Petition for Writ of Certiorari — Newport Ltd. v. Board of Commissioners

| | FIDED

2 i}

— $8 p22 3 1991

OFFICE OF dE Clie

Supreme Court of the United States

OCTOBER TERM, 1991

NEWPORT LIMITED, A PARTNERSHIP

IN COMMENDAM

Petitioner

Versus

THE BOARD OF COMMISSIONERS,

ORLEANS LEVEE DISTRICT

Respondents

PETITION FOR WRIT OF CERTIORARI

TO THE SUPREME COURT

STATE OF LOUISIANA

Basile J. Uddo

2211 Killdeer St.

New Orleans, Louisiana 70122

(504) 832-7204

Counsel of Record

For Petitioner

A B Letter Service, Inc., $27 Chartres St., New Orleans, La. (504) 581-5555

i

QUESTIONS PRESENTED

.

Does the application of Louisiana Revised Statute

19:14 (1976) to the facts of this case deprive Petitioner of

important constitutional rights guaranteed by the Fifth

and Fourteenth Amendments to the United States

Constitution?

Il.

Does the opinion of the Louisiana Fourth Circuit

Court of Appeal deny Petitioner procedural due process, as

guaranteed by the Fifth and Fourteenth Amendments to

the United States Constitution, by expanding the nature of

the property interest expropriated from an easement to a

fee simple without such being requested by Respondent

and without notice to Petitioner that such expansion might

occur?

iil.

Did the Court, by allowing the Respondent to retreat

from its ‘‘quick-taking”’ petition and to convert the pro-

ceeding to some ill-defined expropriation proceeding

without notice to Petitioner, deny due process to

Petitioner?

IV.

Did the Court below err in ignoring the evidence in

the record that Respondent’s 1971 valuation evidence was

clearly contradicted by Petitioner?

V

Did the application of Louisiana Revised Statute

19:14 (1976) to the facts of this case unconstitutionally

alter the rights of Petitioner and the obligations of Respon-

dent in violation of the prohibition against impairment of

contract rights contains in U.S. Const. Art 1, Sec.10?

— Er

Tit

ii

TABLE OF CONTENTS

Page

Questions Presented... .. ... 6... ee ee eee cece ees i

Wabis of Compas . x... 6 avs is eee ee ii

Publis of Animvosiiies . . .« . 650 re iv

rr ee l

Grounds for Jurisdiction............... RR Pe rar 1

Constitutional and Statutory Provisions ............. 1

Sentoment, of thy GOs: «<5 Ee 4

Reasons for Granting the Writ .................. _.6

1. Petitioner has been denied due process and

just compensation by the application of

La.R.S. 19:14 to this case thereby render-

ing said statute unconstitutional ‘‘as

Mr oo Pet ee 5

Il. Petitioner was denied due process when

the Court below without notice to peti-

tioner awarded a fee simple to respondent

who had requested only a_ perpetual

quem ow os. i an ee es 17

Ill. Petitioner was denied due process by

the Court’s application of a statute not

pleaded by respondent that did not afford

required constitutional protections ......... 18

IV. The Court below erred in concluding that

petitioner had not contradicted respon-

dante 1001 GE. . see oe re es 19

iii

TABLE OF CONTENTS (continued)

Page

V The application of LA. R.S. 19:14 un-

constitutionally impairs the obligations of

the contract between the parties........... 20

eh en ery avy cs eee eet 21

CE PS cece whe vee beedenen 25

APPENDIX:

Appendix A - Opinion, Louisiana Fourth Circuit,

ys ees ee, A-1

Appendix B-1 - Opinion, Louisiana Fourth Circuit,

Bepommemer 15, 1067 .....................2...- A-10

Appendix B-2 - Judgment and Commissioner’s

Adopted Recommendation and Findings of Fact,

a ee A-22

Appendix B-3 - Judgment and Commissioner’s

Adopted Recommendation and Findings of Fact,

I OO ch vcs ci obec reccuccuck A-30

Appendix C - Denial of Rehearing, Louisiana Fourth

CS a A-37

Appendix D - Denial of Writ of Certiorari, Louisiana

Supreme Court, September 6, 1991............. A-38

Appendix E-1 - 1971 Agreement to Expropriate

Between Orleans Levee Board and Seaway Land

Co., Inc. ancestor in title to Petitioner, May 21,

ee iy diced aces veceuen A-39

Appendix E-2 - Petition for Expropriation Pursuant

to LSA-R.S. 38:301, December 23, 1985......... A-41

iv

TABLE OF AUTHORITIES

CASES Page

Albrecht v. United States, 329 U.S. 599 (1947)....... 10

Allied Structural Steel Co. v. Stannaus, 438 U.S.

RRA Baan eee aires aie er ea a ea in een rg rane 21

Cancienne v. La Fource Parish Police Jury, 423

So.2d 662 (La.app. lst Cir. 1982) ................ 7,8

Cherokee Nation v. Southern Kansas Ry. Co., 10

et I oe air aren 6 lata gre a dete Ain a iecsscs a ates 13,14

Danforth v. United States, 308 U.S. 271 (1939). . .9,13,14

Kirby Forest Industries v. United States, 467 U.S.

WE Reballne ebay RE one akg, See mtn Rak De Al way Aad 13,16,17,20

Lake, Inc. v. Louisiana Power and Light, 330 So.2d

Oe PN pra aera etary Se err _

Muscany v. United States, 324 U.S. 49 (1945) ....... 11

Olson v. United States, 292 U.S. 246 (1934) ......... 16

Phelps v. United States, 274 U.S. 341 (1927)......... 20

St. Julien v. Morgan Louisiana and Texas Railroad

i ee aa cs a a eee eee eres 6,7,8,11

Seaboard Air Line R.R. v. United States, 261 U.S.

One he eae at ates or ew ee easter 20

United States v. Fuller, 409 U.S. 488 (1973) ......... 15

United States v. 564.54 Acres of Land, 441 U.S. 506

TA a lie ea rer Une Para aes Se ne oer 16

Vv

TABLE OF AUTHORITIES (continued)

CASES Page

United States Trust Company, 431 U.S. 1 (1977) ..... 21

Walker v. City of Hutchinson, Kansas, 352 U.S. 112

Te he ee Ws 18,19

STATUTES

La.R.S. 19:14 .......... i,1-2,5,6,7,9,17,18,19,20,21,22,24

eS ee en ee 2,14

La.R.S. 38:387.......... eyes He ee

TREATISES

J. Nowak, R. Rotunda and J. Young, Constitutional

Law (8rd Ed. 1986) ..................

1

Opinions Below

The 1987 decision of the Louisiana Fourth Circuit

Court of Appeal is cited as Bd. of Levee Comm. v. Newport

Ltd. 517 So.2d 406 (La. App. 4th Cir. 1987) writ denied, 521

So.2d 1152 (La. 1988). The 1991 decision of the Lou-

isiana Fourth Circuit Court of Appeal is cited as Bd. of

Levee Comm. v. Newport Ltd., 578 So.2d 191 (La. App. 4th

Cir. 1991).

Grounds For Jurisdiction

The 1991 opinion of the Louisiana Fourth Circuit

Court of Appeal was issued on Apri! 16, 1991. Application

for rehearing was denied on May 9, 1991. Petitioner timely

applied for a writ of certiorari to the Louisiana Supreme

Court, said application was denied on September 6, 1991.

Therefore, this Court has jurisdiction under 28

U.S.C. § 1257(a).

Statutes and Constitutional Provisions

In any case where the State or its political corpora-

tion or subdivision has actually, in good faith believing it

had authority to do so, taken possession of privately owned

immovable property of another, and constructed facilities

upon, under or over such property, such owner shall be

deemed to have waived his right to contest the necessity

for the taking and to receive just compensation prior to the

taking, but he shall be entitled to bring an action for such

compensation, to be determined in accordance with the pro-

visions of Section 9 of this Title, for the taking of his pro-

perty or interest therein, the just compensation to be deter-

mined as of the time of the taking of the property, or right

or interest therein, and such action shall proceed as if the

state, its political corporation or subdivision had filed a

2

petition for expropriation as provided for in Section 2.1 of

this Title.

LA.R.S. 19:14 (1976)

Upon the deposit of the amount of the estimate in the

registry of the court, for the use and benefit of the persons

entitled thereto, the clerk shall issue a receipt showing the

amount deposited, the date it was deposited, the style and

number of the cause, and the description of the property

and property right as contained in the petition. Upon such

deposit, title to the property and the property rights

specified in the petition shall vest in the levee district, and

the right to just and adequate compensation therefor shall

vest in the persons entitled thereto.

LA.R.S. 38:355 (1985)

A. The measure of compensation for the property ex-

propriated is determined as of the time the estimated com-

pensation was deposited into the registry of the court

without considering any change in value caused by the pro-

posed improvement for which the property is expropriated.

B. The measure of damages, if any, to the defen-

dant’s remaining property is determined on a basis of im-

mediately before and immediately after the expropriation

taking into consideration the effects of the completion of

this project in the manner proposed or planned.

C. The owner shall be compensated to the full extent

of his loss.

D. The levee district or levee and drainage district

shall present its evidence of value first.

E. Reasonable attorney's fees may be awarded by the

court if the amount of the compensation deposited in the

registry of the court is less than the amount of compensa-

Sm

3

tion awarded in the judgment. Such attorney’s fees in no

event shall exceed twenty-five percent of the difference bet-

ween the award and the amount deposited in the registry

of the court. .

LA.R.S. 38:387 (1985)

No State shall enter into any Treaty, Alliance, or

Confederation; grant Letters of Marque and Reprisal; coin

Money; emit Bills of Credit; make any Thing but gold and

silver Coin a Tender in Payment of Debts; pass any Bill of

Attainder, ex post facto Law, or Law impairing the Obliga-

tion of Contracts, or grant any Title of Nobility.

Article I, Section X, U.S. Constitution

No person shall be held to answer for a capital, or

otherwise infamous crime, unless on a presentment or in-

dictment of a Grand Jury, except in cases arising in the

land or naval forces, or in the Militia, when in actual service

in time of War or public danger; nor shall any person be

subject for the same offence to be twice put in jeopardy of

life or limb; nor shall be compelled in any criminal case to

be a witness against himself, nor be deprived of life, liberty,

or property, without due process of law; nor shall private

property be taken for public use, without just com-

pensation.

Amendment V, U.S. Constitution

Section 1. All persons born or naturalized in the

United States, and subject to the jurisdiction thereof, are

citizens of the United States and of the State wherein they

reside. No State shall make or enforce any law which shall

abridge the privileges or immunities of citizens of the

United States; nor shall any State deprive any person of

life, liberty, or property, without due process of law; nor

deny to any person within its jurisdiction the equal protec-

tion of the laws.

Amendment XIV, Section 1, U.S. Constitution

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4

Statement of the Case

This is a “‘taking’”’ case, the facts of which turn on a

contract between a State agency and a private landowner.

In 1971, the State agency induced the landowner to grant

a limited permit for immediate commencement of construc-

tion on one feature of a proposed flood protection project

that would cross its property by expressly undertaking to

formally expropriate the requisite permanent property

rights at a later date, and stipulating that the value of the

property rights would be determined at that later date as

though the permitted construction had not taken place. In

1974, further work on the flood protection system affecting

that landowner’s property was suspended for what proved

to be a period of twelve years. In 1985, in anticipation of

the resumption of work, the State agency effected the ex

parte, summary expropriation of the servitude it sought

under Louisiana’s quick-taking statute (La.R.S. 38:351 et

seq). Petitioner answered the petition, contesting only the

gross inadequacy of the State agency’s estimate of just

compensation. Nine months after it had summarily ex-

propriated the servitude, the State agency sought to be

relieved of its obligations to compensate the landowner at

all under the 1971 Agreement and under the quick-taking

statute for that servitude on the grounds that the construc-

tion that had been permitted in 1971 had constituted a tak-

ing under Louisiana’s St. Julien statute (La.R.S. 19:14),

and that any right to compensation for that prior

hypothetical taking had prescribed.

In the judgment complained of, the Louisiana courts

applied the St. Julien statute so as to declare the prior

“taking”’ of the servitude expropriated by the State agency

in 1985, retroactive to the date of the 1971 Agreement and

without compensation to the landowner. The Court then

declared, sua sponte, that the 1985 quick-taking must have

5

effected the taking of an additional, incremental fee title in-

terest in the same property and applied the St. Julien

statute, rather than the quick-taking statute, in valuing

that interest, so as to arrive at a valuation date 14 years

prior to the quick-taking expropriation. The difference in

the 1971 and 1985 valuation dates is in excess of

$2,000,000. The Court ignored the express agreement of

the parties that the construction permitted in 1971 would

be disregarded in determining compensation, and disallow-

ed the severance damages judicially admitted by the State

agency in its petition.

