Petition for Writ of Certiorari — Wynat Development Co. v. Board of Levee Commissioners

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Supreme Cost, US. 7

1) | FILED

| NO. 98 S01 sep 24m

aanatsatinneniibaai ome ‘

In the

Supreme Court of the United States

OCTOBER TERM, 1998

WYNAT DEVELOPMENT COMPANY,

AN ORDINARY LOUISIANA PATNERSHIP,

AND WYNAT DEVELOPMENT CORPORATION

PETITIONERS

VS.

THE BOARD OF COMMISSIONERS OF THE

ORLEANS LEVEE DISTRICT

RESPONDENT

ON PETITION FOR A WRIT OF CERTIORARI

TO THE SUPREME COURT FOR THE

STATE OF LOUISIANA

ON PETITION FOR A WRIT OF CERTIORARI

RICHARD J. McGINITY*,

*Counsel of Record

JOHN E. SUDDERTH

4700 Wichers Drive

Suite 303

Marrero, LA 70072

Telephone: (504) 347-2297

A B Letter Service, Inc., 327 Chartres St., New Orleans, La. (504) 581-5555

QUESTIONS PRESENTED

1. Whether the Takings Clause of the Fifth Amendment

permits the silent and implied repeal of a statute to be ap-

plied retroactively to divest pre-existing rights and bar a lan-

downer’s action for compensation for private property already

taken and destroyed for public flood control purposes?

2. Where government activities have already taken,

used and destroyed private property, do constitutional

guarantees of Due Process and Just Compensation permit

the subsequent repeal of a statute to relieve the government

of its duty to provide compensation for the property already

taken?

3. Whether the Due Process Clause of the Fifth and

Fourteenth Amendments prohibit the silent and implied

repeal of a statute by judicial intervention, to be applied

retroactively so as to deny Petitioners the backward-looking

relief necessary to protect pre-existing vested rights and a

fair opportunity to seek compensation for property previously

taken and destroyed for public purposes prior to the declara-

. tion of invalidity?

LIST OF PARTIES

PETITIONERS:

Wynat Development Company is an ordinary Louisiana

Partnership consisting of Natchez A. Morice, D.D.S. and Jack

Wyatt. There are no other persons, affiliates or subsidiaries

connected thereto.

Wynat Development Corporation is a Louisiana cor-

poration located in the City of New Orleans and has no sub-

sidiaries or affiliates.

RESPONDENT:

The Board of Commissioners of the Orleans Levee

District, a political subdivision of the State of Louisiana,

located in the City of New Orleans, is the primary agency

charged with flood control for the Parish of Orleans.

TABLE OF CONTENTS

PAGE

QUESTIONS PRESENTED...............c.ccsccsssssssssseesesssncecenensees i

OIE MET STITT TTI sats aptnetncenocnnpeoneceseengesonevechotoenesegneboopetesél ii

Te Se Si icisinncenccsnetessernsseninsecenenecrctocesencnenees iii

TARR OW AUTRE it ecceccccecccssecesecsocssssnsecssecssegeesorees v

PETITION FOR WRIT OF CERTIORARI....................0-+- 1

TE IAI OF cvnssniesssscncttscaveveeveocteorscodecorewubincebtesbenests 1

8S SEES S ENR SEES See LSS Se 1

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED.............:csccscssesesseseseeceesereee 2

STATEMENT OF THE CASLE............cccccesssccsssscessssescecenseee 7

REASONS FOR GRANTING THE PETITION................ 11

1. Considerations Governing Review........................ 11

(a) Invalidation of Long Standing Law

After The Taking Had Occurred................... 12

(i) Repeal By Implication Not Favored

and Should Never Disturb Vested

TABLE OF CONTENTS (continued)

PAGE

(ii) The Court’s Decision Legislates

New Law - Presumption

Against Retroactivity Affecting

PHOROEGY TRIGTIIE. .....cccscccescsessececccesccceees 14

(iii) Petitioners Will Be Deprived of

Fair Notice and Repose...................... 18

(iv) Interpretative Law Cannot

Disturb Vested Property Rights........ 20

CETL ee ccennessiscosncacssnseneinncissenes Neadapisasnaiitiehvebon 20

INDEX TO APPENDICES

APPENDIX A Opinion of the Louisiana Supreme

SUNN Uc scnaccveiasatbtadhieadan hactaimtaniriphennarssoncse A-1

APPENDIX B Denial of Timely Application For

OI sacs iis dies gaecciteecce eas A-25

APPENDIX C LA. R.S. 38:301 (Taking Statute).......A-28

APPENDIX D LA. R.S. 38:301, Annotation;

Cross References-Prescription............ A-34

APPENDIX E Article XVI, § 6. LA. Const. 1921.....A-36

TABLE OF AUTHORITIES

PAGE

U.S. CONSTITUTION:

Fifth Amendment..............c..sscccceeeses 2,7,11,12,15,19,20

Fourteenth Amendment................... 2,7,11,12,18,19,20

CASES:

Mayer v. Bd. of Commissioners, 150 So. 295 (La.

ip iicihiskickbubessiaithitesiiiptenpcegtineiiiilibla ti iii ab ia 8

Givens v. Fifth District Levee Board, 445 So.2d 781

Pg | | Reeves ie eae OL A 8,9,15

Williamson County Regional Planning Commission

v. Hamilton Bank, 473 U.S. 172, 105 S. Ct. 3108,

i i nc cceenses 4

. First English Evan. Luth. Ch. v. Los Angeles City,

482 U.S. 304, 107 S. Ct. 2378, 96 L. Ed. 2d 250

STI ies Liidiins dccasits Garadtoansthpaedadéchinnchshnssanainacs sedtondacesse 12,17

Jacobs v. United States, 290 U.S. 13, 54 S. Ct. 26,

OD st, AME eats cep cle pseeisey shies cane cesdsovsescdncssecee 12

Tennant v. Russell, 39 So.2d 726 (La. 1949)............ccc00. 12

Lott v. Haley, 370 So.2d 521 (La. 1979).................. 12,15,19

TABLE OF AUTHORITIES (continued)

PAGE

Landgraf v. USI Film Products, 511 U.S. 244, 144

S. Ct. 1483, 128 L. Ed. 2d 229 (1994)...12,15,17,18,20

Williamson v. Vardeman, 674 F. 2d 1211 (8th Cir.

A.K. Roy, Inc. v. Bd. Of Commissioners, 111 So.2d

TO hi isn isinsaiastiatheinsvinlieteapsinitibidtntintiontensasens 13,15

Wynat Development v. Bd. Of Commissioners, 710

So.2d $68 Ga: R000 Sika SCNT

Rutherford v. Greene’s heirs, 15 U.S. (2 Wheat.) 196,

PR OH By | ys RRR RUE Ch 0S Sra owe oe 13,14

U.S. v. United Continental Tuna Corp., 425 U.S.

164, 96 S. Ct. 13819, 47 L. Ed. 2d. 653 (1976).......... 14

West Jefferson Levee District v. Coast Const. Co., 640

ne SI Ci TI iielinithenicthitctgiesittsipireeninirnnenee 16

Harper v. Virginia Dept. of Taxation, 509 U.S. 86,

113 S. Ct. 2510, 125 L. Ed. 2d 74 (19989).................. 16

Hughes Aircraft Co. v. U.S. ex rel. Schumer, 520

U.S. 939, 117 S. Ct. 1871, 138 L. Ed. 2d. 135

Fust v. Arnar-Stone Laboratories, Inc., 736 F.2d

S006 ths Cir. 20O 0 si okt cc cwisthciedd 19

Cooper v. Lykes, 49 So.2d 3 (La. 1950)..............cccssceseeees 19

vii

TABLE OF AUTHORITIES (continued)

PAGE

State ex rel. Hills, Inc., v. Recorder of Mortgages, 186

La. 661, 173 So. 189 (La. 1937)............cccccccccesseeseees 19

Cements v. State Dept. of Health, 391 So.2d 66 (La.

