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

• Decision Date: 24 May 1976
• Docket Number: No. 10743,10743
• Parties: STATE of Louisiana, Through the DEPARTMENT OF HIGHWAYS v. JEANERETTE LUMBER & SHINGLE COMPANY, LTD. (two cases).
• Court: Court of Appeal of Louisiana — District of US

Page 453

335 So.2d 453

STATE of Louisiana, Through the DEPARTMENT OF HIGHWAYS v. JEANERETTE LUMBER & SHINGLE COMPANY, LTD. (two cases).

No. 10743.

Court of Appeal of Louisiana, First Circuit.

May 24, 1976.

Rehearing Denied July 6, 1976. ^*

Writ Granted Oct. 22, 1976.

D. Ross Bannister, Wm. W. Irwin, Jr., Jerry F. Davis, Alva Jones and Johnie E. Branch, Jr., Baton Rouge, for appellant.

Walter J. Suthon, III, New Orleans, for appellee.

Before ELLIS, BLANCHE and LOTTINGER, JJ.

BLANCHE, Judge.

Plaintiff-appellant, State of Louisiana, Through the Department of Highways, appeals the judgment in two consolidated cases which reduced the extent of two servitudes taken over the lands of defendant-appellee, Jeanerette Lumber & Shingle Company, Ltd. Said servitudes were expropriated in 1969 in connection with State Project No. 450--07--01, Federal Aid Project No. I--10--3(33) 131, Atchafalaya Floodway Crossing (Whiskey Bay Pilot Channel Bridge-Ramah), State Route La. I--10, Iberville Parish. The appeals were also consolidated and separate judgments will be rendered.

In order to build Interstate Highway 10 from the Ramah Levee to Whiskey Bay Pilot Channel, it was necessary for the plaintiff to dig an access canal 200 feet wide by ten miles long for purposes of floating pre-cast concrete sections of the highway to the construction site. Once they arrived at the site, the sections were floated into position through another waterway designated as the construction canal. The construction canal lies in an east-west direction between the two divided traffic lanes of the highway. The access canal travels north-south and intersects the construction canal at its northern end. At its southern end the access canal opens into Lower Grand River.

Defendant is owner of a 5/8ths undivided interest in one tract of land and sole owner of another non-contiguous tract, both of which are located in the Atchafalaya Basin, Iberville Parish, Louisiana. The aforementioned access canal traversed both tracts, and it was necessary for the plaintiff to expropriate a portion of said tracts for the canal pursuant to Article VI, Section 19.1 of the Louisiana Constitution of 1921 and the provisions of LSA-R.S. 48:441--460.

The order of expropriation granted a 400-foot wide 'permanent servitude of right of way' across the defendant's land. Under the authority of LSA-R.S. 48:447, ¹ the defendant protested the taking by a 'Motion to Dismiss or Modify' but did not set the motion for hearing until January, 1975, approximately five years after the taking. On the trial of the matter defendant argued that the land was not taken for a public purpose. Alternatively, it contended that a permanent servitude was not required and that since the project was now complete, the canal was no longer needed by the plaintiff and, therefore, the expropriated land should revert back to it in full ownership.

The trial judge reduced the extent of both takings from a permanent servitude of right of way to one limited to the purposes of constructing, maintaining and repairing the interstate highway by means of the access canal. In accordance with the foregoing, the judgment further held that the said canal itself is not a part of the State highway system and is not a general public way for use by the public. It was further ordered that the plaintiff vacate the servitude to the extent necessary for the defendant to enjoy the rights remaining to it, subject to the limited rights of permanent servitude as described above.

On appeal, the plaintiff argues that it was error on the part of the trial judge to so limit the servitude. Furthermore, plaintiff argues that it was error to hold that the canal was not a public thing and, therefore, not available for use by the general public.

The defendant answered the appeal attempting to have the order of expropriation permanently set aside, rather than merely reduced. Alternatively, the defendant seeks to reduce the servitude from permanent to temporary and to restrict the plaintiff's use thereof to the actual confines of the canal, rather than the entire 400 feet taken.

At the time this land was expropriated, it was needed for the building of the public highway and, therefore, it was taken for a public purpose within the intent of the act. State, Department of Highways v. Lessley, 287 So.2d 792 (La.1973). Therefore, the remaining issue on this appeal is a consideration of whether the defendant has the right to contest the extent of the servitude taken by the Department in the instant proceeding.

We have determined that it cannot. Although the defendant raised numerous issues in his motion to dismiss or modify, the only question that was legally before the trial court was whether or not the land was expropriated for a public purpose. LSA-R.S. 48:447.

The Highway Expropriation Act, R.S. 48:441 et seq., contemplates that no issues may be presented in an expropriation suit except those specifically authorized therein. State, Department of Highways v. Mouledous, 199...