Petitioner raised the question of just compensation

from the inception of the ‘“‘quick-taking’’ proceedings, in its

answer to that action. Moreover, Petitioner raised the con-

stitutional issues discussed below, and others, by Brief to

the Fourt Circuit, and by Writ Application to the Louisiana

Supreme Court. Neither Court considered the constitu-

tional issues.

Reasons For Granting The Writ

MAY IT PLEASE THE COURT:

I.

Petitioner has been Denied Due Process and

Just Compensation by the Application of

La.R.S. 19:14 to This Case, Thereby Render-

ing Said Statute Unconstitutional ‘‘As

Applied.”’

The method of taking of Petitioner’s property rights

countenanced by the Louisiana Fourth Circuit Court of Ap-

peal below is one that has long been recognized as having

significant constitutional infirmities that have never been

addressed by any court, and which the Louisiana Supreme

Court refused to consider here.

6

On its face, La.R.S. 19:14 seems simple enough. It

provides, in essence, a basis for a governmental ‘“‘taking”’

of private property by consent or acquiescence of the

owner:

In any case where the state or its political cor-

poration or subdivision has actually, in good faith

believing it has authority to do so taken posses-

sion of privately owned immovable property of

another, and constructed facilities upon, under or

over such property with the consent or ac-

quiescence of the owner of the property, such

owner shall be deemed to have waived his

right...to receive just compensation prior to the

taking...

La.R.S. 19:14 (emphasis added).

It also attempts to specify the basis upon which compensa-

tion for such ‘’taking’”’ shall be made:

...he shall be entitled to bring an action for such

compensation,..., for the taking of his property or

interest therein, the just compensation to be

determined as of the time of the taking of the pro-

perty, or right or interest therein, and such action

shall proceed as if the state, its political corpora-

tion or subdivision had filed a petition for

expropriation...

La. R.S. 19:14 (emphasis added).

The underscored provisions make it quite clear that

the statute is intended to protect the right of just compen-

sation as though an ordinary expropriation had been filed.

Therefore, the significance of the statute is that constitu-

tional rights are deemed waived by consent or silence, and

that the precise time of the taking and the determination

of compensation must be decided separately.

7

A.

There Was No Prior

Taking Of The Servitude

La. R.S. 19:14 is a legislative embodiment of a

judicial doctrine known as the St. Julien! doctrine. The

statute was enacted in response to a Louisiana Supreme

Court decision that overruled St. Julien. That decision is

significant, because in addition to the nonconstitutional

grounds for overturning, the court acknowledged the con-

stitutional infirmities:

Plaintiff strongly urges in brief that the ap-

plication of the ‘‘St. Julien”’ doctrine violates con-

stitutional prohibitions against taking property

without due process (U.S. Const. Amendments 5

and 14) and against taking private property for

public use without compensation. [State citations

omitted]. The argument is persuasive, but we

decline to rest our opinion on constitutional

grounds when there are other reasons which lead

to the same result.

Lake, Inc. v. Louisiana Power

and Light Co., 330 So. 2d 914,

917 (La. 1976) (emphasis

added).

Despite these constitutional concerns, so clearly expressed,

the state legislature effectively overruled Lake, Inc. and

reinstated St. Julien by adoption of La. R.S. 19:14.

That statute’s constitutionality has never been

assessed by the Louisiana Supreme Court. Although one

state appellate court opinion purports to do so, its analysis

is premised exclusively upon state constitutional provi-

sions. Nonetheless, it is clear in Cancienne v. La Fource

! St. Julien refers to an ancient Louisiana case reported as St. Julien v.

Morgan Louisiana and Texas Railroad Co., 35 La. Ann. 924 (1883).

8

Parish Police Jury, 423 So. 2d 662 (La. App. 1st Cir. 1982)

that the construction of the statute therein involved does

not comport with its application in this case, thereby leav-

ing the constitutional question raised herein completely

unaddressed.

Several points made in Cancienne are relevant to this

application. First, the court evaluated the statute only as

one that creates a servitude or easement and not one used

to take fee title; second, the court rested heavily upon the

public policy justification for not requiring removal of

structures built with the consent or acquiescence of the

owner:

To avoid the needless waste and public incon-

venience in removing expensive works, the court

[in St. Julien] established the fiction that the

owner had granted voluntarily what an expropria-

tion suit otherwise would have compelled him to

yield.

Id. at 666 (emphasis added).

The combined presence of consent of the land-

owner, 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.

Id. at 670.

Nothing in Cancienne suggests that the concern with pro-

tecting completed structures extends to upsetting

reasonable bilateral agreements formally to expropriate, or

to upsetting normal standards for compensation when for-

mal expropriation proceedings have been instituted.

Indeed, the entire basis for the court’s constitutional

analysis in Cancienne is that the “consent” or ‘‘ac-

quiescence”’ of the landowner can constitute a waiver of

constitutional rights. Significantly, however, Cancienne

9

does not discuss, nor does it have any application to, a

situation where whatever consent or acquiescence that oc-

curred was contained in a written, bilateral contract, ex-

pressing exactly the nature of that consent or ac-

quiescence. This key factor was ignored by the court here,

which applied La.R.S. 19:14. Consequently, the landowner

here has been presumed to have waived rights that it ex-

plicitly reserved.

The 1971 Agreement to Expropriate (Appen-

dix‘E-1”’) expressly grants a “‘right of entry” to the Levee

Board, but clearly specifies that acquisition of permanent

property rights would follow the determination and pay-

ment of just compensation by further ‘‘negotiations”’ or,

“if mutually satisfactory terms cannot be agreed upon,

that the Board of Levee Commissioners of the Orleans

Levee District will take steps to acquire the interest by con-

demnation procedure.”’ (Emphasis added).

It is simply beyond argument that the landowner,

under the terms of this agreement acquiesced in anything

other than negotiations and, in lieu thereof, normal ex-

propriation procedures for the acquisition of permanent

property rights. By applying La. R.S. 19:14 to this case,

thereby ignoring, or invalidating sub silentio, the contract,

the court below deprived Petitioner of all those protections

that this Court has applied to such actions.

Moreover, this Court has consistently upheld the en-

forceability of expropriation contracts as a means of deter-

mining issues otherwise left to the ordinary proceedings.

Danforth v. United States, 308 U.S. 271 (1939) involved ex-

propriation agreements concerning the acquisition of lands

in a flood control project. The Danforth agreement, among

other things, fixed the amount of compensation and agreed

to ‘friendly condemnation proceedings.’”’ Subsequent to

the confection of the agreement, the government attemp-

10

ted to withdraw because ‘“‘the prices first suggested could

not be properly recommended to the court.’’ Jd. at 280.

Despite the applicability of a specific statutory scheme to

the case, this Court concluded that the parties could con-

fect an agreement that varied what might be awarded

under that scheme:

[W]e construe the accepted offer as an agreement

to fix the price at the named figure for the ease-

ment sought. Paragraph 3 of the letter shows con-

demnation in mind.

Id. at 282.

Therefore, the agreement of the parties prevailed over a

likely different valuation under the statutory provision.

Albrecht v. United States, 329 U.S. 599 (1947) in-

volved an expropriation agreement even more clearly

analogous to the instant case. The agreement stipulated a

purchase price ‘“‘to be paid at an indefinite future time’’

depending on certain conditions, such as conveyance of

good title, or in lieu thereof, condemnation proceedings. /d.

at 600. The agreement also granted the government the

right to immediate possession. Subsequently, an attempt

to retreat from the consensual valuation divided the par-

ties. In upholding the contract this Court held:

The Fifth Amendment does not prohibit iand-

owners and the Government from agreeing be-

tween themselves as to what is just compensation

for property taken...Nor does it bar them from

embodying that agreement in a contract, as was

done here. And, certainly where a party to such a

contract stands upon its terms to enforce them

for his own advantage, he cannot at the same time

successfully disavow those terms so far as he con-

ceives them to be to his disadvantage.

Id. at 603.

11

See also Muscany v. United States, 324 U.S. 49 (1945) (con-

tracts enforceable).

This is precisely what the court below has allowed

the Levee Board to do. The Respondent’s agreement in

1971 formally to expropriate permanent property rights at

a later date was the inducement for, and was given in ex-

change for, the landowner’s permit to immediately com-

mence construction un ‘er the terms of a limited right-of-

entry. (Appendix ‘‘E-1’’). Respondent did in fact summarily

expropriate the servitude it sought in 1985 using Loui-

siana’s quick-taking statute. The St. Julien statute was

then applied to relieve Respondent of any obligation to

compensate the landowner for the taking of that servitude.

The effect of the application of the St. Julien statute to the

facts of this case is therefore a holding that the landowner’s

limited permission to construct constituted a waiver of his

constitutional right to formal expropriation proceedings

and prior compensation despite the fact that the express

consideration for that permit was the reservation of those

rights, including the Levee Board’s express commitment

formally to expropriate. Such a result clearly violates the

constitutional requirements of due process and just com-

pensation, as well as every concept of logic and fair dealing.

Given that such contracts are clearly enforceable,

and given that the instant contract clearly specified that if

negotiations failed condemnation proceedings were the

agreed-upon method for acquiring permanent property

rights and determining just compensation, it violated Peti-

tioner’s right to due process for the court below to find a

prior taking and to apply anything other than the provi-

sions of the expropriation statute actually invoked by the

Respondent to acquire the interest it had agreed to acquire.

12

B.

Valuation Of

The Expropriated Interest

Although the Court found a prior taking of the ser-

vitude here expropriated, and awarded no compensation

therefor, it declared, sua sponte, that the 1985 quick-taking

had expropriated an additional, incremental fee simple in-

terest in the property affected by that servitude. (See Sec-

tion II below). The Fourth Circuit then ruled that the St.

Julien statute, and not the quick-taking statute, controlled

valuation of this new real property interest because there

had been construction prior to the ex parte Order of

Expropriation.

Newport is entitled to receive the value of the pro-

perty as of May 21, 1971, the date on which

Seaway granted the Board a ‘‘Right of Entry”’ to

construct a closure dam and flood gates.

1991 Fourth Circuit Opinion,

Appendix ‘‘A”’ at A-7.

This is clearly erroneous. The 1971 Agreement to Ex-

propriate had clearly contemplated that the agreed-upon

acquisition or expropriation would take place subsequent

to the permitted construction and the parties had therefore

agreed that valuation of the property rights ‘‘to be ac-

quired’”’ would be performed as though no construction had

taken place. Had the contract been mutually enforced, Peti-

tioner’s constitutional rights would have been protected by

the consistent application of the judicial expropriation pro-

cedure set forth in Louisiana’s quick-taking statute. The

Louisiana courts made the same error condemned by this

Court in Albrecht, supra, by enforcing the right-of-entry

portion of the contract while completely ignoring the valua-

tion provision.

13

This Court had consistently held that the provisions

of the Fifth and Fourteenth Amendments require that

private property not be taken by a governmental unit

unless the property owner be paid just compensation as of

the time of the taking. Kirby Forest Industries v. United

States, infra; Danforth v. United States, infra; Cherokee

Nation v. Southern Kansas Ry. Co., infra. This necessarily

requires an examination, not performed by any court

below, of when the taking occurred and what would con-

stitute just compensation.

1.

Time of Taking

This Court’s opinion in Kirby Forest Industries v.

United States, 467 U.S. 1 (1984) is a recent ‘‘classic’’ on the

question of ‘‘taking”’ in expropriation litigation. Kirby ex-

amined the constitutionality of the valuation method used

in what was called the ‘straight - condemnation’”’ pro-

cedure, which is the ordinary method of expropriation, and

that which the 1971 Agreement to Expropriate clearly

contemplated.

Kirby was similar to the instant case in that it in-

volved failed negotiations, begun sometime in 1978, for

land for a national park, which led to expropriation pro-

ceedings and a deposit of funds by the government in 1982.

This Court noted that in order to determine just compensa-

tion ‘‘the time a taking of a tract of land occurs is crucial

to determination of the amount of compensation to which

the owner is constitutionally entitled.’’ Jd. at 11. This

Court concluded, citing Danforth, supra, that ‘‘the taking

in a condemnation suit under this statute takes place upon

the payment of the money award by the condemnor.”’ Id.

(Emphasis added).

14

The fact that the Levee Board had and exercised a

right of entry is irrelevant to determining the taking/valua-

tion date. See, e.g., Cherokee Nation v. Southern Kansas

Ry. Co., 10 U.S. 970 (1890):

Within the meaning of the Constitution, the pro-

perty, although entered upon pending the appeal,

is not taken until the compensation is ascertained

in some legal mode, and, being paid, the title

passes from the owner.

