McDonald v. Board of Mississippi Levee Com'rs
| Decision Date | 25 November 1987 |
| Docket Number | No. 86-4846,86-4846 |
| Citation | 832 F.2d 901 |
| Parties | Charles G. McDONALD, Plaintiff-Appellee, v. BOARD OF MISSISSIPPI LEVEE COMMISSIONERS, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Stephen L. Thomas, Lake, Tindall, Hunger & Thackston, Greenville, Miss., for defendant-appellant.
Charles B. Davis, Thomas, Price, Alston, Jones & Davis, Jackson, Miss., for plaintiff-appellee.
Appeal from the United States District Court for the Northern District of Mississippi.
Before RANDALL, WILLIAMS and GARWOOD, Circuit Judges.
Charles McDonald, an owner of land adjacent to the Mississippi River, sued the Board of Mississippi Levee Commissioners for unconstitutionally awarding maintenance contracts that granted grazing rights on a public easement underlying the river levee. The district court found that the state agency deprived McDonald of his property without compensation and in an arbitrary and capricious manner, and accordingly, the court awarded McDonald damages and an injunction. We conclude that the suit did not violate the eleventh amendment and that the district court committed no reversible errors; thus we affirm the judgment.
In 1982, Charles G. McDonald ("McDonald"), a Louisiana resident, purchased almost 900 acres of land bordered by the Mississippi River in Washington County, Mississippi, for $325,000. McDonald received a special warranty deed from United States Gypsum Company ("Gypsum") that conveyed a fee interest subject to easements held by the Board of Mississippi Levee Commissioners (the "Levee Board"). In addition to the deed, an earlier letter from Gypsum informed McDonald that the property was subject to an easement "controlled by" the Levee Board "for Mississippi River Levee right-of-way and maintenance purposes."
Before buying the property, McDonald conducted a title search, purchased title insurance, and obtained an affidavit from Gypsum's agent concerning claims against the property. The land records contained condemnation awards for the Levee Board's easements, but no contracts concerning the property were recorded. McDonald's deed referred to a 1978 "Perpetual Easement Deed" and a 1951 deed that mentioned the Levee Board's easements and had an attached map outlining a fence along the river levee. However, McDonald stated that when he visually inspected the land before purchasing it, the riverside fence was not in place and the land was covered by tall grass. McDonald testified that none of his inquiries provided notice that the Levee Board claimed the right to appropriate grazing rights on the land.
The Mississippi Legislature incorporated the Levee Board in 1865 to build and repair levees along the river. The 1865 statutes gave the Levee Board the power to condemn private property to construct and maintain river levees and to contract for levee maintenance. Similarly, in 1890, the Mississippi Constitution mandated the maintenance of a levee system and provided:
The levee boards shall have, and are hereby granted, authority and full power to appropriate private property in their respective districts for the purpose of constructing, maintaining, and repairing levees therein....
Miss. Const. art. 11, Sec. 233. Pursuant to these provisions, the Levee Board acquired easements on 504 acres of McDonald's land by statutory condemnation proceedings between 1899 and 1948. 1 Most of the various condemnation awards stated that the purpose of the easements was to "build and repair" a levee and that the Levee Board had determined the damages to the landowners. The terms of individual awards provided the cash value of what was taken; some specified whether the property was cleared land, woodland, or land with improvements and whether the amount paid included timber or structures.
Since 1952, the Levee Board has operated under its present policy of maintaining the levee by awarding contracts to third parties. The Levee Board believes that grazing cattle on the easement is necessary for proper maintenance because it creates a sod that protects the levee from erosion and keeps the grass at an acceptable height. Therefore, for at least 34 years, the Levee Board has exercised control over the grazing rights on the easements by granting these privileges in the maintenance contracts. Although the contractors do not pay for the grazing rights, the contracts enable the Levee Board to minimize its maintenance expenses.
