Petition for Writ of Certiorari — DeSambourg v. Plaquemines Parish Government

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1A Luprata Court, U.S,

| . MILES

93-889 | DEC ~ 1 1993

No. 93-___ | DFE OF i = tit |

In The

Supreme Court of the United States

October Term, 1993

Warren deSambourg, Mary Burns deSambourg, Albert

L. Schell, Jr., Rosalie Elizabeth Tilloy Schell, Sadie

Perino, Joseph Perino, Joann Perino, Linda Perino,

Charles Mancuso, Angelina Licciardi Mancuso, Joseph

Seibert, Sr., Mary Sciambra Seibert, Marie Elena

Melerine, Anthony LaGreco, Jr., Salvadore DiCarlo,

Emile LaGreco, Joseph LaGreco, Linda Ann Mustacchia

LaGreco, Edmond E. Himel, Jr., Erica J. Himel Heier,

and Henry G. Heier,

Petitioners,

VS.

The Plaquemines Parish Government, State of Louisiana,

Respondent.

Petition For A Writ Of Certiorari

To The Louisiana Supreme Court

— +

PETITION FOR A WRIT OF CERTIORARI

Mack E. BARHAM,

Counsel of Record

Rosert E. ARCENEAUX

MattHew K. Brown

BARHAM & ARCENEAUX, A PLC

650 Poydras Street, Suite 2700

New Orleans, LA 70130

Telephone: (504) 525-4400

Attorneys for Petitioners

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

OR CALL COLLECT (402) 342-2831

QUESTION PRESENTED

Can Louisiana take riparian landowners’ property

located above the ordinary high water mark of a river as

defined by federal law, and far removed from the “bed”

of the river, without payment of just compensation by

simply redefining the “ordinary high water” of a river so

as to relocate the ordinary high water mark well above

lands that are subject only to periodic overflow simply in

order to come within the “batture” exception to the Fifth

and Fourteenth Amendments?

PARTIES BELOW

Petitioners, Warren deSambourg, Mary Burns deSam-

bourg, Albert L. Schell, Jr., Rosalie Elizabeth Tilloy Schell,

Sadie Perino, Joseph Perino, Joann Perino, Linda Perino,

Charles Mancuso, Angelina Licciardi Mancuso, Joseph

Seibert, Sr., Mary Sciambra Seibert, Marie Elena Melerine,

Anthony LaGreco, Jr., Salvadore DiCarlo, Emile LaGreco,

Joseph LaGreco, Linda Ann Mustacchia LaGreco,

Edmond E. Himel, Jr., Erica J. Himel Heier, and Henry G.

Heier, were plaintiffs-appellants in the proceedings

before the Louisiana Supreme Court.

Respondent, the Plaquemines Parish Government,

State of Louisiana, was defendant-appellee in the pro-

ceeding before the Louisiana Supreme Court. The Board

of Commissioners of the Grand Prairie Levee District,

Parish of Plaquemines, State of Louisiana, was the origi-

nally named defendant. During the pendency of this suit,

the Levee Board was succeeded by the Plaquemines Par-

ish Government, which assumed the Levee Board’s

powers and obligations. The Plaquemines Parish Govern-

ment was substituted for the Levee Board, and the cap-

tion of the suit was changed to reflect this correction.

However, the Louisiana Supreme Court’s caption failed

to reflect the amendment. A motion is presently pending

with that court, seeking correction of the caption of the

case.

TABLE OF CONTENTS

Page

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EDs + ceca e'cneseeseessccesscses iil

rr er sso 5 cs ccck satecececcesese iv

EE Ee discs ccecseccscdansevesses ]

STATEMENT OF JURISDICTION................... 2

CONSTITUTIONAL AND STATUTORY PROVI-

ei ih boo Sey sek deat eadvieuneees 2

DRPReMEEESE GPE BEBE CASE... wc ccc cccscescccsess 4

REASONS WHY THE WRIT SHOULD BE GRANTED

PPT CCE CCC CU he cebGebdavenTs eecccesecesecesces 1]

TABLE OF AUTHORITIES

Page

Cases

101 Ranch v. United States, 714 F.Supp. 1005

(D.N.D.), aff'd, 905 F.2d 180 (8th Cir. 1990)........ 12

A. K. Roy v. Board of Commissioners, 238 La. 926,

SEF See We CH. bcc cen kedweskeundcobeutoswant 23

Alabama v. Georgia, 64 U.S. (23 How.) 505, 16 L.Ed.

INT a5 os us woh vae bes dees keene dees 25

Belmont v. Umpqua Sand & Gravel, Inc., 373 Or. 581,

542 P.2d 884 (1975)........ SORBET DUP PAR bate 23

Board of Trustees of Internal Imp. Trust Fund v.

Walker Ranch General Partnership, 496 So.2d 153

(Fla. App. 1986), review denied, 504 So.2d 766

Ge ES ican cu Ce ok coke ee cee eae Ca eees 24

Bonelli Cattle Co. v. Arizona, 414 U.S. 313, 94 S.Ct.

ee ee E> Ss 11, 13, 21, 29

Borax Consolidated, Ltd. v. Los Angeles, 296 U.S. 10,

— i ee Re: | errs ee 14, 15

Borough of Ford City v. United States, 345 F.2d 645

(3rd Cir. 1965), cert. denied, 382 U.S. 902, 86

Se Re ek Be | eee 23

Boyce Cottonseed Oil Manufacturing Co. v. Board of

Commissioners, 160 La. 727, 1107 So. 506 (1925)..... 6

Buttrey v. United States, 573 F. Supp. 283 (D. La.

ls oi inte ats asada ual i ene ee ae tae 23, 26

California ex rel. State Lands Commission v. United

States, 457 U.S. 273, 102 S.Ct. 2432, 73 L.Ed.2d 1

SNS 606 6cb a sense ce ewes PPP Tee TT TT ORO T Eee 15

Cinque Bambini Partnership v. State, 491 So.2d 508

(Miss. 1986), aff’d sub nom. Phillips Petroleum

Co. v. Mississippi, 484 U.S. 469, 108 S.Ct. 791, 98

Oe hg). SP rie es ee 15

TABLE OF AUTHORITIES - Continued

Page

Corp. of Presiding Bishops of the Church of Jesus

Christ of the Latter-Day Saints v. Hodel, 637

F.Supp. 1398 (D.D.C. 1986), aff'd, 830 F.2d 374

(D.C. Cir. 1987), cert. denied, 486 U.S. 1015, 108

S.Ct. 1752, 100 LiG2e ZUG CEFGO) 6 ness cscoccseess 21

Dickson v. Board of Commissioners of Caddo Levee

District, 26.Go. 2G GBG GLA. TRGB). ccc ccscecacesses> 5

Edmiston v. Woods, 566 So.2d 673 (La. App. 2d Cir.

PP eer er rr. rrr error ry rT yer 23

Eldridge v. Trezevant, 160 U.S. 452, 16 S.Ct. 345, 40

Lid: 200 GHGDGS i a oe icc deaecavigedoesags 5, 16, 17, 18

General Box Co. v. United States, 351 U.S. 159, 76

S.Ct. 726, 100 L.Bd.2d 1502 (1956) .......00ess0: 6, 16

Gibson v. United States, 166 U.S. 269, 17 S.Ct. 578,

OO Lidl. GO Cae ac seco ev ancnssecnectepssdacenns 18

Gollatte v. Harrell, 731 F.Supp. 453 (S.D. Ala. 1989) ..20, 29

Hayes v. Arkansas, 496 S.W.2d 372 (Ark. 1973) ....... 24

Heckman Ranches, Inc. v. Idaho, 99 Idaho 993, 589

PI SOD CAST ice bvie hanustnecnsaetease ess 23

Howard v. Ingersoll, 54 U.S. (13 How.) 381, 14 L.Ed.

189 (1851)...... eee tence een eeesenees 22, 23, 24, 2

In re Matter of Devil’s Lake, 423 N.W.2d 141 (N.D.

DOOD kp cxevcneendss 44900 400d eterna 23

]. P. Furlong Enterprises, Inc. v. Sun Expioration and

Prod. Co., 423 N.W.2d 130 (N.D. 1988) ............ 12

Kelly’s Creek & Northwestern R. R. Co. v. United

Sisies, 160 Ch. Ca. Fe CEG e ee oc eee redvestpcedeicgs 27

TABLE OF AUTHORITIES — Continued

Page

Lake Providence Port Com'n v. Bunge Corporation,

193 So.2d 363 (La. App. 2d Cir. 1966), writ

denied, 195 So.2d 147 (1967). ..........-.00 eee eee. 16

McCormick Oil & Gas Corp. v. Dow Chemical Co.,

489 So.2d 1047 (La. App. Ist Cir. 1986) ........... 13

Mobil Oil Corporation v. Coast Petroleum Co., 671

F.2d 419 (11th Cir. 1982), cert. denied, 459 U.S.

970, 103 S.Ct. 300, 74 L.Ed. 2d 281 (1982)......... 15

Montana v. United States, 450 U.S. 544, 101 S.Ct.

1245, 67 L.Ed.2d 493 (1981)................000005. 12

Municipality No. 2 v. Orleans Cotton Press, 18 La.

EAR CRORE) oc ccnccaccccctccesesepndecausesuneseeses 16

Oklahoma v. Texas, 258 U.S. 574, 42 S.Ct. 406, 66

LUG. F7E CEG < vc cucssudecuscoucsqusseusaceseess 12

Oklahoma v. Texas, 260 U.S. 606, 43 S.Ct. 221, 67

RR: 2): Perr ee ee 12, 22, 25

Oregon ex rel. State Land Beard v. Corvallis Sand &

Gravel Co., 429 U.S. 363, 97 S.Ct. 582, 50 L.Ed.2d

SSO (IGT T Dove ccccscccccdaccencacesuésecusanses passim

Parish of Jefferson v. Universal Fleeting Co., 234

So.2d 88 (La. App. 4th Cir. 1970) ................. 16

Peterson v. Morton, 465 F. Supp. 986 (Nev. 1979),

rev'd on other grounds, 666 F.2d 361 (9th Cir.

BOGE. cs vcccscccuccesssncstesssseuaeebenssesiavena 23

Phillips Petroleum Co. v. Mississippi, 484 U.S. 469,

108 S.Ct. 791, 98 L.Ed.2d 877 (1988)............... 15

Pollard’s Lessee v. Hagan, 44 U.S. (3 How.) 212, 11

S008. SED CORE cin cnecccesechoncecussecanswabene. 12

Ramsey River Road Property Owners v. Reeves, 396

So.Bh GS GS. WBE) oo xcdcddssctaessvecceuvneneces 13

vii

TABLE OF AUTHORITIES —- Continued

Page

Shivley v. Bowlby, 152 U.S. 1, 14 S.Ct. 548, 38

L.Ed.2d 331, 352 (1094)... cccccccccsccccccess » i

Siebert v. Conservation Commission of Louisiana, 181

La. 237, 159 So. 375 (1935). .......-2eeecceeeeecee: 23

Sotomura v. Hawaii County, 460 F.Supp. 473 (D.

8 a Prrrrrrrrr rT Trrircrrrree eee 21

South Dakota Wildlife Federation v. Water Manage-

ment Board, 382 N.W.2d 26 (S.D. 1986) ...........-. 23

State v. Barras, 615 So.2d 285 (La. 1993)............. 25

State v. Cockrell, 162 So.2d 361 (La. App. 1st Cir.

1964), writ denied, 164 So.2d 350 (La. 1964)........ 23

State v. Placid Oil Company, 300 So.2d 154 (La.

1974), cert. denied, 419 U.S. 1110, 95 S.Ct. 784

GRGPUR do vcccccccccccccssesescccceseeseeces vadonsas 28

State v. Richardson, 140 La. 329, 72 So. 984 (1916) ...10, 23

Tenneco Oil Co. v. Board of Commissioners of the Lake

Borgne Levee District, 567 So.2d 113 (La. App.

4th Cir. 1990), writ denied, 569 So. 2d 989 (La.

Ns 5 hachesecocesssduadnadastnuscskseneseseenesa 19

Terrebonne v. South Lafourche Tidal Control Levee

District, 445 So.2d 1221 (La. 1984) .............. 6, 18

Theisen v. Gulf, F. & A. Ry. Co., 78 So. 491 (Fla.

PFET Pwinws cdc csscsnccscccveccsssctices fotubaceobanes 13

United States v. Cameron, 466 F. Supp. 1099 (D.C.

Pie, BEGG 2 dine cece ceccccccsnscscccesctecsocceses 22, 23

United States v. Chicago, M., St. P. & P.R. Co., 312

U.S. 592, 61 S.Ct. 772, 85 L.Ed. 1064 (1941) ....... 18

United States v. Claridge, 279 F. Supp. 87 (D. Ariz.

1967), affirmed, 416 F.2d 933 (9th Cir. 1969), cert.

denied, 397 U.S. 961, 90 S.Ct. 994, 25 L.Ed.2d 253

CRUD o vc dccsccrcecnseconstecesscasescscudédncedsace 26

—

Vili

TABLE OF AUTHORITIES - Continued

Page

United States v. Harrell, 926 F.2d 1036 (11th Cir.

Ns 5 kc 0.bb0 spe devecnssshssbsudshonanas ddanseades 26

United States v. Kansas City Life Ins. Co., 339 U.S.

799, 70 S.Ct. 885, 94 L.Ed. 1277 (1950) ......... 12, 20

United States v. Pend Oreille Public Utility Dist. No. 1,

926 F2d 1502 (9th Cir. 1991), cert. denied, ____ U.S.

__, 112 S.Ct. 415, 116 L.Ed.2d 436 (1991)...... 25, 26

United States v. Rands, 389 U.S. 121, 88 S.Ct. 265, 19

Oe Oe BU i ee ie, 3 18, 20 j

United States v. Virginia Electric and Power Co., 365

U.S. 624, 81 S.Ct. 784, 5 L.Ed.2d 838 (1961)... .18, 20

United States v. Willow River Power Co., 324

U.S.499, 65 S.Ct. 761, 89 L.Ed. 1101 (1945) ..... 12, 20

Utah Division of State Lands v. United States, 482

U.S. 193, 107 S.Ct. 2318, 96 L.Ed.2d 162 (1987).... 11

Vieux Carre Property Owners v. Brown, 875 F.2d 453

(5th Cir. 1989), cert. denied, 493 U.S. 1020, 110

SAL. 720, WF L.EGAG 7359 (UGGE pe oc ccna sacssseces a

Webb's Fabulous Pharmacies, Inc. v. Beckwith, 449

U.S. 155, 101 S.Ct. 446, 66 L.Ed.2d 358 (1980)..... 16

Wemple v. Eastham, 150 La. 247, 90 So. 637 (1922) 22, 28

Williams v. Adkinson, 792 F.Supp. 755 (M.D. Ala.

1992), affirmed, 987 F.2d 774 (11th Cir. 1993)....... 21

Willis v. United States, 50 F.Supp. 99 (W. Va. 1943) .... 27

Wisconsin v. Trudeau, 139 Wisc. 2d 91, 408 N.W.2d

337 (1987), cert. denied, 484 U.S. 1007, 108 S.Ct.

Fag Tee ee A IR oo bed tbe cdecdiabudsdass 23

Yee v. Escondido, ___ U.S. __, 112 S.Ct. 1522, 118

en oon ce vaeb bee pueadetanrso 16

TABLE OF AUTHORITIES —- Continued

Page

STATUTES

Coe CORRE CHa, Me GS hig occ ces ec ccecececivens 17

a. Cow, Coe Cian, SUe BOG 2 ccc ccc cctcnccdscas 25

La. Ciw. Code (1670), artiche 467 2. ccc cect ceccvcses 25

La. Civ. Code (1978), article 456 ............. 13, 25, 28

Re Be” 8: rrr rr errr 28

La. Cov. Cote CiS7G), GRUCHE GED nw ccc cccesacuces 3

La. Const. (1974), Article 6, Section 42......... 3, 5, 18

Ne Se re er ee eer ere. 6, 18, 19

es a PE 5 ok hehehe ases caved seen cand weed 2

US. Comat., PHU AGWOMGMOME 2666s ceccsccnes passim

U.S. Const., Fourteenth Amendment............. passim

OTHER

1 Corp. Jur. Civ. 831, lib. 43, tit. 12 §§ 2 and 5...... 24

1 Planiol, Treatise on the Civil Law (12th ed. 1939,

Pe sr ge oe 8 re reer rer 24

2 Aubry & Rau, Droit Civil Francais (La. St. Law

ns I I re Share Oe ear eas wees won e se 24

A. N. Yiannopoulos, 2 Louisiana Civil Law Treatise —

a Ss ere reer rrr es » a

A. N. Yiannopoulos, 4 Civil Law Treatise — Predial

Servitudes (La. State Law Inst. 1983) .............. 18

Curke Phllipglne, 254 occ cicccecisisccsenssicccness: 24

In re Land in New Orleans, Called the Batture, 17

Papas. Te. FOOTR Fi CAN as cos canes nc ceicaasass 24

TABLE OF AUTHORITIES - Continued

Page

CS DUPRE PUN os kins a rs cee khsosesdaad sense atedas 17

Maloney, The Ordinary High Water Mark: Attempts

at Settling an Unsettled Boundary Line, 13 Land

and Water Law Rev. 1 (1978) ..................... 21

Patton on Land Titles (2d ed. 1957 and Supp.) ....... 12

No. 93-___

In The

Supreme Court of the United States

October Term, 1993

g, Mary Burns deSambourg, Albert

L. Schell, Jr., Rosalie Elizabeth Tilloy Schell, Sadie

Perino, Joseph Perino, Joann Perino, Linda Perino,

Charles Mancuso, Angelina Licciardi Mancuso, Joseph

Seibert, Sr., Mary Sciambra Seibert, Marie Elena

Melerine, Anthony LaGreco, Jr., Salvadore DiCarlo,

Emile LaGreco, Joseph LaGreco, Linda Ann Mustacchia

LaGreco, Edmond E. Himel, Jr., Erica J. Himel Heier,

and Henry G. Heier,

Warren deSambourg

Petitioners,

VS.

The Plaquemines Parish Government, State of Louisiana,

Respondent.

Petition For A Writ Of Certiorari

To The Louisiana Supreme Court

PETITION FOR A WRIT OF CERTIORARI

Petitioners respectfully pray that a writ of certiorari

issue to review the opinion and order denying rehearing

of the Louisiana Supreme Court entered on July 2, 1993

and September 2, 1993, respectively.

OPINIONS BELOW

The Judgment and Reasons for Judgment of

the Twenty-Fifth Judicial District Court, Parish of

Plaquemines, State of Louisiana, dated July 8, 1991, and

June 26, 1991, respectively, are unreported and are

reprinted as Appendices “B” and “C,” infra.

The Opinion of the Louisiana Fourth Circuit Court of

Appeal dated November 13, 1992, is reported at 608 So.2d

1100, and is reprinted as Appendix “D,” infra.

The Opinion of the Louisiana Supreme Court dated

July 2, 1993, is reported at 621 So.2d 602, and is reprinted

as Appendix “A,” infra. The order of the Louisiana

Supreme Court dated September 2, 1993, denying rehear-

ing is reprinted as Appendix “E,” infra.

STATEMENT OF JURISDICTION

The opinion of the Louisiana Supreme Court was

entered on July 2, 1993. A timely Application for Rehear-

ing was filed, and was denied on September 2, 1993. The

time in which this Petition may be filed therefore extends

to and includes December 1, 1993, and this Petition is

timely. Jurisdiction in this Court is invoked under 28

U.S.C. § 1257(a).