Id. at 659-60

(emphasis added).

See also Danforth v. United States, supra, (Taking occurs

upon payment of compensation).

These clear precedents of this Court, and the unam-

biguous language of the 1971 Agreement to Expropriate,

make it impossible to conclude on this record, in light of the

constitutional standards applicable, that the ‘‘taking’’ here

occurred in 1971 or that compensation for a 1985 taking

should be valued as of a 1971 date.

The Levee Board, in order to effect the summary

seizure of the servitude it needed to permit the resumption

of construction, elected to utifize Louisiana’s quick-taking

Statute, judicially admitting that it did not own the ser-

vitude it sought. That statute stipulates that the date the

Levee Board deposits its estimate of just compensation in

the registry of the court, December 23, 1985, is 1) the date

the property rights vest in the Levee Board, (the “‘tak-

ing’’)(La.R.S. 38:355), 2) the date the right to just and ade-

quate compensation vests in the landowner (La.R.S.

38:355), and 3) the date of valuation of the property rights

“taken.” (La.R.S. 38:387(A)).

15

2.

Just Compensation

The difference in evaluation dates is truly signifi-

cant. Indeed, the record below indicates more than a

$2,000,000 difference between the 1971 evaluation and the

date of the expropriation proceedings. Moreover, the Court

below completely rejected any assessment for severance

damages. Both of these results constitute a clear violation

of the “just compensation’’ standard imposed by this

Court. Given that the date of the taking must be either the

date of the filing of the petition (see section III below) or

the date of payment of compensation, the court below

should have determined the market value of the property

as of December 23, 1985, the date of filing of the petition,

deposit of estimated value, and vesting of the property

rights and right to compensation.

Though market value may at times be elusive, ‘‘the

overall standard is governed by basic equitable principles

of fairness.’’ See J. Nowak, R. Rotunda and J. Young, Con-

stitutional Law 417 (3rd Ed. 1986) citing United States v.

Fuller, 409 U.S. 488 (1983).

That principle of fairness requires adherence to a Fifth

Amendment minimum:

In giving content to the just compensation re-

quirement of the Fifth Amendment, this Court

has sought to put the owner of condemned pro-

perty “in as good a position pecuniarily as if the

property had not been taken’’.... The Court

therefore has employed the concept of fair market

value to determine the condemnee’s loss. Under

this standard, the owner is entitled to receive

$

htrnereeni renee

16

‘“‘what a willing buyer would pay in cash to a will-

ing seller at the time of taking.’”’

United States v. 564.54 Acres of

Land, 441 U.S. 506, 510-11 (1979)

(citations omitted).

Accord: Olson v. United States, 292 U.S. 246 (1934).

It is this value that the landowner had agreed to

when it entered the 1971 Agreement to Expropriate, i.e., a

valuation based upon negotiations, or if that failed, a valua-

tion determined in some expropriation proceeding in the

future, which proceeding Respondent was obligated to in-

stitute. It is also this value that was effectively ignored by

the Court below when it applied a 1971 market value to a

1985 taking by formal expropriation. The dilatory condem-

nor, not the helpless landowner, should pay the price of the

delay.

Kirby, supra, was concerned with the constitutional

significance of this very issue: dramatic changes in value

between valuation date and payment. As this Court

framed the issue:

However reasonable it may be to designate the

date of trial as the date of valuation, if the result

of that approach is to provide the owner substan-

tially less than the fair market value of his proper-

ty on the date the United States tenders

payments, it violates the Fifth Amendment.

467 U.S. at 17

(emphasis added).

This Court went on to conclude that some procedure must

always be available to modify ‘‘a condemnation award

when there is a substantial delay between the valuation

and the date the judgment is paid during which time the

17

value of the land changes materially.’’ 467 U.S. at 18. Kir

by was concerned with a three year delay between valua-

tion and payment, how much more violative of the Fifth

Amendment is a 15 year delay?

Clearly, the application of La. R.S. 19:14 to this case

is wholly inappropriate because it denies Petitioner

anything approaching just compensation. Moreover, Peti-

tioner has no further procedural protection beyond this

Court as Kirby holds must exist. To deny review of this

case is to give the Levee Board a two million dollar plus

windfall, while forcibly extracting the same from Peti-

tioner. Every precedent of this Court rebels at such a

notion.

II.

Petitioner Was Denied Due Process When

The Court Below Without Notice to Peti-

tioner Awarded Fee Simple Title to Respon-

dent Who Had Only Requested a Perpetual

Easement.

The Levee Board filed only one expropriation peti-

tion (Appendix ‘‘E-2’’). That pleading refers to the ex-

propriation of ‘‘rights of way”’ reflecting the Board resolu-

tion (Exhibit C to the petition), which also refers only to

“rights of way.’’ Additionally, the attached market ap-

praisal (Exhibit E to the petition), which served as the

basis for the 1971 valuation deposit as its estimate of just

compensation, clearly indicates that it was evaluating

‘‘Perpetual Easements for Bayou Bienvenue Control Struc-

ture.’’ No evidence was ever proffered on the value of a fee

interest in the property.

Therefore, Petitioner reasonably believed and

responded to the valuation and expropriation of easements,

——————————

18

not fee simple, which incremental fee interest included,

among other things, mineral rights. Nonetheless, without

notice to the parties, the Fourth Circuit 1991 Opinion (Ap-

pendix ‘‘A’’) inexplicably ruled that the Petition vested

‘fee simple title to the 25.77 acres in the Board...’”’ At 4.

Therefore, despite the clear wording of the petition,

resolution and appraisal, the Court awarded significantly

more than was being expropriated. Not only does this fur-

ther exacerbate the denial of just compensation, but it

deprives Petitioner of due process for lack of notice. See

Walker v. City of Hutchinson, Kansas, 352 U.S. 112 (1956).

IIT.

Petitioner Was Denied Due Process By The

Court’s Application Of A Statute, Not Plead-

ed By Respondent, That Did Not Afford Re-

quired Constitutional Protections.

As noted above, the only expropriation pleading filed

by the Levee Board was its quick-talking petition that was

based upon La.R.S. 38:351. Under that statute, the valua-

tion date is clearly fixed as ‘‘the time the estimated com-

pensation was deposited into the registry of the court....’’

La.R.S. 38:387. That date was December 23, 1985.

Moreover, it was this statute, and this statute alone,

that supported the trial court’s ex parte order of expropria-

tion. No such order could be tolerated unless there was a re-

quirement of a good faith valuation and deposit of funds to

protect the dispossessed landowner.

Nonetheless, the Fourth Circuit, without notice to

Petitioner, and without citation of authority, and by a mere

ipse dixit, decided to substitute La.R.S. 19:14 for the quick-

taking statute. That left Petitioner with an untenable

situation:

19

1) No opportunity to defend against this capricious shift; 2)

loss of title to property in 1985; and 3) no concommitant

statutory protection of a 1985 valuation. In short, the

Fourth Circuit allowed the extraordinary quick-taking on

the one hand, while relegating compensation to the

vagaries of La.R.S. 19:14, on the other.

As a consequence, Petitioner has been denied due

process because the petition that initiated the expropria-

tion, and that was served on Petitioner, was based upon a

statutory procedure designed to exchange expediency for

immediate deposit of ‘just compensation’’, based upon

1985, not 1971, values. By shifting to a different statute,

without warning, and contrary to its 1987 opinion, the

Fourth Circuit protected Respondent’s expediency, but

denied Petitioner’s just compensation.

Had Petitioner been given even minimal notice of

this impending switch, either by Respondent or the court,

it could have defended against the absurdity of such a pro-

cedural farce. See, Walker v. Hutchinson, Kansas, 352 U.S.

112 (1956).

IV.

The Court Below Erred In Concluding That

Petitioner Had Not Contradicted the

Respondent’s 1971 Valuation.

Without conceding the applicability of the 1971

valuation date, it should be noted that even if that were the

appropriate point of valuation the Fourth Circuit was clear-

ly wrong to conclude that Petitioner did not contradict the

valuation offered by Respondent. The record below is

replete with evidence that even if one used the 1971 date

the expropriated portion should have been valued at

$384,600.00, with severance damages of $256,360.00 for a

20

total of $640,960.00. Respondent’s value and payment of

$146,564.00 was clearly refuted at the trial.

Moreover, even if the Respondent’s valuation were

correct, Petitioner would be entitled to interest from 1971,

or some other corrective procedure to adjust for the in-

crease in value through 1985.

As this Court said in Kirby, supra, ‘‘if the disburse-

ment of the award is delayed the owner is entitled to in-

terest thereon sufficient to ensure that he is placed in as

good a position pecuniarily as he would have occupied if the

payment had coincided with appropriation’’. 467 U.S. at

10. See also, Phelps v. United States, 274 U.S. 341, 344

(1927); Seaboard Air Line R.R. v. United States, 261 U.S.

299,306 (1923).

Kirby, as noted previously, also holds that the Fifth

Amendment requires some procedure that would modify ‘‘a

condemnation award when there is a substantial delay bet-

ween the valuation and the date the judgment is paid”’

when the land changes materially in value during the delay.

Therefore, even if the 1971 valuation date is correct, the

Fifth Amendment requires a modification of that amount

to reflect the 1985 payment date.

V.

The Application Of La.R.S. 19:14

Unconstitutionally Impaired The

Obligations Of The Contract

Between The Parties

The decision of the Louisiana Courts is expressly

premised on the application of La.R.S. 19:14, Louisiana's

St. Julien statute, to the facts of this case so as to find a

prior taking of the servitude here expropriated and so as to

21

value the additional fee interest declared to have been ex-

propriated in 1985 at a 1971 date. La.R.S. 19:14 was not

enacted until 1976, five years after the date of the 1971

Agreement to Expropriate and two years after the 1974

cessation of the construction activities permitted

thereunder.

As the record shows the 1971 Agreement to Ex-

propriate was a bilateral, enforceable agreement that con-

stituted the law between the parties. The agreement reserv-

ed permanent property rights for later acquisition and

stipulated 1) the agreed-upon methods of acquisition, 2)

that the Levee Board and not the landowner was obligated

to institute formal expropriation proceedings, and 3) that

the effects of the permitted construction were to be

disregarded in the subsequent valuation of the property

rights.

The application of La.R.S. 19:14 altered the rights of

the Petitioner and the obligations of the Respondent under

the terms of that agreement so as to divest Petitioner of its

property and contract rights in violation of the constitu-

tional prohibition against laws impairing the obligations of

contract. U.S. Const. Art. 1, Sec. 10.

In United States Trust Company, 431 U.S. 1, (1977),

this Court set forth the analysis applicable in cases involv-

ing alleged contract clause violations when a State is a par-

ty to the contract. The threshold inquiry is ‘‘whether the

state law has, in fact, operated as a substantial impairment

of a contractural relationship.”’ Allied Structural Steel Co.

v. Stannus, 438 U.S. 234, at 244 (1978). See United States

Trust Company, supra, at 17. If the State regulation con-

stitutes a substantial impairment, the State, in justifica-

tion, must have a significant and legitimate public purpose

behind the regulation, United States Trust Company,

supra, at 22. The effect of the Fourth Circuit’s application

22

of La.R.S. 19:14 here has been to destroy Petitioner’s pro-

perty rights and has resulted in a valuation of the property

as of the date 14 years prior to the date on which the

Respondent actually acquired permanent property rights,

thus improperly denying to the landowner increases of the

value of the land due to the passage of time and the in-

dustry of the owner/developer.

No legitimate public purpose is served by relieving

the Levee Board of the contractual obligation that it volun-

tarily undertook in order to induce the landowner to permit

the immediate entry and commencement of construction

sought by the Levee Board. The Levee Board is a State

agency with the power to contract, to sue and to be sued in

its own name, and the power to expropriate. The Levee

Board here proposed the terms of the 1971 Agreement to

Expropriate, the terms are not unreasonable, and the

retroactive repudiation of the Levee Board’s obligations

under those terms effected by the adoption, in 1976, of

La.R.S. 19:14 constitutes an unconstitutional impairment

of the obligations of that contract. U.S. Const. Art. 1, Sec.

10.

23

Conclusion

Petitioner had recognized, and had agreed to, the ex-

propriation by the Levee Board of easements over its pro-

perty, at a fair price. The Levee Board resisted paying any

price from 1971 to 1985 and in 1985 refused to pay the price

provided by the very statute under which it had exercised

its right to expropriate.

The Louisiana court has applied the St. Julien

statute, which was enacted in 1976, to a bilateral agree-

ment to expropriate entered into by a private landowner

and a state agency in 1971, so as to deny Petitioner of its

property and contract rights in violation of the Constitu-

tional prohibition against laws impairing the obligations of

contract contained in Article 1, Section 10 of the U.S.

