State Through Dept. of Highways v. Bradford

• Decision Date: 06 November 1961
• Docket Number: No. 45567,45567
• Citation: 242 La. 1095,141 So.2d 378
• Parties: STATE of Louisiana, through DEPARTMENT OF HIGHWAYS, v. Elizabeth L. BRADFORD.
• Court: Louisiana Supreme Court

Page 378

141 So.2d 378

242 La. 1095

STATE of Louisiana, through DEPARTMENT OF HIGHWAYS, v. Elizabeth L. BRADFORD.

No. 45567.

Supreme Court of Louisiana.

Nov. 6, 1961.

On Rehearing April 30, 1962.

Dissenting Opinion May 8, 1962.

Rehearing Denied June 4, 1962.

D. Ross Banister, Glenn S. Darsey, Brunswig, Sholars, Baton Rouge, for plaintiff-relator.

Frank H. Peterman, A. M. D'Angelo, Alexandria, for respondent.

SUMMERS, Justice.

Mrs. Elizabeth L. Bradford is resisting the procedure adopted for the expropriation of her property by the State Department of Highways. The Department seeks a servitude affecting 14.97 acres of her land from which they will remove dirt to be used in connection with a highway project located about 2,200 feet away. The excavation will result in what is known as a borrow pit eight to ten feet in depth extending over the entire 14.97 acres. To accomplish this result the Department has availed itself of legislation which provides for the acquisition of 'property, including both corporeal property and servitudes' by a 'Declaration of Taking.' It is contended that in such a case as this the Department should be compelled to proceed by conventional expropriation proceedings.

LSA-Civil Code Article 491 defines ownership as '* * * the right to use, to enjoy and to dispose of one's property in the most unlimited manner * * *.' The first law of society being that the general interest shall be preferred to that of individuals, the rights conferred by Article 491 are restricted by the declaration contained in Article 2626 that every individual who possesses any particular property is tacitly subjected to the obligation of yielding it to the community, whenever it becomes Necessary for the general use. This right of eminent domain, sometimes referred to as the government's right to compulsory taking without the consent of the owner, is recognized to be inherent in the sovereign. It is the power to take private property for public use essential to any well-ordered society, without which the establishment of public facilities such as roads and other works would be unduly impeded. Nevertheless, certain limitations on this power are imposed by the Federal and State Constitutions.

In Louisiana the constitutional restraint upon the acknowledged sovereign authority to take property without the consent of the owner is embodied in Article I, Section 2, LSA-Const., as follows: 'No person shall be deprived of * * * property, except by due process of law. Except as otherwise provided in this Constitution, private property shall not be taken or damaged except for public purposes and after just and adequate compensation is paid.' Undoubtedly because of the vexation of the restraint imposed In certain cases by the due process clause contained in this article, which required a judicial determination of the necessity for the taking, and the delays incident to that requirement, ¹ a constitutional amendment was enacted creating an exception to this restraint. This amendment permits what is sometimes called a 'quick taking' of private property for highway purposes, dispensing with the requirement of prior adjudication of the question of necessity for the taking, thereby relaxing the due process requirements. Its language is as follows:

'The Legislature shall have authority to authorize the taking of property for Highway purposes by orders rendered ex parte in expropriation suits prior to judgment therein provided that provision be made for deposit before such taking with a court officer for the amount of appraisals of the property so taken and damages to which the owner thereof may be entitled, if any, which appraisals may be made in such manner as may be provided by law either before or after institution of suit, and need not be by judicially appointed appraisers.' (Italics ours.) Article VI, Sec. 19.1, Louisiana Constitution.

To implement this exception to the constitutional limitation on its power of eminent domain, and to delegate the sovereign right of expropriation vested in it, the Legislature enacted LSA-R.S. 48:441--460, in 1954, providing for expropriation by the Department of Highways by a 'Declaration of Taking.' This legislation permits taking--including possession and title--of 'property, including both corporeal property and servitudes', for Highway purposes prior to judgment in the trial court. The bases of this procedure are resolutions of the Highway Board declaring the taking to be necessary, certain certificates of highway officials to be discussed later, and depositing in the registry of the court the amount of the estimated value of the property taken. The constitutionality of this legislation has been upheld by this Court. State, Through the Department of Highways v. Guidry, 240 La. 516, 124 So.2d 531; State, Through the Department of Highways v. Macaluso, et al., 235 La. 1019, 106 So.2d 455.

