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,
In 1948 and 1949, the defendant Levee Board, in pursuance of Article XVI, Section 8
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,
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
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,
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,
HAMITER, J., concurs in the decree.
HAMLIN, J., recused.