Constitution.

The Louisiana Court has not only given the Levee

Board a greater right than sought, but has used a valuation

date that is contrary to the U.S. Constitution and to the

statute under which the Levee Board has expropriated

these property rights.

The Court then valued that fee simple interest

without any evidence or expert testimony. The variety of

factual situations in the increasingly complex, and serious,

conflict between public necessity and private property, has

brought hundreds of cases before this Court. Patterns are

elusive and this Court has recognized the ad hoc nature of

many of its decisions. Therefore, it is submitted that Writ

review is required here under the Fifth and Fourteenth

Amendment, even if broarder significance than the present

incongruity and injustice cannot be articulated.

24

However, this expropriation case could have

significance beyond the egregious unfairness and constitu-

tional deprivations suffered by Petitioner. Many States

have statutes similar to those involved in this case. Lou-

isiana’s errant interpretation of these statutes may well in-

fluence other public bodies to emulate the expediency with

which the Levee Board effected a $2,000,000 windfall

against all logic, and against the statute itself. What State

or Federal agency would not be tempted to “tie up”

valuable property with consensual agreements to ex-

propriate that allow them 15 years of free use with no

greater risk than a retrospective evaluation? Even those

States with no counterpart of La.R.S.19:14 would be hard

pressed not to enact such a statute that allows a govern-

ment a real estate bonanza - 1985 property at 1971 prices!

This Court certainly cannot tolerate, much less en-

courage by its silence, such abuse of authority. Private pro-

perty is the backbone of our system, expropriation is a

recognized, but regrettable, necessity. The Fifth Amend-

ment exists to control, or make evenhanded and fair, the

exercise by government, State or Federal, of that power. If

this case stands, the two will be reversed and property

ownership will be treated as a privilege, helpless in the face

of unrestrained State action. Petitioner seeks the interces-

sion of this Court and the application of the protection af-

forded by that amendment to this abuse of the expropria-

tion process by a State agency and by the Louisiana courts.

Respectfully submitted,

BASILE J. UDDO

2211 Killdeer Street

New Orleans, LA. 70122

(504) 832-7204

Counsel of Record for Petitioner

25

Certificate of Service

Undersigned counsel for Petitioner certifies that ser-

vice of this Petition for Writ of Certiorari has been made

upon Counsel for Respondent this date by depositing three

copies hereof in the United States mail, first class postage

prepaid.

BASILE J. UDDO

ae ee ee oe

Asi

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A-l

APPENDIX A

THE BOARD OF LEVEE * NO. 90-CA-1490

COMMISSIONERS FOR THE

PORT OF NEW ORLEANS * COURT OF

APPEAL

versus * FOURTH

CIRCUIT

NEWPORT LIMITED, A * STATE OF

PARTNERSHIP IN LOUISIANA

COMMENDAM

** eK * *

APPEAL FROM CIVIL DISTRICT COURT,

PARISH OF ORLEANS

DIVISION “J”, NO. 85-21837

HONORABLE GEORGE C. CONNOLLY, JR., JUDGE

ses e¢ *& &

COURT OF APPEAL

FOURTH CIRCUIT

FILED

APR 16 1991

JUDGE DENIS A. BARRY

Author

ses ee &

A-2

(COURT COMPOSED OF JUDGE DENIS A. BARRY,

JUDGE DAVID R. M. WILLIAMS AND JUDGE

RUDULPH F. BECKER, III)

RICHARD J. McGINITY, JR., GENERAL COUNSEL

THE BOARD OF COMMISSIONERS OF THE

ORLEANS LEVEE DISTRICT

Suite 100, Administration Building

Lakefront Airport

New Orleans, Louisiana 70126

Attorney for Plaintiff/Appellee

M. ARNAUD PILIE

PILIE,PILIE and LANDRY

639 Loyola Avenue

2818 One Poydras Plaza

New Orleans, Louisiana 70113

Attorney for Defendant/Appellant

APR 16 1991

REVERSED

A-3

This Court previously considered the lengthy facts

underlying this expropriation suit. Board of Levee Com-

missioners v. Newport Limited, 517 So.2d 406 (La. App.

4th Cir. 1987), writs denied 521 So.2d 1152 (La. 1988).

In summary, on December 13, 1985 the Orleans

Levee Board sued Newport Enterprises and Newport

Limited (Newport) pursuant to La. R.S. 38:351, et seq. to

acquire title to 25.77 acres on which the Board had con-

structed a channel and flood control structure in 1974. The

Board deposited $113,388 in the Court’s registry as the

value of the property and $33,176 for severance damages to

an adjoining 15.08 acre tract. Newport withdrew the funds

and filed a reconventional demand for additional compensa-

tion. The Board moved to dismiss the entire proceeding on

the basis that the right to compensation was a personal

right of Newport’s ancestor in title which Newport did not

acquire when it purchased the property. The Board also

claimed that it had acquired the property by prescription.

The trial court characterized the Board’s motion to dismiss

as exceptions of no right of action and prescription. After

a hearing before a Commissioner the trial court granted the

exceptions and dismissed the suit.

This Court agreed that the claim had prescribed

under R.S. 19:2.1(B) and Brooks v. New Orleans Public Ser-

vice, 370 So.2d 686 (La. App. 4th Cir. 1979), writs denied

373 So.2d 512 (La. 1979), because the Board had occupied

the property for over two years. However, the Court, sua

sponte, held that the evidence overwhelmingly showed that

the Board had tacitly, if not expressly, renounced its

prescriptive rights, thereby creating a new obligation to

compensate the land owned. 517 So.2d at 410.

This Court remanded to determine whether Newport

or Seaway Land Company, Inc., Newport's ancestor in

A-4

title, was entitled to additional compensation for the ex-

propriated property and for a valuation of the land.

The matter was again referred to a Commissioner for

trial. The board amended the original petition to add

Seaway and its stockholders as parties and prayed for a

declaratory judgment that it was not liable for the 1971

taking; alternatively, that any liability be limited to the

$146,564 deposited in court. The Board argued that renun-

ciation of prescription is a donation prohibited under Arti-

cle 7, § 14(A) of the 1974 Constitution and that renuncia-

tion of prescription by an officer of a political subdivision

without specifit written authority is ultra vires and invalid.

The Commissioner found that Seaway had trans-

ferred to Newport whatever compensation rights it owned.

Seaway and its stockholders did not appeal.

The Commissioner stated that (contrary to the

reasoning of this Court) the State had no ‘“‘natural obliga-

tion’’ to pay for property after the claim prescribed, and

concluded that renunciation of prescription in favor of the

land owner by the Board was a prohibited donation under

Article 7 § 14(A). The Commissioner recommended that the

expropriation proceeding be dismissed. In the alternative,

he recommended that if Newport was entitled to compensa-

tion it should receive the same price per square foot that it

paid for the land in 1984.

The trial court adopted the Commissioner's recom-

mendation and dismissed the main and _ incidental

demands, but did not order Newport to return the money.

LAW OF THE CASE

Newport argues that the trial court erred by refusing

A-5

to treat our 1987 opinion (writs denied) as ‘‘the law of the

case’’ and by overruling Newport’s exceptions to the

Board’s Supplemental and Amending Petition for

Declaratory Judgment.

The ‘‘law of the case”’ is a policy by which an appellate

court will not, on a subsequent appeal, re-consider its

earlier ruling in the same case. That policy applies against

those who were parties to the case when the prior decision

was rendered and who had their day in court. Some reasons

for applying the policy are: avoiding indefinite re-litigation

of the same issue; obtaining consistent results in the same

litigation; fairness to both parties; and affording one oppor-

tunity for argument and decision of the matter at issue.

Gay v. Campbell-Grosjean Roofing & Sheet Metal Corp.,

256 So.2d 105 (La. 1971); Petition of Severage & Water

Board of New Orleans, 278 So.2d 81 (La. 1973). The law of

the case policy is discretionary.

THE 1985 EXPROPRIATION

Assuming, arguendo, that the Board did not re-

nounce prescription, on December 13, 1985 (date of the ex-

propriation petition) the property was subject to a Levee

Board servitude for the flood control structure and the lan-

downer’s right to compensation for the servitude had

prescribed. La. R.S. 19:14 and 19:2.1(B). Newport was the

record owner of the underlying property.

On that date the Board expropriated the property

pursuant to a resolution of its Commissioners. The filing of

the expropriation petition vested fee simple title to the

15.77 acres in the Board and the right of compensation to

Newport. La. R.S. 38:355. That acquisition was a separate

taking from the previously acquired servitude. Newport’s

right to be compensated for its fee simply interest had not

A-6

prescribed.

VALUATION

Newport assigns numerous errors as to valuation.

Esentially, it claims that the trial court did not follow

statutory procedures to determine just compensation.

Newport relies on R.S. 38:387 which provides in per-

tinent part:

A. The measure of compensation for the property

expropriated is determined as of the time the

estimated compensation was deporsited into the

registry of the court without considering any

change in value caused by the proposed imporve-

ment for which the property is expropriated.

B. The measure of damages, if any, to the defen-

dant’s remaining property is determined on a

basis of immediately before and immediately

after the expropriation taking into consideration

the effects of the compleetion of the project in the

manner proposed or planned.

C. The owner shall be compensated to the full ex-

tent of his loss.

If Section 387 is applicable, Newport is entitled to

receive the value of the property as of December 13, 1985,

the date the Levee Board deposited funds into court.

Section 387(A) applies when a levee district ex-

propriates property prior to constructing an improvement

on the property. It does not refer to an expropriation after

a project is completed.

A-7

In this instance, the Levee Board obtained posses-

sion of the property in 1971 and completed the flood con-

trol structure in 1974, eight years prior to Newport's pur-

chase of the property and eleven years before filing this

suit.

The flood control structure is a 25.77 acre channel

which severs 15.08 acres from the remainder of Newport’s

697.99 acre tract. Newport’s purchase price obviously

reflected the fact that the channel could not be developed

and the 15.08 acre section was accessible only by water.

We find no basis for Newport to claim damages for

construction of the channel. State Dept. of Highways uv.

Bitterwolf, 415 So.2d 196 (La. 1982). Nevertheless,

Newport must be compensated for the expropriation of its

fee simple interest. LSA-Const. Art. 1, § 4 and Art. 6, § 42.

We look to general statutory provisions on ex-

propriation to determine the proper valuation date. R.S.

19:14 provides in pertinent part:

In any case where the state or its political

corporation or subdivision has actually, in good

faith believing it had authority to do so, taken

possession of privately owned immovable proper-

ty of another, and constructed facilities upon,

under or over such property with the consent or

acquiescence of the owner of the property, such

owner shall be deemed to have waived his right to

contest the necessity for the taking and to receive

just compensation prior to the taking, but he

shall be entitled to bring an action for such com-

pensation, to be determined in accordance with

the provisions of Section 9 of this Title, for the

taking of his property or interest therein, the just

compensation to be determined as of the time

Aime

A-8

of the taking of the property, or right or interest

therein, and such action shall proceed as if the

state, its political corporation or subdivision had

filed a petition for expropriation as provided for

in Section 2.1 of this Title.

Section 14 refers to R.S. 19:9 to determine the com-

pensation for property on which the State or its political

corporation or subdivision has constructed facilities with

the consent or acquiescence of the owner.

R.S. 19:9 provides in pertinent part:

A. In estimating the value of the property

to be expropriated, the basis of assessment shall

be the value which the property possessed before

the contemplated improvement was proposed,

without deducting therefrom any amount for the

benefit derived by the owner from the con-

terplated improvement or work.

B. The owner shall be compensated to the

full extent of his loss. . .

Newport is entitled to receive the value of the proper-

ty as of May 21, 1971, the date on which Seaway granted

the Board a ‘Right of Entry’’ to construct a closure dam

and flood gates. A.K. Roy, Inc. v. Board of Commissioners

for Pontchartrain Levee District, 117 So.2d 60 (La. 1960).

Chenevert v. La. State Dept. Hwys., 345 So.2d 960 (La.

App. 4th Cir. 1977); Reddel v. La. State Dept. Hwys., 340

So.2d 1010 (La. App. 4th Cir. 1976). We would reach the

same valuation if we proceeded under the assumption that

the Levee Board had renounced its prescriptive rights.

The Board had submitted evidence that the-

A-9

reasonable value of the property and severance damage

sustained in 1971 equals $146,564, the amount deposited

when the expropriation petition was filed. Newport has not

contradicted that evidence. Newport has withdrawn those

funds.

ATTORNEYS FEES

Newport argues that it is entitled to reasonable at-

torneys fees under R.S. 38:387(E).

