United Gas Pipe Line Co. v. New Orleans Terminal Co.

• Decision Date: 01 July 1963
• Docket Number: No. 1137,1137
• Citation: 156 So.2d 297
• Parties: UNITED GAS PIPE LINE COMPANY v. NEW ORLEANS TERMINAL COMPANY.
• Court: Court of Appeal of Louisiana — District of US

Page 297

156 So.2d 297

UNITED GAS PIPE LINE COMPANY v. NEW ORLEANS TERMINAL COMPANY.

No. 1137.

Court of Appeal of Louisiana, Fourth Circuit.

July 1, 1963.

Rehearings Denied Oct. 2, 1963.

Jones, Walker, Waechter, Poitevent, Carrere & Denegre, New Orleans, McDonald, Buchler & Carr, Metairie, Hargrove, Guyton & Van Hook, Shreveport, Ernest A. Carrere, Jr., Harold A. Buchler, Metairie, John T. Guyton, and Ray A. Barlow, Shreveport, for plaintiff and appellee.

Phelps, Dunbar, Marks, Claverie & Sims, Sumter D. Marks, Jr., Ashton Phelps and Charles M. Lanier, New Orleans, for defendant and appellant.

Before McBRIDE, YARRUT and CHASEZ, JJ.

McBRIDE, Judge.

This is a devolutive appeal (see LSA-C.C. art. 2634) taken by defendant from a judgment of the Twenty-fourth Judicial District Court for the Parish of Jefferson permitting plaintiff, a corporation created for the piping and marketing of natural gas for public consumption (see LSA-R.S. 19:2(7)), to expropriate a 30 right of way, together with a parallel and adjoining 20 temporary servitude, for the construction and maintenance of a high pressure 30 gas pipeline (to be buried at least 6 feet below the surface) along and through the southern and eastern perimeters of certain land owned by defendant. The temporary servitude is now extinct by virtue of the completion of the pipeline. The judgment awarded defendant $98,450 for the right of way and temporary servitude and 'all normal damages occasioned by the construction of said pipeline.' Defendant's claim for severance damages allegedly sustained by its property outside the right of way was rejected.

Defendant's land, an area in excess of 40 undeveloped acres, situated within a developed urban section of the Parish of Jefferson, is bisected by Harlem Avenue which runs north-south, and is bounded east by LaBarre Road and south by the right of way of Illinois Central Railroad which runs in an east-west direction. Defendant leases 4.298 acres to the Parish of Jefferson for playground and recreational purposes under an unrecorded contract which is subject to termination by either party by the giving of a thirty-day written notice. The right of way and servitude expropriated in no way encroach on the leased portion of the subject land. There is testimony, however, to the effect that a baseball diamond is located on the right of way, but the land utilized therefor is not covered by lease and the Parish of Jefferson has no right of occupancy save by sufferance of defendant.

(1) Appellant argues that the trial judge erred in overruling its exception of no right and/or cause of action, or in not holding that plaintiff had not the right or power to expropriate the portion of the land constituting the playground.

The exception is without merit; appellant relies on the principle of law that land in public use by one corporation cannot, without legislative authority, be taken by another corporation, but such finds no application whatsoever in the instant case. No public property is involved. Defendant has made no dedication of any of the land to the public, and has never manifested any intent to make a dedication. It seems to us the provision of the lease providing for a thirty-day cancellation thereof would dispel any idea of such intent. Whether there has been an intent to dedicate property to public use is a question of fact which may be inferred only from acts of acquiescence from the owner that would exclude every hypothesis but that of dedication. Mere silence on the owner's part and failure to protest against the use of land by the public does not in law amount to an assent to a dedication to public use. Donaldson's Heirs v. City of New Orleans, 166 La. 1059, 118 So. 134; Bomar v. City of Baton Rouge, 162 La. 342, 110 So. 497; DeGrilleau v. Frawley, 48 La.Ann. 184, 19 So. 151; Torres v. Falgoust, 37 La.Ann. 497.

Appellant reurges its exception of nonjoinder of an indispensable party defendant, contending that the Parish of Jefferson should have been made party to the suit by reason of its status as defendant's lessee. It is contended that the parish, as a public body performing public functions, should be accorded an opportunity to be heard and present defenses. The trial judge correctly held that defendant's tenant, the Parish of Jefferson, is not an indispensable party.

