Tennessee Gas Transmission Co. v. Violet Trapping Co.

• Decision Date: 18 January 1965
• Docket Number: No. 47556,47556
• Citation: 176 So.2d 425,248 La. 49
• Parties: TENNESSEE GAS TRANSMISSION COMPANY v. VIOLET TRAPPING COMPANY, Inc.
• Court: Louisiana Supreme Court

Page 425

176 So.2d 425

248 La. 49

TENNESSEE GAS TRANSMISSION COMPANY v. VIOLET TRAPPING COMPANY, Inc.

No. 47556.

Supreme Court of Louisiana.

Jan. 18, 1965.

On Rehearing June 7, 1965.

Dissenting Opinion June 15, 1965.

Rehearing Denied and Dissenting Opinion Filed July 2, 1965.

John W. Bryan, Jr., New Orleans, for defendant-applicant.

Haynes L. Harkey, Jr., City Atty., William F. Pipes, Jr., Asst. City Atty., for City of Monroe, amicus curiae.

Alwine L. Mulhearn, Mulhearn & Mulhearn, Tallulah, for Mulhearn Rental Properties, Inc., amicus curiae.

Jones, Walker, Waechter, Poitevent, Carrere & Denegre, Ernest A. Carrere, Jr., Gerald N. Sims, New Orleans, Shotwell &amp Brown, Burt W. Sperry, Monroe, for plaintiff-respondent.

Jack P. F. Gremillion, Atty. Gen., Carroll Buck, First Asst. Atty. Gen., Harry Fuller, Second Asst. Atty. Gen., M. E. Culligan, John E. Jackson, Jr., Asst. Attys. Gen., for intervenor.

McCALEB, Justice.

The question for decision on this writ of certiorari is whether R.S. 19:13, as last amended by Act 108 of 1960, and Articles 2634 and 2636 of the Civil Code, as amended by Acts 92 and 93 of 1960, which abolish suspensive appeals in all expropriation cases, are violative of that part of Section 2 of Article 1 of the Louisiana Constitution providing that '* * * private property shall not be taken or damaged except for public purposes and after just and adequate compensation is paid' and that part of Section 15 of Article 4 providing '* * * nor shall vested rights be divested, unless for purposes of public utility, and for just and adequate compensation previously paid.'

Plaintiff herein (respondent in writ), having secured from the Federal Power Commission a certificate of public convenience and necessity under authority of U.S.C.A. Title 15, Section 717f(h) for the construction of an interstate pipeline, instituted expropriation proceedings under R.S. 19:12--14 for a right-of-way 150 feet in width over the property of defendant (relator herein) with the right to dredge a 50-foot flotation canal or ditch thereon for the purpose of laying a second high pressure gas pipeline, the first one having been previously installed by conventional agreement of the parties.

Defendant resisted the demand, filing in limine exceptions of no right or cause of action in which it attacked the certificate granted plaintiff by the Federal Power Commission on the ground that it was issued without notice or hearing and, therefore, was violative of the due process clauses of the State and Federal Constitutions.

Defendant further objected to the jurisdiction of the district court, alleging that the servitude herein sought to be expropriated was res judicata in view of a settlement between the parties made in 1958 in compromise of an expropriation suit previously brought by plaintiff against defendant under which plaintiff acquired a right-of-way across defendant's land for the laying of two pipelines. Defendant asserted that this compromise agreement contained a special covenant that the right-of-way therein granted by defendant was sufficient in area for the construction of a second pipeline, for which the additional servitude is presently sought, as well as for the first pipeline which was installed on defendant's property in accordance with the agreement.

In its answer, defendant reiterated that the servitude demanded in this case is not only violative of the compromise settlement but also that it far exceeds the acreage reasonably necessary for plaintiff's purpose. Alternatively, defendant claimed compensation and damages in the sum of $100,000.00.

After a hearing on these issues in the trial court, judgment was rendered in favor of plaintiff conveying a right-of-way 150 feet in width over certain described property of defendant comprising an area of 17.056 acres, more or less, and a permanent right-of-way and servitude 50 feet in width upon completion of the pipeline extending over 5.685 acres, more or less. The judgment also granted plaintiff the right to dredge a flotation canal 'approximately' 50 feet in width upon the right-of-way. The compensation awarded defendant for the property taken, including severance damages, was $2,877.19 and it was ordered that this sum be deposited by plaintiff with the Clerk of Court for the account of defendant in accordance with law and that the costs of the proceedings be paid by defendant, Violet Trapping Company, Inc. Defendant timely applied for a new trial and, when this was refused, it moved for a suspensive appeal. The motion was denied by the judge on the ground that, under R.S. 19:13, as amended by Act 108 of 1960, defendant was entitled to a devolutive appeal only. Thereafter defendant applied to the Court of Appeal, Fourth Circuit, for remedial writs which were refused, the Court noting '* * * the act of the legislature in limiting appeals in expropriation cases to devolutive appeals is not unconstitutional.'

