Lieber v. Caddo Levee Dist. Bd. of Com'rs

660 So. 2d 188, 1995 La. App. LEXIS 2328, 1995 WL 497615
CourtLouisiana Court of Appeal
DecidedAugust 23, 1995
Docket27267-CA
StatusPublished
Cited by11 cases

This text of 660 So. 2d 188 (Lieber v. Caddo Levee Dist. Bd. of Com'rs) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Lieber v. Caddo Levee Dist. Bd. of Com'rs, 660 So. 2d 188, 1995 La. App. LEXIS 2328, 1995 WL 497615 (La. Ct. App. 1995).

Opinion

660 So.2d 188 (1995)

Samuel L. LIEBER, Plaintiff-Appellee,
v.
CADDO LEVEE DISTRICT BOARD OF COMMISSIONERS, et al., Defendant-Appellant.

No. 27267-CA.

Court of Appeal of Louisiana, Second Circuit.

August 23, 1995.

*189 Bertrand & Soileau by Ronald J. Bertrand, Rayne, for appellant.

Wiener, Weiss, Madison & Howell by Neil T. Erwin, Shreveport, for appellee.

Before MARVIN, NORRIS and LINDSAY, JJ.

LINDSAY, Judge.

The State, through the Department of Transportation and Development (DOTD), appeals a trial court judgment holding that a 1953 right-of-way deed, obtained for a limited-access highway project, was null and void because the Department of Highways was then statutorily required to take the property in fee simple, instead of merely obtaining a servitude. For the reasons assigned below, we affirm.

FACTS

In 1953, a state project in Shreveport was undertaken to extend Youree Drive about two miles north from its intersection with Kings Highway. Phillip Lieber owned a 2.09-acre tract of land near the intersection of Youree and Kings which was used as a levee.[1] As part of the extension project, the levee was eventually moved from this tract and relocated on the east side of the newly extended Youree Drive.

On May 21, 1953, Mr. Lieber and the Louisiana Department of Highways (the predecessor of the DOTD) entered into a right-of-way agreement, whereby Mr. Lieber transferred a right of way over the entire tract in exchange for $2,500.00. The document showed that only a servitude was granted and that there was no conveyance of fee title.

In 1955, Mr. Lieber began trying to get the DOTD to relinquish the servitude over the portion of the tract not actually used in construction of the roadway. In particular, he wished to be able to use the portion of his property which the state allowed others to use for such enterprises as annual Christmas tree sales. His efforts were unsuccessful. In 1966, he conveyed his full ownership interest in the property to his son, Dr. Samuel Lieber, the present plaintiff. In 1982, Dr. Lieber filed the instant suit. Among the defendants was the DOTD.

In 1990, the plaintiff filed a motion for partial summary judgment, seeking a declaration that the right-of-way deed was invalid and null. The motion was denied. In 1993, he re-asserted the motion. At that time, the DOTD also filed a motion for partial summary *190 judgment, requesting that the document be declared valid.

In April of 1994, the trial court rendered a written opinion in which it ruled that the right-of-way deed was null and void. The trial court found that former LSA-R.S. 48:312, as enacted in 1944, required that all property rights acquired by the DOTD for limited-access facilities and service roads "shall be in fee simple." Furthermore, the trial court ruled that this statute superseded and repealed inconsistent language in LSA-R.S. 48:217 (enacted in 1942), which allowed the state to acquire any immovable property or the use thereof, including servitudes, for the right of way in any state highway system by expropriation, donation, purchase, exchange or lease. In so ruling, the trial court relied upon the position taken by the Department of Highways in State Through Dept. of Highways v. Barrow, 238 La. 887, 116 So.2d 703 (1959), which dealt with another tract involved in the same highway project. In its trial court pleadings in the Barrow case, the Department had contended that it was required under LSA-R.S. 48:312 to take the property of an uncooperative landowner in full ownership, rather than obtain a servitude or right of way.

Therefore, the plaintiff's motion for partial summary judgment was granted, and the DOTD's motion for partial summary judgment was denied.

The DOTD filed a writ application, which was converted into an appeal. The narrow issue presented for review in this appeal is whether the Department of Highways was authorized to take a servitude for a limited-access highway in 1953.

STATUTES

LSA-R.S. 48:217 was added by Acts 1942, No. 4, Section 47. It provided, in pertinent part:

The Department of Highways shall have the power and authority, without any competitive bidding, to acquire any and all immovable property, or the use thereof, including servitudes, lands, and improvements on lands, necessary for the right of way of any highway included in the State highway system or any appurtenance thereto or for any of the purposes of this Act, either by expropriation, as herein provided, by donation, by purchase, by exchange, or by lease. [Emphasis added.][2]

Former LSA-R.S. 48:312, pertaining to limited-access highways, was added by Acts 1944, No. 67, Section 5. Its relevant provisions stated:

For the purposes of this act, the Department of Highways of the State may acquire private or public property and property rights for limited-access facilities and service roads, including rights of access, air, view and light, by gift, devise, purchase, or condemnation in the same manner as it is now or hereafter may be authorized by law to acquire such property or property rights in connection with highways and streets. All property rights acquired under the provisions of this act shall be in fee simple.... [Emphasis added.][3]

For purposes of our discussion, Acts 1944, No. 67 contained two other noteworthy provisions, which provided in pertinent part:

Section 3. AUTHORITY TO ESTABLISH LIMITED-ACCESS FACILITIES. The Department of Highways of the State is hereby authorized to plan, designate, establish, regulate, vacate, alter, improve, maintain and provide limited-access facilities for public use wherever such authority is of the opinion that traffic conditions, present or future, will justify such special facilities: Provided, That within cities and villages such authority shall be subject to such municipal consent as may be provided by law. Said Department of Highways, in addition to the specific powers granted in this act, shall also have and may *191 exercise, relative to limited-access facilities, any and all additional authority now or hereafter vested in it relative to highways or streets within its jurisdiction. Said Department may regulate, restrict, or prohibit the use of such limited-access facilities by the various classes of vehicles or traffic in a manner consistent with Section 2 of this act. [Emphasis added.][4]
* * * * * *
Section 12. SEVERABILITY.... All laws or portions of laws inconsistent with the policy and provisions of this act are hereby repealed to the extent of such inconsistency in its application to limited-access facilities provided for in this act. [Emphasis added.]

Neither LSA-R.S. 48:217 nor LSA-R.S. 48:312 was amended before 1953, when the Department of Highways obtained the servitude on the Lieber property.

STATUTORY CONSTRUCTION

LSA-C.C. Art. 13 provides that "[l]aws on the same subject matter must be interpreted in reference to each other." When dealing with conflicting statutes on the same subject matter, this article makes it the court's duty to harmonize and reconcile the acts if possible. State in Interest of A.C., 93-1125 (La. 1/27/94), 643 So.2d 719.

Rules of statutory construction provide that where two statutes deal with the same subject matter, they should be harmonized if possible. However, if there is a conflict, the statute specifically directed to the matter at issue must prevail as an exception to the statute more general in character.

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Cite This Page — Counsel Stack

Bluebook (online)
660 So. 2d 188, 1995 La. App. LEXIS 2328, 1995 WL 497615, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lieber-v-caddo-levee-dist-bd-of-comrs-lactapp-1995.