Mayer v. Board of Com'rs for Caddo Levee Dist

• Decision Date: 07 July 1933
• Docket Number: 32211
• Citation: 177 La. 1119,150 So. 295
• Parties: MAYER v. BOARD OF COM'RS FOR CADDO LEVEE DIST
• Court: Louisiana Supreme Court

150 So. 295

177 La. 1119

MAYER v. BOARD OF COM'RS FOR CADDO LEVEE DIST

No. 32211

Supreme Court of Louisiana

July 7, 1933

Rehearing Denied October 3, 1933

Appeal from First Judicial District Court, Parish of Caddo; T. F Bell, Judge.

Action by Mrs. Mattie Mayer against the Board of Commissioners for the Caddo Levee District. Judgment for plaintiff, and defendant appeals.

Judgment set aside, and case remanded.

Tucker & Mason, of Shreveport, for appellant.

Jackson & Smith and Charles L. Mayer, all of Shreveport, for appellee.

Blanchard Goldstein, Walker & O'Quin, of Shreveport, for amici curiae.

Jeff B. Snyder, Dist. Atty., of Tallulah, and Hudson, Potts & Bernstein, of Monroe, for Board of Com'rs for Fifth Louisiana Levee Dist., amicus curiae.

OVERTON Justice. ST. PAUL, J., dissents.

OPINION

OVERTON, Justice.

Plaintiff owns Shreve Island plantation, located on Red river, in the parish of Caddo. Towards the close of 1930, and in the early part of 1931, defendant constructed a new levee through the plantation. This levee actually occupies 29.20 acres with the base, the berm, and the borrow pits. Between the new levee and the old, there was left, or thrown outside of the new levee, 105.99 acres, making a total of 135.19 acres lying between the land toe of the new levee and the land toe of the old levee.

The assessed value of the land for the year 1929, the year preceding the commencement of the building of the levee, was $ 100 an acre. Defendant paid plaintiff $ 2,920, on the basis of $ 100 an acre for the 29.20 acres actually occupied by the base, the berm, and the pit of the new levee, but refused to pay for the land between the old and the new construction. This refusal brought on this suit. Its purpose is to recover the assessed value of $ 100 an acre for the total acreage of 135.19 acres used, destroyed, and thrown out, less the 29.20 acres, paid for by defendant.

Defendant filed an exception of no cause of action. The exception was overruled. It then answered the demand, and averred in the alternative (which it is important to note, since the alternative answer may call for the remanding of this case), the following:

"Answering further, and alternatively, and only in the event the court should hold the provisions of article 16, section 6, of the Constitution of 1921, to apply to land left outside of the levee, and not actually occupied by it, then and in that event, defendant shows that plaintiff, since the construction of the new levee, has continued to occupy and use the land between the old and new levee in the same manner and for the same purposes to which said land was dedicated prior to the construction of the new levee; that, in fact, plaintiff's land, involved here, has not been actually used or destroyed for levee purposes."

There was judgment below in favor of plaintiff, based upon the acreage actually occupied by the base of the levee, the berm, and the borrow pits, and the land, lying between the new and the old levee, at its assessed valuation, the judgment being for $ 13,519, less $ 2,920, paid, with legal interest from July 28, 1930, and further judgment, reserving the privilege to defendant to pay the amount of the judgment into the registry of the court, there to remain until the further orders of court.

The case, as finally decided, presents two questions for consideration. The major one, by far, is the question whether property, thrown outside of a new levee, under construction, and lying between that levee and the old one, is used or destroyed for levee purposes within the meaning of section 6 of article 16 of the Constitution of 1921. The second question, which is one arising incidentally from the decision, is whether the court may order properly that the levee board be reserved the privilege of paying the compensation due the property owner into the registry of the court, when the land is incumbered with a mortgage at the time judgment is rendered, for the protection of the levee board and the mortgage creditor.

Section 6 of article 16 of the Constitution of 1921, upon which the rights of the litigants herein depend, reads as follows:

"Lands and improvements thereon here after actually used or destroyed for levees or levee drainage purposes shall be paid for at a price not to exceed the assessed value for the preceding year; provided, this shall not apply to batture, nor to property control of which is vested in the State or any subdivision thereof for the purpose of commerce.

