CANCIENNE v. LAFOURCHE PARISH POLICE JURY

CARTER, Judge.

Plaintiffs, Reid J. Cancienne, Quentin D. Falgout, Henry Scavone, Louis J. Scavone, and Guy P. Zeringue, filed suit against the Lafourche Parish Police Jury and the Town of Lockport seeking a judgment declaring their right to terminate the defendants' use of a road on plaintiffs' land and declaring their right to cause the defendants to remove a pumping station located on part of plaintiffs' property. Plaintiffs appeal from a judgment in favor of the police jury and the Town of Lockport.

Plaintiffs are the owners of a certain tract of land situated in the Parish of Lafourche. Plaintiffs acquired the property from Lakeside Farms, Inc. on August 23, 1978. This tract of land is completely surrounded by water, bounded on the east by the Forty Arpent Canal, on the south by the Tom Foret Canal, and on the west and north by the old Intracoastal Waterway (Company canal). In 1975, the Lafourche Parish Police Jury, in conjunction with the Town of Lockport, constructed a pumping station at the intersection of Tom Foret Canal and Forty Arpent Canal. Since plaintiffs own to the mid-line of the canal, subject to a servitude for public use, the pumping station rests partially on plaintiffs' property. The pumping station located at the intersection of Tom Foret Canal and Forty Arpent Canal is a public facility that is owned by the Lafourche Parish Police Jury and operated by the Town of Lockport. Mr. Emile J. Toups acquired the property in 1943 and continued to own same until he incorporated Lakeside Farms, Inc. in 1966. Lakeside Farms, Inc. was created as a family corporation. The property was conveyed to Lakeside Farms and it was the owner until the sale to the present plaintiffs on August 23, 1978.

Although at some previous time the property had been farmed, at the time that Mr. Toups acquired the property, it was a lake and under water. A ring levee system that had previously existed surrounding the property had been washed in by boat traffic. In 1963, Mr. Toups fixed the levee system, pumped the property dry, and commenced to use the property for cattle grazing and farming operations. In 1972, Mr. Toups entered into an agreement with the Town of Lockport to allow the town to use a portion of the property as a garbage landfill, giving the town the right of access to the then existing drainage pumps on Forty Arpent Canal. Prior to 1972, the Town of Lockport had access to the then pumping station, not through Mr. Toups's property, but through the property of C.M. Comeaux. Apparently, some time in 1975 the location of the pumps was changed to their present location at the intersection of Forty Arpent Canal and Tom Foret Canal.

In 1975, after the pumps had been relocated, Mr. Toups gave the Town of Lockport and the police jury access to the pumps and the right to use the Vacherie Street gate providing they kept it locked so that the general public could not go on the levee at any time. The gate was owned by Mr. Toups and maintained by the Town of Lockport. Mr. Toups further granted permission to the Town of Lockport and the police jury to use the road providing access to the pumping station. Apparently, a portion of this same road was used by the Town of Lockport as access to the garbage dump. Mr. Toups testified that he only gave the police jury and the Town of Lockport permission to go to and from the pumps, to build the pumps, to bring material back there, and to operate the pumps. He readily recognized that the location of the pumps at the intersection of Tom Foret Canal and Forty Arpent Canal was partially on property that he owned (owning half of the Tom Foret Canal). Mr. Toups testified as follows:

Mr. Toups further characterized the roadway leading from the Vacherie Street gate to the pump site as a dirt road where "the ground was hard enough that you could drive on it." Mr. Toups stressed many times in his testimony that he only gave permission to go to and from the pumps, to construct the pumps and to operate the pumps with the understanding that all parties would pass through the gate on Vacherie Street only and it would be kept under lock and key.

On August 23, 1978, Lakeside Farms, Inc., the wholly-owned family corporation of Emile F. Toups, transferred to the present plaintiffs all of the property constituting Lakeside Farms, Inc., subject to numerous "restrictions and reservations", including the following:

Obviously, sometime thereafter a dispute arose between the present owners and the governing bodies over the use of the land that the pumps were situated on and the use of the access road through the Vacherie Street gate, which resulted in the present suit for declaratory judgment being filed on May 22, 1980 (approximately twenty-one months after plaintiffs acquired the property).

In this suit for declaratory judgment, plaintiffs seek to have declared that they have the right to terminate access to and from the pumping station by the police jury and the Town of Lockport, and further seek to have decreed that they have the right to cause the aforesaid defendants to remove the pumping station from any portion of their property.

