latter article embodying the legal maxim, sic utere tuo, ut alienum non laedas (so use your own, that you injure not another's property). The City of Shreveport filed exceptions of no cause and no right of action and joined issue through the filing of its answer which denied any damages sustained by the petitioner were occasioned by it. The exceptions were referred to the merits and the cause submitted to the trial court upon depositions in affidavit form and exhibits attached to the deposition of Charles B. Foster, Jr., engineer of the Department of Water and Sewerage of the City of Shreveport, which included a map depicting the location of the dam at the eastern end of the lake and the location of the property involved in the suit. The other exhibit consisted of hydrology reports of Cross Lake disclosing the true measurements of the level of the lake, without taking into account any wind or wave action, as daily recorded from January 1, 1962 through December 31, 1962. At the foot of this chart is reflected the rainfall or precipitation on the watershed as measured daily during the calendar year 1962. With written reasons the judge a quo rendered judgment favorable to the petitioner and the City of Shreveport has appealed.

The principal contention of the petitioner is that by its regulation of the flood gates the City became responsible for damages sustained by his property above the 172-foot contour line which damage was caused by the action of the waters of Cross Lake; and that such injury could and should have been avoided by maintaining the level of the lake at a stage whereby the damage would not have occurred. By way of answer to this postulation, the City asserts that at no time during the period complained of did the mean water level of the lake rise above the 172-foot contour line and its records show that the highest stage so reached occurred on January the 17th when it measured 171.62 feet; that the defendant acted within its rights in maintaining the level of the lake below the 172-foot contour marker; and that it is necessary to secure a 'full' lake, not below 171.20 feet, to insure a sufficient supply of water to the City of Shreveport during the dry summer months. The figure 171.20 feet is relied upon forasmuch as the concrete crest of the dam is at an elevation of 168.13 feet above mean Gulf level, which makes the top of the concrete impounding dam 3.07 feet lower than the top of the three gates, which is 171.20 feet.

The appellant City of Shreveport, however, has in nowise abandoned its exceptions of no cause and no right of action which are urged upon this appeal. The exceptions are grounded upon: (1) a plea of governmental immunity, (2) an absence of any specific allegations of negligence, (3) an improper basis for the assessment of damages, and (4) that plaintiff's petition fails to allege any act of trespass by the waters of Cross Lake, in that they arose above the 172-foot contour line brought on by the actions of the defendant; and that if defendant should be forced to lower the lake level several feet below the 172-foot contour line in order to insure appellee's property against acts of God such as windcreated waves, such lowering of the water would constitute an extremely dangerous hazard to the public health, welfare and safety of the citizens of Shreveport since Cross Lake is the sole source of water for the City of Shreveport.

In order to give a full measure of consideration to the issues herein presented and more particularly to the important question of the immunity vel non of the City of Shreveport from this type of lawsuit, we find it necessary to state more or less in detail the historical background with respect to the creation of Cross Lake as a reservoir or source of water supply for and under the control of the City of Shreveport.

The Supreme Court of Louisiana in State v. Bozeman, 156 La. 635, 101 So. 4 (1924), held that Cross Lake was navigable at the time of the admission of Louisiana into the Union and that the State of Louisiana acquired title to the bed of the lake by virtue of her sovereignty below the ordinary high water mark at an elevation of 172 feet above mean Gulf level, this conclusion having been reached by the United States Department of Interior after an investigation. In discussing the navigability of the lake the decision reports the following information which we consider relevant to the question at hand:

'Cross Lake was one of a chain of lakes which came into existence through the formation in Red river of what iis historically known as the 'Great Raft.' The other lakes were designated by the names of Sodo, Ferry, and Clear. These lakes were created some time between the years 1770 and 1790. The formation of the raft began in the latter part of the fifteenth century near the present mouth of Red river. It gradually grew in size until it was many miles long. By reason of decay at its downstream end and additions to its upstream end the raft actually proceeded up stream, although its progress was necessarily slow. In about the year 1780 the raft reached a point in Red river where its obstruction of the waters of said river caused them, in turn, to block the outlet of Cross bayou, thereby constituting a dam which resulted in the creation of Cross Lake. The lake occupied the valleys of Cross bayou and Paupau creek, covered approximately 10,000 acres of land, and became the storage basin of a drainage system draining an area of about 300 square miles.

