Kelly v. United States, 16394.

• Decision Date: 14 March 1957
• Docket Number: No. 16394.,16394.
• Citation: 242 F.2d 195
• Parties: James KELLY et al., Appellants, v. UNITED STATES of America et al., Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

242 F.2d 195 (1957)

James KELLY et al., Appellants, v. UNITED STATES of America et al., Appellees.

No. 16394.

United States Court of Appeals Fifth Circuit.

March 14, 1957.

Benjamin E. Smith, New Orleans, La., for appellants.

Jack C. Benjamin, Asst. U. S. Atty., Bentley G. Byrnes, Perry W. Morton, Asst. Atty. Gen., M. Hepburn Many, U. S. Atty., New Orleans, La., Roger P. Marquis, S. Billingsley Hill, Attys., Dept. of Justice, Washington, D. C., for appellees.

Before HUTCHESON, Chief Judge, and RIVES and BROWN, Circuit Judges.

PER CURIAM.

Alleging in their complaint that the action was filed "under the Tucker Act, Sec. 1346, Title 28 U.S.C.A., as against the United States, for payment of compensation due plaintiffs under an implied contract with the United States, and against the United States and the Board of Levee Commissioners of the Orleans Levee District, for damages for the taking, appropriation and destruction of plaintiffs' property for a public use without compensation", plaintiffs below sought, in the face of the decision and judgment against them in the Supreme Court of Louisiana¹ and of the decision of this court and the Supreme Court of the United States in the General Box Co. case,² to recover damages for the removal by the Levee Board, after plaintiffs had been notified to and had failed and refused to remove them, of structures and obstructions plaintiffs had placed on batture land.

The district judge, of the view that the opinions in the cases above cited and Dickson v. Board, 210 La. 121, 26 So.2d 474, controlled his decision in the case, sustained defendants' motion and dismissed plaintiffs' action.

Of the same opinion, we affirm his judgment on the authority of those cases, to which may be added Article 861, Louisiana Statutes Annotated-Civil Code and Town of Napoleonville v. Boudreaux, La.App., 142 So. 874.

Affirmed.

1 Board of Levee Commissioners of Orleans Levee District v. Kelly, 225 La. 411, 73 So.2d 299.

2 United States v. General Box Co., 5 Cir., 224 F.2d 7, affirmed General Box Co. v. U. S., 351 U.S. 159, 76 S.Ct. 728, 100 L.Ed. 1055.