RS ERAS RS TESS CEROY Se 19

St. Paul Fire & Marine Ins. Co. v. Smith, 609 So.2d

I ns sanecuenbonne’ 20

LOUISIANA CONSTITUTION:

LA. Const. Ann. Art. I , § 23 (1974)... 12

STATUTES:

I a ccdaccoamenluaes 2

LA. Rev. Stat. Ann. § 38:301 (West 1998).......3,15,16

LA. Rev. Stat. Ann. § 9:5626 (West

os a a as 5,9,10,13,15,16,17,19

LA. Rev. Stat. Ann. § 13:5111 (West

aii lis eee nii 6,9,10,13,19

LA. Civ. Code Ann. Art. 6 (West 1998).................... 15

LA. Rev. Stat. Ann. § 9:5628 (West 1998)............... 18

PERIODICALS:

Fallon & Meltzer, New Law Non-Retroactivity and

Constitutional Remedies, 104 Harv. L. Rev. 1731

RENEE ES ESE RE SST TL REI SGA Sc 16

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1998

PETITION FOR WRIT OF CERTIORARI

Petitioner respectfully prays that a writ of certiorari

issue to review the judgement below.

OPINIONS BELOW

The highest state court to review the merits was the

Louisiana Supreme Court whose opinion, with dissent, ap-

pears at Appendix A to this petition and is reported at 710

So.2d 783 (La. 1998).

JURISDICTION

The date on which the Louisiana Supreme Court decid-

ed this case was April 14, 1998.

In affirming the lowers courts, the Louisiana Supreme

Court, in a case of first impression, held that a prescriptive

statute in existence for forty years, that sustained petitioners

right of action, was silently and impliedly repealed by a 1979

enactment of the legislature; the court applied its decision

retroactively which barred petitioners’ claim for compensa-

tion and dismissed the landowners’ suit.

In a timely application for rehearing, a federal issue was

8) eRe RR EON tp cary RENN Oe Oe

raised when petitioners’ averred that the decision, if applied

to past events (the taking), would divest pre-existing rights

and would deny petitioners fair notice and a reasonable op-

portunity to seek just compensation for the land previously

taken and used for public purposes, in violation of the rights

guaranteed by the Fifth and Fourteenth Amendments.

The application for rehearing was denied by a divided

court on June 26, 1998 and a copy of this order denying the

rehearing appears at Appendix B, p. A-27.

The jurisdiction of this Court is invoked under 28 U.S.C.

Section 1257 (a).

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

Amendment V [1791]

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

wise infamous crime, unless on a presentment or indictment

of a Grand Jury, except in cases arising in the land or naval

forces, or in the Militia, when in actual service in time of

War or public danger; nor shall any person be subject for the

same offence to be twice put in jeopardy of life or limb; nor

shall be compelled in any criminal case to be a witness

against himself, nor be deprived of life, liberty, or property,

without due process of law; nor shall private property be

taken for public use, without just compensation.

Amendment XIV [1868]

Section 1. All persons born or naturalized in the United

States, and subject to the jurisdiction thereof, are citizens

of the United States and of the State wherein they reside.

No State shall make or enforce any law which shall abridge

the privileges or immunities of citizens of the United States;

nor shall any State deprive any person of life, liberty, or pro-

perty, without due process of law; nor deny to any person

within its jurisdiction the equal protection of the laws.

La. R.S. 38 § 301. Construction and maintenance of

levees and drainage; care and in-

spection of levees; measure of com-

pensation; right of entry

(See Appendix C for full text)

A. The levee boards and levee and drainage boards of

this state may construct and maintain levees, drainage, and

levee drainage, and do all other things incidental thereto.

The levee boards and levee and drainage boards may do all

drainage work incidental to or made necessary by the con-

struction of the levee system in this or adjoining states.

However, any construction project undertaken shall be in ac-

cordance with the provisions of R.S. 38:2211, et seq.

* * * * * *

C. (1Xa) All lands, exclusive of batture, and im-

provements hereafter actually taken, used, damaged, or

destroyed for levee or levee drainage purposes shal] be paid

for at fair market value to the full extent of the loss.

(b) The owner shall be given written notice of the ap-

propriating resolution by the levee board within ten days of

the date of its passage.

* * * * * *

EAI Att PRB IH CGI UCM Dai Sah 8 WRN Se bk cba ei

(h) The measure of compensation for lands and im-

provements taken or destroyed for levee and levee drainage

purposes by way of a permanent levee servitude shall be the

fair market value of the property taken or destroyed before

the proposed use of the property or construction of the levee

facilities, without allowing any change in value caused by

the construction of the levee facilities. The measure of

damages, if any, to the remaining property of the owner by

reason of the use or destruction of a portion of the property

is determined on a basis of immediately before and im-

mediately after the use or destruction of the property for levee

drainage construction, taking into consideration the effects

of the completion of the project in the manner proposed or

planned.

(2Xa) The compensation due under the provisions of this

Subsection shall be paid to the owner within one year after

the actual taking, use, damage, or destruction of the proper-

ty in accordance with the provisions of this Section.

(b) Immedietely after the actual taking, use, damage,

or destruction of the property, the levee board shall make

an estimate of the compensation due under the provisions

of this Section, and shall make an estimate of the revenues

available to the levee board from all sources from which to

make the payment of the compensation; however, the

estimate of revenues shall not take into account any taxes

levied after the time of the actual taking, use, damage, or

destruction of the property, except such taxes as may be levied

pursuant to authorization and approval by the voters in the

district. If revenues available to the levee board are suffi-

cient to pay the compensation due to the owner, the levee

board shall pay the owner within one year of the actual

taking, use, damage, or destruction of the property.

be paid from funds appropriated by the legislature by the of.

fice of public works of the Department of Transportation and

Development. The levee board shall immediately notify the

office of public works of the estimate of the amount of com-

pensation due to the owner, ‘he amount of revenues available

to the board, and the amount of insufficient revenues. Upon

such notification, the office of public works shall make its

own estimate of the monies available to the levee board, and

the amount of compensation to the owner. If the estimates

of the levee board and the office of public works differ, the

estimates of the office of public works shal] be controlling.

La. R.S. 9:5626. Actions and claims for lands and im-

provements used or destroyed for

levees or levee drainage purposes

When lands are appropriated for levees or levee

drainage purposes all claims and actions for payment under

Article XVI, Section 6 of the Constitution of 1921 for lands

and improvements thereon actually used or destroyed for

) levees or levee drainage purposes shall prescribe within two

years from the date on which the property was actually oc-

cupied and used or destroyed for construction of levees or

levee drainage works, or, in the case of lands and im-

provements heretofore so occupied and used or destroyed,

such prescription shall accrue two years from November 17 :

1958. This prescription shall run against interdicts, married

women, absentees, minors, and all others now excepted by

law. ?

Added by Acts 1958, Ex.Sess., No. 11, § 1.

La. R.S. 13:5111 Appropriation of property by state,

parish, municipality or agencies

thereof; attorney, engineering and

appraisal fees; prescription

A. A court of Louisiana rendering a judgment for the

plaintiff, in a proceeding brought against the state of Loui-

siana,'a parish, or municipality or other political subdivision

or an agency or any of them, for compensation for the tak-

ing of property by the defendant, other than through an ex-

propriation proceeding, shall determine and award to the

plaintiff, as a part of the costs of court, such sum as will, in

the opinion of the court, compensate for reasonable attorney

fees actually incurred because of such proceeding. Any set-

tlement of such claim, not reduced to judgment, shall include

such reasonable attorney, engineering, and appraisal fees as

are actually incurred because of such proceeding. Actions for

compensation for property taken by the state, a parish,

municipality, or other political subdivision or any one of their

respective agencies shall prescribe three years from the date

of such taking.

B. The rights of the landowner herein fixed are in ad-

dition to any other rights he may have under the constitu-

tion of Louisiana and existing statutes, and nothing in this

Part shall impair any constitutional or statutory rights

belonging to any person on September 12, 1975.

Acts 1975, No. 434, § 1.

STATEMENT OF THE CASE

In 1983, the State of Louisiana, on behalf of the federal

government, appropriated petitioners’ property for a flood

control project along the Mississippi River at New Orleans.

