Boyce Cottonseed Oil Mfg. Co. v. Board of Com'rs

107 So. 506, 160 La. 727, 1925 La. LEXIS 1919

• Court: Supreme Court of Louisiana
• Decided: October 6, 1925
• Docket: No. 26748.
• Status: Published

Opinions

ST. PAUL, J.

In 1921 plaintiff owned 5% acres of land on the west bank of Red river near the town of Boyce, on which it had a cottonseed oil mill and gin. In that year ii returned its property for assessment at a valuation of $500 for the land and $14,500 for the mill; and the assessment was made accordingly.

In the following year the defendant built a levee for the protection of the adjacent lands, and so constructed that levee that the land and improvements of plaintiffs were left between said levee and the river.

Thereafter plaintiff sold its mill for $15,000 to the Mansura Cotton Oil Mill, which removed it and installed it elsewhere at an additional cost of about $20,000.

And thereupon plaintiff brought this suit to recover from defendant the sum of $15,-000, under the provisions of Constitution of 1921, art. 16, § 6, p. 115, reading as follows:

“Sec. 6. Lands and improvements thereon hereafter actually used or destroyed for levees or levee drainage purposes shall be paid for at a price not to exceed the assessed value for the preceding year; provided, this shall not apply to batture, nor to property control of which is vested in the state or any subdivision thereof for the purpose of commerce.

“If the district has no other funds or resources out of which such payment can be made, it may levy, on all taxable property situated therein, a tax sufficient to pay for said property so taken, not to exceed one-fourth of one mill on the dollar, to be used solely in the district where collected. This shall not prevent the appropriation of said property before payment.”

I.

Comparing the language of the first paragraph of said section, to wit, “lands and improvements thereon actually used or destroyed for levees,” with the language of the second paragraph thereof, to wit, “property so taken,” we readily perceive that lands used or destroyed for levees means simply lands taken for levees. And since to take is to appropriate, and vice versa, it follows that land taken for levees has precisely the same meaning in the foregoing section as land appropriated for levee purposes has in article 312 of the Constitution of 1S9S.

The General Assembly which met in 1S9S immediately after the. adjournment of the constitutional convention, m,any of whose members had also been members of said convention, clearly understood that property appropriated for levee purposes included property “damaged or destroyed” for such purposes. See Act 79 'of 1898, p. 101.

In La. Society, etc., v. Board of Levee Commissioners, 78 So. 249, 143 La. 90, this court held that land had been appropriated for levee purposes which had been thrown out between the levee and the river.

In Ward v. Board of Levee Commissioners, 92 So. 769, 152 La. 158, this court again held that land and improvements thrown outside of a levee, i. e. between the levee and the river, had been appropriated for levee purposes, and that the levee board must pay for said lands and for a mill situated thereon.

In Russell v. Board of Commissioners (La.) 105 So. 361, 159 La. 330, our No. 27040, decided June 22, 1925, we held that land thrown outside a levee was land destroyed for levees, within the meaning of Const, of 1921, ut supra, citing inter alia Bickham v. City of Shreveport, 101 So. 8, 9, 156 La. 648, 650.

And our conclusion is that plaintiff’s land and mill were actually destroyed for levees, within the meaning of Const. 1921, ut supra.

II.

In 1892 and in 1894 (Acts 41 of 1892, p. 46; and 25 of 1894, p. 28), the General Assembly authorized the Orleans levee board to compensate certain property holders whose property had been appropriated, taken, or damaged, for levee purposes; but with this proviso, that in no case should the amount paid to such owners exceed the assessed value of the property at the time. And the Act of 1S98 (No. 79, p. 101) contains a similar proviso, although the Constitution of 1898 gave a right of action to such property holders for “the value of said property.”

Evidently therefore the General Assembly thought that in such cases the assessment would constitute the fair measure of value between the state and the property holder.

And moreover, since the Constitution directed that the property holder should receive “the value” of his property, and presumably the General Assembly meant to obey the Constitution, it follows that the limit fixed was not a mere arbitrary refusal to allow the value of the property, but a legislative declaration that the measure of such value should be the assessment.

And whether or not such acts were or were not wholly constitutional even under that aspect is neither here nor there at present, since the Constitution itself in the very grant of compensation has itself fixed the assessed value as the limit thereof. But manifestly the constitutional convention had in mind the very same idea as had the General Assembly, to wit, that the assessment should be the test of value between the state and the property holder.

Eor presumably the Constitution meant to deal fairly not only as between the state and the property holder, but also between all property holders. And such would not be the case unless the proviso that compensation should not exceed the assessed valuation were intended as a measure of values, and not a mere limit of compensation.