Defendant then sought relief from this Court and we granted a writ of certiorari, coupled with a rule to show cause and an order staying all proceedings. However, we restricted our review in the matter to a consideration of the constitutionality of R.S. 19:13 and Articles 2634 and 2636 of the Civil Code which, as last amended during the 1960 session of the Legislature, abolish suspensive appeals in all expropriation cases.

Before engaging in discussion of the important problem presented, we feel impelled to note that counsel for defendant initially contends that, under existing jurisprudence, R.S. 19:13 has been interpreted so as to allow suspensive appeals on substantive constitutional points which he says are presented in the instant expropriation case.

There is no merit in this contention for the statute and codal articles, as last amended, are clear in stating that their purpose is to deny suspensive appeals in all instances. R.S. 19:13, as amended by Act 108 of 1960, declares:

'No party to any expropriation proceeding shall be entitled to or granted a suspensive appeal from any order, judgment, or decree rendered in such proceeding, whether such order, judgment, or decree is on the merits, exceptions, or special pleas and defenses, or any or all of them. The whole of the judgment, however, shall be subject to the decision of the appellate court on review under a devolutive appeal.

'When a devolutive appeal is taken by either party, payment to the owner of the amount awarded by the trial court, or the deposit thereof in the registry of the court, Entitles the plaintiff to the property described in the judgment in the same manner as would a voluntary conveyance. If any change in the amount awarded is made on such appeal, the plaintiff shall pay the additional assessment or recover the surplus paid.' (Italics ours).

Article 2634, as amended by Act 92 of 1960, has been rewritten so that its provisions are now identical with R.S. 19:13, as quoted above. And Article 2636, reserving the landowner's right to question the necessity for the taking, has been altered substantially by Act 93 of 1960; ¹ its former recitals anent appeals have been eliminated and the right of appeal is now controlled by Article 2634 and R.S. 19:13.

The changes effected by the 1960 Legislature were brought about by a series of decisions beginning with Orleans-Kenner Electric Ry. Co. v. Metairie Ridge Nursery Co., 136 La. 968, 68 So. 93 (1915) wherein Article 2634 of the Civil Code (as originally written) ² was construed to authorize suspensive appeals in all expropriation cases except those in which the only issue in contest was the amount of the jury's verdict in favor of the landowner.

In Tennessee Gas Transmission Co. v. Wyatt Lumber Co., 221 La. 886, 60 So.2d 713 (1952), it was held that, in view of Article 2634 of the Civil Code and the decision in Orleans-Kenner Electric Ry. Co. v. Metairie Ridge Nursery Company construing it, the provisions of R.S. 19:13, declaring that appeals from the judgment of the lower court do not suspend the execution of the judgment (as the statute then provided), were ineffective when the defendant was contesting either the right of expropriation or the necessity therefor. This ruling was followed in Inter-State Oil Pipe Line Co. v. Cowley, 223 La. 672, 66 So.2d 588 (1953). ³

In an obvious attempt to nullify the effect of the decisions in the Wyatt Lumber and Cowley cases, the Legislature in 1954, by Acts 705 and 706, amended and reenacted R.S. 19:13 and Article 2634 of the Civil Code so as to provide in identical language that there is no suspensive appeal but only a devolutive appeal in expropriation suits. However, in Louisiana Power & Light Company v. De Bouchel, 117 So.2d 94, decided in 1959 by the then Court of Appeal for the Parish of Orleans, it was held that the Legislature's efforts in 1954 were fruitless--insofar as cases involving the issue vel non of the necessity for the expropriation--forasmuch as Civil Code Article 2636, providing for a review of the district court's judgment in such cases and declaring that the question is 'always subject to the decision of the Supreme Court on appeal', clearly indicated that such an appeal may be suspensive.

After the decision in Louisiana Power & Light Company v. De Bouchel and kindred cases, in which the original opinion was reinstated and approved by per curiam on application for rehearing (see Louisiana Power & Light Company v. Meraux, La.App., 117 So.2d 101), the Legislature at its next regular session in 1960, by enactment of the amendatory laws now under consideration, abolished suspensive appeals in all expropriation cases. Accordingly, the question is squarely presented as to whether these statutes are violative of that part of Section 2 of Article 1 and the kindred provision of Section 15 of Article 4 of our Constitution declaring that private property shall not be taken or damaged except for public purposes and after just and adequate compensation is paid.

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