In 1942, prior to the adoption of the constitutional amendment and the enabling legislation referred to above, the Legislature had provided that the Department of Highways might 'acquire by purchase, lease, donation, or expropriation and may operate any gravel bed, fill or rock deposit, marble or granite quarry, Or land from which earth can be obtained, or other natural resources or deposits susceptible of being used for the construction or maintenance of state highways or bridges, if the Needs of the state in the construction and maintenance of highways will be best served by the acquisition.' (Italics ours.) LSA-R.S. 48:222. This authority, however, was to be exercised under the general expropriation laws which permitted the property owners to judicially contest the necessity for the taking.

Mrs. Bradford contends that the quoted constitutional amendment and its enabling legislation (LSA-R.S. 48:441--460) by their language limit this 'quick taking' procedure to 'highway purposes', which are highway rights-of-way, strictly speaking, and the 'quick taking' procedures do not have the effect of abrogating the conventional expropriation proceedings relating to natural resources or deposits (borrow pits) contemplated in connection with LSA-R.S. 48:222 and in LSA-Civil Code Article 2629 et seq. She asserts that where the Department is expropriating 'land from which earth can be obtained' which is, in effect, a borrow pit as herein considered, ordinary expropriation procedure is required and the 'quick taking' or 'Declaration of Taking' is not available, the latter being available only for highway rights-of-way.

The legislation upon which the Highway Department relies is LSA-R.S. 48:441--460, which was added to the Revised Statutes by Act 107 of 1954 and is designated as Part XVIII thereof. It provides for expropriation by a 'Declaration of Taking' heretofore mentioned which differs from the general expropriation law in that under authority of the former title is vested in the Department of Highways prior to judgment in the trial court, and without a judicial determination of the necessity for the taking; whereas, under general expropriation laws of the State compensation must be paid ² and the necessity for taking must be established and adjudicated before title is vested in the expropriating authority. It is to be noted that the Declaration of Taking Statute (LSA-R.S. 48:441--460) does not repeal either expressly or by implication the provision of LSA-R.S. 48: 222, which is the authority for expropriating borrow pits under the procedure established by the general expropriation laws of the State.

The whole controversy resolves itself into a determination of the meaning of 'highway purposes' as contained in the constitutional and statutory authority under which the Department is proceeding.

The real purpose Mrs. Bradford seeks to accomplish hereby is to obtain a judicial review of the necessity for the taking of her property. Apparently relying upon the principle that civil tribunals are the natural guardians of private property, it is urged that depriving her of this judicial determination of the necessity for the taking is to deny due process of law provided for in the general expropriation laws of our State and guaranteed by Article I, Section 2, of the Constitution of Louisiana; that the due process requirement was not relaxed insofar as borrow pits are concerned.

In support of the contention that the 'quick taking' or Declaration of Taking Statute (LSA-R.S. 48:441--460) does not contemplate the taking of property located some distance from the highway right-of-way to provide dirt for the construction of a highway, Mrs. Bradford submits that the language of the Declaration of Taking Statute requires, in connection with the proceedings which form the basis for the taking, a certificate signed by the chief engineer declaring that he has fixed the 'width of right-of-way' sufficient in his judgment to provide presently and in the future for the 'public interest, safety and convenience.' Reference is also made in that statute to certificates of the director, chief engineer, road design engineer, and, if appropriate, the bridge design engineer, that the 'location' and 'design' of the 'proposed improvement are in accordance with the best modern practices adopted in the interest of the safety and convenience of the traveling public.' Mrs. Bradford maintains that this language corroborates her argument that the statute applies only to the taking of highway rights-of-way and not to the taking of borrow pits entirely removed from the highway right-of-way, such as is sought in the case at bar. Otherwise, the certificates which are required to support the taking would not have referred specifically to 'width of right-of-way' and 'location' and 'design' of the proposed improvement or 'provide presently, and in the future for the public interest, safety and convenience.' It is clear that a borrow pit is not an 'improvement' in the context in which that word is used in the contested statute, nor does...