Lead Opinion
This suit is an aftermath of the condemnation proceeding brought by the State, through the Department of Highways v. Bordages et al. (La.App.)
The Department denied liability and reconvened, seeking as an offset against any award which might be allowed the plaintiff landowners the amount of compensation it had paid plaintiffs in the Bordages case for the properly expropriated, but unused, borrow pit on another portion of the land. Thus, the issue in the case is essentially whether an action ex delicto will lie for the recovery of damages resulting from an intentional appropriation (actually an expropriation which, as hereinafter pointed out, has been determined illegal for failure to comply strictly with certain constitutional and statutory requirements) by the State of private property for a public use or whether the landowner’s right to compensation is confined to recovery of the market value of the property appropriated together with such severance damages he sustained as a result of the taking. At this point, however, it is in order to state the facts and events which preceded the institution of the lawsuit.
In the Bordages matter, the Department secured on September 28, 1961, an order of court expropriating, under R.S. 48:441-48 :- 460, the full ownership of a 26-acre strip of land across the 650-acre tract for Interstate Highway 210. Simultaneously, the Department expropriated a temporary servitude for borrow pit purposes affecting 22.22 acres located on the east side of the proposed highway right-of-way, which servitude was limited to the duration of the project. The sum of $104,666 was deposited in the registry of the court as just compensation for the property and rights expropriated. This amount was withdrawn by plaintiffs and the other landowners under orders of court issued during 1961 and 1962.
These expropriation orders were issued in strict accordance with the provisions of R.S. 48:441 et seq. However, some seven
This change in the location of the expropriated borrow pit servitude was effected by the Department as an accommodation to one of the industries owning land on the east side of the highway near the borrow pit originally expropriated. It appears from the record that Mr. Oliver Stockwell, a prominent member of the Lake Charles Bar, representing this corporation, Pittsburgh Plate Glass Company, contacted Mr. Ted W. Price, Chairman of the Louisiana Department of Highways Board, and requested an appointment with Mr. Ray Burgess, Director of the Department of Highways, on behalf of Mr. A1 Raetzsch, the Manager of Columbia Southern Pittsburgh Plate Glass Company. Thereafter, Price, Stockwell, Raetzsch and Burgess had a conference in Baton Rouge at which Raetzsch requested a change in the location of the original borrow pit because of its proximity to his company’s plant, pointing out that the land which had been expropriated on the east side of the highway was the only land available to the company in the event it found it advisable to expand its operations. Price testified that he thought this was a reasonable request and, subsequently, the change in the borrow-pit from the east to the west side was effected by the supplemental petition and order to which we have hereinabove referred.
Acting under the formal (albeit ex parte) amended order of expropriation of June 7, 1962, the Department, on June 15, 1962, commenced clearing operations on the west side tract and, on September 15, 1962, the contractor began the excavation work.
On June 18, 1962, three days after operations had commenced, many of the plaintiff landowners appeared and filed motions to dismiss the supplemental and amending petition and rescind the order granted pursuant thereto for various reasons. However, the only substantial ground alleged was that the Department had violated the quick-taking statutory provisions in failing to obtain a new appraisal of the property expropriated. After a hearing, the motions were sustained on this ground by the trial judge and, on- January 3, 1963, judgment was entered rescinding and recalling the supplemental and amending order of expropriation. On January 14, 1963 the judgment was signed and, thereafter, the Department prosecuted its appeal to the Court of Appeal, Third Circuit, where the judgment of the trial court was affirmed. See State, Through Dept. of Highways v. Bordages (La.App.)
The Department, as stated, resisted the demand. It filed an exception of no right of action predicated on the proposition that the servitude was taken for highway purposes and, therefore, the only action available to plaintiffs is their right to just compensation for value of the property taken and severance damages. In a reconventional demand, the Department specially pleaded that plaintiffs had been unjustly enriched when they received and kept that part of the compensation deposited in the registry of the court attributable to the unused borrow-pit on the east side of the road, and it claimed that this amount should be credited and offset against plaintiffs’ claim.
