State, Through Dept. of Highways v. Jeanerette Lumber & Shingle Co., Ltd.

• Decision Date: 16 May 1977
• Docket Number: 58438,Nos. 58437,s. 58437
• Citation: 350 So.2d 847
• Parties: STATE of Louisiana, Through the DEPT. OF HIGHWAYS v. JEANERETTE LUMBER & SHINGLE CO., LTD.
• Court: Louisiana Supreme Court

Page 847

350 So.2d 847 STATE of Louisiana, Through the DEPT. OF HIGHWAYS
v.
JEANERETTE LUMBER & SHINGLE CO., LTD. Nos. 58437, 58438. Supreme Court of Louisiana. May 16, 1977.
On Rehearing Sept. 19, 1977.

Page 850

Walter J. Suthon, III, George Ann Hayne, Monroe & Lemann, New Orleans, for defendant-applicant.

William W. Irwin, Jr., Jerry F. Davis, Alva J. Jones, Johnie E. Branch, Jr., Baton Rouge, for plaintiff-respondent.

SUMMERS, Justice.

On November 19, 1969 the State of Louisiana, through the Department of Highways filed two suits against Jeanerette Lumber & Shingle Co., Ltd. to expropriate permanent rights of way across two separate tracts of land belonging to Jeanerette situated in Iberville Parish. One of the properties is owned entirely by Jeanerette, and it owns a fractional five-eighths interest in the other. The Department alleged the right of way was required in connection with the construction of a controlled-access twin trestle-type concrete bridge as a portion of State Route La. I-10 in Iberville Parish. The segment of the highway in question to begin at the east bank of Whiskey Bay Pilot Channel and extend easterly across the Atchafalaya Floodway to Ramah, a distance of 7.485 miles.

Proceedings were instituted under the authority of Section 19.1 of Article VI of the Constitution of 1921 and Sections 441-460 of Title 48 of the Revised Statutes, the constitutional and statutory enactments in effect at the time of the taking and which are controlling in this case. Under certain conditions these constitutional and statutory enactments authorize the taking of property for highway purposes by orders rendered ex parte in expropriation suits. It is called the "quick taking" procedure.

A permanent servitude of right of way 400 feet wide across both tracts running in a north-south direction is sought from Jeanerette by the Department. The right of way to be used for the excavation of an

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access canal which would provide flotation for heavy equipment and material used in the construction of the Whiskey Bay Pilot Channel-Ramah segment of the I-10 highway. Beginning at the Upper Grand River on the south, a branch of the Atchafalaya River, the access canal was to be excavated in a north-south direction traversing Jeanerette's land and other properties and terminating 10.2 miles to the north where it would connect with a construction canal running east and west along the center of the Whiskey Bay Pilot Channel-Ramah segment of the I-10 highway. While it is not clear from the Department's petition that the servitude of right of way for the north-south canal was to be a controlled-access facility, the contention is made that such was the intent of the Department. No part of the property sought to be expropriated from Jeanerette lies within the I-10 highway right of way.

On the basis of the Department's petition the trial judge signed an ex parte order on November 19, 1969 decreeing that the permanent servitude of right of way was expropriated and taken for highway purposes. Thus, upon the deposit of the amount of the estimated value of the property in the registry of court a permanent servitude of right of way became vested in the Department.

Within the time limit set by Section 447 of Title 48 of the Revised Statutes to contest the validity of the taking on the ground that the property was not expropriated for a public purpose, Jeanerette filed a motion to dismiss in which it sought to vacate and set aside the order of expropriation alleging that 1) the taking was for a private, not public, use to provide a contractor with private access to a public project; 2) the taking was beyond the powers of the Department because Jeanerette's property was outside the proposed highway right of way, will not be used for highway purposes, and the Department did not have the power to acquire property outside the highway right of way other than for borrow pits and drainage; 3) the Department's determination that the taking was necessary reflects bad faith and abuse of discretion because other existing waterways are suitable for the stated purpose and the Department has made no effort to use those alternatives; 4) the taking is null and void because the location of the servitude cannot be determined from the Department's description or map; 5) the type of rights to be exercised on the servitude is not stated; 6) the Board of Highways resolution does not state that the servitude sought is necessary or useful for the highway project; 7) the width of the servitude is not properly fixed in the engineer's certificate; and 8) the certificate as to location and design does not relate to the servitude in question.