When petitioners’ land was taken for public purposes,

their right to be fairly remunerated became vested. This is

an action for just compensation for the land taken and

damages sustained as a result of the taking.

Petitioners have never been compensated for their pro-

perty. As the facts will show, this case satisfies every require-

ment for the application of the Due Process and Just Com-

pensation Clauses of the Fifth and Fourteenth Amendments.

Private land was taken for public purposes and the lan-

downers’ pre-existing right to receive just compensation was

barred after the taking by judicial invalidation of the existing

law, in a matter of first impression.

A. Factual Bavkground

| The facts are not in dispute. Petitioners were the owners

of land located on the Mississippi River across from the City

of New Orleans. Due to levee instability in the area, the U.S.

Army Corps of Engineers in May, 1976, commenced the

remedial project that was designated as the “Algiers Point

Levee Setback, Enlargement and Slope Paving-Phase II.”

The federal agency requested that the State of Loui-

siana, acting through the defendant Board of Levee Commis-

sioners, obtain the property needed to complete the aforesaid

project. The state acquired the necessary rights of way

OA SBE ENE ANN LEARNS DS AOE LET eI ia nih Pan tie helt

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through a series of appropriating resolutions beginning in

June, 1976 and ending in July, 1983, after which it turned

the right of ways over to the U. S. Army Corps of Engineers.

Petitioner does not contest the government’s right to

appropriate its land for levee purposes but merely seeks pay-

ment of just compensation for property used, damaged and

destroyed.

Although petitioners’ land was appropriated in July,

1983, construction on the property did not commerce for 2

years and the property was not actually used and destroyed

until December, 1985, when the construction was finally com-

pleted. La. R.S. 38:301C(1Xa).(See Appendix C, p. A-28)

After the construction was completed, following the pro-

cedures set out by State law, petitioners commissioned an

appraisal to measure the damage caused by the taking,

“determined on a basis of [the value] immediately before and

immediately after” the completion of the project. La. R.S.

38:301(cX1Xh). Mayer v. Bd. of Commissioners, 150 So. 295,

298 (La. 1933); Givens v. Fifth District Levee Board, 445 So.2d

781 (La. App. 1984).

State procedure also provided that the defendant tak-

ing agency had one year after completion of the work within

which to assess damages and to pay any compensation due

the landowner. La. R.S. 38:301C(2Xa). Again following pro-

cedure provided by the state, during this one year term of

assessment, from December, 1985 to December, 1986, peti-

tioner landowner and defendant Board of Levee Commis-

sioners, negotiated, but could not agree upon the amount of

just compensation due for the property taken and actually

used, damaged and destroyed. (See Appendix A, p.A-2).

Within 4 months after the one year period for negotia-

tion and payment expired without agreement on the amount

due petitioners, on April 16, 1987, petitioners filed this ac-

tion for just compensation for the property taken, used and

damaged for public levee purposes.!

At all times pertinent hereto, there were two prescrip-

tive statutes in existence that had some relevance to the sub-

ject taking, viz., a general law providing compensation for

the taking of property by the state”. . other than through

an expropriation proceeding. . .” shall prescribe three years

from the date of such taking? and a specific law providing

that lands appropriated for levees or levee drainage purposes

“shall prescribe two years from completion of the project.” 3

Since under the taking statute, the measure of the

damages could not be evaluated until completion of the pro-

ject, La. R.S. 38:301 C(1Xa), it seems obvious that the prescrip-

tive period should not commence until the project was com-

pleted. La. R.S. 9:5626, Givens v. Fifth Levee District, supra.

The defendant levee board filed an exception to peti-

_ tioners’ suit for compensation on the grounds of prescription

of three years from date of notice of the taking as provided by

1 Having followed all state procedures provided for seeking compensation

for riparion land taken and used for levee purposes, this claim is ripe for

review. Williamson County Regional Planning Comm. o. Hamilton

Bank, 473 U.S. 172, 194, 105 S.Ct. 3108, 3120, 87 L.Ed.2d 126 (1986).

2 Act 434 of 1975, designated La. R.S. 13:5111. Petitioners argued to no

avail that this statute only applied to inverse condemnation, thus the

prescriptive period commenced only upon notice of the taking; because this

property was taken with full legal procedure, it did not apply to a La. R.S.

38:301 taking.

3 Act 11 of 1958 designated La. R.S. 9:5626.

La. R.S. 13:5111. If this statute is the applicable law, peti-

tioners’ action for compensation was barred on August 15,

1986, being three years from notice of the taking, but four

months prior to petitioners’ right to receive payment

matured.

In opposition to defendant’s exception, petitioners of-

fered La. R.S. 9:5626 as the applicable two year prescriptive

period, which by its very terms, applies to claims for lands

“used and destroyed for construction of levees.” Since the

two year period did not commence until the construction work

was completed in December, 1985, its suit filed on April 16,

1987 was timely‘.

In 1996, the trial court held that the specific statute,

La. R.S. 9:5626 enacted in 1958, was “silently” repealed by

the general statute La. R.S. 13:5111, enacted in 1979. There-

fore petitioners’ claim for compensation for the 1985 taking

was barred and their suit was dismissed.

A divided Court of Appeal affirmed the district court’s

judgment.

Since the issue was a matter of first impression, the

Louisiana Supreme Court granted petitioners’ writ applica-

tion to determine the applicable prescriptive period for lands

taken for levee purposes.5

The Louisiana Supreme Court, with one justice dissen-

ting, affirmed the lower courts’ judgment with circuitous

4 The defendant has stipulated that the landowners’ claim for just com-

pensation is not barred if Section 5626 is the applicable statute.

5 See Opinion, Louisiana Supreme Court, Appendix A.

reasoning that the 1958 law was silently and impliedly

repealed by a 1979 enactment of the legislature.

On application for rehearing, petitioners eschewed fur-

ther discussion of the merits and argued that the court’s in-

validation of the 1958 statute constituted new law which,

if applied retroactively to petitioners’ pre-existing vested

right to receive just compenstion, would violate federal and

state constitutional guarantees of due process and just

compensation.

By a plurality of 4 to 3, the application for rehearing

was denied and petitioners’ action was dismissed. (See Ap-

pendix B, p. A-27)

The petitioners now ask this court to determine the tem-

poral reach of a court adjudication that establishes new law

which, if applied retroactively, divests a landowner’s pre-

existing vested right to just compensation under the Fifth

and Fourteenth Amendments of the United States

Constitution.

REASONS FOR GRANTING THE PETITION

I. Considerations Governing Review

A state court of last resort has decided an important

federal question pertaining to due process and just compen-

sation in a way that conflicts with relevant decisions of this

Court.

Petitioners filed this action for just compensation for

land taken and used for public flood control purposes. Claims

for just compensation are grounded in the Constitution

itself. First English Evan. Luth. Ch. v. Los Angeles City, 482

U.S. 304, 107 S.Ct. 2378, 96 L.Ed.2d 250 (1987), Jacobs v.

United States, 290 U.S. 13, 545 S.Ct. 26, 78 L.Ed. 142 (1933).

A suit under the Just Compensation Clause seeks relief

from a harm that has already been inflicted by the govern-

ment and raises the bar of judicial review to its highest level.

First English Evan. Luth. Ch. v. Los Angeles City, supra at

2387.

When the government appropriated petitioners’ proper-

ty for a public purpose, petitioners acquired a vested interest

in being fairly compensated for the taking. Id at 2380, 2381;

Tennant v. Russell, 39 So.2d 726 (La. 1949).

Even Louisiana law provides that once vested, peti-

tioners’ right to compensation could not be constitutionally

divested. La. Const. Art. I Sec. 23; Lott v. Haley 370 So.2d.

521 (La. 1979). |

The taking of property without due process is no less

a violation of the Fifth and Fourteenth Amendments when

it is done by the courts rather than the other branches of

government, Landgraf v. USI Film Products, 511 U.S. 244,

114 S.Ct. 1483, 128 L.Ed 2d 229 (1994); Williamson v.

Vardeman, 674 F. 2d 1211 (8th Cir. 1982).