Eor where two persons might be assessed each for half the value of his property, and one were damaged to the extent of only half his property, whilst the other were damaged to full extent thereof, it is clear that if the assessment were a mere limit of compensation, the former would be compensated twice as well as the latter ; since he would receive compensation in full for his loss of half his property whilst the latter would receive only half compensation for his whole loss. But such would not be the case, and there would be no inequality between them, if the assessment be considered as the mere measure of values. Eor in that case the one would receive compensation only to the extent of half his assessment, whilst the other would be compensated to the full amount of his assessment ; but in both cases the compensation would be in the same proportion, to wit, one-half the loss. And since both parties had it within their power to receive full compensation by returning their property for assessment at its true value, we do not see that either would have any just cause for complaint.

Our conclusion is that the Constitution means that the assessed value of the property taken for levee purposes shall be the measure of value of such property, and does not mean merely to fix a limit of compensar tion.

And the reason why the assessment should be the measure of value in such cases is well stated in Board of Levee Commissioners v. Jackson’s Estate, 36 So. 912, 113 La. 124, wherein this court said, on rehearing:

“It is further to be observed that the plaintiff in this case is a levee board acting for the prevention of overflow, the property sought to be expropriated being property which until very recently, and when acquired by the defendants, being subject to a servitude for levee purposes without compensation. It is said that the small-. ness of the valuation placed upon the property for taxation ought not to enter into consideration as a factor in this case, but we think otherwise in this particular class of cases. The defendants have for a number of years past escaped their proper extent of contribution for tax purposes, and the state has lost to that extent. There may have been no element of moral wrong in this particular case, but certainly when the state herself comes to claim what rightly belongs to her, as she does now in the case at bar, we scarcely think it lies in the mouth of the owners to say that the matter of assessment is not a matter to be taken into view. If the owners for these many years have with propriety paid taxes upon a valuation of $10,000, we are of the opinion that valuation plays a very important part in this matter. If the valuation stated was the proper standard hy which the owners should pay money to the state, it certainly. should not he ignored when they call upon the state to pay money for it.” (Italics ours.)

III.

As the assessed value of the land was $500, and that land has been destroyed for levee purposes, i. e. thrown into the bed of the river, we think plaintiff is entitled to recover of defendant that amount with legal interest from judicial demand.

On the other hand, the mill was clearly worth $35,000, since the purchaser thereof paid plaintiff $15,000 and spent nearly $20,-000 in re-erecting it. But it was assessed only $14,500, and as we have said, that is the measure of its value between, plaintiff and this defendant. But since plaintiff has received more than that sum from the sale thereof, we are of opinion that it can recover nothing herein on that account. In other words, plaintiff had the right to abandon the mill and claim its assessed value from defendant, or do as it did. But in that case, having received more than its assessed value from other sources, it can recover nothing more from the defendant.

IV.

Plaintiff also claims the reimbursement of the taxes it paid defendant for the years 1920 and 1921, say $81.19 and $60.25, which it claims to have paid through error and under protest. Its contention is that—

“Plaintiff’s property 'is not in the levee district; it nevfer was in the levee district. It is outside the levee and instead of being benefited, is injured by the levee. Hence plaintiff should not have been required to pay levee taxes; and what it paid, under written protest at the time of payment, should be refunded.”

The answer is that by Act 141 of 1920, p. 219, amending section 22 of Act 46 of 1892 and Act 79 of 1890, creating said levee district, there was added to and included in said levee district certain territory which embraced plaintiff’s property. And as well as we can make out from this much-confused record, the taxes of 1920 and 1921 were due, and even paid before the levee was built and plaintiff’s land thrown outside of it.

V.

Defendant contends that plaintiff's land was “batture,” and hence need not be paid for under the constitutional provision above quoted. But plaintiff’s land was not batture. The batture is that part of the river bed which is uncovered at the time of low water, but is covered annually at the time of ordinary high water; when it ceases to be covered at the time of ordinary high water, it ceases to be hatture and becomes hank of the river. R. C. C. 457; Ward v. Board of Levee Commissioners, 92 So. 769, 772, 152 La. 158, 166.

Plaintiff’s land was not covered in times of ordinary high water, although it had been covered by water on several occasions in periods of extraordinary high water during tbe last half century.

VI.

Defendant further contends that plaintiff’s land is property, “the control of which is vested in the state or any subdivision thereof for the purpose of commerce,” and hence again need not be paid for under the constitutional provision above quoted.

