Ward v. Board of Levee Com'rs of Orleans Levee Dist

• Decision Date: 22 May 1922
• Docket Number: 25151
• Citation: 92 So. 769,152 La. 158
• Parties: WARD v. BOARD OF LEVEE COM'RS OF ORLEANS LEVEE DIST
• Court: Louisiana Supreme Court

92 So. 769

152 La. 158

WARD v. BOARD OF LEVEE COM'RS OF ORLEANS LEVEE DIST

No. 25151

Supreme Court of Louisiana

May 22, 1922

Rehearing Denied by Division A June 22, 1922

Appeal from Civil District Court, Parish of Orleans; Columbus Reid Judge.

Suit by William H. Ward against the Board of Levee Commissioners of the Orleans Levee District. From a judgment for plaintiff defendant appeals.

Affirmed.

Arthur McGuirk, of New Orleans, for appellant.

Ethelred M. Stafford, Walter L. Gleason, and Benjamin T. Waldo, all of New Orleans, for appellee.

ST. PAUL, J. PROVOSTY, OVERTON, and LECHE Justices.

OPINION

ST. PAUL, J.

Plaintiff brings this suit against the Orleans levee board for alleged loss and damage to his property and business on both sides of the old public road, now Patterson street, in the Fifth district of the city of New Orleans (Algiers). He complains, not only that the building of the levee, on lots owned by him and situated between the old public road aforesaid and the river, took and destroyed that realty to the value of $ 221,840, together with certain improvements thereon, to wit, a certain sawmill and machinery valued at $ 75,000, certain buildings valued at $ 17,000, and certain driveways and lumber foundations, valued at $ 2,500 (the value of which he now claims), but he also complains that, as the direct and immediate result of such taking, he has sustained additional losses as follows, to wit: Loss (depreciation) on certain other property owned by him, situated on the other side of Patterson street and used in connection with said sawmill, say $ 14,602.40; also the cost of removing certain lumber, say $ 5,000; also a loss on certain timber sawed up into standard instead of special sizes, say $ 5,000; and profits which he would have earned, had he not been disturbed, say $ 132,844.52. Of which the first four items above mentioned aggregate $ 316,240, and the last four items aggregate $ 157,446.92, making the total of plaintiff's claim the sum of $ 473,786.92.

The answer of the defendant asserts in substance that the locus in quo lies between the front street and the water edge, and is part of the batture and bank of the Mississippi river, and hence is subject to a servitude in favor of the public for levees, roads, commerce, and navigation; that plaintiff's monopoly of the bank to the exclusion of the public was unlawful; that his enjoyment thereof heretofore was by sufferance only, which has now terminated; and that his structures should be abated as a public nuisance.

The fact is that the new levee at this point was built on the riverside edge of Patterson street, and now stands some 13 feet above the level of said street, thus throwing the whole of the property mentioned in the first four items of plaintiff's claim into the bed of the Mississippi river.

The case was tried by jury, first called for by plaintiff and then waived, and afterwards again called for by defendant. The jury visited the locus at the inception of the trial (and perhaps once more; but as to this the record is not clear, and it is immaterial), and, after hearing the case during a period extending from January 13, 1922, to February 7, 1922, unanimously returned a verdict in favor of plaintiff for the sum of $ 125,000, which verdict the trial judge approved, by refusing the new trial prayed for by defendant. Whereupon defendant appealed, and plaintiff answered the appeal, praying for an increase.

I.

The action is brought under article 312 of the Constitution of 1898, reading as follows:

Art. 312. Any person whose property has been appropriated within twelve months prior to the adoption of this Constitution, or whose property may hereafter be appropriated by the Orleans levee board for levee purposes, shall have a right in action against said board in any court of competent jurisdiction for the value of said property, and whatever judgments may be finally rendered against the board shall be paid out of the taxes collected by it in the same manner as other disbursements are made:

Provided, that this shall not apply

(1) To batture property,

(2) Nor to vacant property, where only a part thereof has been taken for levee purposes, and where the effect of the levee building would be to protect the remaining part of the same property;

(3) Nor to any property on any part of the river front, the administration and control of which is vested, for the purposes of commerce, either in the state or city authorities, and on which improvements have been erected under grants from the city of New Orleans, or other authority,

(4) Nor to the said improvements:

Provided, that said board shall have power to appropriate property subject to such servitude, for levee building, as under existing laws, without making such compensation in advance .

(Italics, arrangement, and matter in parenthesis ours.)

II.

