State Through Dept. of Highways v. Lessley

• Decision Date: 03 December 1973
• Docket Number: No. 53307,53307
• Citation: 287 So.2d 792
• Parties: STATE of Louisiana, Through the DEPARTMENT OF HIGHWAYS v. Mason W. LESSLEY et al. STATE of Louisiana, Through the DEPARTMENT OF HIGHWAYS v. Sophia Wolfe COX et al.
• Court: Louisiana Supreme Court

Page 792

287 So.2d 792

STATE of Louisiana, Through the DEPARTMENT OF HIGHWAYS v. Mason W. LESSLEY et al.

STATE of Louisiana, Through the DEPARTMENT OF HIGHWAYS v. Sophia Wolfe COX et al.

No. 53307.

Supreme Court of Louisiana.

Dec. 3, 1973.

Rehearing Denied Jan. 11, 1974.

John M. Page, McCloskey, Donnery & Page, New Orleans, for defendants-applicants.

D. Ross Banister, Jesse S. Moore, Jr., William W. Irwin, Jr., Johnie E. Branch, Jr., State of La. Dept. of Highways, Baton Rouge, for plaintiff-respondent.

BARHAM, Justice.

These are expropriation suits brought pursuant to the 'quick-taking' statute, R.S. 48:441--48:460, in which the State, through the Department of Highways, respondent herein, obtained title to relators' land on March 15, 1960 and January 20, 1961, respectively. Within the ten day period specified by R.S. 48:447, relators filed motions to dismiss the expropriation suits on the grounds that the property was not taken for a public use and that the taking was greater than necessary for the proposed construction. Thereafter, no action was taken with regard to either suit until June 11, 1970, when motions to substitute counsel were filed by relators. On July 8, 1971, relators filed supplemental and amended motions seeking to dismiss the suits, alleging that the respondent had taken no action to utilize the expropriated property since the filing of its petitions. This inaction, relators contend, manifested that respondent's taking was not for a public use. Hearings had on rules to show cause why the amended motions to dismiss should not be filed resulted in denial of the amended motions, as well as a dismissal of the original motions to dismiss filed in 1960 and 1961.

On appeal, the Fourth Circuit affirmed the trial court's judgment. 271 So.2d 886 (La.App.4th Cir. 1973). That court held, as had the trial court, that relators' original motions to dismiss were 'actions' within the meaning of C.C.P. Article 561 and that relators' failure to take any step in the prosecution of the motions for five years from the date of the filing of those motions constituted abandonment of their actions.

We granted certiorari on relators' application. 275 So.2d 779 (La.1973).

Relators first argue to this Court that C.C.P. Article 561 is not applicable to a timely filed motion to dismiss an expropriation suit and that, consequently, such a motion is not subject to dismissal on grounds of abandonment when the parties fail to take any step in its prosecution or defense in the trial court for a period of five years. C.C.P. Article 561 provides, in pertinent part, as follows:

'An action is abandoned when the parties fail to take any step in its prosecution or defense in the trial court for a period of five years. This provision shall be operative without formal order, but on ex parte motion of any party or other interested person, the trial court shall enter a formal order of dismissal as of the date of its abandonment.'

It must be determined, therefore, whether relators' motions to dismiss are 'actions' within the meaning of C.C.P. Article 561.

Article 421 of the Code of Civil Procedure defeines a civil action as '* * * a demand for the enforcement of a legal right. * * *'. Article 422 of the Code of Civil Procedure defines real action as '* * * one brought to enforce rights in, to, or upon immovable property.' Under the peculiar circumstances which exist after the State, through the Department of Highways, has expropriated property under the 'quick-taking' statute, we are of the opinion that motions to dismiss are 'actions' within the meaning of C.C.P. Article 561 because they are demands for the enforcement of the landowner's right to have the title to the expropriated property re-vest in him, if it is determined that the property was not 'expropriated for a public use'.

R.S. 48:445 provides:

'Upon the deposit of the amount of the estimate in the registry of the court, for the use and benefit of the persons entitled thereto, the clerk shall issue a receipt showing the amount deposited, the date it was deposited, the style and number of the cause, and the description of the property and property rights as contained in the petition. Upon such deposit, title to the property and property rights specified in the petition shall vest in the department and the right to just and adequate compensation therefor shall vest in the persons entitled thereto.'

