State Ex Rel. Department of Highways v. Bradford

141 So. 2d 378, 242 La. 1095

• Court: Supreme Court of Louisiana
• Decided: May 8, 1962
• Docket: 45567
• Status: Published

Opinions

SUMMERS, Justice.

Mrs. Elizabeth L. Bradford is resisting the procedure adopted for the expropriation of her property by the State Department of Highways. The Department seeks a servitude affecting 14.97 acres of her land from which they will remove dirt to be used in connection with a highway project located about 2,200 feet away. The excavation will result in what is known as a borrow pit eight to ten feet in depth extending over the entire 14.97 acres. To accomplish this result the Department has availed itself of legislation which provides for the acquisition of “property, including both corporeal property and servitudes” by a “Declaration of Taking.” It is contended that in such a case as this the Department should be compelled to proceed by conventional expropriation proceedings.

LSA-Civil Code Article 491 defines ownership as “ * * * the right to use, to enjoy and to dispose of one’s property in the most unlimited manner * * The first law of society being that the general interest shall be preferred to that of individuals, the rights conferred by Article 491 are restricted by the declaration contained in Article 2626 that every individual who possesses any particular property is tacitly subjected to the obligation of yielding it to the community, whenever it becomes necessary for the general use. This right of eminent domain, sometimes referred to as the government’s right to compulsory taking without the consent of the owner, is recognized to be inherent in the sovereign. It is the power to take private property for public use essential to any well-ordered society, without which the establishment of public facilities such as roads and other works would be unduly impeded. Nevertheless, certain limitations on this power are imposed by the Federal and State Constitutions.

In Louisiana the constitutional restraint upon the acknowledged sovereign authority to take property without the consent of the owner is embodied in Article I, Section 2, LSA-Const., as follows: “No person shall be deprived of * * * property, except by due process of law. Except as otherwise provided in this Constitution, private property shall not be taken or damaged except for public purposes and after just and adequate compensation is paid.” Undoubtedly because of the vexation of the restraint imposed in certain cases by the due process clause contained in this article, which required a judicial determination of the necessity for the taking, and the delays incident to that requirement,¹ a constitutional amendment was enacted creating an exception to this restraint. This amendment permits what is sometimes called a “quick taking” of private property for highway purposes, dispensing with the requirement of prior adjudication of the question of necessity for the taking, thereby relaxing the due process requirements. Its language is as follows:

“The Legislature shall have authority to authorize the taking of property for highway purposes by orders rendered ex parte in expropriation suits prior to judgment therein provided that provision be made for deposit before such taking with a court officer for the amount of appraisals of the property so taken and damages to which the owner thereof may be entitled, if any, which appraisals may be made in such manner as may be provided by law either before or after institution of suit, and need not be by judicially appointed appraisers.” (Italics ours.) Article VI, Sec. 19.1, Louisiana Constitution.

To implement this exception to the constitutional limitation on its power of eminent domain, and to delegate the sovereign right of expropriation vested in it, the Legislature enacted LSA-R.S. 48:441-460, in 1954, providing for expropriation by the Department of Highways by a “Declaration of Taking.” This legislation permits taking . — including possession and title — of “property, including both corporeal property and servitudes”, for highway purposes prior to judgment in the trial court. The bases of this procedure are resolutions of the Highway Board declaring the taking to be necessary, certain certificates of highway officials to be discussed later, and depositing in the registry of the court the amount of the estimated value of the property taken. The constitutionality of this legislation has been upheld by this Court. State, Through the Department of Highways v. Guidry, 240 La. 516, 124 So.2d 531; State, Through the Department of Highways v. Macaluso, et al. 235 La. 1019, 106 So.2d 455.

In 1942, prior to the adoption of the constitutional amendment and the enabling legislation referred to above, the Legislature had provided that the Department of Highways might “acquire by purchase, lease, donation, or expropriation and may operate any gravel bed, fill or rock deposit, marble or granite quarry, or land from which earth can be obtained, or other natural resources or deposits susceptible of being used for the construction or maintenance of state highways or bridges, if the needs of the state in the construction and maintenance of highways will be best served by the acquisition.” (Italics ours.) LSA-R.S. 48:222. This authority, however, was to be exercised under the general expropriation laws which permitted the property owners to judicially contest the necessity for the taking.