(a) Invalidation Of Long Standing Law

After The Taking Had Occurred

The Louisiana Supreme Court granted petitioners’ writ

application to address whether the prescriptive period that

governs petitioners’ claim for compensation is that found in

La. R.S. 9:5626 or La. R.S. 13:5111°.

La. R.S. 9:5626 is so narrowly crafted that it only ap-

plies to riparian land taken for levee construction purposes.

A.K.Roy, Inc. v. Bd. of Commissioners, 111 So.2d 765 (La.

1959). Conversely, La. R.S. 13:5111 is a general statute that

applies to all takings, except by expropriation. Wynat Develop-

ment v. Bd. of Commissioners, 710 So.2d 783 (La. 1998).

In 1983 and 1985, based upon sound legal advice at the

time, petitioners relied on La. R.S. 9:5626, the prescriptive

period specifically crafted for taking property for levee pur-

poses. It is admitted by the defendant that if that statute is

not repealed, petitioners’ suit is not barred.

In the instant case, the Louisiana Supreme Court, in

what this writer can only describe as a novel and unusual

decision, held that the specific statute, La. R.S. 9:5626 in ex-

istence for 40 years, was silently and impliedly repealed by

a general statute, enacted 19 years ago.”

(i) Repeals By Implication Are Not Favored and

Should Not Disturb Vested Property Rights

This court has long held that repeals by implication are

not favored. Rutherford v. Greene’s heirs, 15 U. S. (2 Wheat.)

6 This was a case of first impression and clearly establishes that La. R.S.

9:5626 was in existence both when petitioners land was taken and at the

time petitioners filed suit for compensation.

7 In other words, La. R.S. 9:5626 had been part of Louisiana law and utilis-

ed without question for 19 years after its repeal in 1979.

196, 4 L.Ed. 218 (1817), U.S. v. United Continental Tuna

Corp., 425 U.S. 164, 96 S.Ct. 1319, 47 L.Ed. 2d. 653 (1976).

In Rutherford v. Greene’s heirs, supra, Chief Justice

Marshall speaking for the Court, declared at 203:

“_ _ Whatever the legislative power may be, its acts

ought never to be so construed as to subvert the

rights of property, unless its intention to do so shall

be expressed in such terms as to admit of no doubt,

and to show a clear design to effect the object. No

general terms intended for property to which they

may be fairly applicable, and not particularly ap-

plied by the legislature; no silent, implied, and con-

structive repeals, ought ever to be so understood as

to devest a vested right.” (Emphasis Added)

That principle carries special weight when a court is urged

to find that a specific statute has been impliedly repealed

by a more general one. U.S. v. United Continental Tuna Corp.

supra.

Gi) The Court’s Decision Legislates New Law -

Presumption Against Retroactivity Affecting

Property Rights

Petitioners submit that the court’s ex post facto “silent”

repeal of a law in existence for 40 years, substituting in its

place a different law that bars petitioners’ claim for just com-

pensation, constitutes new law of a substantive nature which

cannot be applied retroactively to divest petitioners’ vested

interest. La. Civil Code, Article 6; Lott v. Haley, 370 So.2d

521, 524 (La. 1979).

This court, speaking through Justice Stevens, in Lan-

dgraf v. USI Film Products, 114 S.Ct. 1483, stated at page

1497:

“The Fifth Amendment’s Takings Clause prevents

the Legislature (and other government actors) from

depriving private persons of vested property rights

except for a ‘public use’ and upon payment of just

compensation.”

It is beyond presumption that the “other government actors”.

referred to by Landgraf includes adjudications by the courts.

This is not a case where the landowners relied on a

plainly unlawful statute nor could it be predicted that it

would be impliedly invalidated 40 years after its enactment.

To the contrary, La. R.S. 9:5626 has long been adhered to.

A.K. Roy, Inc. v. Bd. of Commissioners, 111 So.2d 765 (La.

1959). It was judicially construed and acted on as recently

as 1984, one year after taking in 1983, and one year before

construction was completed in 1985. Givens v. Fifth District

Levee Board, , 445 So.2d 781 (La. App. 1984).

In addition, the repealed law was construed by legal

scholars as being the statute applicable to riparian land tak-

ings such as occurred here. In West’s 1998 Louisiana Statutes

Annotated, La. R.S. 38:301, Cross References, provides the

folowing: (See Appendix D, p. A-35)

“Prescription, actions and claims for lands and

nlpninmengpiicttiahs a

improvements used or destroyed for levees or

levee drainage purposes, see R.S. 9:5626.

Further, the repeal lacked any express or clear legislative

intent to repeal the statute.

In Fallon & Meltzer, New Law Non-Retroactivity, and

Constitutional Remedies, 104 Harv. L.Rev. 1731 (1991), ex-

amining the general problem of jurisprudence and the issue

of retroactivity, “new law” was defined at 1763:

“ . .legal rules and principles are new to the ex-

tent that, ex ante, their recognition as authoritative

would have been viewed as relatively unlikely by

competent lawyers.”

Because there was no specific act or expressed legislative in-

tent to repeal La. R.S. 9:5626, petitioners’ counsel was

without precedent or legal authority to declare the st: tute

dead.8 Only with judicial intervention could petitioners ob-

tain a definitive answer of the laws validity.

This would require a property owner who claims just

compensation for property taken for public purposes, to first

file an action testing the validity of law relied upon before

8 As an example of the lack of expression of repeal by the legislature, Chief

Justice Calogero, of the Louisiana Supreme Court, in dissent, recently cited

the statutes involved here, La. R.S. 9:5626 and La. R.S. 38:301 as part of

the “statutory scheme” passed to implement Louisiana Constitutional direc-

tive. West Jefferson Levee District v. Coast Const. Co., 640 So.2d 1258,

1302 (La., 1993).

9 Cited by this Court in Harper v. Virginia Dept. of Taxation, 509 U.S.

86, 113 S.Ct. 2510, 125 L.Ed. 2d 74 (1993).

seeking just compensation. This kind of impediment to claim

compensation was disapproved of by this Court in First

English Evan. Luth. Ch. v. Los Angeles City, 107 S. Ct. 2378,

2388.

It is not disputed that petitioners’ land was permanent-

ly taken and destroyed for public flood control purposes. In

First English Evan. Luth. Ch., supra, a case similar to the

instant matter in principle, this court held that where the

government's activities have already taken and used the pro-

perty, no subsequent invalidation of the law or other action

of the government can relieve the duty to provide fair com-

pensation under the Just Compensation Clause. Id at 2389

Chief Justice Rehnquist explained that the Court’s deci-

sion did not require the government to exercise the power

of eminent domain, at page 2389,

We merely hold that where the government's ac-

tivities have already worked a taking of all use of

property, no subsequent action by the government

can relieve it of the duty to provide compensation

for the period during which the taking was

effective.

In this instance, the government had already taken and

destroyed the property in 1985. Therefore the court’s subse-

quent repeal of the statute in bar of the payment of fair com-

pensation is constitutionally insufficient. Id. at 2388.

It is respectfully submitted that by any definition, the

Louisiana Supreme Court’s ex-post facto invalidation of La.

R.S. 9:5626, which was part of Louisiana law and adhered

to for more than 40 years, constituted new law and should

not be applied retroactively to petitioners’ pre-existing right

to just compensation.

A presumption against retroactivity of new law affec-

ting contractual or property rights in which predictability

and stability are of prime importance, has long been recogniz-

ed by this court. Landgraf v. USI Film Products 114 S.Ct.

1483, 1500 and cases cited. The presumption is deeply rooted

in the jurisprudence. Hughes Aircraft Co. v. U. S. ex rel.

Schumer, 117 S.Ct. 1871, 1876 (1997) citing Landgraf.

Gii) Petitioners Will Be Deprived of Fair Notice and

Repose

No State shall deprive any person of property, without

due process of law nor deny the equal protection of the laws.

U. S. Const. Amdt. 14 Section 1.

The due process clause protects the interests of fair

notice and repose that may be compromised by retroactive

application of new law. Landgraf at 1497.