It is therefore clear that title to the expropriated property at issue in this case vested in the State upon the trial court's signing of the order of expropriation and the deposit in the registry of the court of the amount of the estimate of just compensation. Nowhere in the quick-taking statute is it provided that a timely filed motion to dismiss alters the fact that title to the property taken vests in the State. To the contrary, R.S. 48:460 provides:

'The plaintiff shall not be divested by court order of any title acquired under these provisions except where such court finds that the property was not taken for a public use. In the event of such findings, the court shall enter such judgment as may be necessary to compensate the defendant for the period during which the property was in the possession of the plaintiff and to recover for the plaintiff any award paid.'

It is therefore clear that title to the expropriated lands vested in the State on March 16, 1960 and January 20, 1961, and that the landowners' action in timely filing motions to dismiss did not divest the State of title to the lands.

Relators argue that this Court should hold one of its earlier decisions, that of Semel v. Green, 252 La. 386, 211 So.2d 300 (1968) applicable to the instant cases. In the Semel case, the plaintiff instituted foreclosure proceedings via executory process and the defendant sought, inter alia, a preliminary injunction prohibiting the sale of the mortgaged property. A preliminary injunction issued and, thereafter, no further action was taken in the case by either party for 5 1/2 years. At that time, the plaintiff filed a motion to dismiss the preliminary injunction on the grounds that the injunction was abandoned under C.C.P. Article 561. Following a hearing on plaintiff's motion, the trial court dismissed the entire executory proceeding, reasoning that there was but one lawsuit and the entire suit had to be dismissed because abandoned. The Court of Appeal reversed the trial court insofar as it dismissed the plaintiff's executory process suit. On review, this Court reversed the judgment of the Court of Appeal and reinstated the trial court's judgment. Therein we stated:

'There was but one case before the Court, i.e., a proceeding for executory process, as the trial judge correctly concluded. And, while it is true under Article 561, CCP, that certain incidental actions brought in reconvention may now be dismissed as abandoned when the defendant has failed to take any steps in the prosecution thereof for five years, this provision is not apposite here for the reason that an injunction to arrest an executory proceeding is a defense (Articles 2642 and 2751, CCP) and may be filed, as here, in the executory proceeding (Article 2752, CCP). It is not an incidental action which includes only claims in reconvention, intervention and demands against third parties as provided by Article 1031, CCP.'

The Semel case is inapplicable to the instant cases. In Semel, the plaintiff had not acquired that which he sought prior to the defendant's request for or the issuance of the preliminary injunction. The injunction issued on defendant's request effectively Arrested the seizure and sale of the mortgaged property. In the instant cases, the State had accomplished that which it sought, title to the relators' property, prior to the filing of the subject motions to dismiss. We analogize the motions to dismiss herein to actions to annul a final judgment. C.C.P. Articles 2001--2006. Actions to annul a final judgment may be brought only on specific grounds, and actions to annul for vices of substance, rather than vices of form, must be brought within one year of the discovery of the vice of substance by the plaintiff in the nullity action.

In the action to dismiss brought pursuant to R.S. 48:447, it is statutorily provided that the landowner has only ten days to file his motion to dismiss and that the only legally sufficient basis for granting the motion is a finding that the property was not taken for a public use. But, like the action to annul any other final judgment, we hold that the motions to dismiss are 'actions', and as such are susceptible to abandonment under C.C.P. Article 561. 'Expropriation by Declaration of Taking' (R.S. 48:441--48:460) is a proceeding which is sui generis. As clearly stated in the title, land is expropriated or taken by a legal declaration. Title vests in the expropriating body at that moment. R.S. 48:447 and 48:460 provide the method and basis for divesting the expropriating body of title to that property. The motion to dismiss is an 'action' to divest and is subject to the rules of abandonment. ¹ An allegation that a long period of time must pass in order to prove that a taking was not for a public use, such as relators make here, cannot avail a landowner. The issue for determination at a hearing on a landowner's motion to dismiss is whether the property was taken for a public use At the time it was taken and not whether property taken for a public use was, in fact, subsequently used. Any offer of proof on the part of the landowner that property taken was not, in fact, subsequently used is not ultimately dispositive of the issue to be determined.

We hold that when, as here, the State has obtained that which it sought in an expropriation suit (title to he landowner's property), the burden of timely proceeding on a motion to dismiss rests with the landowner and that failure to set the issue to be heard within five years, or to take any other step in the...