Louisiana Power & Light Co. v. City of Houma

• Decision Date: 17 November 1969
• Docket Number: No. 7800,7800
• Parties: LOUISIANA POWER AND LIGHT COMPANY v. CITY OF HOUMA.
• Court: Court of Appeal of Louisiana — District of US

Page 202

229 So.2d 202

LOUISIANA POWER AND LIGHT COMPANY v. CITY OF HOUMA.

No. 7800.

Court of Appeal of Louisiana, First Circuit.

Nov. 17, 1969.

Writ Refused Dec. 11, 1969.

Rehearing Denied Dec. 22, 1969.

Eugene G. Taggart, New Orleans, for appellant.

Ralph L. Kaskell, Jr., of Deutsch, Kerrigan & Stiles, New Orleans, for appellee.

Before LANDRY, SARTAIN and ELLIS, JJ.

LANDRY, Judge.

Appellant, Louisiana Power & Light Company (LP ) seeks reversal of the judgment of the trial court dismissing its action to expropriate that portion of the municipally owned electrical distribution system owned by the City of Houma (defendant) and situated outside defendant's corporate limits. The appeal is from the judgment of the trial court sustaining defendant's exception of no cause of action. We find the trial court has correctly resolved the issues presented and affirm its decision.

Plaintiff's petition alleges it is a corporation organized under the laws of this state and is franchised to engage in the business of generating and distributing electrical energy for power in the Parish of Terrebonne. Plaintiff also asserts defendant City owns and operates an electrical distribution system which extends outside the municipal limits into certain unincorporated areas of Terrebonne Parish. Finally, it is urged that plaintiff desires to expropriate all such facilities owned by defendant outside the city limits which expropriation is necessary for a public purpose and in the public interest.

In addition to its exception to no cause of action, defendant filed a declinatory exception of lack of jurisdiction over the subject matter and a peremptory exception of no right of action, both based on the contention plaintiff lacks legal authority to expropriate property of a municipality being used for a public purpose. Defendant also filed declinatory and dilatory exceptions asserting (1) insufficiency of citation, insufficiency of service of process and lack of personal jurisdiction over defendant for failure to obtain an order for trial and serve the pleadings and notice of trial upon defendant, and (2) vagueness for failure to comply with R .S. 19:2.1 in that the property sought to be expropriated is not adequately described.

Defendant's declinatory and dilatory exceptions were not passed upon by the trial court. That tribunal found it unnecessary to pass on the issues presented by these exceptions in view of its dismissal of plaintiff's action on defendant's peremptory exception of no cause of action. It is settled law that such exceptions not decided by a trial court are considered abandoned. Martino v. Fairburn et al., La.App., 71 So.2d 358; McGee et al. v. Finley et al., La.App., 65 So.2d 384; Quinette v. Delhommer, 247 La. 1121, 176 So.2d 399; and Durmeyer et al. v. Streiffer, 215 La. 585, 41 So.2d 226.

The rule is stated as follows in Ducote v. Ducote, 183 La. 886, 165 So. 133:

'Thus, it is a familiar rule of practice that a defendant by not insisting upon a trial of and a ruling on his exceptions waives them .'

The mentioned exceptions are therefore considered abandoned.

An exception to the jurisdiction of the court over the subject matter of the litigation is an issue that cannot be waived. Such an exception addresses itself to the authority of the trial court to adjudicate the cause before it. It is, therefore, a matter which may be raised at any time, even by the court on its own motion at any stage of an action.

We find defendant's exception to the jurisdiction over the subject matter without merit. Exclusive original jurisdiction of expropriation actions is vested in the trial courts. La.Const. Article VII, Section 35. In Louisiana Power and Light Company v. Charpentier, La.App., 165 So.2d 614, an action in which present plaintiff attempted to expropriate privately owned property, it was contended the Public Service Commission rather than the courts, was the proper forum in such instances. In rejecting this argument, we stated in Charpentier, above, as follows:

'The Constitution does not grant the Commission jurisdiction to try expropriation suits. As these suits, between a utility company and individual landowners pertain to expropriation of a right of way, the question of necessity for taking servitude of these properties is vested in the Courts. See Kansas City, S. & G. Ry. Co . v. Meyer, 166 La. 663, 117 So. 765 (1928); Calcasieu & S. Ry. Co. v. Bel, 224 La. 269, 69 So.2d 40 (1953); United Gas Pipe Line Co. v. Blanchard, 149 So.2d 615. (La.App.1st Cir. 1963)'

It matters not whether the property sought to be expropriated is publicly or privately owned. If the purpose of an action is the expropriation of property for public use, exclusive original jurisdiction of the cause rests in the trial courts. La.Const. Art. VII, Section 35.