Elementary considerations of fairness dictate that an

opportunity to know what the law is and to conform their

conduct accordingly, should be afforded each individual Jbid.

The Louisiana Supreme Court’s decision in 1998, com-

mencing prescription from the date of notice in 1983, while

repealing its commencement from completion of the project

in 1985, shortened the existing period of limitation to file

landowners’ claims.

Statutes of limitation, being procedural and remedial

in nature, are generally applied retroactively and prospec-

tively unless they are unconstitutionally cast. Fust v. Arnar-

Stone Laboratories, Inc. 736 F.2d 1098, 1100. Citing Cooper

v. Lykes 49 So.2d 3 (La. 1950); State ex rel. Hills, Inc. v.

Recorder of Mortgages 186 La. 661, 173 So. 139 (1937), which

interpreted La. R.S. 9:5628 as allowing three years from the

effective date of the law in order to pass constitutional

muster.10

In the instant case, the effective date of the repeal of

La. R.S. 9:5626 and applicability of La. R.S. 13:5111, was

April 14, 1998, the date the court rendered its decision

holding same to be the law.

Therefore, in extending elementary considerations of

fairness to petitioners and all other riparian landowners

whose property has been taken for public flood control pur-

poses, the three year prescriptive period provided by La. R.

S. 13:5111 should only commence from the date of tn court’s

decision.

This will avoid divesting petitioners’ vested rights to

just compensation and provide the due process demanded by

the federal constitution. Lott v. Haley, 370 So.2d 521 (La.

1979).

10 Louisiana courts refused to apply a three year limitation retroactively

80 as to bar the joinder of a solidary obligor since the right to join was vested

at the time suit was filed. Cements v. State Dept. of Health, 391 So.2d

66 (La. App. 1980). cert. denied 396 So.2d 932 (La. 1981).

(iv) Interpretive Law Cannot Disturb Vested Proper-

ty Rights

It has been argued that the court’s decision is merely

interpretive and therefore subject to retroactive application.

But the law is well settled that even interpretive legislation

cannot operate to disturb vested rights. St. Paul Fire Marine

Ins. Co. v. Smith 609 So.2d 809, 819 (La. 1991).

The landowners’ rights to just compensation became

vested at the time the government took its property for public

flood control purposes. This right is protected by the

guarantees of the Fifth and Fourteenth Amendments.

The Legislature cannot retroactively affect, under the

guise of interpretive legislation, vested rights acquired under

previously valid laws. Ibid.

It is no less a violation of the Fifth and Fourteenth

Amendments when such interpretive action is done by the

courts rather than the other branches of government. Lan-

dgraf v. USI Film Products, supra; Williamson v. Vardeman,

supra

CONCLUSION

In the end, it comes down to whether or not the silent

and implied repeal of a law, after the taking, can, within con-

stitutional limitations, operate retroactively to disturb pre-

existing property rights and deny payment of just compen-

sation to landowners whose property was taken for public

purposes, without providing the opportunity of backward

looking relief.

It appears clear to this writer that, under the cir-

cumstances of this case, such harsh and undeserved conse-

quences would result from the retroactive effect 80 as to ex-

ceed the constitutional limitations of the Fifth and Four-

teenth Amendments.

The petition for a Writ of Certiorari should be granted.

Respectfully submitted

RICHARD J. McGINITY*,

*Counsel of Record

JOHN E. SUDDERTH

4700 Wichers Drive

Suite 303 ;

Marrero, LA 70072

Telephone: (604) 347-2297

A-l

APPENDIX A

SUPREME COURT OF LOUISIANA

NO. 97-C-2121

APR 14 1998

WYNAT DEVELOPMENT COMPANY,

AN ORDINARY LOUISIANA PARTNERSHIP,

AND WYNAT DEVELOPMENT CORPORATION

Vv.

THE BOARD OF LEVEE COMMISSIONERS

FOR THE PARISH OF ORLEANS

ON WRIT OF CERTIORARI

TO THE COURT OF APPEAL,

FOURTH CIRCUIT, PARISH OF ORLEANS

KIMBALL, Justice*

We granted this writ to determine whether the prescrip-

tive period governing claims for compensation for property

appropriated for levee purposes is the two year period found

in La. R.S. 9:5626 or the three year period found in La. R.S.

13:5111. Finding La. R.S. 9:5626 was implicitly repealed, we

hold the applicable prescriptive period is that provided in La.

R.S. 13:5111, and plaintiffs’ suit filed more than three years

after the taking is prescribed.

* JOHNSON, J., not on panel. See Rule IV, Part 2, Section 3.

A-2

FACTS AND PROCEDURAL HISTORY

Plaintiffs, Wynat Development Company and Wynat

Development Corporation (Wynat), seek damages for land

taken and actually used for levee purposes and severance

damages related to the remaining property. For purposes of

deciding the issue before us relative to prescription, we need

only recite the following undisputed facts.

On July 20, 1983, pursuant to a request by the U'S.

Corps of Engineers to furnish the necessary rights of way

to construct the Algiers Point Levee Setback, Levee Enlarge-

ment and Slope Pavement Project, defendant, the Board of

Levee Commissioners for the Parish of Orleans (Levee Board)

adopted a resolution appropriating an eight-foot strip of

Wynat’s land located at Algiers Point for the purpose of

building a cueing lane for vehicular traffic which was re-

quired to accommodate the levee setback. Notice of the ap-

propriating resolution was given to Wynat by the Levee

Board by letters dated July 26, 1983, and August 15, 1983.

Attached to the July 26, 1983, letter was a map which

designated the exact dimensions of the eight-foot strip of land.

In brief, Wynat concedes it received written notice of the

Levee Board’s appropriating resolution on August 15, 1983.1

The Levee Board commenced construction of the levee

in the summer of 1985, and the project was completed in

December, 1985. Upon completion of the work, Wynat and

the Levee Board could not agree on either the amount of com-

pensation for the land actually used and destroyed or on the

1 Original Brief on Behalf of Applicante/Plaintiffs, Wynat Development

Company, an Ordinary Louisiana Partnership, and Wynat Development

Corporation, p. 1.

amount of severance and other consequential damages

related to the remaining property. On April 16, 1987, Wynat

filed this action seeking compensation for both the lands ac-

tually used and destroyed and for severance and consequen-

tial damages sustained by the remaining property as provided

by La. R.S. 38:301(CX1Xh).2

The Levee Board filed an exception of prescription asser-

ting the three year prescriptive period provided for in La.

RS. 13:5111 was applicable to Wynat’s claim and commenced

upon notice of the appropriation which, here, was August 15,

1983. Hence, it argued, Wynat’s suit filed on April 16, 1987,

had prescribed. In opposition to the Levee Board’s exception,

plaintiffs argued the applicable prescriptive period was that

provided by La. R.S. 9:5626 which by its terms applies to ac-

tions and claims for lands used or desiroyed for levee pur-

poses. This two year prescriptive period commenced from the

date on which the property was actually occupied and used

or destroyed for construction of levees which, in this case,

2 La. RS. 88:301(CX1Xh) provides:

Pork Aye ee, PEP EN a ee a

was the date of completion of the project, December, 1985.

Therefore, Wynat argued, its suit filed on April 16, 1987, was

timely.3

The trial court sustained the Levee Board’s exception

of prescription and dismissed Wynat’s suit, reasoning:

The plaintiff had notice of the appropriation

when a letter was delivered to them on 15 August

1983. Suit was filed on 16 April 1987, more than

3 years later.

The Court concludes that R.S. 13:5111 and

Section 3 of the Act creating it apparently and

silently repealed R.S. 95:5626 as the defendant

states in its brief.

(footnote omitted).