Mrs. Bradford contends that the quoted constitutional amendment and its enabling legislation (LSA-R.S. 48:441^-00) by their language limit this “quick taking” procedure to “highway purposes”, which are highway rights-of-way, strictly speaking, and the “quick taking” procedures do not have the effect of abrogating the conventional expropriation proceedings relating to natural resources or deposits (borrow pits) contemplated in connection with LSA-R.S. 48:222 and in LSA-Civil Code Article 2629 et seq. She asserts that where the Department is expropriating “land from which earth can be obtained” which is, in effect, a borrow pit as herein considered, ordinary expropriation procedure is required and the “quick taking” or “Declaration of Taking” is not available, the latter being available only for highway rights-of-way.

The legislation upon which the Highway Department relies is LSA-R.S. 48 :441-460, which was added to the Revised Statutes by Act 107 of 1954 and is designated as Part XVIII thereof. It provides for expropriation by a “Declaration of Taking” heretofore mentioned which differs from the general expropriation law in that under authority of the former title is vested in the Department of Highways prior to judgment in the trial court, and without a judicial determination of the necessity for the taking; whereas, under general expropriation laws of the State compensation must be paid ² and the necessity for taking must he established and adjudicated before title is vested in the expropriating authority. It is to be noted that the Declaration of Taking Statute (LSA-R.S. 48:441-460) does not repeal either expressly or by implication the provision of LSA-R.S. 48:-222, which is the authority for expropriating borrow pits under the procedure established by the general expropriation laws of the State.

The whole controversy resolves itself into a determination of the meaning of “highway purposes” as contained in the constitutional and statutory authority under which the Department is proceeding.

The real purpose Mrs. Bradford seeks to accomplish hereby is to obtain a judicial review of the necessity for the taking of her property. Apparently relying upon the principle that civil tribunals are the natural guardians of private property, it is urged that depriving her of this judicial determination of the necessity for the taking is to deny due process of law provided for in the general expropriation laws of our State and guaranteed by Article I, Section 2, of the Constitution of Louisiana; that the due process requirement was not relaxed insofar as borrow pits are concerned.

In support of the contention that the “quick taking” or Declaration of Taking Statute (LSA-R.S. 48:441-460) does not contemplate the taking of property located some distance from the highway right-of-way to provide dirt for the construction of a highway, Mrs. Bradford submits that the language of the Declaration of Taking Statute requires, in connection with the proceedings which form the basis for the taking, a certificate signed by the chief engineer declaring that he has fixed the “width of right-of-way” sufficient in his judgment to provide presently and in the future for the “public interest, safety and convenience.” Reference is also made in that statute to certificates of the director, chief engineer, road design engineer, and, if appropriate, the bridge design engineer, that the “location” and “design” of the “proposed improvement are in accordance with the best modern practices adopted in the interest of the safety and convenience of the traveling public.” Mrs. Bradford maintains that this language corroborates her argument that the statute applies only to the taking of highway rights-of-way and not to the taking of borrow pits entirely removed from the highway right-of-way, such as is sought in the case at bar. Otherwise, the certificates which are required to support the taking would not have referred specifically to “width of right-of-way” and “location” and “design” of the proposed improvement or “provide presently, and in the future for the public interest, safety and convenience.” It is clear that a borrow pit is not an “improvement” in the context in which that word is used in the contested statute, nor does reference to the public interest, safety and convenience contemplate the vaguest reference to borrow pits. These certificates which have reference to the property to be taken relate to highway improvements as such and not to a “borrow pit” far removed from the proposed highway as in the case at bar — an area from which dirt is to be removed and thereafter abandoned by the Department of Highways. What is inferred from this observation is that inasmuch as no certificate of an engineer or other person concerning borrow pits, or other similar type acquisition, is mentioned in the act, borrow pits were not contemplated in its enactment. The argument is sound.