Section 387(E) is inapplicable because the amount

deposited in court is the same sum awarded herein.

The judgment of the district court is reversed. Each

party is to pay its own costs.

REVERSED

A-10

APPENDIX B-1

THE BOARD OF LEVEE NO. CA-7522

COMMISSIONERS OF THE

ORLEANS LEVEE DISTRICT COURT OF

APPEAL

VERSUS FOURTH

CIRCUIT

NEWPORT LIMITED, A STATE OF

A PARTNERSHIP IN LOUISIANA

COMMENDAM

a oa

APPEAL FROM THE CIVIL DISTRICT COURT

FOR THE PARISH OF ORLEANS

NO. 85-21837, DIVISION “J”

HONORABLE GEORGE C. CONNOLLY, JR., JUDGE

* * *

ROBERT L. LOBRANO

JUDGE

(Court composed of Judges Denis A. Barry,

Robert L. Lobrano and Charles R. Ward)

DEC 15 1987

RICHARD J. McGINITY

New Orleans, La. 70113

FOR PLAINTIFF-APPELLEE

JOHN M. WILSON

JULIE E. SCHWARTZ

Liskow & Lewis

New Orleans, La. 70139-5001

FOR DEFENDANT-APPELLANTS

REVERSED AND REMANDED.

A-11

This expropriation suit was filed by the Orleans

Levee Board against Newport Enterprises and Newport

Limited (Newport) seeking a certain 25.77 acre tract for

flood wall, floodgates and other flood control structures.

The Levee Board deposited the sum of $146,564.00 in the

registry of the Court pursuant to La. R.S. 38:351, et. seg.

and immediately acquired the rights to the 25 acre tract.

Newport reconvened seeking additional compensation.

Nine months later, the Levee Board filed a motion to

dismiss its own proceeding asserting that Newport did not

acquire its ancestor in title’s right to claim compensation;

and that, even if it did, those rights have prescribed. When

presented with this unusual procedural status, the trial

court characterized the motion as exceptions of no right of

action and prescription. After a lenghty hearing before a

court appointed commissioner, the trial court relying on St.

Julien v. Morgan, Louisiana and Texas Railroad Co., 35 La.

Ann 924 (1883) and La. R.S. 19:2.1 upheld both ‘‘excep-

tions’’ and dismissed this action. Newport appeals.

FACTS:

On May 21, 1971, Seaway Land Co. Inc., Newport’s

ancestor in title, granted the Levee Board a ‘‘Right of En-

try’’ to enter upon approximately 25 acres of its land for

the purpose of constructing a closure dam and flood gates

in the area of Bayou Bienvenue and the Mississippi River

Gulf Outlet.

Acting on the “Right of Entry”’ the U.S. Army Corps

of Engineers completed the project in September of 1974.

In addition to the authority granted to enter Safeway’s

property, the agreement also provided:

“It is agreed that negotiations will be entered in-

to promptly for the acquisition by the Board of

Levee Commissioners of the Orleans Levee

A-12

District of fee simple for the control structure

site, permanent easements for the channel and a

temporary area for placement of spoils, in the

lands upon which this right of entry is granted

under mutually satisfactory terms, or, if mutually

satisfactory terms cannot be agreed upon, that

the Board of Levee Commissioners of the Orleans

Levee District will take steps to acquire the in-

terest by condemnation procedure.”’

On June 12, 1982, Seaway sold its property, in-

cluding the 25 acre project area, to Newport. Up until that

time, no compensation for the taking had been paid to

Seaway, nor had any expropriation proceedings been in-

stituted. The cash sale was silent as to the transfer of

Seaway’s rights to claim compensation. On May 15, 1985

an Act of Correction and Clarification was executed bet-

ween Seaway and Newport which states that it was the in-

tention of Seaway to transfer all rights in and to the sub-

ject property, both real and personnal, to Newport. On

December 13, 1985 the Levee Board instituted these pro-

ceedings against Newport, which were ultimately dismiss-

ed on the Levee Board’s own motion.

Newport complains that:

1) Procedurally, the trial court erred in allowing

the Levee Board to proceed with a motion to

dismiss its own expropriation suit filed under

R.S. 38:351 et. seq.

2) The prescriptive plea under the St. Julien doc-

trine or R.S. 19:14 is not applicable to this case:

and alternatively, the Levee Board is estopped

from urging prescription.

3) The Court was in error in failing to consider

proffered evidence which clearly establishes a

transfer of Seaway’s rights.

—

A-13

4) The valuation of its property should be deter-

mined as of the date of the expropriation

proceedings.

PROCEDURAL POSTURE OF THE CASE

We admit, at first glance, the procedural posture of

this case is somewhat confusing. The Levee Board in-

stituted an expropriation suit pursuant to the authority

granted in R.S. 38:351, et. seq. It then filed a motion to

dismiss its own action claiming (1) the party defendant was

improper and (2) any claims for the compensation it

judicially admitted was due, was, in fact, not due because

of prescription.

The trial court, recognizing this perplexing dilemma,

treated the motion to dismiss as exceptions of prescription

and no right of action to the reconventional claim of

Newport for additional compensation. Presumably, if

Newport had not contested the adequacy of the compensa-

tion, those ‘‘exceptions’’ would be moot. However, as sug-

gested by Newport, a more proper procedural classification

of the motion to dismiss is a request for declaratory judg-

ment. When the Levee Board sought to dismiss its own ac-

tion on the grounds asserted, it, in effect, sought to have

the court declare whether Newport was entitled to compen-

sation for the 25 acres. Although presented in an unor-

thodox manner, these issues were determined by final judg-

ment. In the interest of judicial economy, we therefore ad-

dress those issues which were determined by the trial court

after a full evidentiary hearing.

PRESCRIPTION

Newport argues that the May 1971 agreement

granted the Levee Board only a right of entry to the sub-

ject property in order to construct a flood contol structure.

A-14

That in so doing, the Levee Board acquired no rights in the

property but that they (Levee Board) would, at some future

time, acquire those rights and compensate the landowner

therefor. Thus, they argue, a servitude was not acquired in

good faith, nor was there consent of the landowner, and

therefor, the St. Julien doctrine (R.S. 19:14) is inapplicable.

The case of St. Julien v. Morgan Louisiana and Texas

R.R.Co., supra, established the doctrine that a public or

quasi-public corporation with powers of expropriation

could acquire a servitude over the land of another without

legal expropriation if that landowner consented or ac-

quiesced. That doctrine, subsequently referred to as the St.

Julien doctrine, remained in our law until its short demise

in 1976. In Lake Inc. v. Louisiana Power & Light Co., 330

So.2d 914 (La. 1976), the Supreme Court recognizing the

conflict St. Julien presented with the provisions of our Civil

Code governing the creation of servitudes, overruled that

doctrine as it applied to discontinuous servitudes. Implicit

in that holding is the conclusion that St. Julien would apply

with respect to continuous servitudes as long as the time

limitations of the Civil Code were adhered to. Thus with

respect to continuous servitudes, St. Julien could be consis-

tent with the Civil Code.

In response to that decision, however, the Louisiana

legislature passed Act 504 of 1976. That act, codified at La.

R.S. 19:14, provides in pertinent part:

‘“‘In any case where the state or its political cor-

poration or subdivision has actually, in good faith

believing it had authority to do so, taken posses-

sion of privately owned immovable property of

another, and constructed facilities upon, under or

over such property with the consent or ac-

quiescence of the owner or the property, such

owner shall be deemed to have waived his right to

A-15

contest the necessity for the taking and to receive

just compensation prior to the taking, but he

shall be entitled to bring an action for such com-

pensation, to be determined in accordance with

the provisions of Section 9 of this Title, for the

taking of his property or interest therein, the just

compensation to be determined as of the time of

the taking of the property, or right or interest

therein, and such action shall proceed as if the

state, its political corporation or subdivision had

filed a petition for expropriation as provided for

in Section 2.1 of this Title.”’

Thus, the legislature’s quick response to the Lake

decision resulted in a statutorily created St. Julien doc-

trine, but without resolution of the conflicts with the Civil

Code noted in that decision. Even though Title III and

Title IV of our Civil Code, dealing with personal and predial

servitudes were amended and reenacted by Acts 1976, No.

103, and Acts 1977, No. 514, respectively, the conflicts

noted in Lake still exist. While R.S. 19:14 fails to specify

the length of time a public body must posess in order to

establish a servitude, Civil Code Article 742 provides that

an apparent servitude may be acquired by ten years

peaceable possession, in good faith and by just title, or thir-

ty years without title or good faith. The comment to Arti-

cle 544 suggests that a usufruct (personal servitude) may

be acquired by prescription. More probably, the servitude

sought by the Levee Board in this case is a right of use that

should be regulated by the prescriptive period of Article

742. La. C.C. Arts. 639 and 645.

Despite the legislature’s failure to reconcile the codal

conflicts, R.S. 19:14, as a legislative enactment, has equal

status with our codal provisions. Trustee Corp. v. Allen,

359 So.2d 715 (La. App. 4th Cir. 1978). And the enact-

ment’s failure to provide for a prescriptive period has

A-16

necessitated judicial interpertation of intent. This Court in

Brooks v. New Orleans Public Service, 370 So.3d 686 (La.

App. 4th Cir. 1979) writs denied 373 So.2d 512 (La. 1979),

held that the two year period set forth in R.S. 19:2.1(B) is

applicable. That provision provides:

‘‘All claims for property by, or for damages to the

owner caused by the expropriation of property

pursuant to R.S. 19:2 shall be barred by the

_ prescription of two years commencing on the date

on which the property was actually occupied and

used for the purposes of the expropriation.”’

This result was also suggested in the later case of Succes-

sion of Rovira v. Board of Commissioners, 418 So.2d 1382

(La. App. 4th Cir. 1982), writs denied 423 So.2d 1147 (La.

1982), although prescription was not applied because of

lack of notice to the owners.

Thus, the trial court, relying on the Brooks case and

its application of the two year limitation, held that the

landowner’s rights to compensation had prescribed.

The legislature, by statute created a method of

establishing a servitude by a public body or corporation,

with expropriation powers, not provided for in our Civil

Code provisions on creation of servitudes and requires

judicial interpretation to ‘“‘fill in the gaps’. The Brooks

case imposed the two (2) year period of R.S. 19:2.1(B) as the

appropriate prescriptive period. We question the wisdom of

that decision since it has been held that the two year period

only applies to claims for compensation after there has

been a legal expropriation. A.K. Roy, Inc. v. Board of Com-

missioners, 237 La. 541, 111 So.2d 765 (La. 1959);

Mississippi River Transmission Corp. v. Tabor, 757 F.2d

662 (5th Cir. 1985). We think the better reasoning would

have been to apply the rules established by our Civil Code.

A-17

However, because of the result we reach in this case, we

reluctantly follow the Brooks decision and apply the two

year prescriptive period.

Once the project was completed, presumably on

September 13, 1974 as evidenced by the letter of comple-

tion from the Corps of Engineers to the Levee Board, the

two year prescriptive period for the landowner to seek com-

pensation began to run. Factually, the evidence substan-

tiates the finding that the landowner consented to the con-

struction of the flood control structures. The May 1971

agreement acknowledges this consent, and certainly the

structure was visible to the landowner. And, the Levee

Board was in good faith in its belief that it had the authori-

ty to enter the property and construct the flood control

structure.

However, even though the prescriptive period

presumable had accrued on September 13, 1976, we find

the evidence overwelming that the Levee Board tacitly, if

not expressly, renounced this prescriptive plea and created

a new obligation to compensate the landowner.

Although the effect of the Brooks decision is the

creation of a servitude once the two year period has ac-

crued, in actuality that period is a liberative prescriptive

period. It bars any claims for compensation if not asserted

within two years from the date the property was actually

occupied.

Liberative prescription is a method of barring ac-

tions because of inaction for a period of time. La C.C. Art.

3447. A civil obligation of the debtor. La. C.C. Art. 1762;

Succesion of Aurianne, 219 La. 701, 53 So.2d 901 (La.

1951). The natural obligation may be sufficient cause for a

new promise, and thus a contract for its performance is

onerous. La. C.C. Art. 1761; Succession of Aurianne, supra.

A-18

Once prescription has accrued, it may be renounced.

La. C.C. Art. 3449 Renunciation may be tacit or express.

La. C.C. Art. 3450. ‘‘Tacit renunciation results from cir-

cumstances that give rise to a presumption that the advan-

tages of prescription have been agandoned.”’ Jd. It has been

held that a renunciation takes place only when the intent

to renounce is clear from either the words or actions or the

party in whose favor prescription had accrued. Corsey uv.