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

The Fifth Amendment to the U.S. Constitution pro-

vides in pertinent part:

No person shall be . . . deprived of life, liberty,

or property, without due process of law; nor

shall private property be taken for public use,

without just compensation.

The Fourteenth Amendment to the U.S. provides in

pertinent part:

[No State shall] deprive any person of .. .

property without due process of law.

Article 6, Section 42 of the Louisiana Constitution

provides as follows:

(A) Compensation. Notwithstanding any con-

trary provision of this constitution, lands

and improvements thereon hereafter actu-

ally used or destroyed for levees or levee

drainage purposes shail be paid for as pro-

vided by law. However, nothing contained

in this Paragraph with respect to compen-

sation for lands and improvements shall

apply to batture or to property the control

of which is vested in the state or any politi-

cal subdivision for the purpose of com-

merce. If the district has no other funds or

resources from which the payment can be

made, it shall levy on all taxable property

within the district a tax sufficient to pay

for property used or destroyed to be used

solely in the district where collected.

(B) Appropriation. Nothing in this Section

shall prevent the appropriation of such

property before payment.

Section 301(C)(1)(a) of Title 38 of the Louisiana

Revised Statutes provides in pertinent part:

All lands, exclusive of batture, and improve-

ments hereafter actually taken, used, damaged,

or destroyed for levee or levee drainage pur-

poses shall be paid for at fair market value to

the full extent of the loss.

Louisiana Civil Code article 665 provides:

Servitudes imposed for the public or com-

mon utility, relate to the space which is to be left

for the public use by the adjacent proprietors on

the shores of navigable rivers, and for the mak-

ing and repairing of levees, roads and other

public or common works.

All that relates to this kind of servitude is

determined by laws or particular regulations.

STATEMENT OF THE CASE

The question presented by this case arises in the

context of 48.6 acres of land owned by petitioners (the

“Landowners”) lying between the Mississippi River (the

“River”) levee and the River that were destroyed without

compensation by the Plaquemines Parish Government

(“PPG”) to supply borrow material to the Army Corps of

Engineers (“Corps”) for two levee projects. The land in

question, called “Shingle Point,” is located at a sharp

bend in the river called English Turn in Plaquemines

Parish, Louisiana, on the east bank of the River south of

New Orleans. Prior to the taking, the land had been used

for agriculture, including grazing and growing crops, and

was covered with pecan, oak and other mesic or dry-

footed trees and vegetation. See III R 61-77; Plaintiffs’

Exhibit 1. This land was protected from inundation for

most or all of the year by a ridge of natural levee that

ringed the entire point between the River and the artifi-

cial levee. See IV R 22-23; III R 163-164; III R 173. The

property sloped up from the River, past the ordinary high

water mark elevation of approximately 8.5 feet to eleva-

tions between 9 to 11 feet at the crest of the natural levee,

and then gradually sloped down hundreds of feet to

elevations of 7 to 8 feet along the riverside toe of the

artificial levee. See Plaintiffs’ Trial Exhibit 7. See also Joint

Trial Exhibits 11-12; V R 232. On the protected or “land”

side, the land gradually sloped further downward into

the marsh lands of the tidewaters of the Gulf of Mexico.

VII R 18-19. Thus, the Landowners’ property, lying

between the artificial levee and the River’s bed, was the

highest land in the vicinity, and was much higher in

elevation than the land on the protected side of the levee.

This is no longer the case. The PPG adopted resolu-

tions dated March 3, 1982, July 28, 1982 and June 15, 1988,

sae

wherein the lands were “appropriated” for the purpose of

removing fill dirt to be used for levee improvements. See

4G-a, infra. Work on one project was completed in Decem-

ber of 1984, and for another in December of 1988. Joint

Exhibits 16 and 17. The Landowners’ property now con-

sists of a series of approximately ten foot deep pits which

are almost continuously inundated with the natural flow

as well as the annual overflow of the River because the

natural levee between the pits and the bed of the River

has been deliberately cut away by the digging of accre-

tion ditches.

No compensation was offered, much less paid, for

either taking. Instead, the PPG invoked an ancient Louisi-

ana doctrine that authorized the “appropriation” (taking

without payment) of riparian lands for levee purposes as

an exercise of a levee servitude that burdened all riparian

lands, including the river’s “batture.” Article 665 of Loui-

siana’s Civil Code provides that a servitude is imposed

on the shores of navigable rivers for the making and

repairing of levees. Louisiana courts had held the State

owed no compensation for the exercise of this servitude,

and that anything paid to the landowner for use of his or

her land was a mere “gratuity.” See generally Dickson v.

Board of Commissioners of Caddo Levee District, 26 So. 2d

464, 478 (La. 1946), for a history of the Article 665 servi-

tude. This Court approved such takings without the pay-

ment of just compensation in Eldridge v. Trezevant, 160

U.S. 452, 16 S.Ct. 345, 40 L.Ed. 490 (1896), on the theory

that such lands were burdened with this servitude prior

to the time they were separated from the public domain,

and were thus never free of the encumbrance after pass-

ing into private hands.

However, the Louisiana Constitution of 1974 abol-

ished such “appropriations” of riparian land for levee

purposes, and provided that all such takings were to be

paid for “as provided by law.” See La. Const. (1974), art.

6, § 42, at 3, supra. Shortly thereafter, the Louisiana legis-

lature declared that owners of riparian lands taken for

levee purposes would be paid just compensation “to the

full extent of their loss.” See La. R. S. 38:301, at 3, supra.

These statutes were “the legislative attempt to effectuate

Article 6, Section 42 by providing fair market value to

owners of riparian property.” Terrebonne v. South Lafourche

Tidal Control Levee District, 445 So.2d 1221, 1223 n.6 (La.

1984). The only exception to the just compensation

requirement was for “batture,” which continued to be

exempt from the requirement of just compensation. Thus,

there is no longer any levee servitude over non-batture

riparian lands. See the discussion at 18-19, infra.

The Landowners filed the instant action for compen-

sation, and expressly invoked the just compensation and

due process provisions of the Louisiana Constitution, as

well as the Fifth and Fourteenth Amendments to the

United States Constitution. See Appendix F. Not sur-

prisingly, the PPG’s only defense was to claim that the

land was “batture” and therefore could be “appropri-

ated” without payment under Louisiana’s ancient rip-

arian servitude.

Both parties accepted this Court's definition of bat-

ture as that land lying between the ordinary high and

ordinary low water marks of a river. See General Box Co. v.

United States, 351 U.S. 159, 160 n. 1, 76 S.Ct. 728, 730 n. 1,

100 L.Ed. 1502 (1956), citing Boyce Cottonseed Oil Manufac-

turing Co. v. Board of Commissioners, 160 La. 727, 1107 So.

506, 508 (1925). Thus, the trial of this case focused on each

party attempting to demonstrate the location of the ordi-

nary high water mark (top of the common law “bed” of

the river) at Shingle Point.

In order to prove that the property taken from them

was above the “ordinary high water”, the Landowners

called three expert witnesses to locate the physical signs

of the “ordinary high water mark” of the Mississippi

River at Shingle Point.’ These signs were found in the soil

by a sedimentologist, in the vegetation by a botanist, and

‘n the contour of the shore by a hydrologist. Soil changes,

vegetation variations, and often visible escarping or cut-

ting into the natural contours of the shore caused by the

action of the stream occur at the limit of ordinary high

water. All three experts working with different resources

found a natural ridge or escarpment, confirmed by soil

and vegetation evidence, to be physically present on

Shingle Point at an elevation of approximately 8.5 feet,

well below the elevation of all property taken from the

Landowners. This fact demonstrated that the Land-

owners’ property was above “ordinary high water,” there-

fore “not batture,” and thus subject to just compensation

for its taking.

The PPG's experts ignored the land’s physical evi-

dence, presumably because this evidence is unassailable.

Instead, they turned to the Corps’ river flood-stage data,

selected the River’s highest peak each year, even if for

only a single day, for a period of ten years, and then

averaged those highest peaks. Not surprisingly, this

mathematical calculation produced a number (11 feet)

which was well above the land at issue and all other lands

in lower Plaquemines, inside or outside the Corps’ levee.

Under the PPG’s approach, defining “ordinary high

water” as the average of annual peak. flow, the Land-

owners’ land is below ordinary high water, is batture,

and is therefore exempt from the requirement of just

compensation.

The Louisiana courts below accepted the PPG's defi-

nition of “ordinary high water” as equivalent to “average

annual peak flow.” While noting that the Landowners’

evidence was “not without merit in fixing the limits of

1 Louisiana jurisprudence had never recognized any

method of fixing the ordinary high-water mark except by physi-

cal determinations through lay testimony. See notes 9 and 14,

infra.

the river’s action on its bank by use of bank profiles and

vegetation studies” (48-a, infra), the district court ulti-

mately agreed with the PPG. The Landowners had argued

to the district court that the Constitution constrained

Louisiana from redefining “ordinary high water” in a

manner different from United States precedent. See

Appendix G. The district court rejected this assertion,

without addressing the constitutional question, by simply

noting the following:

The foundation of plaintiffs’ argument is cen-

tered more on federal regulations and jurispru-

dence, whereas the defendant’s argument is

primarily based on how the term is employed in

Louisiana cases. The court will agree with the

PPG's assertion that the federal regulations

define river bed and ordinary high water with

respect to the federal government's navigational

servitude which is different from the Louisiana

cases which deal with the public’s 665 servitude

and the rights of the riparian landowners.

47-a to 48-a, infra.

The intermediate appellate court affirmed, treating

the entire question as merely one of “fact,” and finding

no “manifest error,” which is the standard of review

applicable to factual findings. See 71-a, infra. The court

dismissed the Landowners’ federal contentions (see

Appendix H) without comment.

The Louisiana Supreme Court affirmed. After an

exhaustive attempt to reconcile three lines of cases which

have defined “batture” in three different ways depending

upon the issue at hand,? the Louisiana Supreme Court

concluded what all of the parties conceded: “batture” for

riparian servitude purposes is that land which lies

between the ordinary high and ordinary low water marks

of a river. See 16a to 20-a, infra. Thus, the only real issue

was how and where to locate “ordinary high water.”

The federal issue in this case arises from the manner

and methodology by which the Louisiana Supreme Court

defined “ordinary high water,” and the constitutional

offenses resulting from that definition. The Landowners

argued that the court. should apply the well-established

precedents in this and every court which has considered

the issue, as is required by both the Equal Footing Doc-

trine and the Fifth and Fourteenth Amendments. See

Appendix H. The Louisiana Supreme Court rejected this

contention:

2 Louisiana’s preeminent property authority, and the redac-

tor of its Civil Code’s title on property, Professor A.N. Yian-

nopoulos, has observed the following:

A study of Louisiana legal texts and jurisprudence

leads to the conclusion that batture has three mean-

ings. In the first sense batture refers to lands of

alluyial origin, formed by imperceptible deposits of

material or by receding waters on the banks of a river;

it has the same meaning as accretion. In the second

sense, the word batture refers to land formed in the

bed of a river, that is, in an area below the ordinary

low water mark. In the third sense, the word batture

is used to denote the natural bank of a river, that is,

the area between the ordinary low and ordinary high

stage of the water.

A.N. Yiannopoulos, 2 Louisiana Civil Law Treatise - Property, § 89

at 193 (3d ed. 1991). The definition to be used depended entirely

upon the purpose for its employment. Id. at 192-93. But, “(flor

purposes of [the riparian levee servitude], the Louisiana

Supreme Court has consistently defined batture as the area

between ordinary low and ordinary high stage of the water of a

navigable river.” Id. at 194.

The laws and jurisprudence of France, our sis-

ter states, and the United States are irrelevant

to the quest for the meaning of ordinary high

water in relation to the levee servitude and the

rights of riparian landowners in Louisiana. State

v. Richardson, 72 So. at 987. The phrase must be

construed in the context of the nature of batture

and the history and purpose of Louisiana’s bat-

ture exemption. Therefore, contrary to plaintiffs’

contentions, Louisiana is not bound to indis-

criminately follow a federal or common law

definition of ordinary high water which has no

connection to our definition of batture, the levee

servitude or riparian landowner rights, as set

forth in our Constitution, legislation and juris-

prudence.

24-a to 25-a, infra (emphasis added).

Rejecting all precedents on the subject, from Louisi-

ana and elsewhere, the Louisiana high court then

redefined the concept of “ordinary high water” as fol-

lows:

Ordinary high water, then, is the highest water

stage the river can be expected to reach annually,

but not the level the water reaches during major

flood events, i.e., reaches “on several occasions

in periods of extraordinary high water during

the last half of the century.”

21-a to 22-a, infra (italics in original; additional emphasis

added). More importantly, from both a legal and practical

standpoint, was the court’s pronouncement of the

method by which “ordinary high water” is to be hence-

forth determined: “mean high water” or “the average of

annual river stage peaks at a given location.” 25-a to 26-a,

infra.

Finding that the Landowners’ land was almost

entirely below “mean high water,” as evidenced by river

Mt te te ve

ee eee

stage gauge readings taken by the Corps over a number

of years, the Court pronounced the Landowners’ land

“batture,” and subject to mere “appropriation” without

the payment of just compensation under the Louisiana

Constitution. 28-a, infra. No mention was made of the

United States Constitution, including its Equal Footing

Doctrine or the Fifth and Fourteenth Amendments. Id.

The Landowners applied for rehearing, rearguing

inter alia their contention that the court was not free to

disregard to this Court's definition of “ordinary high

water” or the United States Constitution’s guarantee of

just compensation. See 96-a to 99-a, infra. This request was

denied by a vote of four to three. See 73-a, infra.

REASONS WHY THE WRIT

SHOULD BE GRANTED

I. LOUISIANA IS NOT FREE TO DEPART FROM THE

FEDERAL DEFINITION OF “ORDINARY HIGH

WATER.”

A. The Equal Footing Doctrine constrains Louisi-

ana from redefining “ordinary high water” to

include more than the common law bed of a

river.

Following the Revolution, the original Colonies suc-

ceeded to the British Crown’s title and interest in the

beds of the navigable waters within their respective bor-

ders. See Utah Division of State Lands v. United States, 482

U.S. 193, 195-96, 107 S.Ct. 2318, 2320-21, 96 L.Ed.2d 162

(1987); Bonelli Cattle Co. v. Arizona, 414 U.S. 313, 317-18, 94

S.Ct. 517, 522, 38 L.Ed.2d 526 (1973), overruled on other

grounds, Oregon ex rel. State Land Board v. Corvallis Sand &

Gravel Co., 429 U.S. 363, 97 S.Ct. 582, 50 L.Ed.2d 550

(1977). After the ratification of the Constitution, new

States were admitted to the Union with “the same rights,

sovereignty and jurisdiction . . - as the original States

possess[ed] within their respective borders.” 414 U.S. at

318, 94 S.Ct. at 522. See also Oklahoma v. Texas, 258 U.S.

574, 583, 42 S.Ct. 406, 410, 66 L.Ed. 771 (1922). Accord-

ingly, title to the lands beneath the navigable waters was

held in trust by the federal government “for future States,

to be granted te such States when they enter the Union

and assume sovereignty on an ‘equal footing’ with the

established states.” Montana v. United States, 450 U.S. 544,

551, 101 S.Ct. 1245, 1251, 67 L.Ed.2d 493 (1981). The Equal

Footing Doctrine finds its source in the Constitution

itself. See Oregon ex rel. State Land Board v. Corvallis, supra,

429 US. at 374, 97 S.Ct. at 589; Pollard’s Lessee v. Hagan, 44

U.S. (3 How.) 212, 11 L.Ed. 565 (1845).

Under the Equal Footing Doctrine, as a matter of

constitutional law, the States received all lands compris-

ing the “bed” of the navigable rivers and streams, which

constitutes that area from ordinary high water to ordi-

nary high water. “The ordinary high water mark has been

accepted as the limit of the bed of a stream.” United States

v. Kansas City Life Ins. Co., 339 U.S. 799, 805, 70 S.Ct. 885,

889, 94 L.Ed. 1277 (1950). “The ordinary high water mark

bounds the bed of the river,” United States v. Willow River

Power Co., 324 U.S. 499, 509, 65 S.Ct. 761, 767, 89 L.Ed.

1101 (1945), and is in fact coterminous with the outer

limit of the bed. Oklahoma v. Texas, 260 U.S. 606, 631-32, 43

S.Ct. 221, 225, 67 L.Ed. 428 (1923). See e.g., 101 Ranch v.

United States, 714 F.Supp. 1005, 1013 (D.N.D.), aff'd, 905

F.2d 180 (8th Cir. 1990) (“[A] state acquires, as an incident

of statehood, title to the beds of all navigable bodies of

water within its boundaries, up to the ordinary high

water mark of those bodies.”).

“Several states have limited their ownership of the

beds of navigable waters to the area below the low water

mark. See 1 Patton on Land Titles, §§ 138 and 297 (2d ed.

1957 and Supp.).” J. P. Furlong Enterprises, Inc. v. Sun

Exploration and Prod. Co., 423 N.W.2d 130, 132 n.1 (N.D.

1988).3 Louisiana is among them. It has ceded back to its

riparian owners that area between ordinary low and ordi-

nary high, retaining title only to the area between the

ordinary low water marks. See Ramsey River Road Property

Owners v. Reeves, 396 So.2d 873, 875 and n.2 (La. 1981);

McCormick Oil & Gas Corp. v. Dow Chemical Co., 489 So.2d

1047, 1049 (La. App. Ist Cir. 1986). The “bed” of the river,

in Louisiana parlance, is confined to the area owned by

the state — that which is below ordinary low water. The

area between ordinary low and ordinary high water - the

batture — is called the “bank.” See La. Civ. Code (1978) art.

456; 46-a, infra (batture has same definition as “natural

bank” of a river).

The varying treatments by States of the area between

the ordinary high water marks of a river or stream have

no Equal Footing Doctrine implications. As this Court has

held, “[t]he title and rights of riparian or littoral propri-

etors in the soil below [the] high water mark . . . are

governed by the laws of the several states.” Oregon ex rel

State Land Board v. Corvallis, supra, 429 US. at 376, 97 S.Ct.

at 589, citing Shivley v. Bowlby, 152 U.S. 1, 57-58, 14 S.Ct.

548, 569, 38 L.Ed.2d 331, 352 (1894). In so holding, this

Court overruled its earlier decision in Bonelli Cattle Com-

pany v. Arizona, supra, by recognizing that it erred in

holding that federal law should control the “effect of a

movement of the river (such as accretion, dereliction, etc.)

upon title to the riverbed.” 429 US. at 271, 97 S.Ct. at 587.

Once the equal footing doctrine had vested title

to the riverbed in Arizona as of the time of its

admission, the force of that doctrine was spent;

it did not operate after that date to determine

3 Even in states where alteration of ownership rights has

occurred in favor of private citizens, “ordinary high water” is

the term used to denote the upper boundary of original state

sovereignty. See, e.g., Theisen v. Gulf, F. & A. Ry. Co., 78 So. 491,

500 (Fla. 1917).

what effect on titles the movement of the river

might have.

Id.