The use of “highway” in the constitutional amendment and the statute before us, we conclude, refers to a main road or thoroughfare ; hence, a road or way open to the use of the public. This is a common, accepted definition. A highway is understood to mean “ * * * every way or place of whatever nature open to the use of the public for the purpose of vehicular traffic.” LSA-R.S. 32:1(8); LSA-R.S. 45:162(8). Under Title 48 of the Revised Statutes, in which the Declaration of Taking Statute appears, “ ‘Highway’ means a public way for vehicular, mounted, and pedestrian traffic, including the entire area dedicated thereto and the bridges, culverts, structures, appurtenances, and features necessary to or associated with its purposes.” LSA-R.S. 48:1(11).

Expropriation laws are “special and exceptional in character, in derogation of common right[s], and as such must be strictly construed.” Orleans-Kenner Electric Ry. Co. v. Metairie Ridge Nursery Co., 136 , 68 So. 93, 95: See, also, La. Highway Commission v. Cormier, 13 La.App. 459, 128 So. 56; Heppe v. State, 162 Neb. 403, 76 N.W.2d 255; 1 Lewis on Eminent Domain, Sec. 388 (3d ed.); 29 C.J.S. Eminent Domain § 22; 50 Am.Jur., Statutes, Sec. 400.

Nichols’, The Law of Eminent Domain, Vol. 1, Sec. 3.213(1), citing Orleans-Kenner Electric Ry. Co. v. Metairie Ridge Nursery Co., supra, declares in referring to the necessity for strictly construing statutes granting the power of eminent domain:

“Even when the power has been expressly granted, the grant, itself, and the extent thereof will be construed strictly against the grantee. The latter will not be allowed to take the lands of another unless such right comes clearly and unmistakably within the limits of the authority granted. Whatever is not plainly given is to be construed as withheld.”

In 18 Am.Jur., Eminent Domain, Sec. 26, the rule relative to statutory construction in this case is stated thus:

“A grant of the power of eminent domain, which is one of the attributes of sovereignty most fraught with the possibility of abuse and injustice, will never pass by implication; and when the power is granted, the extent to which it may be exercised is limited to the express terms or clear implication of the statute in which the grant is contained. In other words, statutes conferring the power must be strictly construed. Clear legislative authority must be shown to justify the taking. Authority cannot be implied or inferred from vague or doubtful language. When the matter is doubtful it must be resolved in favor of the property owner.”

These fundamental'principles of construction relating to statutes granting powers of eminent domain have received almost universal acceptance in this country.³

The constitutional amendment which authorized the Legislature to take property for highway purposes and the enabling legislation adopted in conformity therewith apply to property needed for highway purposes as such, that is, land and servitudes affecting land across which highways traverse. We do not understand this “quick taking” procedure permitted by the Constitution to be a general authorization to the Legislature and Highway Department, to whom the Legislature has delegated that authority, to take by that method every conceivable type of corporeal property needed in the construction and maintenance of highways for this sought-after authority would be too far-reaching and is not to be implied without a clear and express constitutional grant. Such a construction as the Department of Highways seeks would erode into meaningless language the constitutional and statutory safeguards heretofore established circumscribing the sovereign power of eminent domain. Under the cloak of such authority this administrative agency of the government could take whatever property they considered needful in their sole discretion, so long as it was for a highway purpose, without according to the affected parties the opportunity to be heard on the question of the necessity therefor. Under this authority it is not difficult to visualize that the Department may enter into possession of and take title to any number of industries, manufacturers, vehicles, machines, forests, timber stocks, cement manufacturing plants, oil producing facilities, oil refineries, steel, iron and other building materials or equipment in the raw or manufactured form with the only restraints being that estimated compensation be deposited and they be used for a public purpose, that is, highway construction. For it cannot be denied that all of these things are corporeal property used in highway construction, either directly or indirectly, such as the borrow pit sought in this case. The only issue permitted to be raised by a party resisting such a taking would be the question of the adequacy of the compensation for the property taken. The necessity for the taking — involving such issues as the availability of these materials and products in the open market by conventional purchase, lease, etc., for fair prices, in keeping with the cost of expropriation, or whether the taking is simply a matter of convenience to the expropriating authority as distinguished from necessity— would be foreclosed. River & Rail Terminals v. Louisiana Ry. & Nav. Co., 171 La. 223, 130 So. 337; City of New Orleans v. Moeglich, 169 La. 1111, 126 So. 675; Kansas City, S. & G. Ry. Co. v. Meyer, 10 La.App. 521, 120 So. 700.

