Broussard v. BoothBroussard v. Booth
- Reporters:
- Before:
- Domengeaux, Guidry, Stoker
Plaintiff-appellant, L.J. Broussard, filed suit against James Booth, Bob Stark (d/b/a Bob Stark Real Estate), the Rapides Parish Police Jury and the State of Louisiana, Department of Transportation and Development, seeking rescission of a sale, or in the alternative, recovery of compensation for the expropriation of his land. The Police Jury filed an Exception of Prescription. The trial court sustained the exception dismissing Broussard‘s suit against the Police Jury. Broussard appeals.
ISSUE
The sole issue on appeal is whether or not the trial court erred in sustaining the exception of prescription.
FACTS
In August 1977, Broussard purchased a house and lot in Otis, Louisiana, from Booth through his real estate agent, Stark. Since March 1978, the property has been subject to flooding. As a result of the flooding, Broussard filed suit on September 30, 1981, seeking recovery of compensation for the expropriation of his land. In his petition, Broussard alleged that the flooding on his property was the result of the drainage construction carried out by the Police Jury. The Police Jury filed an exception of prescription based on the two year prescriptive period provided by
THE EXCEPTION OF LIBERATIVE PRESCRIPTION OF TWO YEARS
The Police Jury, in its original appellate brief, admitted that
“When private property is damaged for public purposes any and all actions for such damages are prescribed by the prescription of two years, which shall begin to run when the damages are sustained.”
Broussard contends that his property was taken for public purposes. It is his contention that
“[D]efendant, in this court relies solely on
R.S. 9:5624 . This section is equally inapposite to the case at bar, since, by its very language, it applies only `when private property is damaged for public purposes,’ but not to actions for the recovery of the value of the property taken for public purposes.” (Emphasis in the original.)
At 111 So.2d 767 (footnote omitted).
A review of the record reveals that the Police Jury has not expropriated and has not taken possession of the property nor has it constructed any facilities upon, under or over Broussard‘s property. Therefore, the rationale of the Court‘s ruling in Roy, which distinguishes an action for compensation from an action for damages directly applies to the instant case; the holding does not support appellant‘s contention. See Miller v. Colonial Pipeline Company, 173 So.2d 840 (La.App. 3rd Cir.1965).
In the case of Nuckolls v. Louisiana State Highway Department, 337 So.2d 313 (La.App. 2nd Cir.1976), the Second Circuit addressed a similar factual situation. Plaintiff therein filed suit against the State Department of Highways and the Town of Plain Dealing alleging to have sustained damages caused by the defendants’ unauthorized alteration of natural drainage which resulted in flooding of his property.
“The language employed when construed in the light of the purpose of the statute precludes any suit being brought after two years from the first occurrence of any damage after the completion of the public works.”
At 315.
In the present case, Broussard was aware of the flooding of his property since March of 1978. However, he failed to file suit until September of 1981. Therefore, we conclude that the trial court was correct in sustaining the exception of prescription.
DECREE
For the above and foregoing reasons, the judgment of the trial court against L.J. Broussard is affirmed at plaintiff-appellant‘s cost.
AFFIRMED.