However, any attempt by a state to deviate from the

federal definition of “ordinary high water,” and thus

unilaterally expand the area originally received by it as a

consequence of its equal footing, gravely offends the

Equal Footing Doctrine, and thus the Constitution. This is

true because federal, not state, law controls the question

of the extent of the lands originally granted to each state

upon its admission to the Union. In Borax Consolidated,

Ltd. v. Los Angeles, 296 U.S. 10, 56 S.Ct. 23, 80 L.Ed. 9

(1935), this Court held that federal, not state, law deter-

mined the boundary between upland and tideland areas

in Los Angeles Harbor. Borax not only survives this

Court’s Corvallis re-examination of the question, but was

expanded in scope to include questions involving the

boundaries of navigable rivers and streams:

[The Borax rule] would require that determina-

tion of the initial boundary between a riverbed,

which the State acquired under the equal-foot-

ing doctrine, and riparian fast lands likewise be

decided as a matter of federal law rather than

state law.

429 U.S. at 377, 97 S.Ct. at 590. See also, 429 U.S. at 370, 97

S.Ct. at 587 (federal law “fixes the initial boundary line

between fast lands and the river beds [the ordinary high

water mark].”); 429 U.S. at 384, 97 S.Ct. at 594, Marshall,

J. dissenting (“The Court holds that federal law governs

only the determination of the initial boundaries of the

grant. ... ”).4 Thus, in cases where the location of the

4 The same issue was recently raised in connection with a

dispute over the Mississippi tidelands. In deciding whether

Mississippi has been granted only those areas that are actually

ordinary high water mark is a “condition precedent” to

the subsequent state law determination of whether the

land in question passed into private hands, federal law

controls. Mobil Oil Corporation v. Coast Petroleum Co., 671

F.2d 419, 423 (11th Cir. 1982), cert. denied, 459 U.S. 970, 103

S.Ct. 300, 74 L.Ed. 2d 281 (1982). Since, as explained

below, Louisiana no longer enjoys a levee servitude over

any area that was not granted to it under the Equal

Footing Doctrine, the question of the extent of Louisi-

ana’s initial sovereign lands is squarely raised ir this

case.

B. The Fifth Amendment, applicable to the States

through the Fourteenth Amendment, constrains

Louisiana from redefining “ordinary high

water” to include more than the common law

bed of a river.

The Fifth Amendment's Takings Clause prohibits the

government from depriving an owner of his or her prop-

erty without the payment of just compensation. This pro-

hibition has been made applicable to the States through

the Due Process Clause of the Fourteenth Amendment.

navigable, or whether it had received all areas affected by the

ebb and flow of the tide, the courts focused exclusively on

federal law. “(T]he question of what lands were given to the

state in trust [under equal footing] is necessarily a question of

federa) law.” Cinque Bambini Partnership v. State, 491 So.2d 508,

513 (Miss. 1986), citing Borax Consolidated, Ltd. v. City of Los

Angeles, supra, 286 U.S. at 26, 56 S.Ct. at 29; California ex rel. State

Lands Commission v. United States, 457 U.S. 273, 285 n.14, 102

S.Ct. 2432, 2440 n.14, 73 L.Ed.2d 1, 12 n. 14 (1982); Oregon ex rel.

State Land Board v. Corvallis Sand & Gravel Co., supra, 429 U.S. at

373, 97 S.Ct. at 588. This Court affirmed that decision, relying

exclusively on federal law without even feeling the need to

discuss the choice of law question. See Phillips Petroleum Co. v.

Mississippi, 484 U.S. 469, 108 S.Ct. 791, 98 L.Ed.2d 877 (1988).

Webb’s Fabulous Pharmacies, Inc. v. Beckwith, 449 U.S. 155,

160, 101 S.Ct. 446, 450, 66 L.Ed.2d 358 (1980).5

Nonetheless, this Court in Eldridge v. Trezevant, supra,

held that the taking of land for levee purposes in Louisi-

ana was exempt from the Takings Clause.® The rationale

was that the levee servitude constituted nothing more

than a pre-existing encumbrance on lands that had

attached prior to the time the lands became subject to

private ownership, and that passed along with the land

when it left the public domain. A levee “taking” was

> There is little doubt that the extraction of dirt from the

Landowners’ property for borrow purposes constitutes a “tak-

ing” under the Fifth Amendment. “Where the government

authorizes a physical occupation of property or actually takes

title, the Takings Clause generally requires compensation.” Yee

v. Escondido, U.S. __, 112 S.Ct. 1522, 1526, 118 L.Ed.2d 1532

(1992).

Nor is there any question that the land destroyed by the

respondent, and the dirt confiscated by it, constitutes “prop-

erty” under Louisiana law. Even the batture is owned by the

riparian landowner, Municipality No. 2 v. Orleans Cotton Press, 18

La. 122 (1841), and he or she is entitled to its use in any manner

that does not interfere with the purposes of navigation and

commerce. See Lake Providence Port Com’n v. Bunge Corporation,

193 So.2d 363, 368 (La. App. 2d Cir. 1966), writ denied, 195 So.2d

147 (1967). See also 47-a to 48-a, infra; Parish of Jefferson v. Univer-

sal Fleeting Co., 234 So.2d 88, 91 (La. App. 4th Cir. 1970).

indication of this Court’s realization that Eldridge was due for

reexamination. Certiorari was granted in that case to consider

whether the destruction of trees located on batture without

prior notice to the owner offended the Fourteenth Amendment.

This Court decided that it did not. However, it expressly noted

that the petitioner had not asked for a reexamination of Eldridge

and its progeny. See 351 U.S. at 7167 n.17, 76 S.Ct. at 734 n. 17.

ae ee ee ee eee ee

simply an exercise of that servitude.” This is exactly the

same theory that this Court has invoked to exempt uses

of the federal navigational servitude from the Takings

Clause.

The proper exercise of [the power to regulate

the navigable waters reserved to the United

States under the Commerce Clause] is not an

invasion of any private property rights in the

7 With all due respect, Eldridge v. Trezevant, supra, rests

vpor. an absolutely incorrect premise: that the land that Louisi-

ana claimed to be subject to its levee servitude had passed

through either the United State’s and/or Louisiana’s hands

such that a public servitude could permanently attach to the

property before it was transferred by the government to private

citizens. However, as much as 85% of the riparian lands in the

State of Louisiana on the Mississippi River were the subject of

direct land grants from the Spanish and French Crowns, prior to

the Louisiana Purchase. Neither the United States nor Louisiana

was interposed in the chain of title to these lands. Under Article

3 of the Treaty of Paris of April 30, 1803, private landowners

were “maintained and protected in the free enjoyment of their

liberty, property and religion.” An examination of Las Siete Par-

tidas reveals that no levee servitude existed under Spanish Law

prior to Spain’s loss of Louisiana. In France, the closest equiva-

lent is Article 650 of the 1804 Code Civil, which only reserved a

servitude for a “footpath along navigable or floatable rivers.”

While at least some of the concessions from the crowns of

France and Spain may have themselves required construction of

levees by riparian owners, none of these concessions imposed a

levee servitude. These burdens amounted to no more than a

resolutory condition — that the lands would revert back to the

crown should the riparian owner fail to build a levee to protect

the land from inundation, usually within a three year period.

Since nothing even remotely equivalent to the levee servitude

approved in Eldridge v. Trezevant was imposed by either the

Spanish or French Sovereign, riparian lands passed free and

clear into private hands, and any subsequent “takings,” such as

by imposition of a levee servitude, should have been subject to

the Takings Clause.

ial ‘

stream or the lands underlying it, for the dam-

age sustained does not result from taking prop-

erty from riparian owners within the meaning of

the Fifth Amendment but from the lawful exer-

cise of a power to which the interests of riparian

owners have always been subject.

United States v. Rands, 389 U.S. 121, 123, 88 S.Ct. 265, 267,

19 L.Ed.2d 329 (1967), citing United States v. Chicago, M.,

St. P. & P.R. Co., 312 U.S. 592, 596-97, 61 S.Ct. 772, 775, 85

L.Ed. 1064 (1941), and Gibson v. United States, 166 U.S.

269, 275-76, 17 S.Ct. 578, 580, 41 L.Ed. 996 (1897). See also

United States v. Virginia Electric and Power Co., 365 U.S.

624, 628, 81 S.Ct. 784, 788, 5 L.Ed.2d 838 (1961).

Louisianians acted in their 1974 Constitution to over-

rule Eldridge v. Trezevant, supra, its progeny, and former

Louisiana legislation and jurisprudence, by eliminating

the levee servitude over all lands except those to which it

could be constitutionally and justifiably applied - lands

between the ordinary high water marks of navigable

rivers and streams, or those lands that Louisiana received

upon admission to the Union under the Equal Footing

Doctrine. Article 6, Section 42 of the 1974 Louisiana Con-

stitution specified that lands taken for levee purposes

would be paid for “as provided by law.” The Louisiana

legislature responded, and provided that all lands taken

for levee purposes would be paid for at fair market value,

to the full extent of the loss. See Terrebonne v. South

Lafourche Tidal Control Levee District, 445 So.2d 1221, 1223

n.6 (La. 1984). This continues to be the law today. See La.

R.S. 38:301(C)(1)(a) (“All lands, exclusive of batture, and

improvements hereafter actually taken, used, damaged,

or destroyed for levee or levee drainage purposes shall be

paid for at fair market value to the full extent of the

loss.”).

Thus, mere “appropriation” without payment for

levee purposes is no longer constitutional. A. N. Yian-

nopoulos 4 Civil Law Treatise — Predial Servitudes at 81 (La.

State Law Inst. 1983). “Appropriation” without compen-

sation of anything except “batture” has been illegal in

Louisiana since 1974. See Tenneco Oil Co. v. Board of Com-

missioners of the Lake Borgne Levee District, 567 So.2d 113,

116 n.8 (La. App. 4th Cir. 1990), writ denied, 569 So. 2d 989

(La. 1990) (“Thus, the constitution and R.S. 38:301

requires [sic] payment at fair market value for that por-

tion of the bank taken which is not batture.”). As the

Louisiana Supreme Court stated in its opinion below:

Implementing the 1974 constitutional provision,

the legislature increased compensation from

“assessed value” to “fair market value to the full

extent of the loss” for the actual taking of

improvements and all lands “exclusive of bat-

ture.” (emphasis added).

Thus, while significant changes occurred in

compensating riparian landowners for lands

and improvements appropriated pursuant to the

levee servitude, the batture exemption from

compensation remained constant.

14-a to 15-a, infra (italics in original; citations omitted).

The “batture” exemption is justifiable because Louisi-

ana can legitimately claim a pre-existing right that bur-

dens these lands. “Batture,” being below ordinary high

water, was granted outright to Louisiana under the Equal

Footing Doctrine as part of the “bed.” Thus, federal law

would not be concerned with the State’s treatment of

“batture.” See Oregon ex rel. State Land Board v. Corvallis,

supra.

This is not so, however, for land above ordinary high

water. This land was never owned by Louisiana, but was

“public” land granted to private owners directly by the

federal government. Louisiana can not lay claim to lands

above ordinary high water without satisfying the require-

ments of the Takings Clause, because it can not impose a

servitude over lands it never owned.

Once again, the federal navigational servitude pro-

vides a useful analogy. “The navigational servitude of the

United States does not extend beyond the high water

mark. Consequently when fast lands are taken by the

Government, just compensation must be paid.” United

States v. Rands, supra, 389 U.S. at 123, 88 S.Ct. at 267;

United States v. Virginia Electric and Power Co., supra, 365

U.S. at 628, 81 S.Ct. at 788. This is particularly true when

the federal government acts to cause lands which were

previously high and dry to become below ordinary high

water, such as by artificially raising the water level of a

river or stream. See e. g., United States v. Kansas City Life

Ins. Co., supra; United States v. Willow River Power Co.,

supra. This rule should have even greater force were the

government to attempt to re-categorize fast lands by fiat

through a redefinition of “ordinary high water.”

The district court in Gollatte v. Harrell, 731 F.Supp. 453

(S.D. Ala. 1989), had no trouble reaching this conclusion

in a case where the Corps of Engineers sought to include

certain land within the reach of the navigational servi-

tude by locating the “ordinary high water” of the Tom-

bigbee River by examination of statistics regarding

historical flow levels.

The United States in this case simply attempts to

expand the lateral extent of the navigation servi-

tude of the Tombigbee River, by extending the

reach of the ordinary high water mark as it

leaves the stream and its bed during times of

flooding. The decisions of the Supreme Court

make clear that the navigational servitude can-

not be extended by such means.

731 F.Supp. at 460.

As will be demonstrated below, the Louisiana

Supreme Court is attempting to do exactly that which

was rebuked in Gollatte, expanding the lateral extent of

“batture” in derogation of federal law. Moreover, it also

redefines the ordinary high water with a more expansive

view than that taken in its own precedents. See notes 9

and 14, supra. The Takings Clause of the Fifth and Four-

teenth Amendments will not tolerate either of these

actions. This Court,

in dicta, has indicated that a state court, like

other state entities, may effect an unconstitu-

tional taking if the court’s decision causes an

“unpredictable,” “unforeseeable,” or “sudden”

change in the law that results in the transfer of

private property to the state without due pro-

cess of law, see Bonelli Cattle Co v. Arizona, 414

U.S. 313, 331, 94 S.Ct. 517, 528, 38 L.Ed.2d 526

(1973), overruled on other grounds, Oregon v. Cor-

vallis Sand & Gravel Co., 429 U.S. 363, 97 S.Ct.

582, 50 L.Ed.2d 550 (1977); Hughes v. Washington,

389 US. 290, 297-98, 88 S.Ct. 438, 442-43, 19

L.Ed.2d 530 (1967) (Stewart, J., concurring), or if

the state court decision rests upon a “gross” or

“arbitrary” error. Roberts v. City of New York, 295

U.S. 264, 277, 55 S.Ct. 689, 691, 79 L.Ed. 1429

(1935).

Williams v. Adkinson, 792 F.Supp. 755, 764 (M.D. Ala.

1992), affirmed, 987 F.2d 774 (11th Cir. 1993).°

8 See also Corp. of Presiding Bishops of the Church of Jesus

Christ of the Latter-Day Saints v. Hodel, 637 F.Supp. 1398, 1406

(D.D.C. 1986), aff'd, 830 F.2d 374 (D.C. Cir. 1987), cert. denied, 486

U.S. 1015, 108 S.Ct. 1752, 100 L.Ed.2d 214 (1988) (“In an appro-

priate case, it now appears that the United States Supreme

Court today would probably vote with Mr. Justice Stewart[’s

concurring opinion in Hughes] in ruling that a taking of private

property through a radical and retroactive change in state law,

effected by judicial decision, is an unconstitutional taking.”);

Sotomura v. Hawaii County, 460 F.Supp. 473, 481-82 (D. Hawaii

1978), holding that an unconstitutional taking without compen-

sation was accomplished by the Hawaii Supreme Court’s “use

of the highest wash of the waves as the monument fixing their

Aire ia i,

II. THE DECISION BELOW ADOPTS A DEFINITION

OF “ORDINARY HIGH WATER” THAT IS IRREC-

ONCILABLE WITH FEDERAL LAW

The term “ordinary high water” has no “immutable

definition.” United States v. Cameron, 466 F. Supp. 1099,

1110 (D.C. Fla. 1978). However, the ordinary high water

stage of the water does inevitably leave its mark. Id. It is

this “mark” that has been adopted as the very definition

of “ordinary high water.”

T[he ordinary high water line] is to be found by

examining the bed and banks and ascertaining

where the presence and action of waters are so

common and usual and so long continued in all

ordinary years, as to mark upon the soil of the

bed a character distinct from that of the banks,

in respect to vegetation, as well as in respect to

the nature of the soil itself.

Howard v. Ingersoll, 54 U.S. ( 13 How.) 381, 427, 14 L.Ed.

189 (1851) (Curtis, J., concurring). This Court adopted the

“mark” definition because under it, “no scientific explo-

ration” was needed to find its location, which is that

place “where the bank is fairly marked by the water,

[and] water level will show at all places where the line

is.” 54 U.S. at 416, 419. See also Oklahoma v. Texas, supra,

260 U.S. at 632, 43 S.Ct. at 225 (The “bed” of a river (that

below ordinary water) is the land which is “kept prac-

tically bare of vegetation by the wash of the waters of the

river from year to year, in their onward course, although

parts of it are left dry for months at a time.”).9

seaward boundary at high water mark, rather than the seaweed

line” as previously employed.

9 Up until now, Howard v. Ingersoll, supra, decided in 1851,

has not been ignored in Louisiana, and has been cited twice with

favor by the Louisiana Supreme Court, once in Wemple v.

While this Court has never had occasion to revisit the

issue, lower courts have fleshed out the Howard v. Inger-

soll definition. They have continually defined ordinary

high water in terms of its mark, left by the continuous

action of the river’s ordinary high water. This mark con-

stitutes a line on the shore established by the fluctuations

of water and indicated by physical characteristics such as

a clear, natural line impressed on the bank; shelving;

changes in the character of the soil; destruction of terres-

trial vegetation; the presence of litter and debris; or other

appropriate means that consider the characteristics of the

surrounding areas. See Vieux Carre Property Owners v.

Brown, 875 F.2d 453, 461 (5th Cir. 1989), cert. denied, 493

U.S. 1020, 110 S.Ct. 720, 107 L.Ed.2d 739 (1990); Borough of

Ford City v. United States, 345 F.2d 645, 648-51 (3rd Cir.

1965), cert. denied, 382 U.S. 902, 86 S.Ct. 236, 15 L.Ed.2d

156 (1965); Buttrey v. United States, 573 F. Supp. 283, 297

(E.D. La. 1983); Peterson v. Morton, 465 F. Supp. 986, 1002

(Nev. 1979), rev'd on other grounds, 666 F.2d 361 (9th Cir.

1982); United States v. Cameron, supra, 466 F. Supp. at

1111-12.

Eastham, 150 La. 247, 90 So. 637, 638 (1922), and again in State v.

Richardson, 140 La. 329, 72 So. 984, 990 (1916). Louisiana has

previously located “ordinary high-water” by its physical mark.

See e.g., State v. Richardson, supra; Edmiston v. Woods, 566 So.2d

673, 675-76 (La. App. 2d Cir. 1990). Cf. A. K. Roy v. Board of

Commissioners, 238 La. 926, 117 So.2d 60 (1960); Siebert v.

Conservaticn Commission of Louisiana, 181 La. 237, 159 So. 375,

377 (1935); State v. Cockrell, 162 So.2d 361, 377 (La. App. 1st Cir.

1964), writ denied, 164 So. 2d 350 (La. 1964).

10 Not only federal courts, but all State courts have uni-

formly (until now) adopted the Howard v. Ingersoll approach. See

e.g., In re Matter of Devil’s Lake, 423 N.W.2d 141 (N.D. 1988);

Wisconsin v. Trudeau, 139 Wisc. 2d 91, 408 N.W.2d 337 (1987),

cert. denied, 484 U.S. 1007, 108 S.Ct. 701, 98 L.Ed.2d 652 (1988);

South Dakota Wildlife Federation v. Water Management Board, 382

N.W.2d 26 (S.D. 1986); Heckman Ranches, Inc. v. Idaho, 99 Idaho

993, 589 P.2d 540 (1979); Belmont v. Umpqua Sand & Gravel, Inc.,

The “average annual peak” definition adopted by the |

Louisiana Supreme Court below is absolutely irreconcil- |

able with Howard v. Ingersoll, and its monolithic progeny.

