State ex rel. Guste v. Board of Commissioners

444 So. 2d 1313, 1984 La. App. LEXIS 7949
CourtLouisiana Court of Appeal
DecidedJanuary 12, 1984
DocketNo. CA-0925
StatusPublished
Cited by2 cases

This text of 444 So. 2d 1313 (State ex rel. Guste v. Board of Commissioners) 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
State ex rel. Guste v. Board of Commissioners, 444 So. 2d 1313, 1984 La. App. LEXIS 7949 (La. Ct. App. 1984).

Opinion

KLEES, Judge.

This suit was for a Declaratory Judgment instituted by the State of Louisiana, the Department of Natural Resources and the Louisiana State Mineral Board. (Hereinafter referred to as the State). Petitioners were seeking to have themselves declared the owners of those portions of the bed and bottom of Lake Pontchartrain situated within the territorial limits of the “Lakefront Improvement Project” and under the jurisdiction of the Orleans Levee Board (hereinafter referred to as the Levee Board) not filled in or reclaimed by the Levee Board. The State further sought recognition of its ownership of the mineral rights to those portions above described and in addition to those areas actually filled in or reclaimed by the Levee Board pursuant to its grant of authority. The Levee Board answered and reconvened seeking recognition of its ownership of the land and minerals within its jurisdiction. The matter was submitted to the Trial Court upon Stipulation of Facts and Exhibits and judgment was rendered in favor of the State except as to those lands already filled in or reclaimed by the Levee Board. It is from this judgment that the Levee Board appeals.

The issue presented on appeal is whether Article 16 § 7 of the 1921 Constitution granted title in and to the bed and bottom of Lake Pontchartrain within the territorial limits of the Lakefront Improvement Project to the Levee Board. We conclude that it did and for the following reasons we reverse the judgment of the trial court in part and affirm in part.

The area of land in dispute is that contained in the grant of state lands made to the Levee Board in Article 16 § 7 of the 1921 Constitution, as amended by Act No. 106 of 1922 and Act No. 292 of 1928, now enacted as statute in La.R.S. 38:1235.1 et seq. Article 16 § 7(a), as amended in 1928, [1315]*1315defines the territorial limits of the lakefront improvement project and thereby the jurisdiction of the Levee Board as,

“... along, over and on the shores, bottom and bed of Lake Pontchartrain in the Parish of Orleans from its western boundary to the boundary line separating township 11 south range 12 east, from township 11 south, range 13 east, at a distance not to exceed three miles from the present shore line, as the said Board may determine, and along and on the shores adjacent to said Lake and along the canals connected therewith; ...

The general powers of the Levee Board are enumerated in Article 16 § 7(a) as follows:

“The Board of Levee Commissioners of the Orleans Levee District shall have and exercise all and singular the powers now conferred upon said Board by law, and exclusive right, jurisdiction, power and authority to locate, relocate, construct, maintain, extend and improve levees, embankments, seawalls, jetties, breakwaters, water-basins, and other works in relation to this project, and to conduct all dredging operations necessary in connection therewith and/or incidental thereto."
(emphasis supplied)

Article 16 § 7(h) states:

“To enable the said Board to perform the work herein provided for and to assist in defraying the cost and expenses thereof, and to carry out the purposes of existing laws and this Article of the Constitution, the State of Louisiana hereby grants and releases to said Board the title of the State in and to all public property necessary for the purposes hereof and all lands reclaimed or filled in within any levee embankments, slopes, retaining walls, sea walls, and breakwaters, constructed hereunder and in and to all lands lying within the territorial limits of said project and hereby releases said land from any public trust or dedication and said Board shall have jurisdiction, power and authority to sell and lease, or otherwise dispose of such portion of the lands reclaimed and other property acquired for the purpose of said improvement, except the lands herein required to be dedicated by it for public use, together with any building, improvements or other works constructed thereon, under such terms and conditions and by such methods as said Board may deem proper....” (emphasis supplied)

The State asserts that it could not have granted to the Levee Board title to the bed of Lake Pontchartrain and to the minerals under it as it would have been a prohibited alienation under Article 4 § 2 of the 1921 Constitution. The case of State v. Grace, 161 La. 1039, 109 So. 830 (La.1926) and the cases that follow it do not support the State’s position. In Grace, the Tensas Basin Levee District sued to have the state lands granted to it certified by the state land office and state auditor 37 years after the act granting it was passed. The grant of state land in question also contained no express reservation of the minerals, and the State asserted that the grant violated Article 4 § 2. The court said,

“We think that the auditor and the register are in error when they say that the constitutional provision, cited, repeals, even partially, Act 103 of 1892, in so far as relates to the making of the grant, made in that act, or that it revokes to any extent that grant. The Tensas Basin Levee District was created and organized by the state as a means of discharging its duty to protect the lands in said district from inundation. The district is a state agency, created and continued in existence by the state with the foregoing purpose in view. The state, should it transfer the land to the district, including the mineral rights, in accordance with the grant made by it, would not be parting with the property within the meaning of the constitutional section cited, but would only be placing it under the control of one of its agencies for the purpose of constructing and maintaining levees. The land would, to all practical intents and purposes, still be the property of the state. The district could not sell it without reserving itself the mineral rights, [1316]*1316for the reason that its creator, for whom it holds, could not do so. We see no reason, therefore, in so far as the section of the Constitution, cited, is concerned, why the auditor and the register should not execute the conveyance.” Grace 109 So. at 831-832.

The grant of state lands to the Orleans Levee District does not contain a reservation of the minerals to the State. As this is not a prohibited alienation within the meaning of the Constitution, we would agree with Justice Dixon’s holding in Arnold v. Board of Levee Commissioners, etc., 366 So.2d 1321, 1324 (La.1978), wherein he stated that, “Article 16 § 7(h) of the Louisiana Constitution of 1921 vested in the Orleans Levee Board all rights formerly held by the state to the bed and shores of Lake Pontchartrain within designated territorial limits...” (emphasis supplied). Thus this grant would be in accord with the broad powers given to the Board for the development of the lakefront area for flood protection.

The State asserts further that in the event that the transfer of title to the Board was not prohibited, that the section was intended to grant title only to those lands actually reclaimed by the Levee Board. This position might be tenable if the sole purpose of the act was for reclamation of the bed of the Lake, but the Levee Board and the Lakefront Improvement Project were to accomplish more than reclamation. Great discretion was given to the Levee Board as regards this ongoing project of protecting the city from inundation by the waters of Lake Pontchartrain.

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Related

State Ex Rel. Guste v. BOARD OF COM'RS, ETC.
456 So. 2d 605 (Supreme Court of Louisiana, 1984)
State ex rel. Guste v. Board of Commissioners
446 So. 2d 1217 (Supreme Court of Louisiana, 1984)

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Bluebook (online)
444 So. 2d 1313, 1984 La. App. LEXIS 7949, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-ex-rel-guste-v-board-of-commissioners-lactapp-1984.