After a hearing the trial court, in a well reasoned opinion, rejected plaintiffs’ demand for damages ex delicto and awarded judgment in their favor for $33,625, concluding that plaintiffs’ recovery is limited under the Constitution and law to the market value of the temporary servitude, plus such severance damages they have sustained as a result of the appropriation of the property for a public purpose.
The plaintiff landowners and the Department appealed from the decision of the lower court. The Court of Appeal, Third Circuit, reversed the main finding of the trial judge and held the Department responsible for damages under Civil Code Articles 507 and 2315, deducing that the appropriation of the plaintiffs’ land was tortious and that the Department and its contractor were trespassers in legal bad faith, liable, as such, for the value of the dirt taken and used in the construction of the highway. Conformably with this view, the award of the district court was increased to the sum of $119,682.84 and the judgment was further amended so as to hold National Surety solidarily liable with the Department and Aldrich up to its policy limit of $100,000. The court, however, allowed an offset in favor of the Department in the sum of $8360, which it found the Department had paid plaintiffs in the Bordages suit as severance damages for the unused temporary servitude expropriated on the east side of the highway. A vigorous dissent was written by one of the judges composing the panel which heard the case and, on application for a rehearing, the dissenting judge and another member of the court, who did not participate on original hearing, dissented from the refitsal of the Department’s application for a rehearing. See Gray v. State, Through Department of Highways, La.App.,
We think the prevailing opinion of the Court of Appeal patently erroneous. Indeed, in view of the above stated facts, we perceive no justification for plaintiffs’ extravagant demands for redress in tort and find little law to support it.
Although the temporary servitude on the west side of the highway was taken for public purposes and unquestionably in good faith, the supplemental order was nevertheless invalid by reason of the Department’s failure to comply with the law. Accordingly, the taking must, perforce, be regarded as an appropriation of private
The Court of Appeal conceived, however, that, whereas the market value of the property is the ordinary measure of compensation in a legally authorized expropriation suit under the Constitution and laws, this does not mean that the same measure of compensation is to be applied when the property is taken or damaged for a public purpose before payment of compensation, or as a result of the sovereign’s failure to comply strictly with the expropriation laws. On this predicate the court went on to find that, since the amended order substituting the west side borrow-pit area for the unused east side borrow-pit area was invalid due to the Department’s failure to have the west side area appraised in accordance with the “quick taking” statute, the Department’s possession and occupancy of the west side area was unlawful, constituting a trespass in legal bad faith for which the Department must respond in tort.
This holding, which is contrary to the jurisprudence cited above, is not founded
But, apart from this, we do not agree that the Department committed a tortious act or that it was a bad faith trespasser. On the contrary, the fact that the temporary servitude on the west side of the highway was taken under authority of an order of court evidences good faith on the part of the Department and its desire to comply with the mandate of the law. The obvious reason for the Department’s failure to appraise the value of the temporary servitude and deposit the market value and severance damages in the registry of the court, at the time the supplemental and amending petition of expropriation was filed, was because the Department, under this supplemental petition and order, was restoring to plaintiffs the temporary unused servitude validly expropriated on the east side of the highway, for which just compensation had been paid. Manifestly, the Department needed, and sought to expropriate, only one servitude for borrow pit purposes and it is clear that the plaintiffs were aware of this fact. The record shows that the land on the west side was inferior in value to that on the east side so the $37,145 (or $36,000 as stated by the Court of Appeal) deposited by the Department for the unused borrow pit, which the plaintiffs had withdrawn from the registry of the court, was more than ample compensation for the servitude taken on the west side. In truth, the supplemental order of expropriation was invalid solely because of a legal error of a technical nature and, as a result of it, plaintiffs obtained a windfall of $37,145, or as least $36,000, for the unused borrow pit. We reiterate that plaintiffs exhibit no case under Article 2315 of our Civil Code, for that Article imposes liability for damages on those who inflict injury on others through a tortious act; no tort was committed here and plaintiffs suffered no damages cognizable under that codal article. Indeed, they have obtained a monetary gain as the result of the legal error of the Department’s agents.