This is so because the only two things considered under

the Louisiana court’s approach — peak flow and periodic

inundation — are the very facts that Howard expressly

states are anathema to the concept of “ordinary” high

water. From the most ancient times, it has been recog-

nized that the “bed” of a river (ordinary high water to

ordinary high water) is that which contains the open flow

of the channel, and the “bed” does not change on the

basis of periodic or even annual “overflows” or “floods,”

where the peak waters rise up for a few short days or

even weeks above the top of the natural bank and inun-

date the flood plains located beyond. This has been the

definition of “bed” from ancient Roman times, a defini-

tion adopted in Spain and France."! This concept of “bed”

373 Or. 581, 542 P.2d 884 (1975); Hayes v. Arkansas, 496 S.W.2d

372 (Ark. 1973); Board of Trustees of Internal Imp. Trust Fund v.

Walker Ranch General Partnership, 496 So.2d 153 (Fla. App. 1986),

review denied, 504 So.2d 766 (Fla.~1987).

1! Roman law: “A bank properly defined is that which contaias

the river, in the natural course of its waters, but it does not change

its banks when it is at times swelled either by showers or by the sea,

or any other cause. ...” 1 Corp. Jur. Civ. 831, lib. 43, tit. 12 §§ 2 and 5,

quoted in In re Land in New Orleans, Called the Batture, 17 Amer. St.

Papers 91 (1810). Spanish law: “The bank of a river is understood to

be the whole of what contains its waters when most swelled, in

whatsoever time of the year, without leaving its bed or channel.”

Curia Philippica, 2.3.1, quoted in In re Land in New Orleans, Called the

Batture, supra. French law: “We have admitted, in conformity with

the Roman law, that the boundaries of a river are determined by the

usual high-water line, without overflowing.” 2 Aubry & Rau, Droit

Civil Francais, § 203 at 252 n.13 (La. St. Law Inst. Trans. 1966). See also

1 Planiol, Treatise on the Civil Law, no. 3070 at 813 (12th ed. 1939, La.

St. Law Inst. Trans.) (“The limit of the banks of water-

ways . . . should be based upon ‘the height of the water flowing

freely before overflowing.’ ”).

_—__———— SGS'[''U

and “ordinary high water” was adopted in the United

States as well. As this Court stated in Howard v. Ingersoll:

[The riverbed] neither takes in overflowed land

beyond the bank, nor includes swamps or low

grounds liable to be overflowed, but reclaimable

for meadows or agriculture, or which, being too

low for reclamation, though not always covered

with water, may be used for cattle to range up,

as natural or undisclosed pasture.

54 US. at 446. Thus, “[u]nder Ingersoll, lands periodically

submerged but still useful for agricultural purposes are

thus above the ordinary high water line.” United States v.

Pend Oreille Public Utility Dist. No. 1, 926 F.2d 1502,

1505-06 (9th Cir. 1991), cert. denied, U.S. _, 112 S.Ct.

415, 116 L.Ed.2d 436 (1991). See also Oklahoma v. Texas,

supra, 260 U.S. at 632, 43 S.Ct. at 225 (“[L]ateral valleys

which have the characteristics of relatively fast land

although temporarily overflowed in exceptional

‘astances when the river is at flood” are excluded from

the “bed” of a river.). Therefore, ordinary high water is

defined “without reference to the extraordinary freshets

of the winter or spring, or the extreme droughts of the

summer or autumn.” Alabama v. Georgia, 64 U.S. (23 How.)

505, 515, 16 L.Ed. 556 (1859).'*

12 Louisiana follows the same rule, although it refers to the

area as “bank” instead of “bed.” Article 448 of the Civil Code of

1825 and article 457 of the Civil Code of 1870 provided in

pertinent part the following:

The banks of a river or stream are understood to be

that which contains it in its ordinary state of high

water: for the nature of the banks does not change,

although from some cause they may be overflowed

for a time.

(emphasis added). This rule was continued in article 456 of the

1978 revision to the Civil Code. Yiannopoulos, supra, at 153. See

State v. Barras, 615 So.2d 285, 286 (La. 1993), decided only weeks

As a consequence, federal law “mandate[s] exclusion

of annual spring floods in calculating the ordinary high

water line.” United States v. Pend Oreille Public Utility Dist.

No. 1, supra, 926 F.2d at 1505. “The ordinary high water

mark of a river . . . does not extend to peak flow or flood

stage so as to include overflow on the flood plain... ,”

United States v. Claridge, 279 F. Supp. 87, 91 (D. Ariz.

1967), affirmed, 416 F.2d 933 (9th Cir. 1969), cert. denied,

397 U.S. 961, 90 S.Ct. 994, 25 L.Ed.2d 253 (1970), and it is a

“mistaken assumption” to conclude that annual peaks

determine the ordinary high water line of a river. 416 F.2d

at 934. See also United States v. Harrell, 926 F.2d 1036, 1041

(11th Cir. 1991) (“Nor does a river’s ordinary high water

mark encompass the river’s peak flow or flood stages.”);

Buttrey v. United States, supra, 574 F. Supp. at 298 (“[T]he

courts have made clear that a river’s ordinary high water

mark does not encompass its peak flow or flood stages”).

An average of the annual river stage peaks is a

mathematical calculation of nothing more than the annual

river overflows or floods that are the very antithesis of

“ordinary” high water. As one court explained:

The obvious result of applying the [averaging]

method advocated by counsel for the Govern-

ment would be to subject the property owner to

the risk of permanent flood conditions; to

require him to submit without compensation to

a condition during every day in the year which

in the ordinary course of nature occurs on but

one day in the year. The rights of the Govern-

ment cannot be so extended.

before the Opinion below and holding that lands that were

annually inundated for up to six months per year with overflow

and flood waters were above the “bank” of the Atachafalaya

River, which by definition places them above the “ordinary

high-water mark.”

Laide 3.

Se Dt a ee ee Oe ee eee cy

Willis v. United States, 50 F.Supp. 99, 101 (W. Va. 1943)

(emphasis added).!3 Thus, mathematical calculations of

the ordinary high water mark of a river or stream have

been consistently rejected when offered, even in Louisi-

ana.!4 See also Kelly’s Creek & Northwestern R. R. Co. v.

United States, 100 Ct. Cl. 396 (1943), rejecting testimony

regarding stage data as “wholly without value;” Maloney,

The Ordinary High Water Mark: Attempts at Settling an

Unsettled Boundary Line, 13 Land and Water Law Rev. 1, 30

(1978) (“Use of [a statistical averaging process to deter-

mine ordinary high water] has in fact been declared to be

reversible error.”).!°

Even the Louisiana courts in this case as they

embrace averaging of peaks for determination of “ordi-

nary high water” all but concede that their approach is

totally contrary to prevailing law nationwide. However,

they justify their departure on the ground of Louisiana’s

“unique” heritage. However, as explained above, there is

nothing special or exceptional about Louisiana, at least

13 The court also gave as a secondary reason for rejecting

the “averaging” approach the fact that statistics can be manipu-

lated to satisfy the particular aim of the statistician. 50 F. Supp.

at 100. Indeed, if all stages of water at Shingle Point above 7.20

from 1977 through 1990 had been averaged, instead of merely

those selected by the PPG, the “ordinary high-water mark”

would have been 9.08 feet, an elevation which would have made

all of the Landowners’ property fast land and safely above

batture-level.

14 “Previously, in cases involving the delimitation between

bed and bank, th[e Louisiana Supreme Court] rejected methods

involving arithmetical water level averaging and held that the

testimony of the witnesses who lived in the vicinity is to be

favored over such abstract mathematical measurements.” 31-a,

infra, Dennis, J., dissenting.

15 Justice Dennis summarized additional “fallacies and

frailties involved in arithmetical expert data” of ordinary high-

water in his dissent in this case. See 32-a to 33-a, infra.

when it comes to the concept of “ordinary high water,”

that exempts it from the supremacy of federal law in this

area.

III. LOUISIANA’S NEW DEFINITION OF “ORDI-

NARY HIGH WATER” WILL ALLOW THE STATE

TO CONFISCATE WITHCUT PAYMENT VAST

AREAS OF LAND FOR A MULTITUDE OF PUR-

POSES

Classification of riparian land as “bank” has disas-

trous consequences for the owners of land in Louisiana.

“The land lying between the ordinary low mark and the

ordinary high water mark is called the bank of the stream

and belongs to the owner of the adjacent land, subject to

the use by the public.” State v. Placid Oil Company, 300

So.2d 154, 157 (La. 1974), cert. denied, 419 U.S. 1110, 95

S.Ct. 784 (1975), citing Wemple v. Eastham, supra,

(emphasis added). See also La. Civ. Code art. (1978) 456

(“The banks of navigable rivers and streams are private

things that are subject to public use.”); La. Civ. Code

(1978) art. 499 (“[T]he owner of the bank . . . is bound to

leave public that portion of the bank which is required

for the public use.”). Accordingly, the Louisiana Supreme

Court’s decision below means that lands that have always

been historically classified as private lands not subject to

public use now become public because of the simple fact

of periodic inundation by flood, overflow, or backwaters

from rivers, streams, tributaries, or even man made

canals.

This result is not confined to Shingle Point,

Plaquemines Parish. Much of Louisiana is annually inun-

dated with the overflow, backwaters, and flood waters of

its navigable rivers. It is untenable to suggest that all of

these areas are below “ordinary high water,” as the Loui-

siana Supreme Court has done by its expansive defini-

tion. :

To accept the “definition” of OHWM advanced

by [the Louisiana Supreme Court] in this case, is

to recognize no horizontal limits to the “bed” of

a navigable river in those areas where the banks

are relatively low and flat as they are along [the

southern most portion of the Mississippi, and

most of Louisiana’s southern rivers]. The conse-

quences of any such rule, if applied to our navi-

gable rivers and inland lakes, would be

untenable. Any such definition of OHWM, as

the line establishing the government's naviga-

tional [or levee] servitude, is simply not appro-

priate to inland freshwater rivers and lakes,

which are subject to irregular period rises, caus-

ing them to overflow their natural banks... .

[T]here must be horizontal limits to the “bed” of

a navigable river; otherwise, the [government's

rights] would extend in all directions to the

lateral extent of the flood waters of any naviga-

ble river.

Gollatte v. Harrell, supra, 731 F.Supp. at 462. As demon-

strated above, neither the Equal Footing Doctrine, nor the

Takings Clause of the Fifth and Fourteenth Amendments

will tolerate such a result.

CONCLUSION

The issue here is not concerned with a physical

changing of the bed of a river by accretion, dereliction,

natural or even artificial actions. This land has had a

constant and consistent boundary between the bed of the

river and the riparian land grants. The bed and banks

have not changed. Thus, the non-federal question pre-

sented to this Court in Bonelli Cattle Co. v. Arizona, supra

and Oregon ex rel. State Land Board v. Corvallis, supra is not

pertinent to this issue. Here, the opinion of the highest

Court of the State of Louisiana, disregarding (1) its law,

(2) this Court’s law on the separation of the bed of

navigable rivers granted to the State from riparian lands

acquired by federal private grants and the method of

ascertaining that original boundary at the ordinary high

water mark and (3) the Constitutional mandate that just

compensation must be paid for private lands taken by the

government presents pressing landmark Federal ques-

tions that beg for consideration by this Court.

Respectfully submitted,

Mack E. BarHaM, Counsel of Record

Rosert E. ARCENEAUX

MatTHew K. BRown

BARHAM & ARCENEAUX, A PLC

650 Poydras Street, Suite 2700

New Orleans, LA 70130

Telephone: (504) 525-4400

Attorneys for Petitioners

JUL 2 1993

APPENDIX “A”

SUPREME COURT OF LOUISIANA

No. 93-C-0167

WARREN DeSAMBOURG AND

MARY DeSAMBOURG

versus

BOARD OF COMMISSIONERS FOR THE

GRAND PRAIRIE LEVEE DISTRICT

ON WRIT OF CERTIORARI TO THE COURT OF

APPEAL, FOURTH CIRCUIT, PARISH OF

PLAQUEMINES, STATE OF LOUISIANA

ORTIQUE, Justice!

We granted writ to determine the meaning of “bat-

ture” as it is used in the context of the batture exemption

from compensation for the state’s appropriation of

Dennis J. dissents with reasons.

Watson J. dissents.

Lemon J. Concurs with Reasons.

1 Pursuant to Rule IV, Part 2, § 3, Marcus, J. was not on the

panel which heard and decided this case. See footnote in Stafe v.

Barras, 615 So. 2d 285 (La. 1993).

riparian lands pursuant to its levee servitude.? Riparian

landowners at Shingle Point filed eleven suits, which

have been consolidated, against the Board of Commis-

sioners for the Grand Prairie Levee District, now

Plaquemines Parish Government (“PPG”)? claiming fill

dirt was appropriated from their lands without compen-

sation. PPG denies liability claiming the landowners are

not entitled to compensation because the appropriated fill

2 The Louisiana Constitution of 1974 exempts the state and

its political subdivisions from compensating riparian land-

owners for the exercise of its levee servitude when the lands

actually used or destroyed for levee or levee drainage purposes

are “batture.” LSA-Const. Art. 6, § 42. The constitutional provi-

sion is presently implemented in LSA-R.S. 38:301(C)(1)(a). For

the text of those provisions, see notes 7 and 14, infra.

Appropriation is the taking of a servitude. A.N. Yian-

nopoulos, 2 La. Civil Law Treatise 3d (1991) § 88, n. 20 at p. 191.

It is a mode for the state and its political subdivisions to exercise

its levee servitude, whereby lands and improvements can be

taken for levees purposes, before the payment of compensation.

See LSA-Const. Art. 6, § 42 (A) and (B), at n. 7. The right of

appropriation proceeds upon the principle “that the riparian

owner enjoys his property sub modo, i.e., subject to the right of

the public to reserve space enough for levees, public roads, and

the like. Over this space, the front proprietor never acquires

complete dominion. It never passes free of this reservation by

deed to purchaser.” Ruch v. City of New Orleans, 43 La. Ann. 275,

9 So. 473 (1891). Unlike expropriation, appropriation of riparian

property does not vest title property in the state or its political

subdivisions. Delaune v. City of Kenner, 550 So. 2d 1386 (La. App.

5th Cir. 1989), writ den., 553 So. 2d 475 (La. 1989).

3 LSA-Const. Art. 6, §§ 16 and 38 provide that levee dis-

tricts can be reorganized, merged and consolidated with a par-

ish. The Grand Prairie Levee District was consolidated and

merged into the Parish of Plaquemines and the levee district

ceased to exist as a separate entity.

ee Ss ee en ne se .

dirt was batture taken for levee purposes and, therefore,

exempt from compensation pursuant to LSA-Const. Art.

6, § 42 and LSA-R:S. 38:301(C)(1)(a). After a bench trial on

the merits, the court determined all of Shingle Point is

batture, found no compensation is due for the taking of

the batture, and dismissed plaintiffs’ suits. The court of

appeal affirmed. 608 So. 2d 1100 (La. App. 4th Cir. 1992).

In the context of the batture exemption from compensa-

tion, “batture” is alluvial accretions annually covered by

“ordinary high water,” the highest stage the river can be

expected to reach annually in seasons of high water.

Applying that precept to the factual findings of the trial

court, we find no error in its conclusion that all of the

land taken by PPG, pursuant to its levee servitude, was

batture within the meaning of the constitutional exemp-

tion from compensation and, therefore, exempt from the

payment of compensation.

Shingle Point, near English Turn in Plaquemines Par-

ish, is an area of approximately fifty acres. It lies between

the Mississippi River and the levee on the river’s left

descending bank at River Mile 78. When the river is at its

ordinary low stage, the distance between the toe of the

levee and the water’s edge is about 900 feet. It is wooded

and composed of alluvion. Its artificial levee is 18.0 feet

or more high and topped with concrete upwards from 8.3

feet. Borrow pits* had previously been excavated in the

4 A “borrow pit” is an excavated area where material has

been dug for use as fill at another location. Webster’s New Colle-

giate Dictionary, 150th Anniv. Ed. (1981). “Borrow” or “borrow

material” refers to the fill dirt excavated from the borrow pit.

area. These consolidated suits concern borrow pit excava-

tions for two levee projects involving approximately six-

teen acres of Shingle Point.

The two levee improvement projects were initiated

and supervised by the United States Army Corps of Engi-

neers (“COE”). The COE specified the locations of the

levee projects and the areas to be appropriated, including

the appropriation of portions of Shingle Point for borrow

pits.° Accordingly, in 1982 and 1983, a six acre area at the

southern end of Shingle Point was appropriated by

Plaquemines Parish Commission Council for the Grand

Prairie Levee District for the Scarsdale-Stella Levee Set

Back and Road Relocation Project, a project 2.1 miles from

the borrow pit site. An additional ten acre area of Shingle

Point was appropriated for excavation in 1986 through

1988 for the English Turn Levee Enlargement and Con-

crete Slope Pavement Project, a project adjacent to the

borrow pit site. Both excavations involved the clearing of

shrubs and trees and the removal of fill dirt or borrow

material. The pit was located 100 feet from the toe of the

levee and extended 700 feet across.

> Pursuant to the Mississippi River Flood Control Act of

1928, 33 U.S.C. § 701-709, the COE oversees and maintains the

Mississippi River and levee system. Once the COE selects a site

for levee improvement, local governments like the PPG are

obligated to furnish all needed rights of way and to appropriate

the necessary riparian property. Nevertheless, neither the COE

nor the United States government have an interest in this action.

Moreover, the resolutions by the PPG, which authorized the

appropriations of plaintiffs’ lands, specifically state that the

United States, its agents and employees are held blameless for

any and all damages which may be caused by the levee con-

struction and land appropriations.

Plaintiffs Warren and Mary DeSambourg, Albert and

Rosalie Schell, Sadie, Joseph, JoAnn and Linda Perino,

Charles and Angelina Mancuso, and Mary and Joseph

Seibert, Jr., filed their suits in July and August, 1984,

seeking damages for the fair market value of the property

taken for the Scarsdale project, severance damages and

attorneys fees. Plaintiffs Anthony and Marie LaGreco,

Joseph LaGreco, Emile LaCreco, Salvadore DiCarlo,

Henry Heier and Charles and Ina Miller, field their suits

in 1987 seeking damages for the fair market value of the

property taken for the English Turn Project, severance

damages and attorney’s fees.

PPG filed a motion for summary judgment, claiming

all the property appropriated is batture and exempt from

compensation. The trial court referred the motion to trial

on the merits. At trial, after the plaintiffs presented their

evidence and rested, the court granted summary judg-

ment in the suit of Charles and Ina Miller because the

levee servitude appropriated was not utilized, as borrow

was not taken from their property. Since the property

appropriated was not “actually used, damaged or

destroyed” as is required by LSA-R.S. 38:281(b), as

amended by Acts of 1979, No. 676, the trial court found

the Millers had no basis for claiming compensation. The

judgment against the Millers, dismissing their suit, is

now final.

Trial continued in the remaining ten suits to deter-

mine whether the appropriated lands were batture. The

trial court adopted the definition of batture used in Boyce

Cottonseed Oil Mfg. Co. v. Board of Comm'rs, 160 La. 727,

107 So. 506, 508 (1926), on org & reh’g, that “batture is that

part of the river bed which is uncovered at the time of

low water, but is covered annually at time of ordinary

high water; when it ceases to be covered at the time of

ordinary high water, it ceases to be batture and becomes

the bank of the river.” To implement that definition, the

trial court relied upon Wemple v. Eastham, 150 La. 247, 90

So. 637, 638 (1922), which declared that the “ordinary

high water stage” is the “highest stage that it (the river)

usually reaches at any one season of the year.”