The trial court found that plaintiffs' ancestor in title, Lakeside Farms, Inc., had granted verbal permission and acquiesced in the use of the road and in the construction, maintenance and operation of the pumping station on the property in question in 1975, and further found that defendants had used the road for access to the pumping station without objection or opposition from either the plaintiffs or their ancestors in title until the suit was filed on May 22, 1980. Thus, he reasoned that under the facts of this case, there was consent and acquiescence both prior to the decision in Lake1 and subsequent to the enactment of La.R.S. 19:14 and that both the St. Julien Doctrine and La.R.S. 19:14 were applicable to the resolution of their dispute. He held that the defendants have acquired a servitude of passage over the road for access to the pumping station and a servitude of use over that portion of the plaintiff's property on which the pumping station is situated under both of the above. Plaintiffs have perfected this appeal seeking reversal of the decision on four grounds.

Before discussing the above assignments of error, it is necessary to briefly examine St. Julien, Lake, and constitutional, statutory and codal development.

Therefore, by jurisprudential rule, a new theory was created allowing the creation of servitudes by estoppel. From 1879 until 1976, a public or quasi public corporation with powers of expropriation could acquire a servitude over the land of another without expropriation if the landowner consented or acquiesced in the construction. The landowner could not later reject the occupant, but was relegated to an action for compensation and damages. The theoretical justification of St. Julien was the combined presumed consent of the owner of the land and the public interest. To avoid the needless waste and public inconvenience involved in removing expensive works, the court established the fiction that the owner had granted voluntarily what an expropriation suit otherwise would have compelled him to yield.

St.Julien was re-affirmed in many later cases and remained the rule of law until 1976 when Lake, Inc. v. Louisiana Power & Light Company, 330 So.2d 914 (La.1976) was decided.

The Lake case abolished the St. Julien Doctrine with respect to discontinuous apparent servitudes, but held its decision applied prospectively only. The majority opinion in Lake classified an electrical transmission line as a discontinuous2 apparent servitude because it required an act of man for its exercise and as such found that under La.C.C. art. 7663 it could only be acquired by title. Lake overruled St. Julien and its progeny as to prospective conduct because St. Julien sanctioned a method of creating servitudes contrary to the mandates of the Civil Code.4 In addition, Lake rejected the policy rationale of St. Julien, finding that although it may have once been justified by public necessity, now it was no longer needed.

Additionally in Lake, Chief Justice Dixon, author of the opinion, stated as follows:

Shortly after the decision in Lake, the Louisiana Legislature adopted La.R.S. 19:14 which provides as follows:

Essentially the above act provides that a landowner who consents or acquiesces to construction on his property by an entity with expropriation powers, thereby waives the right to prior compensation. The owner may thereafter bring an action for just compensation with the amount of recovery fixed as of the time of the taking. Additionally, if the occupation is by a private entity with expropriation powers, the landowner may subsequently challenge the necessity and public purpose of the taking. When the State or its subdivisions are the takers, the act precludes any further challenge of public purpose. For either the State, its subdivisions or a quasi public corporation to enjoy the benefits of the act, it must have proceeded "in good faith believing it had the authority."

Therefore, the St. Julien Doctrine, created and perpetuated jurisprudentially until the Lake decision in 1976, now has been essentially reinstated legislatively through La.R.S. 19:14 to the status of positive law.5

Having set forth an abbreviated historical development of the St. Julien Doctrine culminating with the enactment of La.R.S. 19:14, it is also necessary to examine and treat the legislative and constitutional history of this area of the law. The Louisiana Constitution of 1921 was adopted years after the St. Julien Doctrine. Article 1, Section 2 of the Louisiana Constitution of 1921 provided as follows:

Article 1, Section 4 of the 1974 Constitution provides even greater protection for private property rights as follows:

In 1977, there was substantial revision of Book II of the Louisiana Civil Code pertaining to predial servitudes. Article 727 of the Revised Civil Code of 1870 was repealed and the distinction between continuous and discontinuous servitudes was abolished. Article 728 of the Revised Civil Code of 1870 which set forth the distinction between apparent and non-apparent servitudes was retained as Article 707 in the 1977 Revision with no change.6 Article 3504 of the Civil Code of 1870 providing for thirty years acquisitive prescription of continuous apparent servitudes was repealed in its entirety and replaced by Articles 740 and 742 which provide ten and thirty years acquisitive prescription applicable to apparent servitudes.7

Lake held only an owner had the right to permanently impose a servitude on his estate (La.Civ.Code art. 729, now art. 708)8 and that such can only be accomplished by acts by which property can be transferred (La.Civ.Code art. 743, now art. 722).9 Lake further held that La.Civ.Code art. 766 provided that continuous non-apparent and discontinuous servitudes could only be established by title and not by prescription (La. Civ.Code art. 765 and 3504)10 and since an electric transmission line was a discontinuous apparent servitude, St. Julien was in direct conflict with codal provisions and was therefore overruled. The court in Lake said that its decision would apply only to conduct occurring after the date of the decision. The St. Julien Doctrine could still be applied in cases where the conduct occurred before the decision in Lake.

