Hollingsworth v. Parish of Tensas

• Decision Date: 01 January 1883
• Citation: 17 F. 109
• Parties: HOLLINGSWORTH v. PARISH OF TENSAS.
• Court: U.S. District Court — Western District of Louisiana

17 F. 109

HOLLINGSWORTH v. PARISH OF TENSAS. ^[1]

United States Circuit Court, W.D. Louisiana.

1883

W. R Young, for plaintiff.

W. W Farmer and T. P. Clinton, for defendant.

BOARMAN J.

The petition shows that plaintiff is the owner of land adjacent to the Mississippi river, in the parish of Tensas. The defendant, a parochial corporation, caused a levee to be constructed on her land, a distance from the river front and behind her dwelling, store-house, and other houses. She alleges that she has been damaged substantially as follows That in 1880 the police jury of Tensas parish, by an arbitrary and wanton abuse of the powers conferred on them by law, and upon the pretext of constructing a new levee abandoned the old one, by which her plantation was protected from overflow, and constructed a line of levee on the back lands of her plantation, at a distance of a mile from the river front; that for the construction of this new levee about 50 acres of plaintiff's land, worth $4,000, was taken and damaged, against her protest and consent, without notice to her, and without the compensation provided for in article 159, state constitution; that between the new levee and the old one, on the river front, about 250 acres of valuable land, worth $25,000, was thrown or left out, and exposed to the aggressions and damages of the overflows; that the new levee cuts off and damages the natural drainage of her plantations, and renders much of the land valueless and unfit for cultivation; that she owns a public river landing, and has a store-house at or near it; that in consequence of the location and building of the new levee this landing and store are often inaccessible to the neighboring people who trade there; that by the action of the police jury herein complained of she has been deprived of all protection afforded her by the public-levee system of the state, to carry on which she is annually taxed, and a great portion of her plantation is exposed to yearly overflows; that the rain-water drainage having been damaged and destroyed by the new levee, her plantation is greatly damaged in value and for cultivation; that without such new levee her lands were exempt from overflow except at long intervals.

In the argument defendant claims that the law imposes a service for building levees on all lands adjacent to the Mississippi river; that in constructing the levee this service has been exercised only to the extent and in the manner provided by law, and the damage alleged is damnum absque injuria.

Defendant cites several articles of the Civil Code, and relies for relief particularly upon articles 660 and 661, and the subsequent levee laws:

Art. 660. 'Services imposed by law are established either for public utility or for the utility of individuals.'

Art. 661. 'Services imposed for 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 making and repairing levees, roads, and other public or common works. All that relates to this kind of servitude is determined by laws and particular regulations.'

Defendant claims that certain laws relating to 'this kind of servitude' are now operative laws in this state. If so, it is not essential that they should now be quoted.

For convenience I shall quote several articles of the Code which relate to the subject-matter of this action:

Art. 2604, Civil Code. 'The first law of society being that the general interest shall be preferred to that of individuals, every individual who possesses, under the protection of the laws, any particular property is tacitly subjected to the obligation of yielding it to the community, whenever it becomes necessary for the general use.'

Art. 2605, Civil Code. 'If the owner of a thing necessary for the general use refuses to yield it, or demands an exorbitant price, he may be divested of the property by the authority of law.'

Art. 2606, Civil Code. 'In all cases a fair price should be given to the owner for the thing of which he is dispossessed.'

Art. 489, Civil Code. 'No one can be divested of his property unless for some purpose of public utility, and on consideration of an equitable and previous indemnity, and in a manner previously prescribed by law.'

Art. 2294, Civil Code. 'Every act whatever of man that causes damage to another, obliges him by whose fault it happens to repair it.'

Art. 156, Const. La. A.D. 1879. 'Private property shall not be taken nor damaged for public purposes without just and adequate compensation being first paid.'

Defendant insists that I should, on the trial of this exception or demurrer, follow the decisions of the state courts, and cites especially the decision in the case of Bass v. State of Louisiana, 34 La.Ann. 494. Strong analogies are apparent between this and that case; but my views of that case, as well as of the several others cited by counsel, or rather my opinion of the character of the law upon which these cases seem to have been decided, forbids me to adopt the persuasive suggestion. These decisions do not impress me with the belief that the issues decided by them are such as may be determined by interpreting and giving effect only to laws of a strictly local nature. To me it appears that the court in the Bass Case-- and as this is presented as the strongest case I shall now refer only to it-- was engaged in giving effect to general principles of law, and especially to the powers of a legislature to authorize private property to be taken or damaged, or its use appropriated, without compensation, for public purposes, under the police or other implied powers of government. In trials at law the national courts are required, substantially, to follow the decisions of the state courts in cases where the laws apply. These decisions do not make the laws; but they are considered the best evidence of what the law is in a state where the decisions cited 'show a case of statutory construction.'

The rule adhered to by the supreme court seems to be that section 34, judiciary act 1789, should be observed only where the decisions cited were or are based on the statutes or laws of a state which 'fix rights to things intraterritorial in their nature, or which fix rules of property.' 18 Wall. 584; 16 Pet. 1; 18 How. 520; 14 Wall. 665; 92 U.S. 494. With this rule in view, I will further consider defendant's suggestion. Defendant claims that the state, in articles 660 and 661, Civil Code La., and subsequent levee laws, has imposed a service, in the interest of public utility, on all lands adjacent to navigable rivers, and that now such lands may be taken or damaged, or their use appropriated, for the construction of levees, without compensation. It may be that these articles of the Code, which can hardly be said of themselves to impose any service on such lands, have been supplemented by subsequent levee laws which impose the service claimed by the defendant. But if they do, in law, burden plaintiff's lands with such service, I think no court could give the effect claimed-- that is, that land may be taken or damaged for public purposes, so as to divest the owner of its use, profits, and dominion, without compensation-- without passing upon general principles of law and jurisprudence which define what sort of a use is a public use; without passing upon the effect, if it has any, of the article 156 of the constitution of 1879; upon what is a 'taking' or damaging in the meaning of the law; upon whether or not to damage land by constructing artificial works which, under parochial levee regulations, and in their physical nature, must depose the owner from all use or profits of the land, is a damaging or 'taking' which is prohibited without compensation; and without passing upon other questions akin to these, which can be judicially determined only by a resort, on the part of any court trying the case, to general reasoning and legal analogies common to the several states. In the Bass Case plaintiff put at issue, not the right of the legislature to pass articles 660, 661, Civil Code, and supplemental statutes; not the right to take or burden his land in such a way; not the right to dispossess or damage him for the general use,--but he put at issue, above every thing and question, the right to take or dispossess him of his land and its uses, without compensation, under the lawful exercise of any power in the state government.

This paramount issue was met and decided adversely to Bass. Could any court have decided this issue for or against him without passing upon the laws and analogies of jurisprudence which concern such public interests as cannot be determined by local laws?

Upon this point I must conclude that whatever may be the nature or extent of the powers or laws upon which the state court refused to allow Bass damages, or whatever may have been the method, compass, or basis of reasoning which lead the court to hold practically that Bass had no cause of action for an invasion of rights protected, as I think, by natural equity, the law of the land, and by the articles of the Code herein cited, I think it must be conceded that such a conclusion was not reached by the court's consideration only of a statutory case, or giving effect to local laws. Feeling free from the restraint suggested, I shall now consider whether the petition shows a cause of action for this court to hear.

It is said that, under the lawful exercise of the police powers inherent in the state, the legislature may authorize the construction of levees, and land for their construction may be taken or appropriated, as in this case, without compensation therefor, and the complaining owner cannot be heard to dispute the authority of the officers building the...