In finding for PPG and dismissing the ten suits, the

trial court rejected the plaintiffs’ theory that ordinary

high water stage is determined by examining the physical

characteristics of the bank, and where physical charac-

teristics are not clearly identifiable, by examining the

types of vegetation which exist in a hydrographic envi-

ronment. Instead, the trial court acceded to PPG’s theory

that the upper boundary of batture is the equivalent of

mean high water and is determined by reviewing the

statistics on the elevations the river usually reaches annu-

ally over a sufficient period of time. Utilizing that test,

which it found satisfies the terms “ordinary” and “annu-

ally,” the trial court calculated the mean high water at

11.0 feet, determined that Shingle Point is 97% inundated

when the water reaches that stage, and concluded that all

of Shingle Point is batture and subject to the constitu-

tional and statutory exemption from compensation. The

trial court accorded its conclusion with an on-site inspec-

tion of Shingle Point on March 22, 1991, when the river

was at the 8.5 feet level, observing that “with the excep-

tion of a few high spots on the upriver portion, water

covered the area with only the tops of trees rising above

the waters.”

The court of appeal affirmed. DeSambourg v. Board of

Comm'rs for Grand Prairie Levee Dist., 608 So. 2d 1100 (La.

App. 4th Cir. 1992). It found no error in the trial court’s

conclusion that all of Shingle Point was batture, noting

the record supported the findings that, on the average,

the highest point the river reaches at Shingle Point in any

given year is approximately 11.0 feet and 97 to 99% of the

surface of Shingle Point is inundated when the river

reaches 11.0 feet, the areas not inundated being isolated

spots created by man-made activity. 608 So. 2d at 1108.

We granted certiorari, 614 So. 2d 69 (La. 1993), to

determine the meaning of “batture” as it is used in the

context of the batture exemption from compensation

when the state appropriates riparian land while exercis-

ing its levee servitude.

The constitutional guarantee that property shall not

_be taken or damaged by the state or its political subdivi-

sions except for public purposes and with just compensa-

paid to the owner or into court for his benefit, does

apply to the taking or appropriation of property

pursuant to the levee servitude. LSA-Const. Art. 1, § 4°;

tion

not

Il.

lows:

LSA-Const. art. 1, § 4 provides in pertinent part as fol-

§ 4. Right to Property

Section 4. Every person has the right to acquire,

own, control, use, enjoy, protect, and dispose of pri-

vate property. This right is subject to reasonable stat-

utory restrictions and the reasonable exercise of the

police power.

Property shall not be taken or damaged by the

state or its political subdivisions except for public

purposes and with just compensation paid to the

owner or into court for his benefit. Property shall not

be taken or damaged by any private entity authorized

LSA-Const. Art. 6, § 427. This “levee servitude” exception

does not offend the Fifth and Fourteenth Amendments to

the United States Constitution when the servitude is

administered impartially since title to riparian lands have

been burdened with the legal servitude for levee and

road use from the time those lands were separated from

the public domain. General Box Co. v. United States, 351

U.S. 159, 76 S.Ct. 728, 100 L.Ed. 1055 (1956), reh’g den., 351

U.S. 990, 76 S.Ct. 1044, 100 L.Ed. 1502 (1956); Eldridge v.

Trezevant, 160 U.S. 452, 16 S.Ct. 345, 40 L.Ed. 490 (1896).

See also Delaune v. Board of Comm'rs, 230 La. 117, 87 So. 2d

- 749, 751 (1956); Dickson v. Board of Comm'rs of Caddo Levee

Dist., 210 La. 121, 26 So. 2d 474, 478 (1946); State v.

by law to expropriate, except for a public and neces-

sary purpose and with just compensation paid to the

owner...

This Section shall not apply to appropriation of prop-

erty necessary for levee and levee drainage purposes.

(emphasis added.)

7 LSA-Const. Art. 6, § 42 provides in pertinent part:

§ 42. Compensation for Property Used or Destroyed;

Tax

Section 42. (A) Compensation. Notwithstanding

any contrary provision of this constitution, lands and

improvements thereon hereafter actually used or

destroyed for levees or levee drainage purposes shall

be paid for as provided by law. However, nothing con-

tained in this Paragraph with respect to compensation for

lands and improvements shall apply to batture or to prop-

erty the control of which is vested in the state or any

political subdivision for the purposes of com-

merce...

(B) Appropriation. Nothing in this Section shall

prevent the appropriation of such property before

payment.

(emphasis added.)

Richardson,

Yiannopoulos, 2? La. Civi

gable rive

legal servitude for the making and rep

From the earliest Colonial days, when the

Louisiana Territory was in the possession of

France and Spain, no grants of lands were ever

given without a specific reservation being made

therein for the common use of the public of all

rights to the shores of rivers and bayous upon

which they might front. These two countries

never divested themselves of title to lands lying

immediately adjacent to navigable streams. This

policy during the Spanish occupation of the ter-

ritory, became merged with the law relative to

servitudes to be found in the ancient Las Siete

Partidas of Spain and, in time, found its way into

the First Civil Code adopted by the Territory of

Orleans (comprising what is now known as the

State of Louisiana) in 1805, after the Louisiana

Territory had been acquired by the United

States, the basic principles relative to servitudes

in Las Siete Partidas being included therein

almost verbatim, thus insuring that the shores of

navigable rivers and streams in this state would

always be kept free for the public for levee and

other public purposes. Dickson v. Board of

Comm'rs of Caddo Levee Dist., 210 La. 121, 26 So.

2d 464, 478 (1946).

140 La. 329, 72 So. 984, 989-990 (1916); A.N.

| Law Treatise 3d (1991) §§ 86, 88.

In Louisiana, title to riparian lands fronting on navi-

rs is subject to the superior right of the public's

airing of levees,

10a

roads and other public and common works’®. See Delaune

v. Board of Comm'rs, supra; Pruyn v. Nelson Bros., 180 La.

760, 157 So. 585 (1934); Mayer v. Board of Comm'rs for

Caddo Levee Dist., 177 La. 1119, 150 So. 295 (1933); Dubose

v. Levee Comm'rs, 11 La. Ann. 165 (1856); 2 La. Civil Law

Treatise § 88. This legal servitude for levees and levee

purposes has been maintained through the transitions of

the Civil Code. See La. Civil Code of 1808, art. 13; La.

Civil Code of 1825, art. 661; La. Civil Code of 1870, art.

661, and LSA-C.C. art. 665 (1977)%. It applies to those

lands that were riparian when separated from the public

domain, and when the levee is necessary for the control

of flood waters from the river to which the land taken is

riparian. Delaune v. Board of Comm’rs, supra; A.K. Roy, Inc.

v. Board of Comm’rs for the Pontchartrain Levee Dist., 237 La.

541, 111 So. 2d 765 (1959). See Comment, Levees and Bat-

ture in Louisiana, 21 Tul.L.Rev. 649, 651 (1947).

Louisiana’s sovereign settlers perceived that the rip-

arian lands which fronted on rivers or streams were of

little or no value if the arable soil was not protected from

8 Legal servitudes are limitations on ownership established

by law for the benefit of the general public or for the benefit of

particular persons. LSA-C.C. art. 659 (1977 revision), based on

art. 664 of the La. Civil Code of 1870.

° LSA-C.C. art. 665 provides as follows:

Art. 665, Legal public servitudes

Servitudes imposed for the public or common

utility, relate to the space which is to be left for the

public use by the adjacent proprietors on the shores of

navigable rivers, and for the making and repairing of

levees, roads and other public or common works.

All that relates to this kind of servitude is deter-

mined by laws or particular regulations.

lla

overflow and inundation. Dickson v. Board of Comm'rs of

Caddo Levee Dist., 26 So. at 478. Therefore, inserted in the

original land grants from the sovereign governments was

the onerous levee obligation, requiring the land propri-

etor to build levees on the riparian lands and to keep

them in repair. Id, 26 So. at 478 [“in 1743 an ordinance

commanded planters along the Mississippi to make their

levees safe under penalty of the forfeiture of these lands

to the Crown”]; Zenor v. Parish of Concordia, 7 La. Ann.

150 (1852); Wolfe, Richard P., The Appropriation of Property

for Levees: A Louisiana Study in Taking Without Just Com-

pensation, 40 Tul.L.Rev. 233, 247-248 (1966); 21 Tul.L.Rev.

at 649. The original theory was the riparian proprietor

should bear the burden and expense of protecting all

people and their possessions from annual inundations.

Dickson v. Board of Comm'rs of Caddo Levee Dist., supra. Cf.

2 La. Civil Law Treatise § 88; 40 Tul.L.Rev. at 334-335; See

also 21 Tul.L.Rev. at 649. This theory continued even after

the purchase of the Louisiana Territory by the United

States, as riparian proprietors were obligated to construct

levees at their own expense, and a right of action was

created in favor of neighboring landowners whose prop-

erty was damaged because of the proprietor’s failure to

maintain the levee, with the proprietor’s riparian lands

being liable in rem for the cost of construction of a proper

levee and with the proprietor being criminally respons-

ible for the violation. Act of March 18, 1816, La. Acts 2d

Sess. 1816, at 106 et seq; 40 Tul.L.Rev. at 334-335.

By the mid nineteenth century, governmental philos-

ophy and public practice changed. The onerous levee

obligation ceased falling solely on the shoulders of the

riparian landowners. Dickson v. Board of Comm'rs of Caddo

12a

Levee Dist., supra. The necessity of an efficient and unified

plan to protect the entire state from inundation was

apparent. Comment, Civil Law Property — Levee Servitude —

Civil Code Article 665, 27 La.L.Rev. 321, 328 (1967). The

first levee district was created in 1852. Since 1878, the

construction, maintenance and supervision of Louisiana’s

levee system has been entirely a function of government.

Id; 27 La.L.Rev. at 327. Cf. 2 La. Civil Law Treatise § 88, p.

189; 40 Tul.L.Rev. at 233; 21 Tul.L.Rev. at 649.

Despite the changed philosophy that the riparian

landowner is not solely responsible for levee obligations,

the philosophical change did not alter the reservation in

title of the state’s levee servitude and the state’s right to

appropriate riparian lands. Dickson v. Board of Comm'rs of

Caddo Levee Dist., supra. After the state assumed respon-

sibility for levees, no right of action for compensation

existed for lands appropriated pursuant to the levee ser-

vitude until Acts of 1892, No. 41 and Acts of 1894, No. 25

of the General Assembly and the Louisiana Constitution

of 189819 imposed the requirement that the Orleans Levee

10 La. Const. of 1898, art. 312 provided in pertinent part as

follows:

Art. 312. Any person whose property has been

appropriated within twelve months prior to the adop-

tion of this Constitution, or whose property is hereaf-

ter appropriated by the Orleans levee board for levee

purposes, shall have a right of action against said

board .. . for the value of said property ——

Provided, that this shall not apply

(1) To batture property,

13a

Board provide compensation for appropriated lands."?

Boyce Cottonseed Oil Mfg. Co. v. Board of Comm'rs of Red

River, Atchafalaya & Bayou Boeuf Levee Dist., 106 La. 727,

107 So. 506 (1926). The Louisiana Constitution of 1921

extended the right of compensation statewide. La. Const.

of 1921, Art. 16, § 612. The compensation, however, was

considered a “mere gratuity.” Delaune v. Board of Comm'rs,

87 So. 2d at 753; Pruyn v. Nelson Bros., supra. Yet, both

constitutions adhered to the axiom that no compensation

was owed for the taking of batture. See Pruyn v. Nelson

Bros., supra.

11 In Ward v. Board of Levee Comm'rs of Orleans Levee Dist.,

152 La. 158, 92 So. 769, 771 (1922), this court explained,

But when those rural lands, thus incorporated

into the city, had long been divided up into lots and

sold, so that one man owned only a small lot in front,

and the land behind him belonged to others, it began

to appear that it was no longer a case of giving up a

small part of one’s land and thereby getting protec-

tion for all the rest, but of one man being required to

give up all his land, together with the improvements

thereon, in order to protect the lands, not of himself,

but of others.

12 La. Const. of 1921, Art. 16, § 6 provided in pertinent part

as follows:

§ 6. Compensation for property used or destroyed;

tax

Section 6. Lands and improvements thereon

actually used or destroyed for levees or levee drain-

age purposes, . . . shall be paid for at a price not to

exceed the assessed value of the preceding year; pro-

vided, that this shall not apply to batture, nor to property

the control of which is vested in the State or any

subdivision thereof for the purpose of commerce; . - .

(emphasis added.)

l4a

The Louisiana Constitution of 1974 recognized and

reaffirmed the levee servitude as a constitutional, legal

servitude. See LSA-Const. Art. 6, §§ 38-42. Admittedly,

the new Constitution altered the measure of the riparian

landowners’ compensation from the property’s “assessed

value for the proceeding year” to providing that for

“lands and improvements . . . actually used or destroyed

for levees or levee drainage purposes [compensation]

shall be paid as provided by law.”!3 LSA-Const. Art. 6,

§ 42(A). Nevertheless, it steadfastly maintained the bat-

ture exemption from compensation. Id. See Transcript, La.

Const. Convention of 1973, Vol. VIII, pp. 1604-1609

(10/4/73) and 2203-22 (11/08/73).

Implementing the 1974 constitutional provision, the

legislature increased compensation from “assessed value”

to “fair market value to the full extent of the loss” for the

actual taking of improvements and all lands “exclusive of

batture.” (emphasis added) See LSA-R.S. 38:301, as

amended by Acts of 1985, No. 78514. See also Acts of 1978,

13 See note 7, supra.

14 In 1985, Chapter 4 of title 38, R.S. 38:281 through 1480.°,

was amended and reenacted by Acts 1985,-No. 785, effective

July 22, 1985, to consist of R.S. 38:281 through 513. The amend-

ment had the general effect of consolidating into a single com-

prehensive scheme many parallel provisions.

LSA-R.S. 38:301(C)(1)(a) presently provides: “All lands,

exclusive of batture, and improvements hereafter actually taken,

used, damaged, or destroyed for levee or levee drainage pur-

poses shall be paid for at fair market value to the full extent of

the loss.” (emphasis added.) The general content of this provi-

sion had been contained in LSA-R.S. 38:281.

15a

No. 314 and Acts of 1979, No. 67615. Thus, while signifi-

cant changes occurred in compensating riparian land-

owners for lands and improvements appropriated

pursuant to the levee servitude, the batture exemption

from compensation remained constant. See La. Const. of

15 Acts of 1979, No. 835 amended and reenacted Subsec-

tions A and B of LSA-R.S. 38:281. Subsection B provided in

pertinent part as follows:

§ 281. Construction and maintenance of levees

and levee drainage; measure of compensation; recre-

ation functions; filling vacancies

* *

B. All lands and improvements hereafter actu-

ally used, damaged or destroyed for levees or levee

drainage purposes shall be paid for at fair market

value to the full extent of the loss.

The measure of compensation for lands and

improvements taken or destroyed for levees and

levee drainage purposes shall be the fair market value

of the property taken or destroyed before the pro-

posed use of the property or construction of the levee

or the levee drainage facilities, without considering

any change in value caused by the construction of the

levee or the levee drainage facilities . . .

* *

However, nothing contained in this Subsection shall

apply to batture or to property, the control of which is

vested in the state or any political subdivision for the

purpose of commerce.

“Batture” as used in this Section shall have the same

meaning as that term was defined by the courts of this state

as of the effective date of the Louisiana Constitution of

1974.

(emphasis added.)

l6a

1898, Art. 312; La. Const. of 1921, Art. 16, § 6; La. Const.

of 1974, Art. 6, § 42.16

Although the Louisiana Constitution of 1974 exempts

appropriated batture lands from the payment of compen-

sation, it does not provide a definition of the term. See

LSA-Const. Art. 6, § 42. The legislation implementing Art.

6, § 42, defines batture as having “the same meaning as

that term was defined by the courts of this state as of the

effective date of the Constitution of Louisiana.” LSA-R.S.

38:281(1), 301. Accord Acts of 1979, No. 676. This defini-

tion is consonant with the Constitution’s use of the term

“batture.”

Il.

Batture is alluvion. Municipality No. 2 v. Orleans Cot-

ton Press, 18 La. 122, 210, 36 Am. Dec. 624 (1841); Hol-

lingsworth v. Chaffe, 33 La. Ann. 548 (1881); Ferriere v. City

of New Orleans, 35 La. Ann. 209 (1883); Seibert v. Conserva-

* tion Comm'n of Louisiana, 181 La. 237, 159 So. 375 (1935).

See LSA-C.C. art. 499 (1979). It is formed successively and

imperceptibly by alluvial accretions (sedimentation). Pul-

ley & Erwin v. Municipality No. 2, 18 La. 278 (1841); Besson

v. Mayor of Donaldsonville, 49 La. Ann. 273, 21 So. 262

(1897); Esso Standard Oil Co. v. Jones, 233 La. 915, 98 So. 2d

236, 242, 249 (1957), on org & reh’g [growth is impercept-

ible if it can not be perceived at any given moment].

16 Both Acts of 1979, No. 676, applicable to the Scarsdale

appropriations, and LSA-R.S. 38:301, applicable to the English

Turn appropriations, which implement LSA-Const. Art. 6, § 42,

exempt batture from compensation.

ee Ce

17a

Batture below the ordinary low water mark is part of the

bed of the river. 2 La. Civil Law Treatise § 119. To be

susceptible of private ownership, the batture must be

reclaimed from the river, i.e., it must form sufficient

elevation and magnitude to rise above the waters and

become part of the bank. Cochran v. Fort, 7 Mart. (N.S.)

662 (1829); Barre v. City of New Orleans, 22 La. Ann. 612

(1870); Ferriere v. City of New Orleans, supra; La Branche’s

Heirs v. Montegut, 47 La. Ann. 674, 17 So. 247 (1895). See

LSA-C.C. art. 499 (1979); La. Civ. Code of 1870 art. 509; see

also 21 Tul.L.Rev. at 660.

Title to alluvion is purely an accessory right, attach-

ing exclusively to riparian ownership, and incapable of

existing without it. Heirs of Leonard v. City of Baton Rouge,

39 La. Ann. 275, 4 So. 241 (1887); Succession of Delachaise v.

Maginnis, 44 La. Ann. 1043, 11 So. 715, 716 (1892); Pulley

& Erwin v. Municipality No. 2, supra; Municipality No. 2 v.

Orleans Cotton Press, supra; State v. Richardson, supra. The

right of alluvion or batture is inherent in the riparian

property, resulting from natural as well as municipal law.

Barre v. City of New Orleans, supra; Hollingsworth v. Chaffe,

supra. See LSA-C.C. art. 499 (1979); La. Civ. Code of 1870

art. 509. Like the bank, alluvion or batture belongs to the

riparian owner but, as long as it is not actually incorpo-

rated into the main land - as when it is separated from it

by a levee or bank — the use of both the bank and batture

remains in the public. Pulley & Erwin v. Municipality No. 2,

18 La. at 283-4. See Louisiana Ice Manuf’g Co. v. City of New

Orleans, 43 La. Ann. 217, 9 So. 21 (1891); Ward v. Board of

Levee Comm'rs of Orleans Levee Dist., 152 La. 158, 92 So.

769, 775 (1922) [held that as to batture and the La. Const.

of 1921, “the levee servitude extends only over the levees

18a

and the batture formed between the levee and river” ]. See

LSA-C.C. art. 499 (1979); La. Civ. Code of 1870 art. 509.