Therefore, the 1977 revisions of Book II of the Civil Code have now eliminated designations of servitudes as continuous or discontinuous and only retains the distinction of apparent and non-apparent servitudes. The entire foundation of the Lake case has been legislatively removed. In Lake, the majority opinion was that an electric transmission line was a discontinuous apparent servitude since it needed the act of man to be exercised. Under the 1977 revision, only non-apparent servitudes cannot be acquired by prescription and must be established by title only. Under the express provisions of Art. 740 of the 1977 Revision, apparent servitudes may be established by title, by destination of the owner, or by acquisitive prescription, whether said servitudes were formerly considered discontinuous or not,11 cutting away the foundation of Lake and its progeny.

ASSIGNMENTS OF ERROR NOS. 1 AND 2

Appellants argue that Mr. Toups and Lakeside Farms never intended to grant the governing authority any permanent rights of access or to construct the pumping station, and therefore, an essential element, namely consent, was absent for application of either St. Julien or La.R.S. 19:14, and that in any event, both St. Julien and La. R.S. 19:14 could not be applied to this factual dispute. Mr. Toups and Lakeside Farms expressly consented to the location of the pumps on a portion of his property and expressly consented to the use of the road to gain access to the pumps through the Vacherie Street gate. This conduct, with express consent of the landowner, commenced in 1975 (prior to the Lake decision bringing it squarely within the St. Julien Doctrine) and continued until the sale of the property on August 23, 1978, wherein the landowner expressly recognized that he had given his consent for access to the pumping station located on the Tom Foret Canal. Further, his testimony is unequivocal that he had previously given his express consent to placement of the pumps partially on his property in the canal. The occupation of the instant property by the public bodies occurred prior to Lake and continued after Lake bringing the matter under the express provisions of La.R.S. 19:14. The conduct complained of occurred prior to Lake, subsequent to Lake, and prior to and subsequent to the adoption of La.R.S. 19:14.

At this point, it is necessary to distinguish between the occupation of the subject property by the pumping station and the use of the road and Vacherie Street gate. The entire foundation of St. Julien and La.R.S. 19:14 is that a public or quasi public body with powers of expropriation could acquire a servitude over the land of another without expropriation if the landowner consented or acquiesced in the construction. Therefore, for St. Julien and/or La.R.S. 19:14 to apply in the instant case, there must be:

All of the above requisites are present and apply to the property occupied by the pumps. The combined presence of consent of the landowner, public interest and the public having built expensive works on private property is the very foundation of St. Julien and La.R.S. 19:14. Consent of the type given herein by Mr. Toups and Lakeside Farms is the precise type of consent envisioned by St. Julien and La.R.S. 19:14. It also should be noted that consent of the landowner, rather than precluding the applicability of the St. Julien Doctrine, is an essential part of same. Rogers v. Louisiana Power & Light Co., Inc., 391 So.2d 30 (La. App. 3rd Cir.1980); State, Through Dept. of Highways v. Champagne, 371 So.2d 626 (La. App. 1st Cir.1979).

Appellants strenuously argue that it was error for the trial court to apply the St. Julien Doctrine and La.R.S. 19:14. We find that the present factual situation is one that squarely falls within both the St. Julien Doctrine and La.R.S. 19:14. See Brooks v. New Orleans Public Service, 370 So.2d 686 (La.App. 4th Cir.1979); writ denied, 373 So.2d 512; Trustee Corp. v. Allen, 359 So.2d 715 (La.App. 4th Cir.1978).

Appellants further contend that Mr. Toups and/or Lakeside Farms had only consented to a day by day use of the property and that from the time that they have owned the property, they only acquiesced in the use. Appellant acquired the property with full knowledge that the prior owners had expressly consented to the construction of the pumping station on a portion of his property and had granted access to the pumping station through the Vacherie Street gate, the latter being expressly set forth in their deed.

