May defendant Louisiana Power & Light Co. acquire a servitude upon plaintiff's land by occupancy of less than one year against the landlord's express will
We granted writs
Plaintiffs, complaining that defendant trespassed by placing on their property four power lines (with poles, cross arms, wires and other appurtenances, referred to hereinafter simply as appurtenances) without permission and over their protest, sought reimbursement for physical damages to their land near the poles, committed by defendant incident to the poles' construction. A $2,000 award was affirmed by the Court of Appeal. As writs in this regard were neither sought nor granted this part of the judgment is final and not subject to our review.
Relative to the trespass by placement of the poles and appurtenances on their property (and this is the matter presently before us) plaintiffs did not seek either damages or reimbursement for the property (or servitude) taken, but rather, simply prayed for removal of the poles and their appurtenances.
The trial judge found that prior to commencement of construction plaintiffs refused defendant a conventional right of way, and that defendant nonetheless entered upon the property without plaintiffs' knowledge or permission, and placed the poles and appurtenances partially upon plaintiffs' land. The judge nonetheless refused to order removal of the poles and/or their appurtenances because after plaintiffs discovered the encroachment (after completion of construction) they waited almost a year before filing suit.
The trial court found this eleven month delay in bringing suit a sufficient acquiescence to invoke the jurisprudential rule first enunciated in St. Julien v. Morgan L. & T. R., supra, and affirmed in Gumbel v. N. O. Terminal Co., supra, and dismissed the injunction portion of plaintiffs' petition.
The Court of Appeal did not agree that there was any acquiescence on the part of plaintiffs after the construction, but affirmed anyway, finding that plaintiffs, prior to construction, had agreed and acqueisced to the general location of the power line (and understood that there would be an overhang by the cross arms over their property). They concluded that
Our findings, upon review of the record, are partially in accord and partially at variance with the lower courts.
Relative to the "general" location of the poles, plaintiffs, while refusing defendant any servitude at all upon their land, simply acknowledged after defendant's agent advised that defendant would place the pole one foot off the property, that they could not prevent defendant from doing so. We cannot construe this to imply that plaintiffs gave defendant any permission at all. Nor can we construe this response as inferentially agreeing to allowing an overhang of the appurtenances.
Nor is plaintiffs' permitting defendant to trim trees overhanging the State's right of way any aid to defendant in showing prior permission or acquiescence to the encroachment.
With respect to the contrary positions of the parties on the number of poles which encroached, we agree with the finding of the Court of Appeal in this respect, that only one of the four poles did so.
The St. Julien doctrine which both lower courts applied, to plaintiffs' dismay, was established in 1879. The defendant railway company in that case entered onto plaintiff's land without permission and constructed a railway upon the land without purchasing or expropriating the property. The court there found that the plaintiff landowner,
Gumbel was decided in 1937. There plaintiff landowner brought a petitory action against the defendant for wrongfully entering upon his square of ground and laying spur tracks. The record in that case showed that the tracks were constructed more than thirty years prior to institution of suit. Plaintiffs' authors in title knew of and made no objection to the tracks. Prior to plaintiff's purchase of the land he inspected it and learned of the tracks yet he made no objection to the presence of tracks until just prior to instituting suit some 24 years after his purchase of the property. Based upon these facts the court there said:
The St. Julien doctrine and the cases which thereafter relied upon it are founded on principles of natural equity and public policy. It declares that a property owner is prevented from unduly burdening or disrupting a public purpose use of his property when he has remained silent and acquiesced in such use.
An underlying reason supporting the doctrine in the cited cases is that since a public utility has the right of expropriation, allowing retention of the property taken extra-legally, upon payment of just compensation merely avoids an eviction and subsequent reacquisition by expropriation.
While there may be some doubt as to whether such an extrastatutory means of acquiring a real right is available, we need not in this case re-examine the validity of St. Julien, so long entrenched in our jurisprudence, for we are of the opinion that the facts in the case at hand do not begin to reflect that plaintiffs either agreed to, or acquiesced in, the construction of a power line on or over their property.
As we have found the plaintiffs never consented to defendant's placing the poles on plaintiffs' land or to placing them such that their appurtenances would overhang plaintiffs' land, and since plaintiffs' negotiating for eleven months in an effort to resolve defendant's problem can under no reasonable stretch of the imagination be construed as an acquiescence to the use of their land by defendant, we conclude that no servitude was created in favor of defendant on plaintiffs' property, under the legal principle espoused in St. Julien, or otherwise.
It is hereby ordered adjudged and decreed that defendant Louisiana Power and Light Co. be and they are enjoined to remove from the property of plaintiffs' Shannon Harrison and S. Gordon Reese the poles, cross arms, wires and appurtenances which encroach (to the extent found by the Court of Appeal and affirmed hereinabove) upon, or over such property, and they are enjoined and prohibited from making any further use of the said plaintiffs' property.
Reversed and rendered.
SANDERS, C. J., concurs in the decree.
BARHAM, J., concurs with reasons.
BARHAM, Justice (concurring).
I fully concur in the result obtained by the majority which orders the defendant to remove poles, cross arms, wires and appurtenances which encroach upon and over the plaintiffs' property. However, I would not have tried to distinguish the present case from St. Julien v. Morgan L. & T. R. Co., 35 La.Ann. 924 (La.1883) and Gumbel v. N. O. Terminal Co., 186 La. 882, 173 So. 518 (1937). These two cases and a long line of cases
Moreover, the St. Julien, Gumbel and other cases do violence to Louisiana Constitution of 1921, Article 1, § 2:
Louisiana Power and Light Co., by admission of its counsel before us, acquires all of its servitudes along highways through "acquiescence". This defendant has turned a so-called equitable doctrine created by this Court in the early days of the railroads, into a most inequitable, unlawful and unconstitutional method of expropriation of private property without due process, and without just compensation. This Court should firmly reject the St. Julien doctrine and overrule the entire line of cases which are not only erroneous in law, but inequitable in practice.
I respectfully concur.