'The removal of the raft, which was completed in 1873, together with the extension of the levee system, and the improved drainage of Red river, caused the waters of the lake to recede to such an extent that at the present time the outlet of the lake drains out all but about two feet of water in its deepest part. During the summer months the remaining water dries up, so that for several months of each year the lake becomes ordinary dry land.'

The deposition of petitioner Hamilton without other elaboration simply states that the level of Cross Lake did rise above the 172-foot contour line on more than one occasion during 1962. Similar statements were also made in the depositions of William Joseph Hunter, W. Scott Wilkinson, and Mrs. Lavada Smith Tracy. It is indicated that these conclusions were predicated upon the observations of debris and erosion by these deponents with respect to the property above the 172-foot contour line. The deposition of Charles B. Foster, Jr., describes the Cross Lake dam as consisting of an earth fill dam upon which are located certain railroad tracks; and that the dam extends to the spillway where are located the gates which control the water of Cross Lake. He testified that it became necessary to replace the gates due to the fact that they were extremely difficult and dangerous to operate and could only be operated during the daytime and then manually under adverse conditions; that in 1960 the City contracted for the installation of new mechanical crest gates which could be operated virtually on a push-button procedure; that after the fabrication of the gates, on September 12, 1961, the lake was lowered purposely to a level of 169 feet for purposes of construction and maintained at this stage until January 15, 1962; that the gates are three in number and are termed lateral gates, that is, they lie alongside of each other; that any one of the three can be raised individually or two can be raised together, or all three can be raised together, and the raising or lowering of the gates can now be done quickly and immediately; and that under the supervision of deponent a chart or graph has been kept for each year in relation to the height of the lake daily. He testified: 'That on the 15th day of January, 1962, gates 1 and 2 were opened and the level of the lake at that date was 171.52 feet; that on the 23rd day of January, 1962, the height of the lake was 170.45 feet and rose to 171.01 feet on the 24th day of January. On the 25th day of January the height of the lake was 171.52 feet, and gates 1 and 2 were then opened on that day. The lake dropped to 171.38 feet on the 26th day of January and to 171.36 feet on the 27th day of January. On the 28th day of January, gates 1 and 2 were closed, and the lake was at 171.36 feet; that on the 29th day of January, the lake was at 171.38 feet when gate number 2 was opened. On the 30th day of January, the lake was at 171.43 feet, on which date gate number 2 was closed. On the 31st day of January, the chart reveals that the lake was 171.48 feet and the chart, as marked and attached hereto D--2, reveals that during the month of January, March and April, it fluctuated slightly but never went above 171.62 and began to lower along the latter part of April of 1962.

'Further, the highest point during the month of January of1962, as measured on D--2, was reached on the 17th day of...

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7 cases
  • Hamilton v. City of Shreveport
    • United States
    • Court of Appeal of Louisiana — District of US
    • 28 Octubre 1965
    ...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 vie......
  • Herrin v. Perry
    • United States
    • Court of Appeal of Louisiana — District of US
    • 31 Octubre 1968
    ...water supply for the city's water system. The city filed an exception of governmental immunity. The Court of Appeal held, 168 So.2d 380 (2nd Cir. 1964), that the maintenance of the water level of Cross Lake, to supply the city's water system, is purely a governmental function, as distinguis......
  • Hamilton v. City of Shreveport
    • United States
    • Louisiana Supreme Court
    • 29 Marzo 1965
    ...3, Section 35 2 of the Constitution, as amended pursuant to Act 621 of the Legislature of 1960, by its adoption on November 8, 1960. See, 168 So.2d 380. It is apt to observe that the Legislature of 1960 in adopting the aforementioned proposed amendment did so with the express purpose of nul......
  • Texas Pipe Line Co. v. Langlinais
    • United States
    • Court of Appeal of Louisiana — District of US
    • 27 Octubre 1964
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