Louisiana Materials Co. v. Cronvich

• Citation: 236 So.2d 510
• Decision Date: 01 June 1970
• Docket Number: No. 4189,4189
• Parties: LOUISIANA MATERIALS CO., Inc. v. Alwynn J. CRONVICH, Sheriff of the Parish of Jefferson; Ross Ketchum, Director of the Dept. of Roads and Bridges of the Parish of Jefferson, Thomas F. Donelon, President of the Parish of Jefferson, Charles J. Eagan, Jr., Anton Pilney, Jacob H. Sciambra, Harold L. Molaison, George J. Ackel, Charles M. Miller and Beauregard H. Miller, Jr., Councilmen of the Parish of Jefferson.
• Court: Court of Appeal of Louisiana — District of US

Page 510

236 So.2d 510

LOUISIANA MATERIALS CO., Inc. v. Alwynn J. CRONVICH, Sheriff of the Parish of Jefferson; Ross Ketchum, Director of the Dept. of Roads and Bridges of the Parish of Jefferson, Thomas F. Donelon, President of the Parish of Jefferson, Charles J. Eagan, Jr., Anton Pilney Jacob H. Sciambra, Harold L. Molaison, George J. Ackel Charles M. Miller and Beauregard H. Miller, Jr., Councilmen of the Parish of Jefferson.

No. 4189.

Court of Appeal of Louisiana, Fourth Circuit.

June 1, 1970.

Rehearing Denied July 6, 1970.

G. Henry Pierson, Jr., and Neal D. Hobson, New Orleans, for plaintiff-appellant; Milling, Saal, Saunders, Benson & Woodward, New Orleans, of counsel.

Louis DeSonier, Jr., Bruce D. Burglass, Metairie, James O. Manning, New Orleans, for defendants-appellees.

Before REDMANN, BARNETTE and DOMENGEAUX, JJ.

DOMENGEAUX, Judge.

Plaintiff-appellant Louisiana Materials Company, Inc., (hereinafter referred to as 'Company') is in the shell business. They own and operate numerous shell yards including one on the banks of Lake Pontchartrain adjacent to the outfall or Suburban Canal in Jefferson Parish. This particular shell yard is in an unincorporated area and is located between Lake Pontchartrain and a protection levee. The levee separates the shell yard area from the area which is now the Lake Villars Subdivision wherein numerous residences have been built. It is maintained by the Board of Commissioners of the Pontchartrain Levee District (hereinafter referred to as 'Levee Board').

In order for vehicular traffic to come and go from the shell yard a ramp over the levee is utilized which exits on a shell road which leads to Richmond Avenue and Lake Villa Drive. The ramp has been in existence for many years (although the record is not clear on that point, it appears that it has been there since at least 1958), and until three or four years ago, was of ordinary shell construction at which time it was made into a hard-surface asphaltic thoroughfare by the Jefferson Parish Department of Roads and Bridges with the aid and cooperation of the Company. This was accomplished in order to improve the ramp roadway and eliminate dust. The Company's business includes dredging of shell from the bottom of Lake Pontchartrain from whence it is transported by barge to the Company's various shell yards including the Lakefront shell yard in question herein. At that point, the barges are unloaded and the shell is then sold to various users including the Parish of Jefferson and its Department of Roads and Bridges, to private contractors and others, and is loaded into trucks for delivery to sites designated by the purchasers. In most cases, the purchasers of the shell provide the trucks to pick up the shell at the Company yard. Usually the Company arranges for delivery by contract with individual hired truckers. The Company neither owns nor operates any of the trucks which carry the shell away from the Lakefront yard .

The Company has operated at this site continuously since August of 1961 and has carried on the described operations since that time. Similar operations have been carried on from this location by other shell companies dating back to 1958. The Company has occupied the premises pursuant to an exclusive grant of right-of-way of servitude by the Levee Board which grant is effective until 1972. The right-of-way agreement grants to the Company the right of ingress and egress to the shell yard site and the levee referred to hereinabove is included within said right-of-way. It grants the Company the right to store its shell, sand, gravel, etc., within the designated area while said material is in transit between its unloading and its ultimate sale to various purchasers. Under the instrument the Company is authorized to do whatever is necessary to carry out its operations subject to, however, its securing whatever authority or permission may be required from any municipal, state or federal agency which may be affected. The grant prohibits the construction of any improvements on the shell yard site without prior written approval of the Levee Board and further provides that the exclusive right of way shall not interfere with any improvements to the levee which may be deemed necessary by the United States Engineers for the New Orleans District.