That provision has reference to-article 863 of the Revised Civil Code of 1870, which is the same as article 859 of the Code of 1825, and redds as follows:

“Art. 863 (859). The corporations of cities, towns and other places may construct on the public places, in the beds of rivers and on their banks, all buildings and other works which may be necessary for public utility, for the mooring of vessels and the discharge of their cargoes, within the extent of their respective limits.”

That article, by its very terms, applies only to incorporated cities and towns, and has no application whatever to rural property.

The article of the Code applicable to rural property is as follows:

“Art. 455 (446). The use of the banks of navigable rivers or streams is public; accordingly every one has a right freely to bring his vessels to land there, to make fast the same to the trees which are there planted, to unload his vessels, to deposit his goods, to dry his nets, and the like. Nevertheless the ownership of the river banks belongs to those who possess the adjacent lands.”

From the foregoing it is clear' that in the one case the control of so much of the banks of rivers as is necessary for the commerce of a municipality is vested in the authorities thereof, whilst in the other control of such banks is vested in the owner thereof, subject, however, to the provision that he shall not interfere with the servitude which the public has.in the use thereof as above stated.

And the reason why the Constitution allowed no compensation for such part of the river bank as was under the control of municipal authorities is that it recognized that such property was for all practical purposes already forever lost to the owner thereof; for municipalities on the banks of navigable streams continue forever, and in the whole history of this state as written in the jurisprudence thereof from Mayor v. Magnon, 4 Mart. (O. S.) 2, to Construction Co. v. Railroad, 21 So. 891, 49 La. Ann. 528, there is not a single instance "in which the owner of riparian rights w-ithin a municipality has ever been able to wrest from public control a single foot of river bank once fallen into the grasp of the municipality; and Act 42 of 1855, p. 37, now section 318 of the Revised Statutes of 1S70, has ever been an idle piece of legislation, since:

“The discretion of tbe city in determining what are proper and needed facilities for commerce, and on what part of the river bank within her limits they should be established, is not a proper question for judicial control or interference.” Watson v. Turnbull, 34 La. Ann. 856.

But in the case before us the land is not within the limits of any municipality, and has never been under the control of any municipal authority. It is land which is rural and has always been under the control of the owners thereof; and hence must be paid for under the constitutional provision herein-above cited.

VII.

Defendant further contends that it will never be able to pay for the property, which it will be obliged to take for levee purposes, out of the taxes which it is authorized to collect for that purpose. With that we have nothing to do; the Constitution provides that the land so taken shall be paid for, and perforce we must so hold. And if the Constitution, whilst so declaring, has yet failed to provide adequate means for making such payment, then there arises a condition in which defendant will have to do the best it can and let it go at that. But this court can not refuse plaintiff a judgment to which it is clearly entitled, merely because of the possibility that plaintiff may not be able to collect its judgment.

yin.

Defendant further contends that plaintiff is estopped from claiming compensation because certain officers of plaintiff corporation agreed with defendant that if the levee was built in a certain manner slightly different from that proposed, plaintiff would be “satisfied.”

Pretermitting the question whether such officers had authority to bind plaintiff, the fact yet remains that defendant had no authority to enter into any binding agreement with any one as to how or when it should erect a levee. Its plain duty was and is to erect such levees when and how the public interest demanded, and accordingly any agreement on its part meant nothing. Moreover, this court has repeatedly held that structures standing outside of levees, that is, in the bed of a stream, were nuisances and might be removed at any time. See various authorities cited in Construction Co. v. Railroad Co., 21 So. 891, 49 La. Ann. 527; particularly, Mayor v. Magnon, 4 Mart. (O. S.) 2; Natchitoches v. Coe, 3 Mart. (N. S.) 140; Shepherd v. Third Municipality, 6 Rob. 349, 41 Am. Dec. 269.

Moreover, our appreciation of the agreement between the parties is that it was merely an honest endeavor on the part of all to make the most out of a bad situation, and bound no one to anything.

Decree.

The judgment appealed from is therefore amended by reducing the amount allowed plaintiff to $500, with legal interest from judicial demand; and as thus amended said judgment is affirmed, defendant to pay all costs of the court below and plaintiff to pay the costs of this appeal.

LAND and ROGERS, JJ., concur in the opinion and decree. O’NIELL, C. J., and THOMPSON, J., concur in so much of the decree as allows plaintiff the assessed value of the land, but dissent from so much thereof as rejects plaintiff’s claim for the assessed value of the improvements. BRUNOT, J., concurs in so much of the decree as rejects plaintiff’s claim for the assessed value of the improvements, but dissents from so much thereof as allows plaintiff the assessed value of the land. OVERTON, J., recused.