Louisiana Power & Light Co. v. Debouchel

• Decision Date: 10 December 1959
• Docket Number: No. 21471,21471
• Parties: LOUISIANA POWER & LIGHT COMPANY, Plaintiff and Appellee, v. Lionel DE BOUCHEL et al., Defendants and Appellants.
• Court: Court of Appeal of Louisiana — District of US

Page 94

117 So.2d 94

LOUISIANA POWER & LIGHT COMPANY, Plaintiff and Appellee, v. Lionel DE BOUCHEL et al., Defendants and Appellants.

No. 21471.

Court of Appeal of Louisiana, Orleans.

Dec. 10, 1959.

Rehearing Denied Jan. 18, 1960.

Monroe & Lemann, J. Raburn Monroe, Melvin I. Schwartzman, Andrew P. Carter, Eugene G. Taggart, New Orleans, for plaintiff-appellee.

Clarence F. Favret, New Orleans, for defendants-appellants.

D. Ross Banister, Glenn S. Darsey, Baton Rouge, amici curiae for Department of Highways, State of Louisiana.

Cook, Clark, Egan, Yancey & King, Shreveport, Plauche & Stockwell, Lake Charles, Oliver, Digby & Fudickar, Monroe, Peltier & Peltier, Thibodaux, amici curiae.

JANVIER, Judge.

The Louisiana Power & Light Company, plaintiff-appellee, moving to dismiss nine appeals, insofar as they suspend the operation of the judgments rendered, contends that the law of this State gives no right to suspensive appeals in expropriation suits.

We shall discuss all of the cases in one opinion and render a separate decree in each case.

Under what conditions, if any, there may be a suspensive appeal from a judgment of condemnation has been a much debated and considered question in Louisiana for many years. Before we refer to and quote from the latest legislative enactments, Acts 705 and 706 of 1954, it is well to consider the statutory law as it existed prior to those enactments and then to determine whether any change has been effected by those two statutes.

Article 2634 of our LSA-Civil Code, before it was amended by Act 705 of 1954, provided that: 'Any appeal to the Supreme Court from the verdict of the jury and judgment of the lower court, made by either party, shall not suspend the execution of such judgment * * *.' Before the amendment by Act 706 of 1954, LSA-R.S. 19:13 provided that: 'Appeals from the judgment of the lower court, made by either party, do not suspend the execution of the judgment * * *.'

Article 2636 of our LSA-Civil Code, among other things, provided and still provides that: 'If any owner shall be of opinion that the quantity of land sought to be purchased by any corporation exceeds that which is reasonably necessary for the purpose intended by the company, it shall be lawful for him to file a special plea, setting forth this fact, * * *.' And it further provides that the 'whole always subject to the decision of the Supreme Court on appeal.'

At this point it may be well to direct attention to LSA-R.S. 19:6, which provides that the defendant in an expropriation suit 'shall file his answer and serve a copy thereof on the plaintiff within ten days after service upon the defendant of the notice of the time fixed for the trial. * * *' LSA-R.S. 19:7 provides that if defendant fails to file his answer 'timely or to serve a copy thereof on the plaintiff timely,' this failure shall constitute a waiver of all defenses except the claim for compensation. We shall discuss this question later.

If it were not for the provisions of Article 2636, there would seem to be no doubt at all that there could be no suspensive appeal in any expropriation suit. We say this because, although Article 2634 refers only to an appeal to the Supreme Court, we feel certain that the words 'Supreme Court' were inadvertently used and that the redactors meant that there could be no suspensive appeal to any appellate court except in such cases as are provided for in Article 2636. Very often the words 'Supreme Court' are used to mean appellate court. In fact, LSA-R.S. 19:13, from which we have already quoted, did not limit its effect to appeals to the Supreme Court.

However, when we come to consider Article 2636 of our LSA-Civil Code we notice at once that there is language which at least tends to indicate that, where there is a specific defense to the effect that the plaintiff is seeking more land than is reasonably necessary, a determination of that question is 'always subject to the decision of the Supreme Court on appeal,' and that such an appeal may be suspensive. While the wording of Article 2636 does not expressly declare that the appeal which is referred to may be suspensive, it is very obvious that, unless such an appeal is suspensive, it would serve no useful purpose, for if a landowner defending an expropriation suit contends by special plea that more of his land than is necessary is being demanded and a judgment is rendered condemning all of the land demanded, we cannot see how he could be favorable affected by a reversal of the judgment if, before such reversal, his land is already taken and used by the expropriating plaintiff.

That Article 2636 contemplates a suspensive appeal has been held on many occasions. We ourselves, in Louisiana Highway Commission v. Treadaway, La.App., 173 So. 209, discussed this question exhaustively and possibly exhaustingly. See also Tennessee Gas Transmission Co. v. Wyatt Lumber Co., 221 La. 886, 60 So.2d 713; Interstate Oil Pipe Line Co. v. Cowley, 223 La. 672, 66 So.2d 588.

Thus there is no doubt that prior to the enactment of Acts 705 and 706 of 1954, by judicial interpretation if not by express legislative authority (LSA-Civ. Code, art. 2636), there was a right to a suspensive appeal when the defendant set forth specifically the special defense that there was being taken more of his property than was necessary.

However, the plaintiff here asserts that that rule may no longer be applied since, according to plaintiff, the Legislature in enacting those two statutes in 1954 eliminated all right to suspensive appeals even where such a special defense is made.

We have given most careful scrutiny to the two statutes of 1954 in an effort to determine whether, by those statutes there has been effected a change which requires a result different from that which existed according to judicial decisions prior to those enactments, and we find ourselves unable to conclude that the amendments of 1954 have the effect of eliminating the right to a suspensive appeal which, by established jurisprudence, is granted by LSA-Civil Code, Article 2636. Except for a rearrangement of words and for the elimination of the words 'Supreme Court', all the amendments seem to do is to provide that there shall be no suspensive appeal to any appellate court, which was exactly what was originally provided by Article 2634 and by LSA-R.S. 19:13.

Neither of the amendments of 1954 seems to effect a change in Article 2636, which is the article which has justified the interpretations to the effect that there is a...