Consequently, the riparian landowner has only naked

legal title to the batture property subject to the servitude,

without right of usus and fructus. Warriner v. Board of

Comm'rs of Port of New Orleans, 132 La. 1098, 62 So. 157,

159 (1913). See LSA-C.C. art. 563 (1976)!7; 2 La. Civil Law

Treatise § 87; 21 Tul.L.Rev. at 661-663.

The land mass of batture susceptible of private own-

ership can become quite extensive. In Cochran v. Fort,

supra, a cabin was built on the batture; in Minor’s Heir v.

City of New Orleans, 115 La. 301, 38 So. 999 (1905), Hunt v.

City of New Orleans, 148 La. 754, 87 So. 736 (1921) and

Heirs of Leonard v. City of Baton Rouge, supra, railroad

tracks were built on the batture; in Succession of Delachaise

v. Maginnis, supra, Louisiana Ice Manuf'g Co. v. City of New

Orleans, supra, Ferriere v. City of New Orleans, supra, Hunt

v. City of New Orleans, supra, and St. Anna’s Asylum v. City

of New Orleans, 104 La. 392, 29 So. 117 (1900), one or more

city streets were located on the batture parallel to the

river. Further, batture terrain was described as wooded

pasturage in Louisiana Ry. & Navigation Co. v. Knox, 125

La. 454, 51 So. 493 (1910), and as “soggy [land], covered

17 Acts of 1976, No. 103, enacting LSA-C.C. art. 563, repro-

duced the substance of La. Civil Code of 1870 art. 553, but

changed the law as it extends the right of the usufructuary to

land formed in a river. Revision comments, section (a). LSA-

C.C. art. 563 provides as follows:

Art. 563. Alluvion

The usufruct extends to the increase to the land

caused by alluvion or dereliction.

19a

with a semiaquatic growth of willows, cottonwoods, and

cockle burrs” in State v. Richardson, 72 So. at 986.

Batture has significant meaning in Louisiana history,

law and jurisprudence. In the context of litigation on

riparian rights of accretion, this court stated in Morgan v.

Livingston, 6 Mart. (O.S.) 19, 216 (1819), that batture

is, according to Richlet and the French academy,

a marine term, and is used to denote a bottom of

sand, stone or rock mixed together, and rising

towards the surface of the water: its etymology

is from the verb battre, to beat: because a bat-

ture is beaten by the water. In its grammatical

sense, as a technical word, and we believe in

common parlance, it is the elevation of the bed

of a river, under the surface of the water, since it

is rising towards it. It is, however, sometimes used

to denote the same elevation of the bank, when it has

arisen above the surface of the water, or is as high as

the land on the outside of the bank. (emphasis

added)

The defer.Jant therein endeavored, but failed, to establish

that the batture existed at a certain point in time and was

of the latter kind, a batture above the surface of the water.

Morgan's definition was cited with approval in Hol-

lingsworth v. Chaffe, 33 La. Ann. at 551, and endorsed in

Heirs of Leonard v. City of Baton Rouge, 39 La. Ann. 275, 4

So. 241 (1886). In the latter case, riparian landowners

sought, but failed, to recover batture from the city claim-

ing the city was withholding more batture than was nec-

essary for public use. This court declared “[t]he word

‘batture’ has a precise legal signification,” and provided a

definition similar to Morgan's, but more pertinent to bat-

ture when it is susceptible of private ownership: “Vide

20a

Bouv. Law Dict. verbo “batture”: ‘An elevation of the bed

of a river under the surface of the water; but it is some-

times used to signify the same elevation when it has risen

above the surface. The term ‘battures’ is applied principally

to certain portions of the bed of the Mississippi river which are

left dry when the water is low, and are covered again, either in

whole or in part, by the annual swells.’” 4 So. at 248.

(emphasis added)

This court subsequently gave meaning to batture in

the context of levee servitude appropriation in Boyce Cot-

tonseed Oil Mfg. Co. v. Board of Comm'rs, 107 So. at 508-509.

Plaintiff had prevailed on his claim that his land had been

destroyed for levee purposes within the meaning of the

Constitution of 1921 when the levee was built behind his

property, leaving the property between the levee and the

river. In rejecting defendant’s claim that the property was

batture property within the meaning of the Constitution’s

batture exemption from compensation, this court deter-

mined without elaborating on the issue:

But plaintiff’s land was not batture. The batture

is that part of the river bed (sic) which is uncov-

ered at time of low water, but is covered annu-

ally at the time of ordinary high water; when it

ceases to be covered at the time of ordinary high

water, it ceases to be batture and becomes part of

the bank of the river. R.C.C. 457; Ward v. Board

of Levee Commissioners, 92 So. 769, 772, 152 La.

158, 166.

Plaintiff’s land was not covered in times of

ordinary high water, although it had been cov-

ered by water on several occasions in periods of

extraordinary high water during the last half of

21a

the century. (emphasis in original) 107 So. at

508-509.

Boyce illustrates that merely because land is on the

outside of the levee, i.e., between the levee and the river,

it is not necessarily batture. The pivotal factor to the

Boyce court was whether the property was covered by

ordinary high water. The court decided the land was not

batture without specifying whether the land had alluvial

origin. The factual circumstances that plaintiff's land and

improvements “were thrown outside the levee” imply,

however, that either it was not of alluvial origin or was of

alluvial origin but had ceased to be batture!8 because the

land had risen to such a height that it was not covered by

ordinary high water.

From the foregoing we conclude that, according to

pre-1974 jurisprudence of this court, batture is of alluvial

origin; by accessory right it belongs to the riparian land-

owner when it rises above the bed of the stream or river;

and it is subject to the Article 665 levee servitude when it

is on the outside of the levee. Nevertheless, due to the

limiting language in Boyce (and Heirs of Leonard), alluvial

accretions are not subject to the batture exemption from

compensation when it ceases to be covered annually by

“ordinary high water.” See 21 Tul.L.Rev. at 661.

The manner in which the Boyce court used the phrase

“ordinary high water” connotes that the phrase means

the highest level the river inevitably reaches. during

annual seasons of high water. Ordinary high water, then,

18 Minor’s Heirs v. City of New Orleans, supra, and Succession

of Delachaise v. Maginnis, supra, indicate that batture property

can cease to be batture.

22a

is the highest water stage the river can be expected to

reach annually, but not the level the water reaches during

major flood events, i.e., reaches “on several occasions in

periods of extraordinary high water during the last half

of the century.” 107 So. at 509. This meaning is consistent

with the description of batture in Heirs of Leonard v. City

of Baton Rouge, 4 So. at 243, as land covered by “annual

swells,” and in Warriner v. Board of Comm'rs for the Port of

New Orleans, 62 So. at 158, as land subject to “periodical

overflow.” It is also consistent with the description of the

upper boundary of the bank employed in Morgan v. Liv-

ingston, 6 Mart. (O.S.) at 229, that “the bank is the space

which the water covers when the river is highest in any

season of the year,” and in Wemple v. Eastham, 90 So. at

638, that it is “the line which the edge of the water

reaches at its ordinary high stage — that is, the highest

stage that it usually reaches at any season of the year.”

See LSA-C.C. art. 456. Moreover, this definition, derived

from pre-1974 jurisprudence, peacefully coexists with the

purpose of the batture exemption, as it exposes a suffi-

cient land surface for the exemption to be practicably

utilized. A more restrictive meaning of ordinary high

water would threaten the social utility of the exemption,

as well as emasculating its practical purpose.

IV.

Plaintiffs’ theory that the upper boundary of batture

must be determined by the physical characteristics of

ordinary high water on the bank, is inharmonious and

discordant with Louisiana’s jurisprudential definition of

batture. Plaintiff's botanist, Dr. Luther F. Holloway,

accepted by the trial court as an expert in determining

23a

vegetation demarcations, indicated his working defini-

tion of ordinary high water, which he derived from fed-

eral jurisprudence and onsite observations, corresponded

to the COE’s definition of the phrase for its determination

of navigational servitudes, sovereignty boundary lines,

etc. Dr. Holloway testified that the ordinary high water

line relates to physical fact criteria and, basically, is the

point in the river or stream where the water duration

physically marks the soil and vegetation. Applying his

definition, he placed the ordinary high water mark of

Shingle Point at 8.5 feet because the water plants that

tolerate substantial amounts of water ended at that line

break. Under his definition of ordinary high water, most

of Shingle Point cannot be batture merely because it is

covered with various trees. Such a definition is antithetic

to pre-1974 jurisprudence in which batture lands were

described as wooded pasturage and/or semiaquatic with

“growth of willows, cottonwoods, and cockle burrs.” See

Louisiana Ry. & Navigation Co. v. Knox, supra, and State v.

Richardson, supra. It is also contrary to the trial court’s on-

site observation which showed Shingle Point, including

its vegetation and trees, inundated at the 8.5 feet level.

Moreover, plaintiffs’ hydrologist, Dr. Chester C. Wat-

son, testified that the water level at Shingle Point is at or

above 10.6 feet 5% of the year [approximately 18 days

annually], at or above 9.78 feet 10% of the year [approx-

imately 36 days annually], and at or above 8.44 feet 20%

of the year [approximately 73 days annually]. Dr. Hollo-

~way also admitted the natural flood plane at Shingle

Point is around 11.0 feet. Nevertheless, under Dr. Hollo-

way’s definition of ordinary high water, flooding [which

would be any water levels above the 8.5 feet level] would

24a

persist 20% of the year [approximately 73 days annually}

and would occur when the water is 0.2 of a foot above the

toe (bottom) of the levee at Shingle Point. Application of

his working definition of ordinary high water, which

plaintiffs claim is a standard of federal and common law,

produces results contrary to pre-1974 jurisprudence

defining and characterizing batture, and confuses the

distinction between major flood events and annual high

water levels.

The construction of the phrase “ordinary high water”

as it pertains to the batture exemption from compensation

for levee servitudes depends solely upon pre-1974 juris-

prudence of this state. The laws and jurisprudence of

France, our sister states, and the United States are irrele-

vant to the quest for the meaning of ordinary high water

in relation to the levee servitude and the rights of rip-

arian landowners in Louisiana. State v. Richardson, 72 So.

at 987.19 The phrase must be construed in the context of

the nature of batture and the history and purpose of

19 In State v. Richardson, 72 So. at 987, this court declared

that although as a matter of federal constitutional law, by virtue

of her sovereignty, Louisiana’s boundary line on navigable

waters was fixed at the mean/ordinary high water mark, the

rights of riparian landowners is governed by Louisiana law.

Consequently, riparian landowners on the banks of navigable

rivers and streams own the banks, which is the land between the

ordinary low and the ordinary high stage of the water, or when

the levee is in close proximity to the water, the levee forms the

bank. LSA-C.C. art. 456. Thus, the Richardson court concluded

that the laws and jurisprudence of France, our sister states, and

the United States is not relevant to the inquiry of what ordinary

or mean high water is in relation to the levee servitude and the

rights of riparian landowners. 72 So. at 987.

25a

Louisiana’s batture exemption. Therefore, contrary to

plaintiffs’ contentions, Louisiana is not bound to indis-

criminately follow a federal or common law definition of

ordinary high water which has no connection to our

definition of batture, the levee servitude or riparian land-

owner rights, as set forth in our Constitution, legislation

and jurisprudence.

Applying these legal precepts to the findings and

determinations of the trial court, as affirmed by the court

of appeal, we find no error in their conclusions that all of

Shingle Point is batture.

Both lower courts agreed that Shingle Point is com-

posed of alluvial buildup, with the court of appeal indi-

cating Shingle Point was characterized by defendant's

fluvial geomorphalogist as an accumulation of sediment

on the inside of a meander bend. 608 So. 2d at 1107. The

trial court concluded that Boyce and Wemple established

the controlling guidelines for determining whether the

plaintiffs’ appropriated land was batture; that those cases

meant “ordinary high water” is the highest stage that the

river usually reaches annually; and that statistics “regard-

ing the elevations the river usually reaches during

approximately each year over a sufficient period of time”

can be employed to satisfy the standards of Boyce and

Wemple. The trial court utilized evidence of mean high

water, the average of annual river stage peaks at a given

location, to implement the definition of ordinary high

26a

water. Its determination is compatible with our inter-

pretation of batture and “ordinary high water” as they

pertain to the batture exemption.

As previously stated, the manner in which the Boyce

court used “ordinary high water,” the phrase means the

highest level the river inevitably reaches during annual

seasons of high water, which is the highest stage the river

can be expected to reach yearly. The method employed

for determiriing ordinary high water by defense experts

and accepted by the trial court, is the method used for

determining mean high water, the highest stage reached

by the river approximately every year. The trial court did

not err by applying that standard. It is consistent with the

methodology accepted by this court for determining ordi-

nary low water. See Esso Standard Oil Co. v. Jones, 98 So. 2d

at 242. Likewise, the corollary method is acceptable for

determining the level of ordinary high water.

The trial court’s calculation of mean high water was

drawn from almost a century of river gauge data accumu-

lated by the COE and reflected the normal behavior of the

river without consideration of unusually high or low

annual readings. The trial court indicated the overwhelm-

ing weight of expert testimony revealed mean high water

at the times of the appropriations at Shingle Point was

11.0 feet and, accordingly, adopted 11.0 feet as the ordi-

nary high water stage.?° The trial court indicated that in

20 In comparison, trial evidence showed floods which occur

approximately every 9 years and which the National Weather

Service labels as a minimum flood stage, is the 12.5 feet level at

Shingle Point.

27a

1973-75, several years prior to the Scarsdale project exca-

vation, land elevations measured at Shingle [P]oint were

as follows: 10.2, 7.2, 9.3, 6.9, 7.7, 6.1, 8.7, 8.4, 9.5 and 10.8

feet. Immediately prior to the English Turn project exca-

vation, the COE recorded twenty-five land elevations.

Two elevations marginally exceeded 11.0 feet while the

remaining twenty-three elevations were as follows: 8.7,

8.9, 10.2, 8.2, 6.7, 8.7, 8.3, 11.0, 10.8, 9.6, 8.0, 10.5, 7.7, a

6.2, 8.2, 7.2, 8.1, 6.97, 9.2, 9.2, 9.3, and 8.0 feet. Thus, based

on elevational data showing 97% of Shingle Point is inun-

dated when the river reaches 11.0 feet; on evidence that

the only areas of Shingle Point not inundated when the

river is 11.0 feet are isolated high spots created by man-

made activity (prior excavations); and on the trial court’s

on-site inspection which revealed “with the exception of

a few high spots on the up river portion, water covered

the area with only the tops of the trees rising above the

waters” when the river was 8.5 feet, the trial court con-

cluded all of Shingle Point is batture and exempt from

compensation.

In its review of the correctness of the trial court's

factual findings, the court of appeal indicated that testi-

monial evidence based on historical maps/hydrographic

surveys, aerial photographs and river gauge data com-

piled by the COE showed that while the maximum land

elevations at Shingle Point varied over time, annual high

water elevations of the river exceeded the highest land

elevations. It also indicated that expert witnesses con-

cluded from their analysis of river gauge records that, on

average, the highest stage the river reaches in any given

year is approximately 11.0 feet. Based on the elevational

data, the experts concluded that 97 to 99% of the surface

28a

of Shingle Point is inundated at the 11.0 feet stage, with

the only areas not inundated being isolated high spots

created by man-made activity. Therefore, it found no

error in the trial court’s conclusion that all of Shingle

Point was batture at the time of the appropriations and,

consequently, exempt from compensation under constitu-

tional and statutory authority.

Louisiana’s three-tiered court system allocates the

fact finding function to the trial courts. Sistler v. Liberty

Mut. Ins. Co., 558 So. 2d 1106 (La. 1990); Virgil v. American

Guarantee and Liability Ins. Co., 507 So. 2d 825 (La. 1987).

We find no error in the appellate court’s determination

that the trial court did not abuse its discretion in evaluat-

ing the testimony of the parties’ expert witnesses or in

making its factual findings. Therefore, as the trial court’s

finding that the land taken from plaintiffs is batture, is

consistent with the definition of batture as the term is

used in the context of the batture exemption from com-

pensation for the state’s appropriation of riparian land

pursuant to LSA-Const. Art. 6, §42 and LSA-R.S.

38:301(C)(1)(a), we affirm.

DECREE

For the reasons assigned, the judgments of the lower

courts in favor of defendant and dismissing the plaintiffs’

consolidated suits, are affirmed. Costs are assessed

against plaintiffs.

AFFIRMED

29a

SUPREME COURT OF LOUISIANA

No. 93-C-0167

WARREN DeSAMBOURG ET AL

Versus

BOARD OF COMMISSIONERS FOR GRAND

PRAIRIE LEVEE DISTRICT

LEMMON, Justice, Concurring

The ordinary high water stage is the level that the

river in most years reaches and remains at for a substan-

tial period of time. The evidence in this case that the river

almost every year at Shingle Point reaches the level of

eleven feet and stays at that level for a substantial

number of days supports the trial judge’s conclusion that

the ordinary high water stage was eleven feet.

30a

SUPREME COURT OF LOUISIANA

SEP 2 1993

No. 93-C-0167

WARREN DeSAMBOURG AND MARY DeSAMBOURG

Versus

BOARD OF COMMISSIONERS FOR THE GRAND

PRAIRIE LEVEE DISTRICT

DENNIS, J., dissenting.

I respectfully dissent.

The constitution declares that lands and improve-

ments actually used or destroyed for levees or levee

drainage purposes “shall be paid for as provided by law,”

with the exception of “batture or property the control of

which is vested in the state or in an [sic] political subdivi-

sion for the purpose of commerce.” La. Const. art. 6 § 42

(1974). Previously, the constitution had provided that all

lands and improvements actually used or destroyed for

levee or levee drainage purposes, “shall be paid for at a

price not to exceed the assessed value of the preceding

year; provided, that this shall not apply to batture, nor to

property the control of which is vested in the state or any

subdivision thereof for the purposes of commerce.” La.

Const. art. 16 § 6 (1921). Under Article 665 of the Civil

Code lands fronting navigable rivers are burdened by a

servitude of public use for the construction and mainte-

nance of levees.

For purposes of interpreting article 665 of the Civil

Code and Article 16, Section 6 of the 1921 Constitution,

this court has consistently defined batture as the area

between ordinary low and ordinary high stage of the

3la

water of a navigable river. Boyce Cottonseed Oil Mfg. Co.

Board of Commissioners, 160 La. 727, 107 So. 506 (1926);

Maynard v. United States, through U.S.Corps of Engi-

neers, 587 F.2d 788 (5th Cir. 1979). Therefore, levee boards

are bound to pay an indemnity for land between the

ordinary high water mark and a levee actually used or

destroyed for levee purposes. Boyce v. Cottonseed Oil

Mfg. Co. v. Board of Com., supra, See also Pruyn v.

Nelson Brothers, 180 La. 760, 157 So. 585 (1926); Ward v.

Board of Levee Com., 152 La. 158, 92 So. 769 (1922);

Mithoff v. Town of Carrollton, 12 La. Ann. 185 (1857); De

Ben v. Gerard, 4 La. Ann. 30 (1849). This interpretation of

“batture” for such purposes has been adopted by the

United States Supreme Court. General Box Co. v. United

States, 351 U.S. 159 (1956); 2 Yiannopoulos, Property § 89.

