Lake Charles Harbor and Terminal Dist. v. Farquhar

• Decision Date: 21 March 1967
• Docket Number: No. 1919,1919
• Court: Court of Appeal of Louisiana — District of US
• Parties: LAKE CHARLES HARBOR & TERMINAL DISTRICT, Plaintiff-Appellee, v. Benjamin H. FARQUHAR et al., Defendants-Appellants.

Page 847

196 So.2d 847

LAKE CHARLES HARBOR & TERMINAL DISTRICT, Plaintiff-Appellee, v. Benjamin H. FARQUHAR et al., Defendants-Appellants.

No. 1919.

Court of Appeal of Louisiana, Third Circuit.

March 21, 1967.

Rehearing Denied April 12, 1967.

Porter, Scofield & Cox, by James J. Cox, Lake Charles, for defendants-appellants.

Kaufman, Anderson, Leithead, Scott & Boudreau, by Everett R. Scott, Jr., Lake Charles, for plaintiff-appellee.

Before TATE, FRUGE , and HOOD, JJ.

HOOD, Judge.

This is an expropriation proceeding instituted by Lake Charles Harbor and Terminal District to acquire a servitude running east and west across the center of an 80-acre tract of land owned by defendants. Plaintiff contends that it needs this servitude to enable it to construct and maintain a public road and a railroad over and across defendants' property.

The defendants filed an answer alleging, amount other defenses, that the proposed taking is not for a public purpose, and that it constitutes a deprivation of the property of defendants without due process of law, in violation of provisions of the federal and state constitutions. They demand primarily that all of plaintiff's demands be rejected. Alternatively, they pray that the right of way be limited to a width of 50 feet, and further in the alternative, that they be awarded $100,000.00 as the value of the property taken and severance damages.

Plaintiff filed a motion for summary judgment, alleging that there is no genuine issue as to a material fact concerning the public use and necessity of the right of way, that the issues presented here as to the public use and need for the servitude and as to the constitutionality of the taking were determined in the case of Wright v. Lake Charles Harbor and Terminal District, 188 So.2d 449 (La.App.3d Cir. 1966), and that plaintiff is entitled to summary judgment decreeing that it has the right to expropriate the servitude herein sought.

The case was tried on its merits, and thereafter a summary judgment was rendered by the trial court in favor of plaintiff, decreeing 'that plaintiff has a right to expropriate the right of way herein sought.' The effect of the summary judgment is to hold that the servitude is being expropriated for a public purpose and that the taking is not unconstitutional. Judgment on the merits also was rendered at the same time, adjudicating the servitude to plaintiff, and awarding to defendants as compensation for the rights taken the sum of $9,675.00, with interest thereon from date of judicial demand until paid. Defendants appealed. Plaintiff has answered the appeal, demanding that the amount of the award be reduced, and that the judgment be amended to allow interest on the award from the date of entry of the judgment rather than from date of judicial demand.

The 80-acre tract of land which is affected by this expropriation proceeding is located approximately one-half mile west of the Calcasieu Ship Channel, in Calcasieu Parish. The southeast corner of this tract touches the northwest corner of a 40-acre tract which plaintiff now owns, the plaintiff having previously acquired the last mentioned tract by means of an earlier, but separate, expropriation proceeding which it instituted against the defendant landowners. The last mentioned 40-acre tract is much nearer the ship channel and it, together with other adjoining tracts, owned or being expropriated by plaintiff, are to be used by it for the construction and maintenance of a bulk facility which is referred to here as a 'coke plant.' The servitude which plaintiff seeks to expropriate is 110 feet wide, and the public road and railroad which it proposes to construct on and along that servitude is intended to provide access to and from that coke plant. The road and railroad will run from the 40-acre tract of land on which the coke plant is to be built, over and across defendants' property, and will connect with existing public roads and a railroad at points west of the subject property. An oil refinery owned by Cities Service Oil Company, and some other industrial plants, are located within one or two miles west and southwest of the subject property, and the road and railroad which plaintiff intends to construct on the servitude will provide access from the coke plant to these industries, as well as to others.