Firstly, plaintiff was not bound in seeking the identity of its defendants to look further than the public records on which it had the absolute right to place reliance. All contracts affecting immovable property not recorded in the manner prescribed by law shall be utterly null and void, except between the parties thereto. LSA-C.C. art. 2266. A plaintiff in an expropriation suit in the naming of parties defendant need not implead a lessee under an unrecorded lease who might otherwise have been a necessary party. City of Shreveport v. Kansas City, S. & G. Ry. Co., 184 La. 473, 166 So. 471. Secondly, under well-established jurisprudence, the only necessary parties defendant in expropriation proceedings are the owners of the property. In holding a lessee not to be a necessary party, the Supreme Court in City of Shreveport v. Kansas City, S. & G. Ry. Co., 181 La. 458, 159 So. 715, said:

'* * * no one except the owner need be made a party defendant * * *. This is because these proceedings contemplate forced alienations of property and involve title to real estate. No one can give title to real estate except the owner, and inasmuch as the purpose of an expropriation proceeding is to compel him to yield title, he is the sole necessary party defendant. Suits to condemn or expropriate property for public use or in the public interest are proceedings in rem, proceedings against the property itself. Iberia, etc., Ry. Co. v. Morgan's Louisiana & Texas R. & S.S. Co., 129 La. 492, 502, 56 So. 417. The owner of the property and he alone has authority to speak in defense of an action to force alienation.'

See also: Tennessee Gas Transmission Co. v. Thatcher, D.C., 84 F.Supp. 344; State of Louisiana, through Department of Highways v. Schnitt, 238 La. 1069, 117 So.2d 595; State of Louisiana Through Department of Highways v. Ferris, 227 La. 13, 78 So.2d 493; State of Louisiana, through the Department of Highways v. D. H. Sanders Realty Company, Inc., La.App., 145 So.2d 584.

From Nichols on Eminent Domain, Vol. 2 (3rd Ed. 1950), § 5.23(7), at page 46, we quote:

'To entitle a person having a right of occupancy of real estate to recover compensation when the land is taken, he must have an actual estate or interest in the soil. * * *

'Mere occupancy, unaccompanied by any claim of ownership, is not in and of itself an estate or interest in land sufficient to form the basis of a claim for damages when the land so occupied is taken by eminent domain. Thus a trespasser is not entitled to compensation, even if he has erected a building upon the land * * *.'

(3) Appellant contends that plaintiff's selection of the location of the right of way was arbitrary and capricious and the trial judge erred in not so holding.

Appellant refers us to the testimony of its expert witness, Earl Stanley Dobbs, an engineer with experience in the locating, designing, and planning of natural gas transmission lines. Appellee objected to the competency of the witness as an expert on the ground that his experience did not extend to natural gas transmission lines as large as the one plaintiff proposed to install. Appellee also objected to the relevancy and materiality of the testimony. The judge correctly overruled both objections. It may be that Mr. Dobbs's inexperience with large transmission lines might possibly detract from the probative value of his testimony but would not affect his competency. We fail to understand why the testimony is not relevant and material.

Mr. Dobbs suggested seven alternative routes which he thought would be more advantageous and preferable, pointing out that monetary savings would result and the land would be less affected by the utilization of any suggested route. There is no need for detailing the testimony except to say Mr. Dobbs thought it would be desirable to utilize existing pipeline routes and public thoroughfares, to consolidate all facilities as near as practicable, to consider the cost of the land, and to avoid, if possible, the encroachment upon potential industrial or commercial sites.

Appellant in its brief makes the following argument:

'* * * What appellant is attempting to do in this case is to require appellee to abide by those sound principles of land management, which should be applicable in all urban areas, so that all might live in greater harmony. It takes no student of geography to know that land is fast become a scarce commodity and that in the metropolitan New Orleans area, this scarcity has already become acute. This acute shortage of desirable land is nowhere more manifest than in the field of industrial real estate. These are facts of which the Court may take cognizance and which should require no further elaboration.

'Appellee is no stranger to the New Orleans area and should be well acquainted with its problems. As noted, it already has two pipelines in the vicinity of the subject property, both of which have adverse effect on the property's desirability and accessibility.'

The court is not concerned with property management; rather, it seems to us, the feasibility and desirability of the proposed pipeline should be considered from the standpoint of sound engineering principles and what would best serve the purposes for which the right of way is sought.

In determining the feasibility, reasonableness and desirability of the route chosen, we are impressed by the testimony of L. C. Poindexter, the Chief Engineer who is charged with the general administration of all of plaintiff's engineering and construction. Plaintiff operates approximately 10,000 miles of pipeline. Mr. Poindexter explained that the reason for constructing...