State Dept. of Corrections, 366 So.2d 964 (La. App. 1st Cir.

1978), reversed on other grounds, 375 So.2d 1319 (La.

1979). The promise to pay a debt after prescription accrues

creates a new obligation on the debtor. Service Parts Com-

pany v. Culpepper, 143 So.2d 498 (La. App. 2nd Cir. 1962),

citing Succession of Kugler, 23 La. Ann. 455.

As a result of various negotiations between Newport

and Levee Board concerning additional property needed for

continuation of the flood control projects, the Levee Board

sent a letter to Newport on December 11], 1984 which

stated:

‘The Levee Board acknowledges that it has been

negotiating with Newport toward settlement of

all claims between them relating to the effects of

the Lake Pontchartrain and Vicinity Hurricane

Protection Project, Chalmette Area Plan, upon

the Newport Reach. To this end, the Levee Board

today is executing a compromise-settlement

agreement with Newport disposing of the issue of

a levee servitude and temporary construction

easement and reserving the unresolved issues

concerning the construction and effects of the

Bayou Bienvenue Flood Control Structure and

Dock Area and Outfall Canal Area portion of the

Hurricane Protection Project. The Levee Board

acknowledges that some quantum is due Newport

for that construction and effects under prior right-

A-19

of-entry agreements. However, the Levee Board

and Newport have been unable to agree as to their

respective rights to, in and to ownership and use

of, the lands involved.

The Levee Board intends to institute judicial pro-

ceedings in a court of competent jurisdiction

within one year to resolve all such claims and

issues remaining between the parties.’’ (emphasis

added)

On the next day, December 12, 1984, Newport and the

Levee Board executed a Compromise and Settlement

Agreement relative to the acquisition of other levee ser-

vitudes and easements. That agreement provided, in part:

‘Levee Board Acknowledgement of Compensa-

tion and Reservation of Newport’s Right to Com-

pensation for Prior Flood Protection Project

Work. The Levee Board acknowledges that com-

pensation and/or damgages are due to Newport

under prior rights-of-entry for the lands involved

in or affected by work performed to date by the

Levee Board and/or by the Corps in the Flood

Control Structure and Dock Area and in the

Channel Area designated in Exhibit ‘A’.”’

in accordance with its letter of December 11, 1984,

and its acknowledgment that compensation was due

Newport for the subject property, the Levee Board in-

stituted these expropriation proceedings pursuant to La.

R.S. 38:351.

The above described actions of the Levee Board con-

vince us that any prescriptive plea they had was renounc-

‘ ed, at least tacitly, if not expressly. And further, their

natural obligation to compensate Newport became a civil

obligation by their agreement that compensation and/or

ee

A-20

damages were due for prior flood control work. At least

part of the cause, or reason for Newport entering the agree-

ment with the Levee Board was its recognition of

Newport’s right to compensation. The natural obligation is

sufficient cause for the agreement. The Levee Board cannot

now complain, after filing this expropriation suit, that

Newport’s rights have prescribed.

NEWPORT AS THE PROPER PARTY

The trial court concluded that the landowner’s right

to compensation is a personal right, and under Si. Julien it

does not pass with the transfer of land. There must be an

express transfer or assignment of that personal right. This

is a correct legal conclusion.

Admittedly, the cash sale to Newport on June 17,

1982 did not contain a transfer of those rights. However,

Newport offered in evidence an Act of Correction, dated

May 15, 1985, that expressly conveyed Seaway’s compen-

sation rights to Newport. The trial court held this docu-

ment to be invalid because the corporation had been

dissolved in 1983, and thus the resolution authorizing Mr.

Waters, the president, to execute the document, could not

authorize action on behalf of a dissolved corporation.

We find no error in this portion of the trial court’s

ruling. However, the trial court failed to consider

Newport’s argument that Mr. Waters, as the duly ap-

pointed liquidator, was, and is vested with the authority to

convey any assets of the dissolved corporation. And fur-

ther, after the case was submitted, but prior to the trial

court’s decision, Newport filed in the record, as a proffer,

a second act of correction dated November 17, 1986. That

document is purportedly executed by Mr. Waters in his

capacity as liquidator, rather than as president, and con-

A-21

veys Seaway’s right to compensation to Newport. Assum-

ing the authenticity of the document, it clearly supports a

transfer of the personal right to compensation.

Although the trial court allowed the additional

evidence as a proffer and did not consider same, we believe

judicial economy, and the unusual circumstances of this

case require a remand to determine if Newport is the legal

owner of Seaway’s right to compensation. Because we hold

that prescription does not bar the claim for damages, either

Seaway or Newport is the owner of that claim. It would

serve no useful purpose to dismiss the entire action only to

have the same issue litigated again in subsequent ex-

propriation procedings.

VALUATION

This issue was not heard by the trial court, and thus

is presented for the first time on appeal. We decline to ad-

dres this question until there is a ruling by the trial court.

DECREE

This matter is reversed and remanded to the trial

court for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

A-22

APPENDIX B-2

CIVIL DISTRICT COURT

FOR THE PARISH OF ORLEANS

STATE OF LOUISIANA

No. 85-21837 Division "’J’’(S)

THE BOARD OF LEVEE COMMISSIONERS

OF THE ORLEANS LEVEE DISTRICT

VERSUS

NEWPORT LIMITED, A PARTNERSHIP

IN COMMENDAM

JUDGMENT

This matter came before the Court on the recommen-

dation of the Commissioner and Judge ad Hoc. Opposition,

if any, being overruled and considering the law, the

evidence and the recommendation of the Commissioner;

IT IS ORDERED, ADJUDGED AND DECREED

that the main and incidential demands made in the above

styled lawsuit be, and hereby are, dismissed. All parties are

to bear their own costs.

JUDGMENT READ, RENDERED AND SIGNED IN

NEW ORLEANS, LOUISIANA this 25th day of May,

1990.

George C. Connolly, Jr.

JUDGE

A-23

CIVIL DISTRICT COURT

FOR THE PARISH OF ORLEANS

STATE OF LOUISIANA

No. 85-21837 Division ’’J’’(S)

THE BOARD OF LEVEE COMMISSIONERS

OF THE ORLEANS LEVEE DISTRICT

VERSUS

NEWPORT LIMITED, A PARTNERSHIP

IN COMMENDAM

STATEMENT OF THE CASE

See original recommendation incorporated herein.

Since a remand of this case took place, all stockholders of

Seaway Land Company, Inc., a corporation dissolved, were

joined as party litigants. Answers and other pleadings

were filed by them as below indicated.

FACTS AND OPINION

A brief description of the property involved and its location

is necessary to an understanding of the case. The area of

Newport's property consisting of 697 acres lies adjacient to

Paris Road, which connects Chalmette in St. Bernard

Parish with the Michoud area of Orleans Parish, at the high

rise bridge which spans the Intercoastal Waterway. The

Newport land is located to the east of such bridge and to

the south of the waterway. All of the lands are subject to

successive tidal overflow by high water caused by storms,

hurricanes, and east winds which drive water up the Inter-

coastal Waterway and the Mississippi River Gulf outlet

which Confluences with the waterway along its northmost

A-24

boundary. The land is bisected by Bayou Bienvenu, a

natural body of water which is also the parish line betwen

St. Bernard and Orleans.

The flood control structure built at the juncture of

Bayou Bienvenu and the Intercoastal Waterway is located

approximately one and one-half miles from the bridge and

is inaccessible by land, except when traversing the spoil

bank built up adjacent to the waterway and cutlet when

such were dug.

The instant matter, unlike the facts in Succession of

Rovira v. Board of Commissioners, 418 So. 2d 1382, writ

denied 423 So.2d 1147, the ‘‘Right of Entry”’ was specifical-

ly granted by the landowner, Seaway Land Company, Inc.,

to the Levee board for certain designated and described

areas and not as in Rovira, supra, by another public agency

(City of New Orleans) over ‘‘City property”’ without further

description, and where title to the property was in a ‘‘state

of utter confusion’’.

There is no question that the flood control structure

and channel were formed within the described areas of the

“Right of Entry’’ which was accepted by the Levee Board

on June 16, 1971. A Board of Directors resolution of

Seaway Land Company, Inc. empowered Mr. Arthur C.

Waters, its President, to ‘‘transfer to the (Levee Board)

without consideration”’ that same identified land in the

“Right of Entry’ and attachments forming part of it. Con-

sequently the lack of notice of the taking to the numerous

heirs as in Rovira is clearly not present in the instant

situation.

In the instant matter the Court of Appeal “‘reluctant-

ly’’ applied the two-year prescriptive period it had

previously not reluctantly applied in Brooks v. N.O.P.S.I.

>

A-25

370 So.2d 512 (La. 1979), and has effectively held that the

Levee Board’s right to the possession of the property in

question is unassailable, whether it be called, use, usufruct,

servitude, etc., and concurrently the landowner’s right to

compensation and/or damages prescribed ‘‘presumably”’ on

September 13, 1976.

The Court of Appeal went on to find that the Levee

Board ‘‘tacitly, if not expressly’’ renounced the liberative

prescription which it found fully accrued as of September

13, 1976 and that a ‘‘new obligation’ was created. The

court of Appeal held that a letter, dated December 11,

1984, by the then President of the Levee Board which

stated in part

“The Levee Board acknowledges that it has been

negotiating with Newport toward settlement of

all claims between them relating to the effects of

the Lake Pontchartrain and Vicinity Hurricane

Protection Project, Chalmette Area Plan, upon

the Newport Reach. To this end, the Levee Board

today is esecuting a compromise - settlement

agreement with Newport disposing of the issue of

a levee servitude and temporary construction

easement and reserving the unresolved issues

concerning the construction and effects of the

Bayou Bienvenue Flood Control Structure and

Dock Area and Outfall Canal Area portion of the

Hurricane protection Project. The Levee Board

acknowledges that some quantum is due Newport

for that construction and effects under prior

right-of-entry agreement. However, the Levee

Board and Newport have been unable to agree as

to their respective rights to, in and to ownership

and use of, the lands involved.

The Levee Board intends to institute judicial pro-

A-26

ceedings in a court of competent jurisdiction

within one year to resolve all such claims and

isues remaining between the parties.”’

together with the institution of this lawsuit, constituted a

renunciation of the fully accrued prescription in favor of

the Levee Board. In so finding it seems to infer that the

transfer for $2,247,826.40 to Newport for ‘‘serverance

damage’”’ to remaining land, after a ‘‘donation”’ of levee ser-

vitude not involved, also was ‘‘caused’’ by the Levee

Board’s acknowledgement of its ‘“‘natural obligation’’ to

pay for the flood control it fully acquired in 1976.

The Levee Board again asserted the prescription

defense.

In its decision on remand, the Court of Appeal

remanded ‘‘to determine if Newport is the legal owner of

Seaway’s right to compensation”’ and, if so, to determine

the valuation.

In furtherance of this, all of the stockholders of

Seaway were joined to determine the issue of the right of

Harcourt Waters, the Liquidator of Seaway to enter the

post facto corrections, etc. to include a transfer of its per-

sonal rights, if any, against the Levee Board to Hewport,

which took place subsequent to the final dissolution of

Seaway. The stockholders were joined and made no asser-

tion with respect to such actions by the liquidator and

would presumably be estopped from asserting any claims

in the future against the parties in this matter as a result

of their disavowal of interest filed herein.

In the absence of the stockholder participation, the

issue of whether Newport is the legal owner of Seaway’s

right to compensation (assuming such right exists), re-

A-27

mains unanswered. However, the stockholders inaction

compels the conclusion that H. Harcourt Waters, ex-

president and liquidator of Seaway, did, for no considera-

tion, transfer whatever latent, inchoate rights Seaway may

have had to Newport.

In its reassertion of the prescription defense held to

be “‘renounced”’ by the actions of the Levee Board, the

Levee Board points to Article 14(A) of the 1974 Constitu-

tion which states:

“14. Donation, Loan, or Pledge or Public Credit

Section 14. (A) Prohibited Uses. Except as other-

wise provided by this constitution, the funds,

credit, property, or things of value of the state or

of any political subdivision shall not be loaned,

pledged, or donated to or for any person, asocia-

tion, or corporation, public or private.”

The attention of the Court of Appeal was not

directed to this and such was not considered by it in its

previous ruling.

The ‘‘natural obligation’’ asserted by the Court of

Appeal is simply non-existant, since the land itself was in-

itially granted to Newport’s predecessor by the soverign,

and its recapture by the soverign would create no ‘‘natural

obligation’’. It would create a constitutional obligation

under Article 2, and Article 4 (note difference in appropria-

tion and expropriation, and which grants to authorities the

right to acquire by prescription, as in the instant case.)