The Highway Department replies that such an interpretation is farfetched and implies a thing the Department would not do, but history as we have observed it in respect to such matters records examples which refute the substance of that reply. The Supreme Court of Florida, too, has recognized the validity of our observation in these words: “Our American courts have been ever alert to shield the citizen against encroachment by the sovereign as experience has shown that where a right is extended a corresponding liberty is curtailed, seldom if ever to be restored.” Peavy-Wilson Lumber Co. v. Brevard County, 31 So.2d 483, 485.

Furthermore, we observe that no sound reason has been advanced and none occurs to us for requiring this “quick taking” procedure in the acquisition of borrow pits, gravel beds, fill or rock deposits, marble or granite quarries or other natural resources with which borrow pits are classified in LSA-R.S. 48:222 such as the rationale set forth in State v. Guidry, supra, for the taking of highway rights-of-way. In the Guidry case the Court observed:

“Highways, of course, transverse the State from one end to the other, and from an engineering point of view it is an economical undertaking to plan their construction on a state-wide basis. When this is done it can readily be seen that to permit a judicial review and determination of each one of thousands of parcels of property necessarily taken to construct a highway, such as U. S. Highway 80, to be an expressway which spans the State from Vicksburg, Mississippi, to Waskom, Texas, would be to impede the operation and construction to a point that would completely paralyze the Department of Highways.” [240 La. 516, 124 So.2d 534.]

Highways by their nature are properly designed to provide transportation from one locality to another. Within the bounds of engineering considerations and certain practical considerations such as economic feasibility, safety and convenience, a straight line between the points of beginning and ending is the most desirable route for their construction. With this tenet as a basic goal, the highway engineer is limited in his choice of routes, therefore, the lands lying in the path of the proposed highway are those required, not the lands remotely located from that area. Whereas, in his quest for materials and equipment for the construction of highways, the builder is not limited by this geographical consideration. He is free to seek and obtain these requirements wherever he might find them. Failure to find them in one locality is not fatal to the highway project for they can be obtained elsewhere, just as materials for constructing highways have always been available in the past, almost invariably through conventional purchase and, failing in conventional acquisition, expropriation under LSA-R.S. 48:222 is available for borrow pits and the other materials there enumerated. But in the case of the highway right-of-way, refusal to permit a “quick taking” may operate to delay the entire project, so related is every portion of a highway to the other, like a link in a chain.

The Department will urge that to require them to expropriate materials by the conventional method, or to purchase them on the open market when expropriation by quick taking would be more expeditious, is to unduly inconvenience and impede their operations. Implicit in this attitude is a failure to recognize the demands made by modern society upon the property rights of ■the individual and a lack of recognition of the precept that society should bear the costs and inconvenience incident thereto, and the full burden of those demands should not be borne by the individual affected.

Thus it is obvious that the policy considerations supporting a quick taking of highway rights-of-way are not applicable to a quick taking of materials used in the construction of the highways. As the Court observed in the Guidry Case: “We have to consider these factors when we seek to determine the intent and meaning of the constitutional amendment and legislative act referred to.”

The property owner’s right to require an inquiry into whether the power of eminent domain being exercised by the Department of Highways is arbitrary or at variance with its delegated power so as to inflict unnecessary damage upon the property owner has not been foreclosed by Article VI, Section 19.1 of the Constitution and LSA-R.S. 48:441-460.

This tribunal being the natural guardian of private property finds this is a proper occasion to assert that guardianship and deny to the Department of Highways the construction it seeks to the constitutional amendment and the statute in question. (Article VI, Section 19.1 and LSA-R.S. 48:441-460.) We are of the opinion that the people in adopting the amendment and the Legislature in adopting the statute which are before us did not intend the result which the Department of Highways seeks here, nor does the very language of these enactments permit that result.

This holding does not render nugatory the constitutional amendment and legislative enactment before us but confines their effect within reason and the bounds of their declared and expressed intention.