Moreover, there is still another reason why plaintiffs’ demand for damages for trespass cannot be sanctioned. The facts plainly show that plaintiffs, while promptly protesting the invalidity of the supplementary expropriation order took no legal steps whatever to have the Department restrained from entering the west borrow pit area and removing the dirt therefrom. Actually, plaintiffs delayed the filing of this suit for highly inflated damages
We conclude that the district judge was correct in limiting the measure of recovery, including severance damages, to $33,625.
Under its reconventional demand, the Department seeks a credit against any recovery by plaintiff landowners for the amount paid them for the original unused borrow pit on the east side of the highway which was restored to plaintiffs by the supplemental expropriation order. The Department is contending that the plaintiffs have been unjustly enriched by the payment for this servitude since it was never used.
We find, as did the Court of Appeal, that, although the Department did not use this servitude, it nevertheless had the right to use it and, hence, recovery cannot be had of the amount paid for the temporary servitude itself. On the other hand, there can be no doubt that the Department is entitled to recovery of the amount paid for severance damages for the unused servitude as plaintiffs have not suffered any such damages at all. A majority of the Court of Appeal properly recognized this credit and allowed $8360
For the reasons assigned, the judgment of the Court of Appeal is amended by reducing the principal amount thereof to $33,625, subject to a credit of $8360, or a balance due plaintiffs by the State, Through the Department of Highways, of $25,265 with legal interest thereon from June 15, 1962 until paid, and all costs of these proceedings. As thus amended, the judgment of the Court of Appeal is affirmed.
Notes
. These two defendants were east, in solido, with the Department by the Court of Appeal, the surety company, however, for the $100,000 limit of liability under its policy. As neither one has applied for writs, they are no longer parties to the proceeding. Nevertheless, in final analysis, their ultimate liability depends on that of the Department as it has contracted to hold them harmless in the premises.
. In this connection, it is interesting to note that Mr. Leonard E. Pauley, an expert witness for the plaintiffs in this •ease, testified respecting the industrial development on the east side of the highway. He stated that the property on the west side would only be useful to a new industry in view of the fact that the land on that side was industrially valuable for oil activity, whereas the unused side already had industry located there and was more valuable.
. The court further held the contractor, Aldrich, solidarily liable with the Department for the amount awarded but dismissed the demand against National Surety on the ground that it was not within the intended coverage of the policy of insurance. As stated in Footnote No. 1, these two defendants were east by the Court of Appeal and are no longer in the case since they did not apply for writs of review.
. Louisiana Constitution, Article I, Sec. 2; Article IV, Section 15; Article VI, Section 19.1 (as added in 1948); R.S. 48:441, et seq., Civil Code Article 497.
. In reaching this conclusion the Court of Appeal relied upon Angelle v. State,
. The Court of Appeal sought to bolster its opinion by deducing that Article 507 of the Civil Code was applicable to the case. That Article provides, in substance, that, if the owner of the soil has made constructions or works thereon with materials which did not belong to him, he has the right to keep the same “ * * * on condition of reimbursing their value to the owner of them and paying damages * * This Article is without relevance to the State and its subdivisions. It is little more than a general statement of the law of quasi contract and has nothing to do with the measure of compensation payable for property taken or damaged under the power of eminent domain, whether by . expropriation or appropriation.
. Most of tlio above cited cases involved petitory actions brought by owners of property against railroad companies which had taken possession of their lands for railroad purposes. The rationale of these decisions is that an action for recovery of the land will not lie when the owner has permitted the appropriator to remain in possession of the property for, in such instances, he must be held to have acquiesced in the taking and that, while the appropriator does not acquire title to the land, it is to be recognized as having a right of servitude thereon and cannot be ousted from possession.
. The Department complains that this figure is erroneous and that the severance damages awarded for the temporary unused servitude wore $10,481. According to the record, Hines, one of the Department’s appraisers, testified that the severance damages wore $10,481. However, its other appraiser, White, stated that tlic severance damages were $8360. In view of the variance in the testimony of tlie Department’s experts, we cannot say that the Court of Appeal was incorrect in allowing tlie smaller figure.