In 1983 Art. 7, 14(B) of the Constitution of 1974 was

amended by adding (4) by the people of Louisiana to allow

the legislature to return ‘‘property’’, including ‘‘mineral

A-28

rights’’ to former owners divested of title by expropriation

or threat thereof when the ‘‘public and necessary”’ purpose

hasw ceased to exist. Lands in Caernarvon in Plaquemines

Parish are subject to the amendment. The preceding

subsections numbered (1) through (3) refer to funds, pen-

sions and bonds issued for payment of ‘‘public obligations

as provided by law....”’

The definition of a ‘natural obligation’”’ is found in

Article 1760 C.C. and in Article 1762 a prescribed ‘‘civil

obligation”’ is given as an example. If renunciation can be

legally and effectively done by either the state or a political

subdivision and/or its President by finding that a ‘‘naturai

obligation”’ gave rise to a yet new obligation, then the

funds and property of the state and its political subdivi-

sions would be subjected to the abuses inherent in our

system by each succeeding administration which could

each decide to undermine transactions settled conven-

tionally or by law by finding natural obligations which

create ‘‘new obligations’”’ then enforceable. Article 1761

clearly does not envision the judicial enforcement of

natural obligations. Neither does Article 2303 which pro-

hibits recovery of amounts paid onn a natural obligation.

The vagaries of natural obligations were added to the Civil

Code in 1984.

Renunciation was not discussed in the Constitu-

tional Convention of 1973 according to the indices of the

Verbatim Transcripts, XXXIII pages 67-84, 104-107,

XXXVIII pages 102, 103, and XXXIX pages 187, 188-189

and 198 in relation to Article 7, Section 14.

In enacting the sentence numbered four (4) to Article

7 of 14(B) of the 1974 constitution, the intent was to

preserve the assets of the state and its subdivisions which

have a public purpose in accordance with subsection A of

A-29

Article 4, supra. To suggest that upon renunciation a new

obligation is created does violence to the intent to protect

the assets (money and property) of the state from recogni-

tions by constitutionally unauthorized functionaries fin-

ding natural obligations as defined by such functionaries.

There is no question that Seaway, when it granted its

“right of entry’’ would receive seampland acreage which lie

outside of already existing levees. The Board of Directors

of Seaway in its authorization to Arthur C. Waters, its

President, clearly recognized this when it authorized a

“‘transfer....without consideration.”’

Indeed, the subsequent donation of levee right of

way by Newport to the Levee Board will, perhaps in the

distant future, avail future generations with the utility of

these lands.

It is therefore recommended that the main and in-

cidential demands be dismissed.

In order to prevent further unnecessary remands, if,

as is not recommended, a value of the lands is required that

value should be the per-square-foot value of the ground pur-

chased by Newport in 1984. This valuation would be ex-

tremely generous considering that the valuation should be

made as of September 13, 1976 when the claim of Seaport,

if any, prescribed.

A suggested form of Judgment is annexed.

March 15th , 1990

/s/ John M. Holahan

JOHN M. HOLAHAN

COMMISSIONER AND JUDGE

AD HOC

A-30

APPENDIX B-3

CIVIL DISTRICT COURT

FOR THE PARISH OF ORLEANS

STATE OF LOUISIANA

No. 85-21837 Division “ ” DOCKET

THE BOARD OF LEVEE COMMISSIONERS

OF THE ORLEANS LEVEE DISTRICT

VERSUS

NEWPORT LIMITED, A PARTNERSHIP

IN COMMENDAM

FILED:

DEPUTY CLERK

JUDGMENT

Trial on the Motion to Dismiss was heard on

November 10, 1986.

PRESENT: Richard J. McGinity,

Attorney for the Orleans Levee

Board

John M. Wilson

Julie E. Schwartz,

Attorneys for Newport Limited

and Newport Enterprises

When, after hearing the testimony of the witnesses,

the evidence and the arguments of counsel, the Court con-

sidering the law and the evidence to be in favor of the plain-

A-31

tiff as per the reason of the Commissioner-Judge ad Hoc

adopted hereby The Board of Levee Commissioners of the

Orleans Levee District, for the reasons contained in the

written opinion of this Court:

IT IS ORDERED, ADJUDGED AND DECREED

that the Motion to Dismiss be and the same is hereby

granted, dismissing the main action and all incidental ac-

tions, each party to bear its own costs.

Judgment read, rendered and signed in open court

this 20th day of November, 1986, at New Orleans,

Louisiana.

/s/ George C. Connolly, Jr.

JUDGE

APPROVED AND SUBMITTED:

/s/ John M. Holahan

JOHN M. HOLAHAN

COMMISSIONER

A-32

CIVIL DISTRICT COURT

FOR THE PARISH OF ORLEANS

STATE OF LOUISIANA

No. 85-21837 ’ Division *‘ ”’ DOCKET

THE BOARD OF LEVEE COMMISSIONERS

OF THE ORLEANS LEVEE DISTRICT

VERSUS

NEWPORT LIMITED, A PARTNERSHIP

IN COMMENDAM

FILED:

DEPUTY CLERK

REASONS FOR JUDGMENT

The Orleans Levee Board filed a Motion to Dismiss

its own action as well as the incidential actions of Newport

Limited and Newport Enterprises, who reconvened against

the Levee Board seeking additional compensation.

Although styled a motion to dismiss, plaintiff's mo-

tion as to defendant’s incidential demands is in effect an ex-

ception of no right of action and an exception of prescrip-

tion. The Court sustains both exceptions.

THE FACTS

On May 21, 1971, the prior landowner, Seaway Land

Co., Inc. gave the Levee Board written authority to enter

upon its property for the purpose of constructing a closure

dam and flood gates on marsh lands in the area of Bayou

A-33

Bienvenue and the Mississippi River Gulf Outlet in eastern

New Orieans.

Acting under the above authority. the Levee Board

and the U.S. Corps of Engineers constructed the Bayou

Bienvenu Control Structure which was completed in 1974.

According to the testimony of Mr. Harcourt Waters,

former President of Seaway Land Co., Inc., Seaway did not

at any time seek compensation for the land taken to build

the structure between May 21, 1971 until it sold the proper-

ty to defendants on June 17, 1982, a period of eleven years.

Defendants admit they purchased the property from

Seaway with full knowledge of both the existence of the

structure and that it was constructed with the consent of

Seaway, their ancestor in title.

NO RIGHT OF ACTION

Under the facts of this case, the court concludes that

the St. Julien doctrine is applicable. St. julien v. Morgan,

Louisiana and Texas Railroad Co., 35 La. Ann. 924 (1883).

Under St. julien, the landowner is limited to an action for

compensation for the value of the property taken.

This right to compensation is personal to the owner

of the land at the time the property right does not pass

with a transfer of the land and can be conveyed only by ex-

press transfer, assignment or subrogation. Gumble v. New

Orleans Terminal Co., 197 La. 439, 1 So.2d 686 (1941);

Brooks v. NOPSI, (4th Cir. 1979), 370 So.2d 686.

It is plaintiff’s contention that there was no valid ex-

press transfer of this personal right from Seaway to defen-

dants and, therefore, defendants have no right of action to

claim compensation. The court agrees.

A-34

In defense of plaintiff's contention, defendants pro-

duced a document dated May 15, 1985, that purported to

expressly convey Seaway’s right for compensation to

defendants. Said document was executed by H. Harcourt

Waters as President of Seaway, under authority of an alleg-

ed resolution passed at a regular meetng of the Board of

Directors of Seaway, and certified as true and correct by

the same Mr. Waters as Secretary of the corporation.

However, Mr. Waters testified that the corporation

was dissolved in 1983, almost two years before the pur-

porate transfer to defendants, and the evidence supports

this fact. (See Levee Board Exhibits Nos. 28 and 29). Mr.

Waters also testified that he was never Secretary of the

corporation. F'or these reasons, the court finds that the Act

of COrrection dated May 15, 1985, purportedly transferr-

ing the corporation’s personal right to compensation to

defendants is invalid.

Therefore, without an express transfer of Seaway’s

personal right of compensation to defendants, the court

holds that the defendants have no right of action to seek

compensation for the property taken by the Levee Board in

1971.

PRESCRIPTION

Although the court’s finding that the defendants

have no right to seek sompensation eliminates the necessi-

ty to rule on plaintiff's exception of prescription, it finds it

expedient to do so at this time.

In 1976, the Supreme Court partially overrulled the

St. Julien doctrine in Lake, Inc. v. L.P.& L. Co. (La. 1976)

A-35

330 So.2d 914.! As pointed out in Brooks v NOPSI, supra,

the state legislature reacted promptly to the Lake decision

by enacting L.R.S. 19:14 (Act 504 of 1976). In essence, this

statute reinstated the St. Julien doctrine and added to it a

prescriptive period of two years within the property owner

must make his claim for compensation, commending on the

date on which the property was actually occupied and used.

L.R.S. 19:2.1B.

Since prescriptive statutes are remedial, they apply

to all actions instituted after they became affective, even

though the cause of action arose prior to the statute’s

enactment. Lott v. Haley (4th Cir. 1978) 363 So.2d 1270;

Brooks v. NOPSI, supra. Accordingly, the two year

prescriptive period aplies in this case.

The undisputed evidence in the record shows that

work actualy commenced on February 10, 1972 when

bulldoxers entered upon the property and began construc-

tion. (Levee Board Exhibit No. 30).

In view of the fact that no action was taken by the

landowner to assert its claim for compensation, the Court

finds that the claim for compensation clearly prescribed on

February 10, 1974, being two years after the date the land

was actually occupied and used by the Levee Board. L.R.S.

19-2.1B.

! The decision is applied only prospectively and therefore has not effect

on this court's ruling as to no right of action.

A- 36

For the reasons aforesaid, the Motion to Dismiss is

granted.

New Orleans, Louisiana this 20th day of November,

1986.

/s/ George C. Connolly, Jr.

JUDGE

APPROVED AND SUBMITTED:

/s/ John M. Holahan

JOHN M. HOLAHAN

COMMISSIONER

A-37

APPENDIX C

COURT OF APPEAL, FOURTH CIRCUIT

STATE OF LOUISIANA

Clerk’s Office, New Orleans, May 9, 1991

DEAR SIR:

REHEARING WAS THIS DAY REFUSED

IN THE CASE ENTITLED

THE BOARD OF LEVEE NEWPORT LIMITED,

COMMISSIONERS FOR A PARTNERSHIP

THE PORT OF NEW IN COMMENDAM

ORLEANS v.

No. 90-CA-1490

Very truly yours,

DANIELLE A. SCHOTT

CLERK OF COURT

A-38

APPENDIX D

THE SUPREME COURT OF THE

STATE OF LOUISIANA

THE BOARD OF LEVEE COMMISSIONERS OF THE

ORLEANS LEVEE DISTRICT

VS. NO. 91-C - 1318

NEWPORT LIMITED, A PARTNERSHIP

IN COMMENDAM

IN RE: Newport Limited; Newport Enterprises; - Defend-

ant(s); Applying for Writ of Certiorari and/or Review; to

the Court of Appeal, Fourth Circuit, Number 90CA-1490;

Parish of Orleans Civil District Court Div. ‘‘J’’ Number

85-21837

September 6, 1991

Denied.

JCW

PFC

WFM

JLD

HTL

LFC

PH

Supreme Court of Louisiana

September 6, 1991

/s/_Ilegible

Clerk of Court

For the Court

A-39

APPENDIX E-1

TO: BOARD OF LEVEE COMMISSIONERS

OF THE ORLEANS LEVEE DISTRICT

The undersigned hereby grant to the board of Levee

Commissioners of the Orleans Levee District, and/or its

assigns, the right to immediately enter upon the

hereinafter described property for the purpose of construc-

ting the Bayou Bienvenue Control Structure, a feature of

the Lake Pontchartrain and Vicinity, Louisiana Project.

The lands in, on and to which this right of entry ap-

plies are described as follows:

Being all of those areas in Township 12 South,

Range 13 East, in Orleans Parish, Louisiana, shown on

U.S. Army Engineer District, New Orleans, Corps of

Engineers, Map File No. H-4-25131, Drawings 1

through 4, entitled ‘“‘Bayou Bienvenue Control Struc-

ture,’’ colored red for fee simple, green for perpetual

channel, and blue for temporary spoil areas, as a

means of easy identification, attached hereto and

made a part hereof.

The right of entry herein granted is transferable to

the United States of America for the purpose of construc-

tion of the aforesaid Bayou Bienvenue Control Structure.