In addition to the right-of-way which the Company received from the Levee Board the record shows that the Parish of Jefferson has leased the same premises described in the right-of-way agreement to the Company on a year-to-year basis and for the same purposes as are set out in the right-of-way agreement. The last yearly lease expired on February 2, 1969, but an ordinance of the Parish of Jefferson allowed the Company to carry on its operations until February 28, 1970. The Company was notified by the Parish of Jefferson and its lease would not be renewed.

At the time that the Company began its operations in 1961 the land area across the levee from its site was undeveloped but as said area became subdivided and residences built, complaints were made from time to time by the steadily growing number of local residents, to the effect that the shell trucks operating to and from the Company's yard were causing inconvenience generally and specifically making noises and causing an unusual amount of dust. In 1965 the parish authorities designated certain routes which were to be used for shell trucks only. It is apparent that these special routes were not followed as directed and that it has been difficult to enforce the using of said routes.

On March 1, 1970, employees of the Department of Roads and Bridges of Jefferson Parish accompanied by a deputy of the Sheriff's Office of said Parish constructed a concrete and steel barricade across the edge of the ramp described herein and installed a large sign reading 'Ramp Closed by Parish of Jefferson.' This barricade, in effect, prevented all ingress and egress to and from the Company's yard to the public roads, the result being that the Company's business at that location has been completely shut down. Since that day a Deputy Sheriff of Jefferson Parish has been on duty prohibiting all ingress and egress to and from the premises via the ramp. The barricade was constructed by directive of the Jefferson Parish President. There is no parish ordinance authorizing the barricade nor has any eviction proceeding been brought in any court in connection with the Company's possession and/or operation. Neither has there been any hearing before the Jefferson Parish Council in connection therewith.

On March 2, 1970, the Company instituted suit in the District Court styling same a possessory action and petitioned for preliminary and permanent injunctions against defendants who were designated as the Jefferson Parish Sheriff, the Director of the Department of Roads and Bridges of said parish and the Parish President and Council. Subsequently as a result of exceptions of non joinder, the Parish of Jefferson and the Pontchartrain Levee District were brought in as defendants. The company sought injunctive relief preventing defendants from interfering with and obstructing its possession and use and rights of ingress and egress to their shell yard through and over the roads and streets in Jefferson Parish.

After hearing on a rule for preliminary injunction, the District Court ruled adversely to the Company and it has appealed devolutively to this court from the lower court judgment refusing their prayer.

In denying the injunction sought by the Company the trial judge concluded that the defendants disturbed in fact the possession of the Company, but under the facts and circumstances of this case, the erection of the barricade was a reasonable exercise of the authority and power of Jefferson Parish.

The appellant specifies error by the trial judge as follows:

1) In refusing to grant a preliminary injunction in its favor preventing defendants from interfering with its use and possession of its Lakefront Yard and requiring defendants to remove the barricade.

2) In holding that the Company occupied the premises pursuant to a lease from the defendant Parish of Jefferson until February 28, 1970, and that the Company could be forcibly evicted without judicial proceedings.

3) In holding that the defendant Parish may stop the Company's operations because of alleged traffic violations.

4) In holding that the defendant Parish could stop the Company's operation without prior Council hearings or judicial proceedings to determine whether or not a nuisance existed and in holding that forcible eviction is a remedy for nuisance.

Louisiana Materials was in undisputed possession of the Lakefront Yard from 1961 until March 1, 1970, and still retains possession thereof, although denied ingress and egress by the barricade and armed guard posted by defendants.

Having been in possession for over one year, Louisiana Materials is entitled to be maintained in possession against the world, and is entitled to an injunction to maintain this possession.

The possessory action is one brought by the possessor of immovable property or of a real right to be maintained in his possession of the property or enjoyment of the right when he has been disturbed, or to be restored to the possession or enjoyment thereof when he has been evicted. LSA-C.C.P. art. 3655.

The requisites for a possessory action are found in LSA-C.C.P. art . 3658:

'To maintain the possessory action the possessor must allege and prove that:

'(1) He had possession of the immovable property or real right at the time the disturbance occurred;

'(2) He and his ancestors in title had such possession quietly and without interruption for more than a year immediately prior to the disturbance, unless evicted by force or fraud;

'(3) The disturbance was one in fact or in law, as defined in Article 3659; and

'(4) The possessory action was instituted within a year of the disturbance.'

The plaintiff in a possessory...