Accordingly, the judgment is affirmed.

1 . State through Department of Highways v. Macaluso, 235 La. 1019, 106 So.2d 455; Charles Tolmas, Inc. v. Police Jury of the Parish of Jefferson, 231 La. 1, 90 So.2d 65; DeBouchel v. Louisiana Highway Commission, 172 La. 908, 135 So. 914.

2 . La.Const. art. I, Sec. 2; LSA-Civil Code art. 2629 et seq.

3 . United States v. 2,005.32 Acres of Land, D.C., 160 F.Supp. 193, United States v. 40 Acres of Land, 17 Alaska 473, 160 F.Supp. 30; Alabama: Smith v. City Board of Education of Birmingham, Ala., 130 So.2d 29, Blanton v. Faberstrom, 249 Ala. 485, 31 So.2d 330, 172 A.L.R. 128; Arkansas: Hampton v. Arkansas State Game & Fish Commission, 218 Ark. 757, 238 S.W.2d 950; Connecticut: Algonquin Gas Trans. Co. v. North Haven Fair Ass’n, 20 Conn.Supp. 51, 121 A.2d 872, City of Middletown v. F. L. Caulkins Automobile Co., 19 Conn.Supp. 45, 109 A.2d 888; Delaware: State ex rel. Sharp v. 0.6878 Acres of Land, 9 Terry 402, 105 A.2d 205; Florida: Orange County v. Fordham, 160 Fla. 259, 34 So.2d 438, Peavy-Wilson Lumber Co. v. Brevard County, 159 Fla. 311, 31 So.2d 483, 173 A.L.R.. 168; Georgia: McGreggor v. W. L. Florence Const. Co., 208 Ga. 176, 65 S.E.2d 809; Illinois: Illinois Cities Water Co. v. City of Mt. Vernon, 11 Ill.2d 547, 144 N.E.2d 729, 68 A.L.R. 884; Forest Preserve Dist. of Cook County v. Wike, 3 Ill.2d 49, 119 N.E.2d 734; Missouri: State ex rel. Missouri Water Co. v. Bostian, Mo., 280 S.W.2d 663; Nebraska: Heppe v. State, 162 Neb. 403, 76 N.W.2d 255, Application of Loup River Public Power Dist., 157 Neb. 652, 61 N.W.2d 213; New Jersey: Board of Education Employees’ Pension Fund v. Hess, 20 N.J.Super. 605, 90 A.2d 140; New York: Society of the New York Hospital v. Johnson, 5 N.Y.2d 102, 180 N.Y.S.2d 287, 154 N.E.2d 550, Decker v. People, 23 Misc.2d 90, 195 N.Y.S.2d 197; North Dakota: Wallentinson v. Williams County, N.D., 101 N.W.2d 571, Board of Education of City of Minot v. Park District, N.D., 70 N.W.2d 899; Ohio: McMechan v. Board of Education of Richland Township, Belmont County, 157 Ohio 241, 105 N.E.2d 270, Ohio Power Co. v. Deist, 154 Ohio St. 473, 96 N.E. 2d 771; Oklahoma: City of Cushing v. Gillespie, 208 Okl. 359, 256 P.2d 418, 36 A.L.R.2d 1420; South Carolina: Cain v. South Carolina Public Service Authority, 222 S.C. 200, 72 S.E.2d 177; Tennessee: Vinson v. Nashville, Chattanooga & St. Louis Railway, 45 Tenn. App. 161, 321 S.W.2d 841; Texas: Sabine River Authority of Texas v. McNatt, Tex.Civ.App., 337 S.W.2d 325; Utah: Bertagnoli v. Baker, 117 Utah 348, 215 P.2d 626; Virginia: Dillon v. Davis, 201 Va. 514, 112 S.E.2d 137, Bristol Redevelopment and Housing Authority v. Denton, 198 Va. 171, 93 S.E.2d 288; Washington: State v. Superior Court for King County, 33 Wash.2d 76, 204 P.2d 514; Wisconsin: Schumm v. Milwaukee County, 258 Wis. 256, 45 N.W.2d 673.