"If the district has no other funds or resources out of which such payment can be made, it may levy, on all taxable property situated therein, a tax sufficient to pay for said property so taken, not to exceed one-fourth of one mill on the dollar, to be used solely in the district where collected. This shall not prevent the appropriation of said property before payment."

The law imposes a servitude for the common utility on lands abutting navigable streams for the construction and repair of levees, roads, and other purposes. Civ. Code, art. 665. The principle recognized by the cited article of the Code is of ancient origin. Morgan v. Livingston, 6 Mart. (O. S.) 19, 235, 236cc; Ruch v. New Orleans, 43 La.Ann. 275, 9 So. 473; Eldridge v. Trezevant, 160 U.S. 452, 463, 16 S.Ct. 345, 40 L.Ed. 490.

In the early days of this state, the levees were built and maintained solely at the joint expense of the front proprietors, and were diminutive constructions compared with present-day levees. Gayare's History of Louisiana, vol. 2, p. 2; Ward v. Board of Levee Commissioners, 152 La. 158, 166, 167, 92 So. 769, 772. The construction of levees came under public supervision as early as 1808. See Act of February 15 (No. 1) of 1808, and Ward v. Board of Levee Commissioners, supra.

To illustrate the size of levees in the early days as compared with the levees of to-day, even after their construction came under public supervision, and as late as 1829, we may refer to Act 31 of that year, the second section of which specifies the number of feet wide the base of each levee should be, depending on the depth of the water to be held back by the levee, as well as the number of feet its height and the width its summit should be. Where the levee was to hold back water of the depth of one foot, and not more than 3 feet, the base was required to be 5 feet wide for each foot in height, and, where the levee was to hold back more than 6 feet of water -- the greatest depth specified -- the levee was required to have a base of at least 8 feet for every foot in height. The summit of each levee was required to be of the breadth of one-third of its base, and the general requirement was made that every levee should be of such height that, after the settling of the earth, it would be one foot above the level of the water at its highest. By section 3 of the act, at places where the bank was apt to cave, it may be observed, in passing, the levee was required to be constructed at least one arpent from the water's edge, and in places where this condition did not exist at a distance of at least 60 feet therefrom. In both instances the measurement was required to be from the summit of the bank of the river.

Pretermitting reference to article 312 of the Constitutions of 1898 and 1913, which affected the Orleans levee district alone, up to the promulgation of the Constitution of 1921, the public authorities, in taking advantage of the servitude for levee purposes, and in the proper exercise of the police power, upon which power the servitude may be said to rest, paid nothing to the owner of the land for such part of his land as was taken for levee purposes, or for such part as was thrown outside of the levee. Zenor v. Parish of Concordia, 7 La.Ann. 150; Police Jury of West Baton Rouge v. Bozman, 11 La.Ann. 94; Dubose v. Levee Commissioners, 11 La.Ann. 165; Bass v. State, 34 La.Ann. 494; Ruch v. New Orleans, 43 La.Ann. 275, 9 So. 473 (which, though a road case, is applicablein principle); Peart v. Meeker, President of Levee District, 45 La.Ann. 421, 12 So. 490.

It appears, therefore, from the foregoing, that whatever section 6 of article 16 of the Constitution of 1921 may give to the owner of land, subject to the servitude for levee purposes, is in the nature of a gratuity. It is a payment made by the agency of the state -- the levee district -- for what already belonged to the state at the time of the adoption of the Constitution. The Constitutional Convention of 1921 was evidently prompted, in adopting the provision, to lessen, so far as the means of the public authorities would permit, the burden of the servitude resting on lands, bordering on navigable streams, and growing out of the necessities of the situation. Care should be taken, therefore, not to carry the spirit of the provision beyond its clear intendment, and thereby render, perhaps, the state unable to discharge its duty of protecting a large part of the public from inundation.

In construing section 6 of article 16 of the Constitution of 1921, it is proper to look into the proceedings, touching the framing and adoption of the section before us, remembering that the Constitution was not only framed by the Convention, but was adopted and promulgated by it, without referring it to the people, thus giving increased weight, perhaps, to its proceedings in interpreting the provisions of the instrument which it finally adopted and promulgated as the Constitution.

In the Convention, as appears from the journal thereof, there was a divergence of thought as to what should be done touching payment for land appropriated for levee purposes. Some, as appears from the several ordinances offered in the beginning advocated payment, while others apparently opposed it. For...