The fourth circuit court of appeal, with one judge dissen-

ting, affirmed the trial court’s judgment,‘ reasoning that the

two year prescriptive period provided for in La. R.S. 9:5626

clearly conflicts with the more recently enacted three year

prescriptive period of La. R.S. 13:5111. In view of this con-

flict, the court of appeal concluded La. R.S. 9:5626 was repeal-

ed by the repealing clause contained in the Act which

3 In brief, the Levee Board concedes Wynat’s claim for compensation is

not prescribed if La. R.S. 95:5626 is applicable, stating, “The case is not

prescribed if Acts 1958, Ex. Sess. No. 11, § 1 (La. R.S. 95:5626) applies.”

Original Brief of Defendant/Respondent Orleans Levee Board, p. 2.

4 Wynat Development Co. v. Board of Levee Com’rs for Parish of Orleans,

96-1983 (La. App. 4 Cir. 5/30/97), 696 So.2d 163.

enacted La. R.S. 13:5111.5 The court went on to conclude the

three year prescriptive per'.d contained in La. R.S. 13:5111

begins to run from the date of discovery of the taking which,

here, was August 15, 1983, at the latest. Thus, the court held

Wynat’s suit filed on April 16, 1987, had prescribed.

This court granted plaintiffs’ writ application® to ad-

dress whether the prescriptive period that governs plaintiffs’

claim for compensation is that found in La. R.S. 9:5626 or

La. R.S. 13:5111 and to determine whether, applying the ap-

propriate prescriptive period, plaintiff's claim has prescribed.

CLASSIFICATION OF LEVEE BOARD’S ACTION

When property is needed for levee purposes, the levee

districts of this state can either appropriate or expropriate

the necessary property. As early as 1893, it was recognized

riparian lands needed for levee purposes could be “taken”

without formal expropriation procedures because such lands

are subject to a servitude under La. C.C. art. 665,” In Peart v.

5 Section 8 of Acts 1975, No. 484, part of the Act which enacted La. R.S.

13:5111, specifically provided that “{aJll laws or parts of laws in conflict

herewith are hereby repealed.

8 Wynat Development Co. v. Board of Levee Com’rs for Parish of Orleans,

97-2121 (La. 11/21/97), 708 So.2d 634.

7 La. C.C. art. 665 states:

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 determined

by laws or particular regulations.

Meeker, 12 So. 490 (La. 1893), this court stated:

[W]e consider the law of Louisiana too well settled

to admit of further dispute to the following effect:

That under article 665 of our Civil Code riparian

property on navigable rivers in this state is sub-

ject to a servitude or easement imposed by law for

the public or common utility, authorizing the ap-

propriation by the government, under proper laws,

of the space required for the making and repairing

of levees, roads, and other public works; that the

state is charged with the administration of this

public servitude; that in locating and building

levees she does not expropriate the property of the

citizen, but lawfully appropriates it to a use which

it is subject under the title itself; that in so doing

she acts not under the power of eminent domain,

but in the exercise of the police power. .. .

This right of appropriation has been characterized as the

right to act first and talk later. Dickson v. Board of Com’rs

of Caddo Levee Dist., 26 So.2d 474 (La. 1946). In the instant

case, as both parties correctly contend, Wynat’s land was ap-

propriated by the Levee Board when it passed the ap-

propriating resolution on July 20, 1983.8 Thus, the Levee

Board’s resolution effected an appropriation of Wynat’s pro-

perty for levee purposes. See A.K. Roy, Inc. v. Board of Com’rs

for Pontchartrain Levee Dist., 111 So.2d 765 (La. 1959); Board

8 Both lower courts characterized Wynat’s suit for compensation as an

inverse condemnation action. For purposes of determining whether

Wynat’s suit is prescribed, however, we need only classify the levee Board’s

action as an appropriation for levee purposes.

A-7

of Com’rs for Pontchartrain Levee Dist. v. Baron, 109 So.2d

441 (La. 1959); Pillow v. Board of Com’rs for Fifth Louisiana

Levee Dist., 425 So.2d 1267 (La. App. 2 Cir. 1982); Burdin

v. Board of Com’rs for Atchafalaya Basin Levee Dist., 533

So.2d 977 (La. App. 3 Cir. 1988); Taylor v. Board of Levee

Com’rs of Tensas Basin Levee Dist., 332 So.2d 495 (La. App.

3 Cir. 1976); and Danziger v. United States, 93 F.Supp. 70

(E.D. La. 1950).

It is only when the levee district cannot appropriate or

amicably acquire property needed for levee purposes that i*

need formally expropriate such property. La. R.S. 38:351.°

In the instant case the Levee Board clearly did not initiate

formal expropriation proceedings pursuant to La. R.S. 38:351

et seq.

APPLICABILITY OF LA. B.S. 9:5626

Louisiana R.S. 9:5626, which Wynat argues provides

the prescriptive period applicable to its claim for compensa-

9 L. RS. 38:351 states:

Notwithstanding any other law to the contrary, and

in addition to the methods and procedures for acquisi-

tion or utilization of servitudes for levee and related

purposes by levee districts and levee and drainage

including but not limited to flooding and hurricane

protection purposes, the levee district or levee and

drainage district may acquire the property by ex-

propriation prior to judgment in accordance with the

provisions of this Part. The method of expropriation

provided by this Part shall be authorized for corporeal

property and servitudes and for both riparian and

nonriparian property.

iain

tion for land actually used for levee purposes, states:

§5626. Action and claims for lands and im-

provements used or destroyed for levees or

levee drainage purposes

When lands are appropriated for levees or levee —

drainage purposes all claims and actions for pay-

ment under Article XVI, Section 6 of the Constitu-

tion of 1921 for lands and improvements thereon

actually used or destroyed for levees or levee

drainage purposes shall prescribe within two years

from the date on which the property was actually

occupied and used or destroyed for construction of

levees or levee drainage works, or, in the case of

lands and improvements heretofore so occupied and

used or destroyed, such prescription shall accrue

two years from November 17, 1958. This prescrip-

tion shall run against interdicts, married women,

absentees, minors, and all others now excepted by

law.

This statute purports to apply to all claims for payment

under art. 16, § 6 of the 1921 Constitution. As amended by

Acts 1928, No. 165, adopted November 6, 1928, that constitu-

tional provision stated in pertinent part:

Section 6. Lands and improvements thereon

hereafter actually used or destroyed for levees 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 purpose of commerce... .

A-9

In the Constitution of 1974, this 1921 constitutional pro-

vision appears, as suggested by plaintiffs, to have been con-

tinued as a statute by La. Const. art. 14, § 16(AX12). Section

16(AX12) provides:

Section 16. (A) Provisions Continued as Statutes.

Subject to change by law or as otherwise provided

in this constitution, and except as any of them con-

flicts with this constitution, the following provisions

of the Constitution of 1921 are continued as

statutes, but restricted to the same effect as on the

effective date of this constitution:

(12) Article XVI, Sections 1, 4, 6, 7, 8 and 8(a).

(Emphasis added.) This continuation as a statute, however,

does not control because La. Const. art. 14, § 32 deals more

specifically with the continuation of La. Const. of 1921, art.

16, § 6 and is therefore “as otherwise provided in this con-

stitution” under La. Const. art. 14, § 16(A). That specific pro-

vision, La. Const. art. 14, § 32, states:

Section 32. The provisions of Article XVI, Section

6 of the Constitution of 1921 shall be continued as

a statute, subject to change by the legislature, and

the amount of compensation therein required to be

paid for property used or destroyed for levee or levee

drainage purposes shall be paid as provided in Sec-

tion 6 of Article XVI of the Constitution of 1921

until the legislature enacts a law to effectuate Arti-

cle VI. Section 42 of this constitution.

A-10

(Emphasis added.)

Thus, art. 16, § 6 of the 1921 constitution was to be con-

tinued as a statute only until the legaislature enacted a law

to effectuate art. 6, § 42 of the 1974 constitution. La. const.

art. 6, § 42 provides:

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 contained in this Paragraph with respect

to compensation for lands and improvement shall

apply to batture or to property the control of which

is vested in the state or any polictical subdivision

for the purpose of commerce. 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 pro-

perty used or destroyed to be used solely in the

district where collected.

(B) Appropriation. Nothing in this Section shall pre-

vent the appropriation of such property before

payment.

