85 So. 2d 39 | La. | 1955
Lead Opinion
The plaintiff, The Board of Levee Commissioners of the Orleans Levee District, alleging that it had not been able to agree with the defendant, John Charles Aurianne, on the price to be paid him for certain property appropriated by it in 1930 in con
The property concerned, being lot No. 10 in Square 5286, bounded by Frankfort Street, Elysian Fields Avenue, Marigny Street and Columbia Street, in Milneburg (New Orleans), is within the area where the plaintiff Board in its development of the lakefront is authorized to acquire property by various means, including appropriation.
By the constitutional amendment of 1928, the total lakefront area was divided into five zones “for the purpose of construction and administration”, each to extend between the boundaries indicated; and fol
The plaintiff Board contends that the appropriation was effected in 1930, upon recordation of its Resolution of October 21, 1930, and upon notice being given in the public press; and in the alternative, even if we should hold that the appropriátion was not effected until filing of suit, still the compensation to be paid cannot, according to the express provisions of Article 16, § 7(e) of the Constitution, exceed the actual cash value of the property before the lakefront improvement was begun.
It is the contention of the defendant, on the other hand — and in this he was in effect sustained by the trial judge — that there was no appropriation until the filing of the present suit, and therefore the value of the property at the time of such taking is controlling. Counsel further argues in brief that this property was not needed for levee protection purposes or for any other public use, and is now wanted only so that it may be sold to another individual for his private use.
A study and analysis of Article 16, § 7 of the Louisiana Constitution of 1921, LSA, dealing with the powers and duties of the plaintiff Board — and especially the 1928 amendment of that section when the text was completely rewritten, boundaries of the lakefront project were defined, the Board’s-jurisdiction was made exclusive, its powers-were broadened, and the list of authorized works was appreciably expanded
The plaintiff in its Resolution approved on October 21, 1930, declared that all private property in the described area which had not previously been appropriated was then appropriated, and gave public notice of such action in the press; that the work in Zone 4 (other than bulkheading and filling) was not undertaken for many years was due to the constitutional requirement that work in one zone had to be completed —interpreted by this Court to mean fit for occupancy, and salable
There is the testimony of only one witness as to the value of the lot and improvements in 1930; the evidence on that score is too meager, and is not satisfactory, so the case will be remanded for additional proof.
For the reasons assigned, the judgment qf the lower court is set aside, and it is now. adjudged that the Board of Levee Commissioners of the Orleans Levee District be decreed to be the owner of: A certain lot of ground and improvements thereon, in the Third District of the City of New Or-' leans, at Milneburg, in square bounded by Frankfort Street, Elysian Fields Avenue, Marigny Street and Columbia Street, designated as Lot No. 10, which said Lot No. 10 measures 28 feet and 2 inches front on Frankfort Street by 150 feet in depth French Measure. It is further ordered, adjudged and decreed that the case be remanded to -the lower court to receive evidence and fix the valuation of the above described property as of the date of its ap
. Art. 16, § 7(e), La.Const. of 1921, as amended, LSA.
. Ibid.
. La.Const. of 1921, Art. 16, § 7(b), as added by 1928 amendment, LSA.
. Act 292 of 1928, adopted as a constitutional amendment to Article 16, § 7 of the La.Const. of 1921 in November, 1928.
. Section 7 (a) of Art. 16.
. Section 7(c) of Art. 16.
. Section 7(g) of Art. 16.
. Section 7(e) of Art. 16.
. Welsh v. Board of Levee Com’rs of Orleans Levee Dist., 168 La. 1037, 123 So. 705.
. The general rule is that the taking is not complete until the grantee of the power of eminent "domain enters -the land. 29 G.J.S.,-Eminent. Domain, § 135, and cases cited in support of the text; Marion & R. V. R. Co. v. United States, 270 U.S. 280, 46 S.Ct. 253, 70 L.Ed. 585 and United States v. Dickinson (United States v. Withrow), 331 U.S. 745, 67 S.Ct. 1382, 91 L.Ed. 1789.
Concurrence Opinion
(concurring).
While I entertain doubt that the passage and registration of the resolution of plaintiff’s Executive Committee, which was approved by plaintiff on October 21, 1930, effected an appropriation of defendant’s property since there has never been an actual entry on his land,
“In the event of expropriation or appropriation the compensation to be paid shall be the actual cash value of the property before the contemplated improvement was proposed and begun; * * (Italics mine.)
For this reason, I respectfully concur.