Reymond v. State Through Dept. of Highways

• Decision Date: 20 January 1970
• Docket Number: No. 49708,49708
• Citation: 231 So.2d 375,255 La. 425
• Parties: Mabel M. REYMOND v. STATE of Louisiana, Through the DEPARTMENT OF HIGHWAYS, et al.
• Court: Louisiana Supreme Court

Page 375

231 So.2d 375

255 La. 425

Mabel M. REYMOND v. STATE of Louisiana, Through the DEPARTMENT OF HIGHWAYS, et al.

No. 49708.

Supreme Court of Louisiana.

Jan. 20, 1970.

Dissenting Opinion Feb. 4, 1970.

Rehearing Denied Feb. 23, 1970.

Philip K. Jones, D. Ross Banister, Norman L. Sisson, Robert J. Jones, Burton, Roberts & Ward, Charles Wm. Roberts, Baton Rouge, Jones, Walker, Waechter, Poitevent, Carrere & Denegre, for appellant.

Ernest A. Carrere, Jr., Patrick W. Browne, Jr., Donald O. Collins, New Orleans, Amicus Curiae.

George Piazza, New Orleans, Amicus Curiae.

Sanders, Miller, Downing & Kean, R. Gordon Kean, Jr., Baton Rouge, for appellee.

BARHAM, Justice.

The present action came about as a result of the Department of Highway's construction of Interstate 10 through Baton Rouge. Mrs. Mabel M. Reymond, alleging several claims for damages on alternative grounds, instituted suit against the State of Louisiana through the Department of Highways and its contractor, Fruin-Colnon Contracting Company. The Department named Fruin-Colnon a third party defendant, and in turn filed a third party proceeding against Raymond International, Inc., its subcontractor.

The construction of Interstate 10 required the building of a multi-lane elevated controlled-access highway over and across a portion of Eugene Street. The Highway Department contracted with Fruin-Colnon to perform this part of the project, and it subcontracted to Raymond International the driving of piling. Before this construction Eugene Street ran in front of a number of houses to a dead end one house beyond the plaintiff's home. Although several pieces of property fronting on Eugene Street were expropriated, the plaintiff's property and that of some of her neighbors were not taken. The construction, however, required that the street be rerouted so as to give access to the plaintiff's residence and other property by curving under Interstate 10 to the dead end.

Plaintiff contended that because of this construction she has been denied easy and direct access to her property, that her view and her prospect are impaired, that her residence is separated from a large portion of a subdivision, and that she must suffer the noise of heavy traffic. She also alleged that there was structural damage to her house, such as uneven floors, cracks in ceilings, separation of walls, and general damage in the form of cracking and misalignment. It was alleged that this structural damage was caused by the pile driving done in connection with the construction of Interstate 10. ¹

The trial court dismissed the claim against Fruin-Colnon and Raymond, but cast the Department of Highways for $8750.00 with legal interest from date of demand until paid. This judgment included $6250.00 as 'severance or consequential damages' awarded under Article 1, Section 2, of the Constitution, or, as the trial judge said in his reasons for judgment, 'special damages which were not related or common to those shared by other property in the neighborhood and for which compensation in the form of consequential damages should be allowed'. The remainder of the judgment, $2500.00, was awarded for structural damage to the plaintiff's house, on the theory that 'the construction of the Interstate contributed substantially to the structural damage of the Reymond home', and that this damage was recoverable under Civil Code Article 667.

The Court of Appeal affirmed the judgment of the lower court and approved the reasoning which formed the bases for both amounts awarded. 217 So.2d 488. Certiorari was granted on application of the Department of Highways.

One of the primary reasons for granting a writ in this case was to clear up the confusion in the appellate jurisprudence as to whether the Department of Highways is immune from suit. Since the granting of this writ, however, this court has passed upon that question in relation to a suit in tort. In Herrin v. Perry and Perry v. Herrin, decided November 10, 1969,254 La. 933, 228 So.2d 649, we held that under Article 3, Section 35, of the Constitution the clause to 'sue and be sued' of R.S. 48:22 effectuates a general waiver of the immunity from suit formerly enjoyed by the Highway Department.