This interpretation is supported by the placement in the 1974

constitution of those provisions that continued the 1921 con-

stitutional provisions and the explanation of them given in

the constitutional debates. Both provisions which continued

the 1921 constitutional provision as a statute are located in

that article of the 1974 Constitution entitled, “Transitional

A-11

Provisions.” Explaining what is now La. Const. Art. 14, §

32, which continued the 1921 provision until the legislature

_ acted to effectuate the new art. 6, § 42, Delegate Lanier

stated:

Mr. Chairman and fellow delegates, if you refer to

Section 43 as adopted by local government, you will

see that we made a major change in the law with

reference to the compensation paid for the exercise

of the riparian servitude. The present law is that

you’re paid the asssessed value for the last

preceding year. What we have done is provided that

in the future, after the effective date of this con-

stitution, that the legislature shall have the right

to determine what compensation should be paid.

Because of the fact that the present provisions for

compensation are constitutional rather than

statutory, the Committee on Local and Parochial

Government felt that a special transitional schedule

provision was necessary to insure and make cer-

tain that we did not have an hiatus in our law dur-

ing the period of time between the effective date

of the new constitution and such time as the

legislature in its wisdom may act in fixing the

amount of compensation. So we provided this pro-

vision that says that the present law as stated in

the 1921 Constitution, that is, that the landowner

would be paid the assessed evalution for the last

preceding year, will remain in effect until such time

as the legislature acts. Now, if we did not have such

a provision, it is the feeling of the Committee of

Local and Parochial Government that an argument

could be made that since the constitution provides

that the compensation will be as provided by the

A-12

legislature, and that since here in this convention

we are physically lifting the provisions of Article

XVI, Section 6 out and transporting them to the

statutes, that this is not in fact a legislature fix-

ing the compensation and therfore, such a provi-

sion would not be valid without a special schedule

provision showing our intention to do this. This is

the reason to do this so that no one will be un-

necessarily hurt during the transitional period bet-

ween such time as the constitution goes into effect

and the legislature acts. Now, if there is a special

session of the legislature that does enact such a law

prior to the time that we had the effective date,

then, of course, that law will take effect on the ef-

fective date, and there would be no necessity for

such a transitional provision as this. But, in the

absence of such action if we do not provide this, it

is the feeling of many of us that we will have an

hiatus in the law, and persons whose property is

exercised by the riparian servitude, if the servitude

is used on their property, may be in a position where

they cannot get anything for the use of their land;

and this is a situation we thought should be

avoided.

Records of the Louisiana Constitutional Convention of 1973;

Convention Transcripts, Vol. 9, 121st Days Proceedings, p.

3470 (January 18, 1974).

Obviously, then, art. 16, § 6 of the 1921 constitution

continues to be a valid statutory provision only if the

legislature has not acted to effectuate art. 6, § 42 of the 1974

A-13

constitution. If the legislature has not yet enacted any statute

providing for compensation for lands and improvements ac-

tually used or destroyed for levees or levee drainage purposes,

then La. Const. of 1921, art. 16, § 6 is still valid legislation

to determine the amount of such compensation. If, however,

the legislature has enacted such a provision, then art. 16,

§ 6 of the 1921 constitution is no longer a viable statute upon

which plaintiffs can rely. Concomitantly, La. R.S. 9:5626, pro-

viding a prescriptive period for the cause of action provided

by art. 16, § 6 of the 1921 constitution, is rendered mean-

ingless and implicitly repealed.

In Act 314 of 1978, the legislature did in fact enact a

statute to effectuate La. Const. art. 6, § 42. The stated pur-

pose of that Act was:

[tlo amend and reenact Section 281 of Title 38 of

the Louisiana Revised Statutes of 1950, relative to

levees and levee drainage, to provide for measure

of compensation for land and improvements,

Orleans Parish excepted, actually used, damaged or

destroyed for levees or levee drainage purposes, and

otherwise to provide with respect thereto.

(Emphasis added.) This statute, effective July 10, 1978, pro-

vided for the first time since the adoption of the 1974 con-

stitution a rate of compensation to be paid for lands and im-

provements actually used, damaged or destroyed for levees

or levee drainage purposes different from the old assessed

value method found in La. Const. of 1921 art. 16 § 6. Although

the first version of this statute excepted Orleans Parish from

the new “fair market value” scheme of compensation for land

and improvements actually used, damaged or destroyed for

A-14

levees or levee drainage purposes, the legislature removed

this exception from La. R.S. 38:281 the following year in Act

676 of 1979, effective July, 18, 1979, which described Act 314

of 1978 as containing “vague and indefinite” provisions par-

ticularly with respect to lands used or destroyed for levees

and levee drainage purposes for which fair market value must

be paid. The intent to continue La. const. of 1921, art. 16,

§ 6 as only a transitional provision until the legislature

enacted a new measure of compensation, combined with the

repealing provision in Act 676 of 1979, which stated that “fall

laws or parts of laws in conflict herewith are hereby repeal-

ed,” show Act 676 of 1979 effectively repealed art. 16, § 6

of the 1921 constitution in its entirety. The new statute in-

structed all Louisiana parishes to pay for lands and im-

provements actually used, damaged, or destroyed for levees

and levee drainage purposes at fair market value to the full

extent of the loss and directly conflicted with the former

“assessed value” measure of compensation utilized by the

1921 constitution. See Givens v. Fifth Dist. Levee Board, 445

So. 2d 781 (La. App. 3 Cir. 1984). See also Historical and

Statutory Notes, Constitution Ancillaries, Const. 1921, Art.

16, sec. 6 (Wests 1996) (Pursuant to the statutory revision

authority of the Louisiana State Law Institute, La. Const.

of 1921, art. 16, § 6, is no longer set forth as live text and

is noted to be “Repealed by implication.”).

Louisiana R.S. 9:5626, the prescriptive statute Wynat

claims governs its suit for compensation, was enacted into

law by Act 11 of an extra session of the 1958 legislature. Loui-

siana R.S. 9:5626 explicitly refers to “all claims and actions

for payment under Article XVI, Section 6 of the Constitu-

tion of 1921.” As such, it was enacted to clarify the law as

to when an action arising under La. Const. of 1921, art. 16,

A-15

§ 6 prescribed. A.K. Roy, Inc. v. Board of Com’rs for Pont-

chartrain Levee Dist., 111 So.2d 765 (La. 1959). As discussed

above, however, the cause of action for payment of the assess-

ed value of property appropriated for levees or levee drainage

purposes has been repealed by the legislature’s enactment

of a cause of action for payment of the fair market value to

the full extent of the loss when lands are actually taken, us-

ed, damaged or destroyed for levee or levee drainage purposes.

Wynat has, in fact, asserted a cause of action under this new

compensation scheme found in La. R.S. 38:301; not one under

art. 16, § 6 of the 1921 constitution. Therefore, by its own

terms, La. R.S. 9:5626 does not apply to Wynat’s claim.

Moreover, La. R.S. 9:5626 will never apply to claims for com-

pensation for lands appropriated for levees or levee drainage

purposes because the legislature repealed the cause of action

for all claims and actions for payment under La. Const. of

1921, art. 16, §6 upon which the prescriptive period in La.

R.S. 9:5626 was based. Without a cause of action to which it

might apply, this prescriptive period is meaningless. Hence,

in light of the unique purpose fulfilled by La. R.S. 9:5626

relative to claims under La. Const. of 1921, art. 16, § 6, and

the fact art. 16, § 6 of the 1921 constitution is no longer need-

ed as a transitional statute and was repealed by the

legislature, we hereby conclude La. R.S. 9:5626, which pro-

vides the prescriptive period specifically applicable to claims

under this provision, has also been repealed by implication

and cannot be applied to this case.

APPLICABILITY OF LA. R.S. 13:5111

Pursuant to a comprehensive reenactment in 1985, the

substance of La. R.S. 38:281, which provided authority for

levee districts to appropriate land needed for levee purposes

A-16

: and for compensation at the fair market value of such land,

was included in La. R.S. 38:301 by Act 785 of 1985. It is La.