Appellant basically contends it possesses authority either expressly or by necessary implication to expropriate municipally owned electric facilities situated outside city limits. Such authority is reputedly conferred by virtue of the provisions of LSA-R.S. 19:2(9), which reads as follows:

'Where a price cannot be agreed upon with the owner, any of the following may expropriate needed property:

(9) Any domestic or foreign corporation created for the purpose of developing and transmitting electricity for power, lighting, heating, or other such uses. The buildings, transmission lines, stations, and sub-stations expropriated or for which property was expropriated shall be so located, constructed, operated, and maintained as not to be dangerous to persons or property nor interfere with the use of the wires of other wire-using companies or, more than is necessary, with the convenience of the land-owner.'

Alternatively, appellant maintains that, lacking such authority, either express or implied, it may nevertheless expropriate municipally owned facilities of this nature in any one of the following circumstances, all of which obtain in this case; (1) Where a municipality is engaged in the public utility field as a proprietary function; (2) Where the service rendered by the municipality is voluntary and unregulated, and (3) Where the greater public interest will be served by permitting the condemnor to take property already in public use.

The facts of this litigation are not in dispute. It is either established or conceded that defendant services 290 customers outside its municipal limits. Appellant's rates are approximately 15% Lower than those charged by defendant to customers situated outside the municipal limits. The municipal system is deficient in that it has an operating capacity of 25,000 kilowatts and an estimated peak load of 26,600 kilowatts. On one occasion appellant furnished defendant emergency assistance by providing some 8,500 kilowatts of electrical energy. Appellant is a regulated agency and defendant is not. Appellant pays taxes to the Parish of Terrebonne and appellee does not. Appellant is franchised to operate in Terrebonne Parish and appellee has no franchise. Defendant is expressly authorized by law to operate utilities outside its city limits. See LSA-R.S. 33:4162.

LP acknowledges applicability of the rule announced in State, Through Department of Highways v. Ouachita Parish School Board, 242 La. 682, 138 So.2d 109. In the cited authority the Supreme Court stated:

'In determining whether property already devoted to a public use can be subjected to expropriation, the factor to be considered is the character of the condemnor. If the sovereign on its own behalf seeks to acquire such property by eminent domain, the fact that the land sought to be taken is public property generally is immaterial. Ibid, sec. 2.2, pp. 131--132; Jahr, Law of Eminent Domain, sec. 20, p . 37 (1953); Elberton Southern Ry. Co. v. State Highway Dept., 211 Ga. 838, 89 S.E.2d 645; see Township of Weehawken v. Erie Railroad Company, 20 N.J. 572, 120 A.2d 593. If, on the other hand, the sovereign has delegated the power of expropriation to one of its subdivisions or agencies, the rule is that the agency or department cannot expropriate property already devoted to a public use unless the Legislature has authorized it to acquire public property either expressly or by necessary implication. Nichols, op. cit. supra, sec . 2.2, p. 132; Jahr, op. cit. supra, sec. 20, p. 37; Kansas City, S. & G. Ry. Co. v. Vicksburg, S. & P. Railroad Co., 49 La.Ann. 29, 21 So. 144; Borough of Barnegat Light v. Board of Chosen Freeholders of Ocean County, 44 N.J.Super. 332, 130 A.2d 409; see Canzonetti v. City of New Britain, 147 Conn. 478, 162 A.2d 695.

'The lands are also devoted to a public use, and lands so devoted we think additionally are not subject to condemnation under general powers to that end, but must be specifically by the Legislature itself made subject to such proceedings. Lands so held are usually possessed by the corporations, municipal or private, having also general power of condemnation. To subject such lands to taking by one corporation from another under the general powers of condemnation would be to open the door to recriminatory condemnation litigation without end inasmuch as, if under such authority the first taking would be justified, its retaking would be equally within the power of the adverse party. * * * Property once devoted to a public use cannot be diverted therefrom without express authority of the Legislature.'

The quoted language from the landmark Ouachita case, above, establishes the rule that a subdivision or agency of the state does not possess authority to expropriate property in public use unless such authority is expressly conferred or necessarily implied from the language of the legislation granting the right to condemn.

Appellant maintains it is expressly empowered to take property in public use because the statute in question authorizes the expropriation of 'buildings, transmission lines, stations and substations'. It is argued that 'transmission lines, stations and...