A. K. ROY, INC. v. BOARD OF COMMISSIONERS

FOURNET, Chief Justice.

The defendant, the Board of Commissioners for the Pontchartrain Levee District, is appealing from a judgment of the district court overruling its exception of no right or cause of action and plea of two-year prescription and, on the merits, awarding plaintiff, A. K. Roy, Inc., the sum of $5,115 (with legal interest from date of judicial demand), being the amount determined by the trial court to be the fair market value in 1949 of certain lands,1 bordering on Lake Pontchartrain, between the old New Orleans-Hammond Highway and the lakeshore line, appropriated by defendant for levee purposes by resolutions adopted on December 7, 1948, and March 24, 1949. Plaintiff answered the appeal contending that the land was not subject to appropriation and, therefore, the value should be fixed as of January 20, 1958, the date upon which defendant, in its answer, asked the court to fix the value of the property, thereby for the first time seeking to legally expropriate the property, and, in the alternative that if the trial court was correct in fixing the value as of 1949, then it should have granted interest from that date rather than the date of judicial demand.

In 1948 and 1949, the defendant Levee Board, in pursuance of Article XVI, Section 82 of the Louisiana Constitution, making it their mandatory duty to erect a levee along the shores of Lake Pontchartrain and, to that end, authorizing the Board to float a bond issue for two million dollars,3 began the appropriation of lands necessary for the construction of such levee, and by resolution adopted on March 24, 1949, appropriated "all lands between the levee right of way limits on the shores of Lake Pontchartrain in Jefferson Parish and the water's edge on the Lake side of Lake Pontchartrain," which includes the property in controversy, consisting of a strip of land measuring 341 feet front along the north side of the New Orleans-Hammond Highway by a depth to the shore line of Lake Pontchartrain of 75 feet more or less on its east line and 42 feet more or less on its west line. The construction of the levee was begun by the U. S. Corps of Engineers in 1949. The present suit was filed on April 10, 1957.4

In support of the plea of two-year prescription in the lower court, defendant relied on the provisions of R.S. 19:2.1, subd. B,5 Article 2630 of the Civil Code,6 and R.S. 9:5624;7 but, apparently conceding the correctness of the trial judge's ruling that R.S. 19:2.1, subd. B and Article 2630, R.C.C., are applicable only to actions for damages and claims resulting from a legal expropriation of land,8 defendant, 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 property taken for public purposes.9

It would appear from the pleadings and argument and briefs of counsel in this court that the principal question urged in the lower court, other than the one just disposed of, was the effect of our recent decision in the case of Delaune v. Board of Commissioners, 230 La. 117, 87 So.2d 749, on the facts of the case at bar.

Defendant has failed to meet the test enunciated in that case. Although it is conceded by plaintiff that the property was part of a large tract, which, at the time of its severance from the public domain, bordered the Mississippi River, there was no showing that the purpose for which the property was taken had any relation whatsoever to control of the flood waters of the Mississippi River "within the range of the reasonable necessities of the situation as produced by the forces of nature unaided by artificial causes."

Counsel for defendant, apparently realizing the weakness of his cause on this point, now argues, as an alternative basis, that he was prevented from making such a showing due to the erroneous ruling of the trial judge, and, as a further alternative, that "the entire jurisprudence as established under Article 665 and Article XVI, Section 6 of the Louisiana Constitution should be re-examined in the light of modern trends;" but bases his main argument here on the proposition that the property in dispute forms part of the bed or shore of Lake Pontchartrain, not susceptible of private ownership.

Although this issue was apparently not urged in the lower court, the defendant specifically prayed that "after due proceedings had, there be judgment rendered herein fixing the price to be paid for such lands as the trial of the matter show to be belonging to plaintiff, if any * * *," and the record is replete with evidence introduced without objection during the trial of this case below that a large portion, if not all, of the land involved in this litigation lies below the mean high-water level, thus forming either part of the bed or shore of Lake Pontchartrain.

It is immaterial whether the property be classified as sea shore,10 which, being common property,11 belongs to no one in particular and is insusceptible of private ownership,12 or as the bed of a navigable lake, ownership to which is vested in the state up to the high-water mark,13 since in either event plaintiff would not be entitled to compensation.

The evidence adduced at the trial in the court below, while tending to show that the property in question was below the ordinary high-water mark of the lake and subject to overflow, is inconclusive as to whether the entire or only portion of the tract was inundated by water at regular intervals or whether the property had actually become part of the bed of Lake Pontchartrain. Consequently, the record in its present state, being devoid of material facts necessary for an adjudication of this matter, the case will have to be remanded to the lower court for further proceedings.

For the reasons assigned, the judgment of the lower court is set aside, and it is now ordered that the case be remanded to the lower court for further proceedings, giving the right to each party to amend their pleadings and to introduce such evidence as may be admissible thereunder, all in accordance with law and not inconsistent with the views herein above expressed. All cost of this appeal to await the final disposition of this case.

HAMITER, J., concurs in the decree.

HAMLIN, J., recused.