Alternatively the motion to dismiss sought a modification of the expropriation order 1) to confine the Department's rights to a temporary servitude for construction purposes and one not open to the general public; 2) to restrict the servitude area to the width of the canal proper and a limited spoil area with defendant's right of free access to the canal recognized; and 3) to eliminate the controlled-access features of the taking.

These Jeanerette contentions are alleged to be based upon the propositions that the servitude is sought for a private, not a public use; the Department is in bad faith in declaring this permanent servitude to be necessary; and in seeking this servitude the Department is exceeding its constitutional and statutory authority to acquire property for highway purposes.

Thereafter, while the motion to dismiss was pending, the Department excavated a 100-foot wide access canal within the 400-foot wide servitude connecting with the construction canal and it completed the construction of the I-10 highway from Baton Rouge to Lafayette across the Atchafalaya Floodway. Heavy equipment and material were floated on barges through the Atchafalaya River, the Upper Grand River, the access canal and into the construction canal. This latter canal, laying at the center of the highway right of way, served as a flotation base for barges bearing heavy equipment used in the construction and for unloading

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materials and prefabricated concrete sections for incorporation into the twin trestle-type concrete bridge.

When Jeanerette's motion to dismiss was finally set for trial and tried on January 14, 1975, the trial judge modified the order of expropriation. He decreed that the permanent servitude of right of way was to be for the exclusive use of the Department in constructing, maintaining and repairing the Whiskey Bay Pilot Channel-Ramah segment of the I-10 highway; the access canal constructed on that servitude of right of way was not a general public way available for use by the public; the access canal was not to be considered as a controlled-access facility, Jeanerette to have full access to said access canal subject to the Department's limited rights; and the portion of the 400 foot width of the servitude of right of way not within the access canal to be used by the Department only for maintenance, repair or redredging of said canal.

Writs for review of the judgment of the trial court were applied for by the Department but the First Circuit denied the application, noting that the Department had a remedy by appeal. An appeal was then taken by the Department. Jeanerette answered the appeal seeking full restoration of its title, or, alternatively, restriction of the Department's rights to a temporary servitude; or, further in the alternative, limiting the servitude to the access canal itself. The First Circuit reversed on the authority of this Court's decision in State v. Guidry, 240 La. 516, 124 So.2d 531 (1960), holding that it was error for the trial judge to reduce the permanent servitude of right of way to a limited servitude for the construction, maintenance and repair, because the extent of the taking by the State is not subject to judicial review. In the Court's opinion the right of the public to use the access canal should be the subject of a separate suit. La.App., 335 So.2d 453, 456. One judge of the three-judge panel dissented from the refusal to grant a rehearing. He was of the opinion that the Department's attempt to use or permit use of the servitude of right of way for other than construction and maintenance was not a public use for which that agency of the State could validly acquire any rights. He asserted he would affirm the judgment of the trial court. La.App., 335 So.2d 549.

Jeanerette then applied to this Court for writs of review which were granted. La., 338 So.2d 291.

The record discloses that negotiations by the Department with Jeanerette were undertaken before the suit for expropriation was filed. In that connection Jeanerette offered to grant a 200-foot wide servitude for the construction of the access channel, one condition being that the canal would remain at all times private and at no time available for public use, except for the construction and maintenance of the highway. The proposal, however, was rejected, the Department stating that it wished "to open this canal to public use." It also insisted upon a permanent right of way 400 feet wide.

According to the testimony of the bridge design engineer of the Department, he was involved in the planning and design of the I-10 highway across the Atchafalaya Floodway. He testified that the Louisiana Wildlife and Fisheries Commission was consulted and they fixed the alignment of the proposed access canal within a corridor from Upper Grand River North to the I-10 right of way. It was also specified by the Commission that a low water dam or weir be installed at the south end of the access canal after construction of the highway to maintain a water level conducive to fishing and hunting in the area surrounding the 10.2 mile long access canal.

After completion of the highway construction, the Commission recommended establishment of boat launching ramps at either end of the construction canal to provide sportsmen and...