Contrary to the argument of the Department of Highways, we have never held that the phrase to 'sue and be sued' was to be considered as a waiver of immunity from suit and liability in actions in contract only and not in other actions. ² The Department of Highways has also urged that the only purpose of the 1960 amendment to Article 3, Section 35, of the Louisiana Constitution was to nullify the effect of Duree v. Maryland Casualty Co., 238 La. 166, 114 So.2d 594, and Stephens v. Natchitoches Parish School Board, 238 La. 388, 115 So.2d 793, which had differentiated between waiver of immunity from suit and waiver of immunity from liability. We find no merit in the contention that the amendment should be so limited in construction.

The doctrine of governmental immunity in Louisiana is not an affirmative constitutional guarantee. It originated as a jurisprudential legal principle, and the very amendment which in broad terms waives this immunity is the only constitutional expression concerning this jurisprudentially created doctrine. As we noted in Hamilton v. City of Shreveport, 247 La. 784, 174 So.2d 529, the scope of this amendment cannot be limited by this court since it is clear and precise in its wording. It enumerates all of the governmental bodies that are to be affected, and makes the waiver of their immunity from suit and liability '* * * for all purposes * * *' all-inclusive. We hold here that the Department of Highways has waived all immunity from suit and liability. ³

Recovery for structural damages to plaintiff's home is sought under several theories, one of which is that each of the defendants was negligent. Both the trial court and the Court of Appeal held that plaintiff had failed to prove negligence in any respect, and since our study of the record leads us to a similar finding, we conclude that there is no liability on the part of any of the defendants on the ground of negligence.

In one alternative argument plaintiff has urged that under Civil Code Article 667 she is entitled to recover from the Department of Highways for the structural damage, and though we reject the applicability of this article and apply other law to the case, we must pass upon this argument, for the measure of damages under this theory is not the same as the measure of damages under the applicable law.

Both courts below granted damage under Article 667, apparently assuming as have many juristis and writers that it imposes strict liability upon one who Acts on his own property to the damage of his neighbor. The courts of this state have floundered from one theory to another to no theory at all in determining the right to recover for damages caused to neighboring property by a hazardous or unusual activity or by the use of a dangerous instrumentality or material. Recovery has been predicated upon negligence, upon a common law theory of nuisance, upon the common law theory of strict liability when one negages in hazardous activity, and upon the theory of limitation of right of ownership, and has even been allowed without a mentioned theory or authority. Sometimes Article 667 was cited in conjunction with the theory and sometimes not. This fluctuation has often been noted by commentators in our law reviews with criticism of one theory or another, but the results reached in the cases allowing recovery under these theories have been generally approved.

The position of Article 667 and related articles in the Code, their source and history, and the development or changes in application of the articles are important considerations for their interpretation and application.

Civil Code Articles 666--668 are found under the title 'Of Predial Servitudes or Servitudes of Land' in the chapter 'Of Servitudes Imposed by Law'. The first clause of Article 666 is a literal translation of its source, Article 651 of the Code Napoleon: 'The law imposes upon the proprietors various obligations towards one another, independent of all agreements.' And we have added: '* * * and those are the obligations which are prescribed in the following articles.' Articles 667 and 668 have no specific counterparts in the Code Napoleon but are derived from Domat, Oeuvres comple tes de J. Domat, Book 1, Title 12, Section 2, Nos. 8 and 9, p. 333 (e d Remy 1835). ⁴ Articles 667 and 668 read as follows:

'Art. 667. Although a proprietor may do with his estate whatever he pleases, still he can not Make any work on it, which may deprive his neighbor of the liberty of enjoying his own, or which may be the cause of any damage to him.'

'Art. 668. Although one be not at liberty to Make any work by which his neighbor's buildings may be damaged, yet every one has the liberty of doing on his own ground whatsoever he pleases, although it should occasion some inconvenience to his neighbor.

'Thus he who is not subject to any servitude originating from a particular agreement in that respect, may raise his house as high as he pleases, although by such elevation he should darken the lights of his neighbors's (neighbor's) house, because this act occasions only an inconvenience, but not a real damage.' (Emphasis supplied.)

Article 667 is a verbatim translation of No. 8 of Domat's work, supra, without his explanatory and indicative illustrations. Domat's illustrations in No. 8 of the meaning and application of this legal principle are: Thus one cannot raise a Building on his estate, The roof of which would discharge water upon his neighbor's estate. One cannot make a Planting or a Building without observing certain distances from the confines of his estate. One cannot make Constructions, such as an Oven or a Bakehouse, against a wall, common or other, which may be a hazard or cause damage to the wall.

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