One of the defenses alleged by defendants is that the right of way being expropriated is not needed by plaintiff for a public use, but that on the contrary plaintiff intends to use it for the conduct of a private business, that is, for the construction and maintenance of a coke plant 'for the benefit of Cities Service Company, Cities Service International, Inc., and Societa Alluminio Veneto per Azioni .' They further allege that the taking constitutes a deprivation of defendants' property without due process of law, in violation of the Fifth and Fourteenth Amendments to the Constitution of the United States, and in violation of Article 1, Sections 2 and 6, and Article 4, Section 15, of the Louisiana Constitution.

At the trial defendants attempted to introduce evidence tending to show that plaintiff originally selected another site as the 'most feasible location' for the coke plant, but that that location was changed to this less desirable one because Cities Service Oil Company requested that it be relocated on defendants' property. They also offered evidence tending to show that the location of the coke plant on the 40-acre tract southeast of defendants' property, and the construction of a road and railroad across the last mentioned property, would save Cities Service Oil Company considerable sums of money in transportation costs, that a contract has been entered into between plaintiff and Cities Service relating to the use of this bulk facility and that the revenues which plaintiff will derive from that contract are such that the construction and maintenance of the coke plant is not economically feasible. And, finally, they tendered evidence which they contend would show that in the event the entire site for the coke plant or all of the servitude being taken here is not used by plaintiff, then 'Cities Service Oil Company might buy the remainder from the Dock Board.' Plaintiff objected to all of this evidence, and its objections were sustained, the trial judge assigning as reasons for that ruling that the same issues were presented in the case of Wright v. Lake Charles Harbor and Terminal District, supra, and that they were resolved contrary to the position taken by defendants here . The trial judge noted that the decision in the Wright case was not res judicata, but he held that for the reasons which were assigned in that case plaintiff is entitled to a summary judgment here decreeing that the construction of the coke plant, and an access road and railroad to it, are for a public use, and that plaintiff has a right to expropriate the servitude which it seeks in this proceeding. The trial judge also ruled that defendants have the right to contest the location of the servitude, and to try issues raised as to the value of the rights taken and as to the severance damages which are claimed by them. The case went to trial on its merits as to all of these last mentioned issues.

The defendants were not parties to the Wright case, supra. In that suit, a taxpayer seeking to obtain an injunction against the Lake Charles Harbor and Terminal District, attacked the validity of some Port Improvement Revenue Bonds and some Refunding and Improvement Bonds which the defendant proposed to issue. One of the principal grounds of the attack was that the proceeds from the sale of these bonds were to be used for the construction of the above mentioned 'coke plant.' It was alleged that the construction of this coke plant was not for public use, that 'it is intended to give advantage to a private industry at the taxpayers' expense,' that it had already been leased to private firms, and that it is being constructed 'chiefly for the advantage and benefit of Cities Service Oil Company.' It was also alleged that the lease of the coke plant constitutes a violation of provisions of the Louisiana Constitution. The defendant filed an answer, a reconventional demand and a motion for summary judgment. After trial on the merits, a summary judgment was rendered dismissing plaintiff's suit. On appeal, we held that 'the necessity and/or wisdom of the installation of the bulk facility rests in the sound discretion of the District through the Board of Commissioners unless such discretion was labeled arbitrary or capricious,' and we found that they had not been arbitrary or capricious. We also found that under the provisions of Article 14, Section 31, of the Louisiana Constitution, the Lake Charles Harbor and Terminal District has the right to construct a facility, such as this coke plant, and to lease it to private business interests. We concluded that 'The issuance of these bonds is fully authorized and also the purpose for which the money is to be used is constitutional .'

The record of the Wright case was introduced in evidence in the instant suit. We have examined that record and find that, insofar as that action related to defendants' contention that the property is not being taken for a public use or that the taking is unconstitutional, substantially the same issues were presented in that suit as are presented here. In Article 8 of that petition, Wright alleged that the District proposes to construct a coke plant, 'and further proposes to acquire land, road and rail rights of way. * * *' His prayer for judgment included a demand that the District be enjoined from making any expenditures for those purposes. In that suit, therefore, the plaintiff sought to enjoin the District from acquiring the right of way which is the subject of this litigation, and one of the grounds urged for that injunction was substantially the same ground as is being urged here.

Defendants contend,...