This constitutional provision was (seemingly) a departure from the ancient laws of this state under which all rural riparian property owed a public servitude for levee purposes; so that as much of the land as might be needed for such purposes must be surrendered, without compensation for the protection of the rest (generally 40 arpents or more in depth) and of the public. Bass v. State, 34 La.Ann. 494; Cash v. Whitworth, 13 La.Ann. 401, 71 Am. Dec. 515; Dubose v. Levee Commissioners, 11 La.Ann. 165. On the other hand, to compensate for this burden (if a burden at all) the rural riparian proprietor enjoyed the right of "accretion" by which, if the river receded and the levees were pushed forward, he enjoyed the increase thus brought to his land (C. C. art. 510), and all lands in the ancient province were rural and riparian except that part thereof selected as the original site of the city of New Orleans, in front of which the founders of the city laid out and dedicated as a public quay, or landing, all the space between the front row of houses and the river; nor did the subsequent inclusion of the adjoining plantations within the limits of the incorporated city change the rights and obligations of the landowners. Municipality No. 2 v. Orleans. Cotton Press, 18 La. 122, 36 Am. Dec. 624. See also Hennen's Digest, vol. 2, p. 967, No. 13.

But when those rural lands, thus incorporated into the city, had long been divided up into lots and sold, so that one man owned only a small lot in front, and the land behind him belonged to others, it began to appear that it was no longer a case of giving up a small part of one's land and thereby getting protection for all the rest, but of one man being required to give up all his land, together with the improvements thereon, in order to protect the lands, not of himself, but of others.

The fairness of this in the one case, and its unfairness in the other, appealed to the convention of 1898, and inspired the article above quoted. See exception No. 2.

III.

In order to understand just how far, and no farther, the convention meant to go in article 312, that article must be read in the light of two public events which appear of record in the contemporaneous legislation and jurisprudence of this state.

First, we must consider the opening clause of article 312, reading as follows:

"Any person whose property has been appropriated within twelve months prior to the adoption of this Constitution, * * * by the Orleans levee board for levee purposes, shall have a right in action against said board," etc.

Next, we must look at the preamble to Act No. 79 of 1898, entitled "An act authorizing the board of commissioners of the Orleans levee district to indemnify the owners of certain property appropriated, damaged or destroyed for levee purposes; to provide funds for that purpose; and to provide for suits against the Orleans levee board by the owners of property," which preamble reads in part as follows:

"Whereas, it became necessary to construct new levees in the fifth municipal district of the city of New Orleans" (said fifth municipal district being on the right bank of the Mississippi river, opposite the city proper, and known by its ancient name of Algiers, wherein the present controversy originated).

And turning, then, to the case of Louisiana Construction Co. v. Illinois Central R. Co., 49 La.Ann. 527, 21 So. 891, 37 L. R. A. 661, we find that this court, by a bare majority, had just declared illegal certain grants made by the city of New Orleans to the Illinois Central Railroad Company, by virtue whereof said railroad company had erected on the banks and batture of the Mississippi river the famous Stuyvesant docks, covering about one mile of river front and constructed at a cost in excess of $ 1,000,000; the gist of that decision being thus given in Breaux's Digest, p. 614, No. 18, to wit:

"The common council of the city of New Orleans has no authority to enact an ordinance which authorizes a railroad corporation to erect buildings and other permanent structures upon the batture in front of its riparian property and on the banks of the Mississippi river" -- citing New York v. Connecticut, 4 U.S. (4 Dall.) 1, 1 L.Ed. 715; Talbot v. Jansen, 3 U.S. (3 Dall.) 133, 1 L.Ed. 540; Henderson v. Mayor, etc., of City of New Orleans, 3 La. 563; Shepherd v. Third Municipality of the City of New Orleans, 6 Rob. 349, 41 Am. Dec. 269; Hanson v. City Council of Lafayette, 18 La. 295; Herbert v. Benson, 2 La.Ann. 770; Klein v. Coon, 10 La.Ann. 523; Sweeney v. Shakspeare, 42 La.Ann. 614, 7 So. 729, 21 Am. St. Rep. 400; Ruch v. City of New Orleans, 43 La.Ann. 275, 9 So. 473; Heirs of Leonard v. Baton Rouge, 39 La.Ann. 275, 4 So. 241; Pickles v. McClellan Dry Dock Co., 38 La.Ann. 412; Stevens v. Walker, 15 La.Ann. 577; Partida, 3, 8, 27; Curia Phillippica, lib. 3, cap. 16.

This opinion and...