Dissenting Opinion
(dissenting).
My principal objection to the majority opinion centers upon the holding that the action of the Department of Highways is an “appropriation”, and, because of this, the award to the landowner is to be determined by the same principles which would apply if an “expropriation” were involved.
In my view, the power of the state to take private property for public purposes without the consent of the owner reposes in the Legislature. La. Const, art. 3 § 1, et seq. (1921) ; Stovall v. City of Monroe,
An exception which modified the due process requirement, which is pertinent here, was created by constitutional amendment in 1948. The exception, contained in Article VI, Section 19.1, confers power upon the Legislature to authorize the taking of property for highway purposes by orders rendered ex parte in expropriation suits prior to judgment and upon the deposit of an amount estimated as fair compensation. In 1954 to implement this exception, and to delegate to the Department the authority to utilize this exceptional method of expropriation, the Legislature enacted Sections 441 through 460 of Title 48 of the Revised Statutes, providing for expropriation by the Department by a “Declaration of Taking”, commonly called “quick taking”.
Only a bare majority of this court, I might add parenthetically, reads these provisions of the Revised Statutes to permit the quick taking of borrow pits. Three members of the court do not, being of the opinion that only highway rights of way proper can be expropriated in this manner. See State 'Through Dept, of Highways v. Bradford,
Assuming the correctness of the Bradford decision, however, since it has no "bearing on the issue before the Court, the right to expropriate borrow pits is additionally authorized under the general expropriation laws (La.R.S. 48:222; La.R.S. 19:1 through 19:14; La.Civil Code art. 2626 through 2641). Under these laws, unlike the quick taking statute, title and possession to the property cannot pass until there is a finding by the court that a public necessity exists for the taking and the amount of compensation to be awarded for the taking is fixed by judgment of court and paid. Obviously, because of these requirements which are considered essential to satisfy the requirements of Article I, Section 2 of the Constitution, general expropriation laws involve numerous delays. For this reason the Department rarely proceeds under this authorization but elects instead to proceed under the exception authorized by Article VI, Section 19.1 of the constitution and contained in the quick taking statute.
Expropriation under the quick taking statute and under the general laws of expropriation, then, are the processes ordained by the Legislature for the taking of property without the owner’s consent which are pertinent to this case. They constitute the due process requirements which must be fulfilled under the constitution before private property can be taken without the owner’s consent. Courts of law may not, therefore, usurp legislative prerogatives and devise other methods to accommodate the law to untenable positions in which administrative agencies have placed themselves. Especially is this true when the accommodation involves disregard of the constitution.
It is conceded here that the quick taking statute was not complied with by the Department. There is, in fact, a final adjudication to this effect which this court approved. State Through Dept. of Highways v. Bordages,
Because the Department sought to avail itself of the quick taking method of expropriation to acquire this property, no attempt was made to comply with the general expropriation laws. Not having complied with the quick taking method and no effort having been made to proceed under the general expropriation laws, the Department has not conformed with either of the two approved methods for expropriating. The consequence is that there has been no legally acceptable taking in keeping with the due process requirements of the law.
It is a universal rule of law that a grant of the power of expropriation is one of the attributes of sovereignty most fraught with the possibility of abuse and injustice. The right, therefore, never passes by implication. To the contrary, 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. That is to say, 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. Orleans-Kenner Electric Ry. Co. v. Metairie Ridge Nursery Co.,
Not having followed the legislative authorization, the Department is without any authorization and the court cannot supply it. Under these circumstances, the Department is responsible for the damage inflicted upon the owner. Its actions constitute a trespass • — a tort, nothing else, for which it must respond in damages just as an ordinary person would do. Angelie v. State,
By amassing diverse and inappropriate-doctrines, theories and principles the majority has arrived at the identical result which would be reached if the Department had complied with the expropriation laws-, in every respect. The opinion, in effect, supplies another method of depriving persons of private property without their consent. What is dangerous about this is that the new method has no regard for the-specific requirements of the constitution or legislative enactments on the subject. Such: a course of judicial lawmaking is unwise- and without constitutional sanction.
I respectfully dissent.