# Petition for Writ of Certiorari — DeSambourg v. Plaquemines Parish Government > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386003_0875%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1994 - **Citation:** 510 U.S. 1093 ## Text 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? ii 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 eee er i cc cc cashed ¢bsencscecteccccesacser il 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] iv 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 vi 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 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 1 2 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. 3 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. 4 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 5 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 6 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 7 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. 8 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 9 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. 10 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 ee Mt te te ve ee eee 11 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 12 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. 13 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). 14 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 15 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). 16 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). © General Box Co. v. United States, supra, might contain some 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 17 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 ‘ 18 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. 19 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. 20 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 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. 5a 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 6a 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- 7a 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. 6 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 8a 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 9a 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. V. 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. yr i 4 | 3 a 4 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 ia 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 OF OS St COSTES ED re © 57a Stella Levee Set Bac [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386003_0875%3A1. Public record. Not legal advice.