It is agreed that negotiations will be entered into pro-

mptly for the accquisition by the Board of Levee Commis-

sioners of the Orleans Levee District of fee simple for the

control structure site, permanent easements for the chan-

nel and a temporary area for placement of spoils, in the

lands upon which this right of entry is granted under

A-40

mutually satisfactory terms, or, if mutually satisfactory

terms cannot be agreed upon, that the Board of Levee Com-

missioners of the Orleans Levee Distsrict will take steps to

acquire the interest by condemnation procedure.

It is further agreed that the value of the lands to be

acquired by the Board of Levee Commissioners of the

Orleans Levee District shall not be considered either

depreciated or enhanced by any construction, dredging or

deposit of spoils performed by the United States of

America, or its assigns, or by related Work by the Board

of Levee Commissioners of the Orleans Levee District, the

value of such lands to be considered as remaining as it is

at present and to be arrived at as though no construction,

dredging or deposit of spoils or other related works had

taken place.

This right of entry shall remain in full force and ef-

fect during the construction of the Bayou Bienvenue Con-

trol Structure, but shall not exceed a period of three (3)

years from the date construction begins or the lands herein

described have been acquired by the Board of Levee Com-

missioners of the Orleans Levee District.

Date of instrument: May 21, 1971

Seaway Land Company, Inc.

By /s/ Arthur C. Waters

Pres-

A-41

APPENDIX E-2

ORDERS TO PAY OR DEPOSIT

CIVIL DISTRICT COURT

FOR THE PARISH OF ORLEANS

STATE OF LOUISIANA

No. 85-21837 Division’ ”’ Docket

THE BOARD OF LEVEE COMMISSIONERS

OF THE ORLEANS LEVEE DISTRICT

VS

NEWPORT LIMITED, A PARTNERSHIP

IN COMMENDAM

FILED:

DEPUTY CLERK

PETITION FOR EXPROPRIATION

PURSUANT TO LSA R:S. 38:301

The petition of The Board of Levee Commissioners of

the Orleans Levee District, a subdivision of the State of

Louisiana, with its main office located at New Orleans,

Louisiana, respectfully represents:

I.

The property to be expropriated is situated entirely

in the Parish of Orleans and therefore is within the jurisdic-

tion and venue of this Court.

II.

The defendants, Newport Limited, a partnership in

commendam, whose s »le general partner is Newport Enter-

A-42

prises, a partnership is commendam, whose sole general

partners are C. Bronson Doyle and Donald W. Doyle, Jr.,

domiciled in this Parish and State, are the owners of the

property to be expropriated herein.

Iii.

The property to be expropriated is situated on the

south side of the Mississippi River Gulf Outlet (MRGO)

from the Inner Harbor Navigation Canal to Bayou Bien-

ville and from the MRGO to the Orleans Parish line. Said

property is to be used for flood structures, channels and

levee rights of way and constitutes 25.77 acres, all as more

fully described on Exhibit ‘‘A’’ annexed hereto and made a

part hereof.

VERIFIED

IV.

The reason and purpose for which the property is to

be expropriated is that in order to insure adequate flood

protection for that part of the Parish of Orleans known as

the Lower Ninth Ward, it is necessary to provide rights of

way for the construction of floodwalls, levees, navigation

and floodgate structures and channels in and upon the

above described area.

V.

The construction of said levee will be greatly con-

ducive to the public interest and safety and is an important

part of the overall flood and hurricane protection plan for

New Orleans East and particularly for that area on the

South side of the Mississippi River Gulf Outlet from the In-

ner Harbor Navigation Canal to Bayou Bienvenue and

from the Mississippi River Gulf Outlet to the Orleans

Parish boundary Line.

A-43

VI.

Of the total 25.77 acres expropriated, 1.74 acres is re-

quired for flood structures, 0.11 acres for dock structures,

19.09 acres for channels and 4.83 acres for levee rights

of way, all having a total value of $113,388.00. In addi-

tion thereto, defendant’s property consisting of a 15.08

acre tract more fully described in Exhibit ‘‘B’’ annexed

hereto, sustained severance damages in the amount of

$133,176.00. Therefore, the total amount due defendant is

$146,564.00, which amount is deposited herewith.

VII.

There are no buildings or improvements situated

wholly or partially on the property to be expropriated and

therefore petitioner desires and is entitled to enter upon

and take possession of said property as described in Ex-

hibit ‘‘A’’ upon the deposit of the estimated compensation

with the registry of the Court.

VIll.

Plaintiff annexes hereto the following documents:

1. Certified copy of the Resolution of Expropria-

tion marked Orleans Levee Board Exhibit “‘C’’.

2. A plan and survey of the property to be ex-

propriated and the work to be performed

thereon marked Orleans Levee Board Exhibit

a ae

3. Anitemized statement of the amount of money

estimated to be the full extent of the owner’s

loss, duly executed as required by law, marked

Orleans Levee Board Exhibit “E”’.

A-44

WHEREFORE, the petitioner prays that an order

issue herein directing petitioner to deposit the sum of

$146,564.00 in the registry of this Court and declaring that

the property described in Exhibit ‘‘A’’ annexed to this peti-

tion has been expropriated for flood structures, channels

and levee rights of way, and authorizing petitioner to enter

upon and take possession of said property immediately

upon said deposit being made.

Petitioner further prays that the defendant named

herein be served with a copy of the petition and order and

the clerk’s receipt for said deposit as well as a notice to said

petition has been expropriated according to law.

Petitioner further prays that, upon a final hearing

herein, there be judgment in favor of your petitioner fixing

a just amount of compensation to be paid to the person or

persons entitled thereto a sum not to exceed $146,564.00,

including severance damages of $33,176.00.

Petitioner further prays for all costs of these

proceedings.

Respectfully submitted:

RICHARD J. McGINTY

/s/ Illegible

GENERAL COUNSEL

THE BOARD OF LEVEE

COMMISSIONERS OF THE

ORLEANS LEVEE DISTRICT

24th Floor

225 Baronne Street

New Orleans, LA 70112

A-45

ORDER

Let the amount of the above estimate, to-wit, the

sum of $146,564.00, be deposited in the registry of this

Court’ it is hereby ordered that as of the time this deposit

has been made, the above described property as more fully

described in Exhibit ‘‘A’’, has been expropriated for levee

purposes as set out hereinabove.

New Orleans, Louisiana, this 23rd day of December,

1985.

/s/ — Illegible

JUDGE

PLEASE SERVE:

Newport Limited, through

Newport Enterprises, through

C. Bronson Doyle

and

Donald W. Doyle, Jr.

Suite 1980 Pan American Life Building

601 Poydras Street

New Orleans, LA 70130

12/23 1985

Received 146,564.00

7276

A Guillary

Clerk

A-46

MOTION #10-112084

RESOLUTION: #11-112084

BY: President Schneider

By Request

President Pro Tem Ross

November 20, 1984

RESOLUTION

WHEREAS, in order to insure adequate flood pro-

tection for the lower Ninth Ward and to comply with the

Board’s assurances of the Lake Pontchartrain Louisiana

and Vicinity Hurricane Protection Project, Chalmette Area

Plan, it is necessary to provide rights of way for the con-

struction of floodwalls, levees, navigation structure,

floodgate structure and associated channels on the south

side of the Mississippi River Gulf Outlet from the Inner

Harbor Navigation Canal to Bayou Bienvenue and from

the Mississippi River Gulf Outlet to the parish line as may

be required, and

WHEREAS, this section of levee not only protects

citizens of Orleans Parish but those of St. Bernard Parish

as we and

WHEREAS, for the past several years the Board has

attempted to negotiate amicably the acquisition of the pro-

perty required which efforts have been successful except in

the area east of Paris Road, and

CASE NO.

ORLEANS LEVEE BOARD

EXHIBIT NO. C

A-47

WHEREAS, further delay will seriously hamper and

delay the over-all project and will expose the entire area to

prolonged and unnecessary risk of flooding, and

WHEREAS, it is therefore necessary to obtain

possession at the earliest possible time and this requires

that the needed property be expropriated in accordance

with LRS 38:301 et. seq., and other laws as may be ap-

plicable in the premises.

BE IT HEREBY RESOLVED, That the Board of

Levee Commissioners of the Orleans Levee District, for the

purposes herein stated and in exercise of its duties and by

virtue of the powers vested in it by Louisiana Constitution

of 1974, Article 6, Sections 41 and 42, the Louisiana Revis-

ed Statutes and particularly LRS 38:301 et.seq., does

hereby expropriate all rights, title and servitudes as re-

quired in the premises of all properties not amicably ac-

quired prior to the filing of a Petition and Order of ex-

propriation and which properties are situated within the

area as set out on Orleans Levee Board Drawing No. 61 C

14 latest revision November, 1984, and described as

follows:

Commencing at the intersection of Bayou

Bienvenue and the Inner Harbor Navigation

Canal thence in a northerly direction to the begin-

ning of the Mississippi River Gulf Outlet thence

along the Mississippi River Gulf Outlet in an

easterly direction to Bayou Bienvenue thence in a

westerly direction along the north bank of Bayou

Bienvenue to the point of beginning.

BE IT FURTHER RESOLVED, That the President,

President Pro Tem or Managing Director, are hereby

authorized and directed to proceed with said expropriation

A-48

and to deposit with the registry of the proper court, that

amount of money as may be determined to be the fair value

of said property, all in accordance with the law.

AYES: Commissioners Ross,

Barthelemy, Ducote,

hammond, Talbot, Uddo

NAYS none

ABSENT: none

RESOLUTION ADOPTED: yes

YHE FOREGOING IS CERTIFIED TO

BE A TRUE AND CORRECT COPY.

/s/ H. B. Lansden

H. B. LANSDEN, SECRETARY

THE BOARD OF LEVEE COMMIS-

SICNERS OF THE ORLEANS

LEVEE DISTRICT

CASE NO

ORLEANS LEVEE BOARD

EXHIBIT NO. C

-

A-49

November 20, 1985

The Board of Levee Commissioners

Orleans Levee District

Lakefront Airport

New Orleans, LA 70126

Re: Chalmette Loop Levee

South Side MRGO also

Bayou Bienvenue Control Structure,

Newport Enterprises Property

Appraisals

Gentlemen:

Pursuant to your request dated November 7, 1985 for

valuations of ‘‘Perpetual Easements for Bayou Bienvenue

Control Structure’”’ based on revised figures recently given

to us, we hereby submit our ‘‘Certification of Fair Market

Value.”

The date of valuation pertaining to ‘“‘Levee Right of Way

and Bayou Bienvenue Control Structure” is as of October

13, 1971.

The undersigned appraisers have made a personal and

careful inspection of the property identified above, and

have thoroughly investigated and analyzed matters to the

estimation of value of same. The purpose of this appraisal

is to estimate the total value which includes the Fair

Market Value of the subject properties, and the “‘just com-

pensation”’ due the property owners.

The term ‘‘Market Value’”’ as used herein is defined as the

highest price, estimated in terms of money, which the sub-

ject property will bring if exposed for sale with a

A-50

reasonable time allowed for finding a purchaser buying

with a knowledge of all the uses to which it is best adapted,

and for which it is capable of being used. The term “‘just

compensation”’ as used herein is defined as the highest

price estimated in terms of money, to which the owner is

entitled to, for the taking, including severence and conse-

quential damages, where applicable.

By reason of our investigation, we are of the opinion that

the value of the following tracks are as follows:

CASE NO

ORLEANS LEVEE BOARD

EXHIBIT NO. E

1222 Broadway * New Orleans, Louisiana 70118 ¢ (504) 861-8034

A-51

The Board of Levee Commissioners

Re: Chalmette Loop Levee

November 20, 1985

Page 2

BAYOU BIENVENUE

CONTROL STRUCTURE

Date of Valuation, October 13, 1971

PERPETUAL EASEMENT

AD LEVEE R/W $113,388.00

(25.77 acres)

SEVERANCE DAMAGE 33,176.00

(Island Area 15.08 acres)

“Just Compensation” $146,564.00

TOTAL VALUE $146.564.00

We hereby certify that we have no monetary interest, pre-

sent or contemplated, in the property and that neither the

employment to make the appraisal, nor the compensation,

is contingent on the value of the herein appraised property.

We further certify that we have personally inspected the

property and according to our knowledge and belief, all

statements and information in this report are true and

correct.

A-52

Respectfully submitted,

/s/ W. John Tessier

W. John Tessier,

I.F.A.S. APPRAISER

/s/ C. J. Tessier, Jr.

C. J. Tessier, Jr.,

CO-APPRAISER

/s/ Bert M. Cass, Sr.,

Bert M. Cass, Sr.,

M.S.A. APPRAISER

CASE NO.

ORLEANS LEVEE BOARD

EXHIBIT NO. E

BERT M. CASS,SR.eREAL ESTATE BROKER-APPRAISER