In Rogers v. Louisiana Power & Light Co., Inc., supra, our brethren of the Third Circuit were presented with an identical argument in a case factually similar to the instant case. In Rogers, supra, it was stated:

(Page 34)

As to the servitude of passage over the road on plaintiffs' property lying adjacent to Forty Arpent Canal through the Vacherie Street gate (access to and from the pumping station), two essential elements of St. Julien and La.R.S. 19:14 are present; namely, consent of the landowner, and public interest and need by a public body possessing powers of expropriation. However, one essential element of both St. Julien and La.R.S. 19:14 is absent; namely, the construction of any type of public facility thereon. In the instant case, the public bodies did not expend any monies in construction of the gate or road and apparently only maintained the Vacherie Street gate keeping it locked. There was no evidence that either public body had constructed anything or expended any sums whatsoever at the Vacherie Street gate and access road to the pumps. Therefore, the trial court erred in applying St. Julien and La.R.S. 19:14 to use of the road and gate because of the absence of construction and/or monies spent, it is clear that neither St. Julien nor La.R.S. 19:14 is applicable.

ASSIGNMENTS OF ERROR 3 AND 4

Appellants contend that the trial court erred in holding the St. Julien Doctrine was constitutional and further erred when it failed to give proper consideration to the unconstitutionality of the St. Julien doctrine. We agree that the trial court erred in failing to consider the constitutionality of St. Julien and La.R.S. 19:14 when he expressly held that both were applicable to the instant case.

The United States Constitution, Amendments 5 and 14, prohibits the taking of private property without due process of law. Article 1, Section 4 of the Louisiana Constitution of 1974, supra, provides even stronger protection for private property rights. Also, Article 1, Section 2 of the Louisiana Constitution of 1974 provides as follows:

The key to the constitutionality or unconstitutionality of both St. Julien and La.R.S. 19:14 are the words "consented" and "acquiesced" in the use or possession of private property by the public or quasi public entity. Black's Law Dictionary12 defines "consent" as follows:

Black's Law Dictionary13 defines "acquiescence" as follows:

Although Black's includes in its definition of consent, "acquiescence or compliance therewith," this court's opinion of consent is that it is an act of reason, accompanied by deliberation by a reasonable person who has sufficient mental capacity to make an intelligent choice and carries forth in the choice through the power of acting. The better definition of acquiescence is an act not deliberately intended to ratify a former transaction known to be voidable, but recognizing the transaction as existing; and intended, to some extent at least, to carry it into effect and to obtain or claim the benefits resulting therefrom.

Constitutional rights can be waived.14 Additionally, the instant case, as concerns the land occupied by the pumps, is likened to the situation presented in Vaughn v. Williams, 345 So.2d 1195 (La.App. 3rd Cir. 1977). In Vaughn, La.R.S. 48:49115 was held to meet constitutional standards primarily because the landowner had knowledge of and acquiesced in the maintenance of a road by a public authority and accepted the benefits of public maintenance for a period of time in excess of three years. The court held that this is "akin" to the public acquiring a servitude by way of prescription under Article VI, Section 24 of the Louisiana Constitution of 1974.16

The same rationale applies to the facts of the instant case because the landowner had expressly consented to the placement of the pumps on his property with the consent preceeding the taking and forming the predicate of the taker's action. Good faith of the taker is not at issue because the takers (public entities with powers of expropriation), proceeded with the landowner's express consent. Once a public entity with powers of expropriation has constructed facilities upon, over or under property with the express consent of the landowner, both constitutional due process and payment prior to expropriation are waived by the landowner.17

Therefore, for the above and foregoing reasons, the judgment of the trial court declaring that appellants do not have the right to cause appellee to remove their pumping station from plaintiffs' property is hereby affirmed, together with the judgment declaring appellees as owners of a servitude of use over that portion of appellants' property on which the defendants' pumping station is located, reserving unto appellants their rights, if any, to seek compensation for use of the property that the pumping station occupies.18

As concerns the judgment decreeing a servitude of passage over the road on plaintiffs' property lying adjacent to the Forty Arpent Canal through the Vacherie Street gate for access to and from said pumping station, said judgment is hereby reversed. It is herein decreed that appellants do not have a servitude of passage through the Vacherie Street gate and/or the access road to the pumping station. However, all proceedings to evict appellees are herein stayed for a period of thirty (30) days from the finality of this judgment to allow appellees an opportunity to institute expropriation proceedings as concerns said access. Upon institution of expropriation proceedings within the above time period, this stay order shall be continued in effect during the diligent prosecution thereof with the right remaining in this court to exercise its supervisory jurisdiction to recall this stay order on proper showing.

For the above and foregoing reasons, the judgment of the trial court is affirmed in part and reversed in part.

AFFIRMED IN PART, REVERSED IN PART.