A river consists of three things: “the water, the bed,

and the banks.” Morgan v. Livingston, 6 Mart. (O.S.) 19,

229 (1816); 2 Yiannopoulos, Property § 84. The water and

bed of a navigable river are public things, whereas the

banks are private things subject to public use. Id. The

word “bed” is not defined in the Louisiana Civil Code,

but according to necessary implication the bed is “the

land covered by the water in its ordinary low stage.”

Wemple v. Eastham, 150 La. 247, 90 So. 637 (1922); 2

Yiannopoulos, supra.

Previously, in cases involving delimitation between

bed and bank, this court has rejected methods involving

arithmetical water level averaging and held that the testi-

mony of the witnesses who lived in the vicinity is to be

favored over such abstract mathematical measurements.

Seibert v. Conservation Comm. of La., 181 La. 237, 159 So.

375 (1935). The same problems presented by arithmetical

32a

averaging to determining the ordinary low water mark in

Seibert are present when using statistical averaging to

determine the “ordinary high water mark” as is required

in this case. In summary, the fallacies and frailties

involved in arithmetical expert data are as follows:

Peak flow and flood stages have historically been

excluded in Louisiana when. determining the proper

demarcation of the bank of the river. Boyce v. Cotton-

seed Oil Mfg. Co. v. Board of Com., supra; Wemple v.

Eastham, supra.

This court has never accepted arithmetical computa-

tions of water levels to determine the low or high

water mark. Statistical averaging techniques are only

appropriate when determining the high tide line of

waters subject to tidal influence. To determine the

ordinary high water mark reference must be had to the

physical characteristics of the banks and bed of the

water body as determined by physical evidence or

witness testimony. Maloney, The Ordinary High Water

Mark: Attempts at Settling An Unsettled Boundary

Line, 13 Land and Water L. Rev. 465, 467 (1978).

There is an inherent danger in relying on expert wit-

nesses, even those in good faith, who are free to select

which peaks to include and exclude, the number of

days and years that are included in the average, and

the duration of the levels included in the calculation.

The court in Willis v. U.S., 50 F. Supp. 99 (S.D. Va.

1943) reasoned that arithmetical averaging “would be

inappropriate because any result reached would

depend upon a time period and frequency of occur-

rence arbitrarily selected by the individual analyst.

While useful for engineering purposes, the statistical

averaging approach was ‘utterly unreliable as a means

of determining the respective rights of the United

33a

States and the riparian property owner.’ ” Id. at 101;

See Maloney, supra at 494-98.

* The problem created if statistical averaging is recog-

nized as the method for determining the high water

mark is a battle of experts. The court in Siebert, con-

fronted with conflicting expert testimony based ‘on

arithmetical averaging, expressed the problem:

“Which is correct and most reasonable in this particu-

lar instance is a matter of considerable confusion. We

therefore resort to lay testimony which we find to

have been used in connection with all previous litiga-

tion of this nature.”

* A high water mark determined by statistical averaging

is an artificial, abstract line that may have no relation-

ship with the actual “ordinary” high water mark.

* The lay testimony in the record indicates that the

water does not always reach or ordinarily reach the 11

foot line.

* To further elaborate on the inherent problems with

statistical averaging, one reasonable interpretation of

the statistics presented by the defendant, Plaquemines

Parish Gov’t, indicates that the 11 foot line was not

reached at any time in 9 of the 13 years covered in the

survey. This shows that, given enough data and discre-

tion, a good statistician can prove one side of a propo-

sition as easily as the other. “We prove what we want

to prove, and the real difficulty is to know what we

want to prove.” Chartier, Systeme des Beaux-Arts.

Accordingly, I believe we should adhere to our for-

mer well established jurisprudence and require that the

decisions as to the ordinary high water mark be based on

the testimony of witnesses in the vicinity. The decision

below fails to follow this well established method

accepted in our earlier opinions. Otherwise, too much

34a

power will be given to governments to use statistics to

extend the mark shoreward and take more land from

private landowners without just compensation. The con-

stitutional provision which allows the taking of batture

without compensation should be strictly construed.

35a

APPENDIX “B”

(144.15368)

25TH JUDICIAL DISTRICT COURT FOR THE

PARISH OF PLAQUEMINES

STATE OF LOUISIANA

NO. 30-304 DIVISION “B” DOCKET NO.

CHARLES MILLER

versus

PLAQUEMINES PARISH GOVERNMENT

Consolidated with

NO. 26-747 DIVISION “B” DOCKET NO.

WARREN DESAMBOURG and

MARY BURNS DESAMBOURG

versus

PLAQUEMINES PARISH GOVERNMENT

FILED: JUL-8 1991 /s/ Dorothy M. Chevalier

DEPUTY CLERK

JUDGMENT

This matter having come before the Court on the

motion for summary judgment filed by defendant

Plaquemines Parish Government, said motion having

been deferred to trial on the merits commencing March

18, 1991; and for the reasons stated in open Court on

March 19, 1991;

IT IS HEREBY ORDERED, ADJUDGED AND

DECREED that defendant Plaquemines Parish Govern-

ment’s motion for summary judgment is granted, and

36a

that the claims of petitioners Charles Miller and Ina Pica-

rella Miller are hereby dismissed at their cost.

THUS DONE AND SIGNED, Baton Rouge, Louisi-

ana, this 8 day of July, 1991.

/s/ Lewis S. Doherty, III

LEWIS S. DOHERTY, III

JUDGE AD HOC

25th JUDICIAL DISTRICT

_ COURT

(144.15368)

25TH JUDICIAL DISTRICT COURT FOR THE

PARISH OF PLAQUEMINES

STATE OF LOUISIANA

DIVISION “B” DOCKET NO.

WARREN DESAMBOURG, ET AL.

VERSUS

PLAQUEMINES PARISH GOVERNMENT

NO. 26-747 C/W

26-748

26-765

26-766

26-881

30-301

30-302

30-303

30-305

30-999

37a

FILED: JUL-8 1991 /s/ Dorothy M. Chevalier

DEPUTY CLERK

JUDGMENT

The above captioned consolidated cases having come

before the Court for trial on the merits on March 18-22,

1991, and for the reasons set forth in the Court’s “Written

Reasons for Judgment” dated June 24, 1991 and filed June

26, 1991:

IT IS HEREBY ORDERED, ADJUDGED AND

DECREED that in each of the above captioned cases,

there be judgment in favor of defendant Plaquemines

Parish Government, dismissing the claims of all plaintiffs

in each said case at their cost.

IT IS FURTHER ORDERED, ADJUDGED AND

DECREED that expert witness fees of the following wit-

nesses are fixed and taxed as costs: Dr. Richard Kesel -

$1,500.00; Dr. Lowell Urbatsch — $1,500.00; Curtis Barrett

~ $1,500.00; Wilton Dufrene — $750.00; Dr. Luther F. Hollo-

way — $1,500.00; Dr. William Patrick — $1,500.00; Dr.

Chester E. Watson - $1,500.00; Max Derbes - $1,500.00;

Hugh B. McCurdy, Jr. - $750.00; and Irvington Eppling -

$1,500,00.

THUS DONE AND SIGNED, Baton Rouge, Louisi-

ana, this 8 day of July, 1991.

/s/ Lewis S. Doherty, Ill

LEWIS S. DOHERTY, Ii

JUDGE AD HOC

25th JUDICIAL DISTRICT

COURT

38a

APPENDIX “C”

25TH JUDICIAL DISTRICT COURT

PARISH OF PLAQUEMINES

STATE OF LOUISIANA

deSAMBOURG, ET AL. NO. 26-747 c/w

versus 26-748

26-765

PLAQUEMINES PARISH 26-766

GOVERNMENT 26-881

30-301-303

30-305

30-999

DATE FILED JUN 26, 1991

/s/ Dorothy M. Chevalier

DEPUTY CLERK

WRITTEN REASONS FOR JUDGMENT

Eleven consolidated suits form the basis of claims by

various riparian owners of lands located along the Mis-

sissippi River in Plaquemines Parish. The plaintiffs con-

tend that they are entitled to compensation for the taking

of their property for levee purposes. The defendant,

Plaquemines Parish Government (“PPG”), contends that

it is not liable to pay compensation because the plaintiffs’

land lies between the levee and the river and is “batture”

and, consequently, under the provisions of the Louisiana

Constitution of 1974 and state statutes is exempt from the

ordinary requirement that the payment of compensation

is due when the property is appropriated by public

authorities for levee improvement purposes. The issue

39a

thus presented is: What is the scope of the batture exemp-

tion and its application to the facts of the case here under

consideration.

Pursuant to the Mississippi River Flood Control Act

of 1928, 33 USC §701-09, the United States Corps of

Engineers (“COE”) oversees and maintains the Missis-

sippi River and levee system in Plaquemines Parish.

Improvements to Or enlargements of the levees are initi-

ated and supervised by the COE in cooperation with the

PPG. Once the COE selects the site to improve the levee,

the PPG is then obligated to furnish all needed rights of

way and to appropriate’ riparian property for these pur-

poses.

FACTS

The land in question known as “Shingle Point” con-

sists of approximately fifty acres lying between the edge

of the Mississippi River and the levee on the left descend-

ing bank of the river at English turn. There are no build-

ings on Shingle Point, and there has been no agricultural

1 “Appropriation” is a term of legal designation, unique to

Louisiana law and quite different from the commonly encoun-

tered concept of “expropriation.” Appropriation is the govern-

ing authority’s exercise of the levee servitude through the

taking of riparian property for the purpose of building and/or

repairing levees. Delaune v. City of Kenner, 550 So.2d 1386 (La.

App. 5th Cir. 1989), writ denied, 553 So.2d 124 (1989). The

taking of property by eminent domain is termed “expropria-

tion” in Louisiana as distinguished from “appropriation,” the

term applied to the taking of the riparian servitude. 40 T.L.R.

243. Actually, title to property does not change through appro-

priation.

40a

activity carried on in recent history. The alluvial buildup

of the river at this point has served as a mining operation

for dirt for levee development during the past 100 years

or so. At the conclusion of the trial on March 22, 1991, the

Court inspected the site. The river was at high water and,

except for the upriver end of the tract, very little but

willow trees were exposed above the river’s waters.

Two levee projects initiated by the United States

Corps of Engineers prompted action by PPG to appropri-

ate subject properties. These projects have been described

as the Scarsdale-Stella Levee Set Back and Road Reloca-

tion Project (“Scarsdale”) and the English Turn Levee

Enlargement and Concrete Slope Pavement Project

(“English Turn”).

With respect to the Scarsdale project, the PPG

adopted resolutions dated March 3, 1982, July 28, 1982

and June 15, 1988, wherein all of the lands reflected in a

sovernment survey were appropriated for the purpose of

acquiring fill dirt for purposes of obtaining a temporary

servitude of access and for the removal of the dirt on the

plaintiffs’ land between the river and the levee. The con-

tract for work on the Scarsdale project was issued on

September 29, 1983, and the project “was completed

December 1984.”2 According to the Corps of Engineers

documents,3 the amounts of dirt used were as follows:

Compacted fill 6,139.0 cubic yards

Semi-compacted fill 153,208.0 yards

* Affidavit of Paul Griffith, III, dated October 4, 1990,

attached to a Motion for Summary Judgment and identified as

Exhibit B.

3 Stipulation of counsel for parties.

4la

Uncompacted fill 14,098.0 yards

This material was hauled 2.1 miles from the place where

it was dug to the site of the improvements to the levee.

Most all of the dirt was removed from the properties of

Schell, deSambourg, Seibert, Perino and Mancuso, and

suits by these landowners followed and are referred to as

the “deSambourg” suits.

With regard to the English Turn project, the property

used was appropriated by resolutions of the Parish Coun-

cil on January 8, 1986, June 11, 1986, November 12, 1987,

and April 14, 1988. Again, the parish appropriated a

temporary servitude to facilitate the removal of dirt, and

the right of access on the plaintiffs’ lands between the

levee and the river.

The contract for the English Turn project was dated

September 28, 1986, and according to PPG's affidavit, the

project “was completed in December 1988.” The amount

of dirt used for this project is as follows:

Semi-compacted fill | 156,507.57 yards

Uncompacted fill 6,846.00 yards

Much of the dirt in this project was removed from the

DiCarlo, LaGreco and Heir[sic]/Himel tracts. Some dirt

for the English Turn project may have been removed from

the Schell, deSambourg and Seibert tracts.

The ownership of the tracts of the plaintiffs in the

respective suits is listed as follows:

42a

Acreage

Between

Lot River &

OWNER No. Arpents Levee

Charles and Ina Miller 21 1 3.9

Salvadore DiCarlo 20 1 4.1

Joseph A. and Linda

LaGreco 19A &

19B 1 4.3

Anthony, Jr. and Marie

LaGreco 18B 1 2.3

Emile Charles LaGreco 18A 1/2 2.3

Henry J. and Erica H.

Heier/Edward Himel 15-17 3 13.5

Albert L. and Rosalie

Schell 11 1 _* on

Warren and Mary

deSambourg 10 1 4.6

Joseph P. Seibert 8&9 2 8.6

Joseph, Sr. and Sadie

Perino 7B 1/2 2.1

Charles and Angelina

Mancuso 7A 1/2 2.1

Following the filing of the respective suits, a Motion

for Summary Judgment was filed by the PPG directed to

the claim of Charles and Ina Miller in which it was

contended that the servitude which was appropriated

was not only not utilized by the defendant and its con-

tractor, but that no dirt was removed from the Millers’

tract. Since under LSA-R:S. 38:281(b), as amended by Act

676 of 1979, compensation is due for levee “appropria-

tion” only where the lands and improvements are “ . . . a-

ctually used, damaged or destroyed . . . ”, there is no basis for

recovery of compensation, where as in this instance, the

]

43a

servitude was not exercised. For this reason, the motion

for summary judgment was granted and the Millers’ suit

dismissed. (Emphasis supplied by Court.)

LAW

An examination of the historical development of the

law with respect to the issues presented by the contention

of the respective parties is necessary. Before the turn of

the 18th century, owners of land located along the Missis-

sippi River began to commence construction of levees to

protect their lands from the seasonal ravages of flooding.

There was no reimbursement from the state for their

expense in making these improvements. However, the

burden proved to be too great and the levee districts were

created in the late 1800’s to construct and maintain the

levees in each of their respective levee districts. See Con-

stitution of 1879, Arts. 213-15; La. Acts 1879, No. 33 and

La. Acts 1882, No. 10. The creation of the levee districts

free the landowners of the obligation of constructing their

levees, but it did not free their land from the riparian

levee servitude which was created in Article 13 of the

Civil Code of 1808 and continued through Article 661 of

the Code of 1825 and the Code of 1870, now finally

appearing in the 1977 revision of the property articles as

Article 665. See 2 Yiannopolous Civil Law Treatise -

Property at 169 (2d Ed. 1980).

Presently, Article 665 provides:

Servitudes imposed for the public or common

utility, relate to the space which is to be left for

the public use by the adjacent proprietors on the

shores of navigable rivers, and for the making

44a

and repairing of levees, roads and other public

or common works.

All that relates to this kind of servitude is deter-

mined by laws or particular regulations.

For the first time, Louisiana Constitution of 1898

imposed a requirement that lands appropriated by the

Orleans Levee Board would have to pay for lands appro-

priated by them for levee purposes. Article 312 of the

1898 Constitution. This requirement was extended state-

wide by the Constitution of 1921. Article 16, Section 6

provided that all lands and improvements used or

destroyed for levee purposes “shall be paid at a price not

to exceed the assessed value of the preceding year, pro-

vided that this shall not apply to batture;.... ”

The Constitution of 1974 made a significant adjust-

ment of the levee servitude. Yiannopolous, supra, at 172.

Article VI, Section 42 of the Louisiana Constitution of

1974 provides:

Notwithstanding any contrary provision of this

Constitution, lands and improvements thereon

hereafter actually used or destroyed for levee or

levee drainage purposes shall be paid for as

provided by law with the exception of batture or

property the control of which is vested in the

State as in a political subdivision for the pur-

poses of commerce.

This section authorized the Legislature to provide a

method of payment for property used or destroyed for

levee purposes. The previous limitation on compensation

(the assessed value for the preceding year) was continued

in effect as a statute by La. Const. Art. XIV, §16 (1974)

45a

subject to change by law. Board of Com’rs v. Percle, 535

So.2d 1240 (La. App. 3rd Cir. 1988).

The Legislature thereafter implemented the constitu-

tional provision with respect to compensation to be paid

to owners of riparian lands by enacting Act 314 of 1978

by changing the measure of payment from assessed value

to fair market value. More specifically, Act 785 of 1985,

now contained in LSA-R.S. 38:301(C)(1)(a) declares:

All lands, exclusive of batture, and improve-~

ments hereinafter actually taken, used, dam-

aged, or destroyed for levee or levee drainage

purposes shall be paid for at fair market value

to the full extent of the loss.

Although the riparian landowner still owes the legal ser-

vitude of Civil Code article 665, the public (i.e. state,

levee board) can no longer exercise that servitude with-

out payment of just compensation which is fair market

value. Tenneco Oil Co. v. Board of Com’rs, 567 So.2d 113 (La.

App. 4th Cir. 1990). But, it must be observed that the

legislature maintained the 1974 constitutional provision

by exempting “batture” from the mandate to compensate

the landowner.

BATTURE

That the lands appropriated are batture and exempt

from the payment of compensation is the heart of the

PPG’s defense to plaintiffs’ claims. The term “batture” is

not defined by the Louisiana Constitution of 1974, but

Acts 1979, No. 676 provided that “Batture” as used in this

section shall have the same meaning as that term was

defined by the courts of this state as of the effective date

46a

of the Louisiana Constitution of 1974,” and La. RS.

38:281(1) now contains an identical provision. In utilizing

the term “batture” in the Louisiana Constitution of 1974,

it is apparent to the writer that the delegates to the

convention believed that “batture” included all of the

land resting on the unprotected side of the levee and

were unaware of the jurisprudence which reflected that

some of those lands may not consist entirely of batture.4

Transcript, La. Const. Conv. of i973, Vol. VIIL, 11/8/83,

pp. 2205-2208.

In Boyce Cottonseed Oil Mfg. Co. v. Bd. of Comm'rs, 160

La. 727, 107 So. 506 (1926), the court provided a jurispru-

dential definition as follows:

The batture is that part of the riverbed which is

uncovered at the time of low water but is cov-

ered annually at the time of ordinary high

water; when it ceases to be covered at the time

of ordinary high water, it ceases to be batture

and becomes the bank of the river.

Professor Yiannoupoulos in his Louisiana Civil Law Trea-

tise, Vol. II, §57, observed that “For purposes of inter-

pretation of Article 665 of the Louisiana Civil Code and

Article 16, Section 6 of the Louisiana Constitution of 1921,

the Louisiana Supreme Court has consistently defined

batture as the area between ordinary low and ordinary

high stage of the water of a navigable river.” Id. at 175.

Professor Yiannoupoulos went on to say: “This is, of

course, the definition of the natural bank of the river, as

4 Thus the constitution and R.S. 38:301 requires payment at

fair market value for that portion of the bank taken which is not

batture, Tenneso [sic] Oil, supra.

47a

distinguished from the definition of the second para-

graph of Article 457 of the 1870 Code. Thus levee boards

were, and continue to be, bound to pay on indemnity for

land between the ordinary high water mark and a levee

actually used or destroyed for levee purposes.” The defi-

nition thus supplied in Boyce, supra, leads to an inquiry as

to what is the ordinary high water stage of a navigable

stream and how is it determined.

