Lonatro v. Orleans Levee District
809 F. Supp. 2d 512
E.D. La.2011Background
- Plaintiffs own land on Bellaire Drive in Orleans Parish adjacent to the 17th Street Canal levee.
- OLD announced removal of fences, trees, and other items from the levee-side portions for flood-control work.
- The Corps began work under a right-of-entry after the Demolition Suit’s injunction denial and a state-court ruling.
- A second state suit (Deep Soil Mixing) was filed Jan. 5, 2011 and consolidated with the Demolition Suit.
- This consolidated case was removed to federal court; defendants moved to dismiss under Rule 12(b)(6) arguing res judicata/law of the case and St. Julien servitude; court denied the motion.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether res judicata bars the federal suit. | No final, separate controlling judgment exists. | There is a final appellate decision and a related entry of rights. | Res judicata does not bar the suit. |
| Whether law of the case prevents federal consideration. | Louisiana appellate ruling should control. | Law-of-the-case should apply due to prior state rulings. | Law of the case does not bar jurisdiction or merits. |
| Whether a St. Julien servitude exists over the 17th Street Canal Levee. | No valid St. Julien servitude; lack of consent/acquiescence. | St. Julien servitude exists via expropriatory powers and owner acquiescence. | Plaintiffs pled plausible claim; servitude not conclusively proven on motion. |
| Whether the St. Julien servitude conveys a right to compensation or affects the ownership claim. | Plaintiffs may recover compensation for a taking and damages. | Compensation rights are personal to the original landowners. | Claims for compensation not dismissed at this stage; extent of servitude unresolved. |
| Whether Article 665 or Baron defeats St. Julien arguments. | Baron forecloses argument for a 665 servitude. | 665/Baron controls; levee rights not established against Plaintiffs. | Baron discussion acknowledged; court declines to decide Article 665 issue on dismissal. |
Key Cases Cited
- Board of Commissioners v. Baron, 236 La. 846, 109 So. 2d 441 (La. 1959) (Baron held no Article 665 servitude over nonriparian land; pre-Lake rule considerations discussed)
- Lake, Inc. v. La. Power & Light Co., 330 So.2d 914 (La. 1976) (Lake overruled St. Julien prospectively; introduced acquiescence concept)
- Cancienne v. Lafourche Parish Police Jury, 423 So.2d 662 (La.App.1st Cir. 1982) (St. Julien doctrine of estoppel/acceptance by owner)
- Holmes, 422 So.2d 684 (La.App.3d Cir. 1982) (Acquiescence and consent elements in St. Julien analysis)
- Weigand v. Asplundh Tree Experts, 577 So.2d 125 (La.App.1st Cir. 1991) (Acquiescence evidenced by conduct and lack of objection)