Under the Levee Board's policy, Newman Bolls ("Bolls"), Chief Engineer of the Levee Board, selects who will receive maintenance contracts. The Levee Board has adopted written guidelines, 2 which Bolls considers when he reviews applications. However, Bolls exercises discretion in selecting contractors. For example, he does not consistently apply the written factors, and he may consider unwritten factors. 3 According to Bolls, the fact that an applicant is a servient landowner is not a significant factor.
The present system is very beneficial to the Levee Board and the maintenance contractors, and the Levee Board has received superior ratings from maintenance inspections by the Corps of Engineers. It is undisputed, however, that the system may deprive landowners of rent they could receive from leasing the grazing rights or of profits they could derive from cattle operations. Furthermore, it appears that if a landowner rented the land and maintained it according to the Levee Board's requirements, both the landowner's and the Levee Board's purposes could be met.
The Levee Board's position, however, is that to properly maintain the levee, it must exert direct supervisory control over maintenance contractors. Under the present system, some contractors have not adequately performed their contracts, and Bolls has apparently handled these problems pursuant to his authority and state statutes. In addition, according to Bolls, if a contractor fails to properly maintain the land as required by the maintenance contract, the Levee Board can cancel the contract. Criminal statutes also authorize the prosecution of a person who defaces the levee. There is no indication that these procedures would be inapplicable to a landowner or to an assignee or sublessee of a landowner.
In 1980 and 1981, the Levee Board awarded two five-year maintenance contracts covering 244 acres of the easements on McDonald's land. 4 In 1982, McDonald attempted to lease his newly acquired land that was subject to the easements for pasturage to cattle owners. The person contacted by McDonald informed him of the two maintenance contracts, and upon inquiry, McDonald learned of the Levee Board's maintenance contract policy.
Based on the factors listed in the Levee Board's policy, McDonald determined that he would be unable to obtain a maintenance contract on his land. His attorney contacted Bolls, who stated that McDonald could not get a contract during the term of the existing contracts and that McDonald had no present rights in the property subject to the Levee Board's easements. Bolls said that to be eligible for future contracts, McDonald would have to operate a cattle business and live in the locality. 5 Although Bolls forwarded an application to McDonald, McDonald did not submit it to the Levee Board because he believed that applying for a contract would be futile.
McDonald sued the Levee Board for deprivation of his constitutional rights under 42 U.S.C. Sec. 1983. As grounds for relief, he asserted that the Levee Board denied him privileges and immunities guaranteed by the Constitution because he was a nonresident and that the Levee Board violated his fifth and fourteenth amendment due process rights. Specifically, McDonald argued that the Levee Board's appropriation of the grazing rights on the easements constituted a confiscation of his property for public use without just compensation and that, as a matter of substantive due process, the Levee Board's manner of awarding maintenance contracts was arbitrary and capricious. As pendent state claims, McDonald asserted that the Levee Board was exceeding its easement rights and violating Mississippi administrative law.
At trial, the primary issue was whether McDonald had a present property interest in the grazing rights on the land subject to the Levee Board's easements. McDonald claimed that the Levee Board had not acquired the grazing rights by grant, condemnation, implication, or prescription and that in excluding him from these rights, the Levee Board had taken his property. McDonald argued that his fee simple title included the right to graze his land and to take profits from it because these uses were not excepted from his title. He asserted that his proposed use of the property was not inconsistent with the purpose of the easements and that the Levee Board's conduct effectively deprived him of all use of the property.
The Levee Board asserted that its easement rights included exclusive control of all land subject to the easements. The Levee Board contended that McDonald's only property interest was a possibility of reverter if the easements were no longer necessary to maintain the levee. The Levee Board argued that it obtained the right to exercise full control of the land either expressly through the condemnation proceedings, implicitly in the acquisition of a public easement, or prescriptively by the exercise of control for over ten years.
The district court, in a careful and thorough opinion, rejected the Levee Board's position. The court found that the condemnation awards for easements to build and repair a levee
did not expressly or by implication give the Board the right to exclude the plaintiff from his own property under the guise of maintaining the levee.... [T]he Levee Board cannot rely on the terms of the easement awards to exclude the plaintiff from using his land in a manner that does not interfere with the easements to build and repair that were granted.
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