The Louisiana Supreme Court in Wemple v. Eastham,

150 La. 247, 90 So. 637 (1922), declared the “ordinary high

water stage” as being “the highest stage that it (the river)

usually reaches at any season of the year . . . ” However,

the “ordinary high water mark does not necessarily

encompass the peak flow or flood stage.” Buttery v. U.S.,

575 F.Supp. 283 (E.D. La. 1983). Also Oklahoma v. Texas,

260 US. 626, 43 S.Ct. 221, 67 L.Ed. 428 (1923).

The petitioners assert that the ordinary high water

stage should be determined from the examination of the

physical characteristics of the bank and, in some

instances, where the physical characteristics are not

clearly identifiable, resort should be made to examination

of the types of vegetation which exist in a hydrographic

environment. On the other hand, the defendant submits

that ordinary high water stage is the levee which

restrains the river at its highest stage if the levee is in

“proximity” to the river5 and, if not, the stage should be

determined by looking to the mean annual high water,

which they submit exceeds the land elevation of Shingle

Point. The foundation of plaintiffs’ argument is centered

5 (La. Civ. Code art. 456)

48a

more on federal regulations and jurisprudence, whereas

the defendant’s argument is primarily based on how the

term is employed in Louisiana cases. The court will agree

with PPG’s assertions that the federal regulations define

river bed and ordinary high water with respect to the

federal government’s navigational servitude which is dif-

ferent from the Louisiana cases which deal with the pub-

lic’s 665 servitude and the rights of the riparian

landowner.

In making a determination as to what method would

be proper, this court must resort to the guidelines estab-

lished by the two cases, Wemple and Boyce, supra. Wemple,

which has been consistently cited with approval by the

Louisiana Supreme Court and by lower appellate courts,

specifically identifies the ordinary high stage as being

“the highest stage that the river usually reaches at any

season of the year. .. . ” Webster defines “usual,” among

other things, as “found in ordinary practice or in the

ordinary course of events.” Webster’s Ninth New Collegiate

Dictionary, Merriam-Webster, Inc. (1983). Boyce, supra, uti-

lizes the term “annually” in incorporating ordinary high

water as the upper boundary of batture. In the court's

opinion, it is more appropriate to employ a method which

satisfies the terms of “ordinary” and “annually” by look-

ing to statistics regarding the elevations the river usualiy

reaches during approximately each year over a sufficient

period of time in which to support a reasonable finding

of what is the ordinary high water stage. This is not to

say that the plaintiffs’ argument and evidence is not

without merit in fixing the limits of the river’s action on

its banks by use of bank profiles and vegetation studies.

But the court believes that PPG’s utilization of evidence

49a

relating to the mean high water for purposes of determin-

ing ordinary high water more properly conforms to the

definition supplied and adhered to by the Louisiana

Supreme Court over many years.

Essentially mean high water is derived from averag-

ing the annual river stage peaks at a given location. Dr.

Richard Kesel, a fluvial gemorphologist [sic], calculated

that the mean high water at Shingle Point of 11 feet will

recur on an average of once every 1.5 years. This of

course means that there is a 75 percent chance that the

river will reach the mean high water level in any given

year. This comports with definition of “the highest stage

that the river usually reaches in any given season of the

year.” The overwhelming weight of the expert testimony

supports a finding that at the time of the respective

appropriations and some years before the mean high

water at Shingle Point was 11.0 feet. Accordingly, the

court adopts 11.0 feet as the ordinary high water stage.

With respect to the elevation of Shingle Point several

years prior to the time the work on the borrow pits was

first begun in 1984, the maximum elevation shown on

Shingle Point on the Mississippi River Hydrographic Sur-

vey 1973-1975 was 10.8 feet. The other elevations shown

are 10.2, 7.2, 9.3, 6.9, 7.7, 6.1, 8.7, 8.4, and 9.5, which

reflect all elevations below the 11.0 feet mean annual high

water or ordinary high water stage. Joint Exhibit 5. Imme-

diately before the work was commenced, the Corps of

Engineers recorded twenty-five elevations across the sur-

face of Shingle Point and of these twenty-five elevations,

only two exceeded 11.0 feet. The remaining elevations are

as follows:

50a

The remaining twenty-three elevations are as

follows: 8.7, 8.9, 10.2, 8.2, 6.7, 8.7, 8.3, 11.0, 10.8,

9.6, 8.0, 10.5, 7.7, 5.5, 6.2, 8.2, 7.20, 8.10, 6.97, 9.2,

9.2, 9.3 and 8.0.

Based on this elevation data, Curtis Barrett, defendant’s

witness, testified that the surface of Shingle Point is 97

percent inundated when the water reaches the 11.0 stage.

He further testified that the only other areas not

inundated appeared to be isolated high spots created by

man-made activity. As pointed out earlier in this opinion,

the court viewed Shingle Point at the conclusion of the

trial when the river was at 8.5 level, and, with the excep-

tion of a few high spots on the upriver portion, water

covered the area with only the tops of trees rising above

the waters. Dr. Kesel testified that, “mean high water, that

we defined at roughly about eleven feet, covers the bar.”

(Shingle Point).

It is thus evident, that if mean high water is one and

the same as the ordinary high water stage, all of Shingle

Point is batture and, therefore, exempt from the payment

of compensation under constitutional and statutory

authority. Accordingly, plaintiffs’ claims are denied and

their respective suits are dismissed at their cost. The

expert witness fees of the following experts are fixed and

taxed as costs: Dr. Richard Kesel - $1,500; Dr. Lowell

Urbatch — $1,500; Curtis Barrett - $1,500; Wilton Dufrene

- $750; Dr. Luther F. Holloway —- $1,500; Dr. William

Patrick — $1,500; Dr. Chester C. Watson — $1,500; Max

Derbes - $1,500; Hugh B. McCurdy, Jr. - $750; and

Irvington Epling — $1,500. A formal judgment will be

signed consistent with these written reasons for judg-

ment.

5la

Baton Rouge, Louisiana, this 24th day of June, 1991.

/s/ Lewis S. Doherty Ill

Lewis S. Doherty Ill

Judge ad hoc

25th Judicial District Court

52a

APPENDIX “D”

—————————————————eeeeEEEEEEEeeeeeEeEeEeEeEeEeee

WARREN DeSAMBOURG, ET AL

versus

BOARD OF COMMISSIONERS

FOR THE GRAND PRAIRIE

LEVEE DISTRICT

CONSOLIDATED WITH

ALBERT L. SCHELL, JR., ET AL

versus

BOARD OF COMMISSIONERS

FOR THE GRAND PRAIRIE

LEVEE DISTRICT

CONSOLIDATED WITH

SADIE PERINO, ET AL

versus

BOARD OF COMMISSIONERS

FOR THE GRAND PRAIRIE

LEVEE DISTRICT

CONSOLIDATED WITH

CHARLES MANCUSO, ET AL

versus

BOARD OF COMMISSIONERS

FOR THE GRAND PRAIRIE

LEVEE DISTRICT

CONSOLIDATED WITH

JOSEPH SEIBERT, SR., ET AL

versus

BOARD OF COMMISSIONERS

FOR THE GRAND PRAIRIE

LEVEE DISTRICT

NO. 91-CA-2104

c/w

NO. 91-CA-2105

c/w

NO. 91-CA-2106

c/w

NO. 91-CA-2107

c/w

NO. 91-CA-2108

c/w

NO. 91-CA-2109

c/w

NO. 91-CA-2110

c/w

NO. 91-CA-2111

c/w

NO. 91-CA-2112

c/w

NO. 91-CA-2113

COURT OF

APPEAL,

FOURTH

CIRCUIT

STATE OF

LOUISIANA

Shep eh cat re ere

CONSOLIDATED WITH

MARIE ELENA MELERINE,

WIFE OF/AND ANTHONY LA

GRECO, JR.

versus

PLAQUEMINES PARISH

GOVERNMENT

CONSOLIDATED WITH

SALVADORE DI CARLO

versus

PLAQUEMINES PARISH

GOVERNMENT

CONSOLIDATED WITH

EMILE LA GRECO

versus

PLAQUEMINES PARISH

GOVERNMENT

CONSOLIDATED WITH

JOSEPH LA GRECO

versus

PLAQUEMINES PARISH

GOVERNMENT

CONSOLIDATED WITH

HENRY G. HEIER

versus

PLAQUEMINES PARISH

GOVERNMENT

53a

APPEAL FROM THE 25TH JUDICIAL DISTRICT COURT

FOR THE PARISH OF PLAQUEMINES

NOS. 26-747, 26-748, 26-765, 26-766, 26-881, 30-301,

30-302, 30-303, 30-305 and 30-999

54a “

DIVISION “B”

HONORABLE LEWIS S. DOHERTY, III, JUDGE

* > *

PHILIP C. CIACCIO

JUDGE

* *

(Court composed of Judges Philip C. Ciaccio, Charles R.

Ward and Joan Bernard Armstrong)

Armstrong, J. Dissents

MACK E. BARHAM NOV 13 1992

ROBERT E. ARCENEAUX

MATTHEW K. BROWN

Barham & Arceneaux

New Orleans, Louisiana

Attorneys for Appellants

NORMAND F. PIZZA

M. ALLYN STROUD

Brook, Morial, Cassibry, Pizza & Adcock

New Orleans, Louisiana

-Attorneys for Appellee

AFFIRMED

Warren deSambourg, et al., v. Plaquemines Parish Gov-

ernment

Nos. 91-CA 2104 - 2113, Wang No. 1504M

In these consolidated cases, the plaintiff landowners

appeal a trial court judgment dismissing their suits

against the defendants, The Board of Commissioners for

the Grand Prairie Levee District and Plaquemines Parish

Government. We affirm.

PTs es *, eo, ees eee

55a

The trial judge, in well-worded reasons for judgment,

set forth the facts of this case, the issue in dispute, the

applicable law and its historical development. His rea-

sons for judgment are as follows:

Eleven consolidated suits form the basis of

claims by various riparian owners of lands

located along the Mississippi River in

Plaquemines Parish. The plaintiffs contend that

they are entitled to compensation for the taking

of their property for levee purposes. The defen-

dant, Plaquemines Parish Government (“PPG”),

contends that it is not liable to pay compensa-

tion because thc plaintiffs’ land lies between the

levee and the river and is “batture” and, conse-

quently, under the provisions of the Louisiana

Constitution of 1974 and state statutes is exempt

from the ordinary requirement that the payment

of compensation is due when the property is

appropriated by public authorities for levee

improvement purposes. The issue thus pre-

sented is: What is the scope of the batture

exemption and its application to the facts of the

case here under consideration.

Pursuant to the Mississippi River Flood Control

Act of 1928, 33 USC Sec. 701-09, the United

States Corps of Engineers (“COE”) oversees and

maintains the Mississippi River and levee sys-

tem in Plaquemines Parish. Improvements to or

enlargements of the levees are initiated and

supervised by the COE in cooperation with the

PPG. Once the COE selects the site to improve

the levee, the PPG is then obligated to furnish

56a

all needed rights of way and to appropriate!

riparian property for these purposes.

FACTS

The land in question known as “Shingle Point”

consists of approximately fifty acres lying

between the edge of the Mississippi River and

the levee on the left descending bank of the

river at English turn. There are no buildings on

Shingle Point, and there has been no agri-

cultural activity carried on in recent history. The

alluvial buildup of the river at this point has

served as a mining operation for dirt for levee

development during the past 100 years or so. At

the conclusion of the trial on March 22, 1991, the

Court inspected the site. The river was at high

water and, except for the upriver end of the

tract, very little but willow trees were exposed

above the_river’s waters.

Two levee projects initiated by the United

States Corps of Engineers prompted action by

PPG to appropriate subject properties. These

projects have been described as the Scarsdale-

1 “Appropriation” is a term of legal designation, unique to

Louisiana law and quite different from the commonly encoun-

tered concept of “expropriation.” Appropriation is the govern-

ing authority’s exercise of the levee servitude through the

taking of riparian property for the purpose of building and/or

repairing levees. Delaune v. City of Kenner, 550 So.2d 1386 (La.

App. 5th Cir. 1989), writ denied, 553 So.2d 124 (1989). The

taking of property by eminent domain is termed “expropria-

tion” in Louisiana as distinguished from “appropriation,” the

term applied to the taking of the riparian servitude. 40 T.L.R.

243. Actually, title to property does not change through appro-

priation.

ee ee

57a

Stella Levee Set Back and Road Relocation Pro-

ject (“Scarsdale”) and the English Turn Levee

Enlargement and Concrete Slope Pavement Pro-

ject. (“English Turn”).

With respect to the Scarsdale project, the PPG

adopted resolutions dated March 3, 1982, July

28, 1982 and June 15, 1988, wherein all of the

lands reflected in a government survey were

appropriated for the purpose of acquiring fill

dirt for purposes of obtaining a temporary ser-

vitude of access and for the removal of the dirt

on the plaintiffs’ land between the river and the

levee. The contract for work on the Scarsdale

project was issued on September 29, 1983, and

the project “was completed December 1984.”

According to the Corps of Engineers docu-

ments,3 the amounts of dirt used were as fol-

lows:

Compacted fill 6,139.0 cubic yards

Semi-compacted fill 153,208.0 yards

Uncompacted fill 14,098.0 yards

This material was hauled 2.1 miles from the

place where it was dug to the site of the

improvements to the levee. Most all of the dirt

was removed from the properties of Schell,

deSambourg, Seibert, Perino and Mancuso, and

suits by these landowners followed and are

referred to as the “deSambourg” suits.

2 Affidavit of Paul Griffith, III, dated October 4, 1990,

attached to a Motion for Summary Judgment and identified as

Exhibit B.

3 Stipulation of counsel for parties.

58a

With regard to the English Turn project, the

property used was appropriated by resolutions

of the Parish Council on January 8, 1986, June

11, 1986, November 12, 19987 [sic], and April 14,

1988. Again, the parish appropriated a tempor-

ary servitude to facilitate the removal of dirt,

and the right of access on the plaintiffs’ lands

between the levee and the river.

The contract for the English Turn project was

dated September 28, 1986, and according to

PPG's affidavit, the project “was completed in

December 1988.” The amount of dirt used for

this project is as follows:

Semi-compacted fill 156,507.57 yards

Uncompacted fill 6,846.00 yards

Much of the dirt in this project was removed

from the DiCarlo, LaGreco and Heier/Himel

tracts. Some dirt for the English Turn project

may have been removed from the Schell, deSam-

bourg and Seibert tracts.

The ownership of the tracts of the plaintiffs in

the respective suits is listed as follows:

Acreage

Between

Lot River &

OWNER No. Arpents Levee

Charles & Ina Miller 21 1 3.9

Salvadore DiCarlo 20 1 4.1

Joseph A. and 19A & 1 4.3

Linda LaGreco 19B

Anthony, Jr. and 18B 1 2.3

Marie LaGreco

Emile Charles 18A 1/2 ao

LaGreco

Henry J. and Erica H. 15-17 3 13.5

Heier/Edward Himel

Albert L. and Rosalie 11 1 4.7

Schell

Warren and Mary 10 1 4.6

deSambourg

Joseph P. Seibert 8&9 2 8.6

Joseph, Sr. and 7B 1/2 2.1

Sadie Perino

Charles and Angelina 7A 1/2 2.1

Mancuso

Following the filing of the respective suits, a

Motion for Summary Judgment was filed by the

PPG directed to the claim of Charles and Ina

Miller in which it was contended that the servi-

tude which was appropriated was not only not

utilized by the defendant and its contractor, but

that no dirt was removed from the Millers’ tract.

Since under LSA-R.S. 38:281(b), as amended by

Act 676 of 1979, compensation is due for levee

“appropriation” only where the lands and

improvements are “ . . . actually used, damaged

or destroyed .. . ”, there is no basis for recovery

of compensation, where as in this instance, the

servitude was not exercised. For this reason, the

motion for summary judgment was granted and

the Millers’ suit dismissed. (Emphasis supplied

by Court. (Emphasis supplied by Court.) [sic]

LAW

An examination of the historical development of

the law with respect to the issues presented by

the contention of the respective parties is neces-

sary. Before the turn of the 18th century, owners

of land located along the Mississippi River

began to commence construction of levees to

60a

protect their lands from the seasonal ravages of

flooding. There was no reimbursement from the

state for their expense in making these improve-

ments. However, the burden proved to be too

great and the levee districts were created in the

late 1800’s to construct and maintain the levees

in each of their respective levee districts. See

Constitution of 1879, Arts. 213-15; La. Acts 1879,

No. 33 and La. Acts 1882, No. 10. The creation of

the levee districts free the landowners of the

obligation of constructing their levees, but it did

not free their land from the riparian levee servi-

tude which was created in Article 13 of the Civil

Code of 1808 and continued through Article 661

of the Code of 1825 and the Code of 1870, now

finally appearing in the 1977 revision of the

property articles as Article 665. See 2 Yian-

nopolous Civil Law Treatise —- Property at 169

(2d Ed. 1980).

Presently, Article 665 provides:

Servitudes imposed for the public or com-

mon utility, relate to the space which is to

be left for the public use by ihe adjacent

proprietors on the shores of navigable

rivers, and for the making and repairing of

levees, roads and other public or common

works.

All that relates to this kind of servitude is

determined by laws or particular regula-

tions.

For the first time, Louisiana Constitution of 1898

imposed a requirement that lands appropriated

by the Orleans Levee Board would have to pay

for lands appropriated by them for levee pur-

poses. Article 312 of the 1898 Constitution. This

requirement was extended statewide by the

6la

Constitution of 1921. Article 16, Section 6 pro-

vided that all lands and improvements used or

destroyed for levee purposes “shall be paid at a

price not to exceed the assessed value of the

preceding year, provided that this shall not

apply to batture;.... ”

The Constitution of 1974 made a significant

adjustment of the levee servitude. Yian-

nopolous, supra, at 172. Article VI, Section 42 of

the Louisiana Constitution of 1974 provides:

Notwithstanding any contrary provision of

this Constitution, lands and improvements

thereon hereafter actually used or destroyed

for levee or levee drainage purposes shall

be paid for as provided by law with the

exception of batture or property the control

of which is vested in the State as in a politi-

cal subdivision for the purposes of com-

merce.

This section authorized the Legislature to pro-

vide a method of payment for property used or

destroyed for levee purposes. The previous lim-

itation on compensation (the assessed value for

the preceding year) was continued in effect as a

statute by La. Const. Art. XIV, Sec. 16 (1974)

subject to change by law. Board of Com'rs v.

Percle, 535 So.2d 1240 (La. App. 3rd Cir. 1988).

The Legislature thereafter implemented the con-

stitutional provision with respect to compensa-

tion to be paid to owners of riparian lands by

enacting Act 314 of 1978 by changing the mea-

sure of payment from assessed value to fair

market value. More specifically, Act 785 of 1985,

now contained in LSA-R.S. 38:301(C)(1)(a)

declares:

62a

All lands, exclusive of batture, and

improvements hereinafter actually taken,

used, damaged, or destroyed for levee or

levee drainage purposes shall be paid for at

fair market value to the full extent of the

loss.

Although the riparian landowner still owes the

legal servitude of Civil Code article 665, the

public (i.e. state, levee board) can no longer

exercise that servitude without payment of just

compensation which is fair market value. Ten-

neco Oil Co. v. Board of Com’rs, 567 So.2d 113 (La.

App. 4th Cir. 1990). But, it must be observed

that the legislature maintained the 1974 consti-

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