. R.S. 38:301 that today gives the Levee Board the authority

to appropriate Wynat’s land by resolution. La. R.S. 38:301,

however, contains no prescriptive period governing claims

for compensation for property appropriated by resolution for

levee purposes. The Levee Board points to La. R.S. 13:5111

as the governing prescriptive period. That statute provides:

§5111. Appropriation of property by state,

parish, municipality or agencies thereof; at-

torney, engineering and appraisal fees;

prescription

A. A court of Louisiana rendering a judgment for

the plaintiff, in a proceeding brought against the

state of Louisiana, a parish, or municipality or other

political subdivision or an agency of any of them,

for compensation for the taking of property by the

defendant, other than through an expropriation pro-

ceeding, shall determine and award to the plain-

tiff, as part of the costs of court, such sum as will,

in the opinion of the court, compensate for

reasonable attorney fees actually incurred because

of such proceeding. Any settlement of such claim,

not reduced to judgment, shall include such

reasonable attorney, engineering, and appraisal

fees as are actually incurred because of such pro-

ceeding. Actions for compensation for property taken

by the state, a parish, municipality, or other political

subdivision or any one of their respective agencies

shall prescribe three years from the date of such

taking.

A-17

B. The rights of the landowner herein fixed are in

addition to any other rights he may have under the

constitution of Louisiana and existing statutes, and

nothing in this Part shall impair any constitutional

or statutory rights belonging to any person on

September 121, 1975.

(Emphasis added.)

This statute clearly purports to apply to a suit brought for

compensation for the taking of property by the state, a parish,

municipality or other political subdivision other than through

an expropriation proceeding. Louisiana R.S. 13:5102(B)

defines a political subdivision as any parish, municipality,

special district, school board, sheriff, public board, institu-

tion, department, commission, district, corporation, agency,

authority, or an agency or subdivision of any of these, and

other public or governmental body of any kind which is not

a state agency. As a “special district” of the state, the Orleans

Levee District is a political subdivision under this definition.

See also La. R.S. 38:281(6) defining “Levee district” as “a

political subdivision of this state organized for the purpose

and charged with the duty of constructing and maintaining

levees, drainage, and all other things incidental thereto

within its territorial limits.” Moreover, as discussed previous-

ly, a taking of riparian property through the adoption of a

resolution by a levee board is an appropriation, not an ex-

propriation. Hence, the statute, by its own terms, clearly ap-

plies to the appropriation of Wynat’s property by the Levee

Board.

Having determined La. R.S. 13:5111 applies by its own

terms to an appropriation by resolution for levee purposes,

we may make no further inquiries into the legislative intent

A-18

behind the statute unless its application leads to absurd con-

sequences. La. C.C. art. 9 (“When a law is clear and unam-

biguous and its application does not lead to absurd conse-

quences, the law shall be applied as written and no further

interpretation may be made in search of the intent of the

legislature.”). Wynat argues the application of La. R.S.

13:5111 to this case leads to absurd consequences when read

together with La. R.S. 38:301, the statute that gives the Levee

Board the authority to appropriate Wynat’s land for levee

purposes. Specifically, Wynat contends the commencement

of prescription upon notice of the appropriating resolution

creates an irreconcilable conflict with La. R.S. 38:301(CX2Xa)

because that statute provides, “{tJhe compensation due under

the provisions of this Subsection shall be paid to the owner

within one year after the actual taking, use, damage, or

destruction of the property in accordance with the provisions

of this Section.”” Wynat’s argument is that if it files within

the three year period provided by La. R.S. 13:5111, but prior

to one year after the actual taking, use, damage, or destruc-

tion of its property as specified in La. R.S. 38:301(CX2Xa), it

will be met with an exception of prematurity. We find this

argument to be without merit.

Under the terms of La. R.S. 13:5111, Wynat’s claim for

compensation prescribes three years from the date of the tak-

ing. The lower courts determined, and the parties agree, the

taking, as that term is used in La. R.S. 13:5111, is the date

Wynat received notice of the passage of the appropriating

resolution. For purposes of this case, we need not evaluate

: the correctness of those determinations and may assume

: prescription commenced on this date because Wynat’s claim

is prescribed regardless of whether the applicable date is the

date of the passage of the appropriating resolution or the date

)

A-19

Wynat received notice of the resolution. Wynat concedes it

had notice of the adoption of the resolution on August 15,

1983. Therefore, prescription commenced on August 15, 1983,

at the latest.

Under the terms of La. R.S. 13:5111, Wynat had three

years from the date of the taking of its land to file its suit

for compensation. Although the taking authority has an

obligation to compensate the landowner from the date of the

taking, i.e., here, the date Wynat had notice of the passage

of the appropriating resolution, which obligation the lan-

downer must seek to enforce within the prescriptive period

provided by La. R.S. 13:5111, La. R.S. 38:301(C((2Xa) mere-

ly gives the Levee Board a term for payment. Thus Wynat

could validly file suit on the day its property was taken, and

a judgment could be rendered which would: (1) set the amount

of compensation due pursuant to La. RS. 38:301(CX1Xb),

which allows severance damages to be computed “taking into

consideration the effects of the completion of the project in

the manner proposed or planned,” and would (2) set the time

for payment under La. R.S. 38:301(CX2\Xa). If the Levee Board

does not pay after the one year period in La. RS.

38:301(CX2Xa) has accrued, then the landowner would be en-

titled to execute on the judgment subject to the provisions

in La. R.S. 38:301(CX2Xe).19 When La. R.S. 38:301(CX2Xa)

and La. R.S. 13:5111 are read in pari materiae, it becomes

clear that filing a suit for compensation under these cir-

10 La. R.S. 38:301(CX2Xe) provides:

The owner shall be compensated as provided in this

Section only when and if, in its discretion, the

legislature, the levee board, or the federal govern-

ment, appropriates the funds therefor.

: : A-20

cumstances is not premature within the meaning of La.

C.C.P. art. 423.11 The right to enforce some obligations does

not accrue until the occurrence of a term for performance or

suspensive condition. In these cases, under Article 423, an

action brought to enforce this type of obligation, seeking, for

example, damages, shall be dismissed as premature if it is

brought prior to the right to enforce it has accrued. In other

words, the obligee cannot even file suit until the occurrence

of the term or suspensive condition. In the instant situation,

however, the legislature enacted La. R.S. 13:5111 which

specifically allows, and indeed requires, a landowner to file

his suit seeking to enforce the taking authority’s obligation

to compensate him under La. R.S. 38:301(CX1Xa) within three

years from the passage of the appropriating resolution. Thus,

the landowner’s right to enforce the obligation , ie., to file

a suit to determine damages owed, and to obtain a judgment

awarding damages, accrues with the passage of the resolu-

tion and not with the occurrence of any term or suspensive

condition. Understood in this manner, the application of the

prescriptive period in La. R.S. 13:5111 does not lead to

11 Le. C.C.P. art. 423 discusses prematurity as follows:

An obligation implies a right to enforce it which may

or may not accrue immediately upon the creation of

the obligation. When the obligation allows a term for

its performance, the right to enforce it does not ac-

crue until the term has elapsed. If the obligation

depends upon a suspensive condition, the right to en-

force it does not accrue until the occurrence or per-

formance of the condition.

When an action is brought on an obligation before the

right to enforce it has accrued, the action shall be

dismissed as premature, but it may be brought again

after the right has accrued.

A-21

absurd consequences when read together with La. R.S.

$8:301.12

Because the terms of La. R.S. 13:5111 are clear and

unambiguous and their application to cases such as the one

presented here leads to no absurd consequences, we conclude

La. R.S. 13:5111 applies to claims for compensation for land

tive period for Wynat’s claim for compensation commenced

upon the taking of its property by the Levee Board, which,

here, is assumed to be August, 15, 1983, the date Wynat

received notice of the passage of the appropriating resolu-

tion. Wynat’s claim for compensation for laid appropriated

by the levee Board prescribed three years from this date pur-

suant to La. R.S. 13:5111. Accordingly, its suit filed on April

16, 1987, was prescribed and we therefore affirm the lower

courts’ decisions sustaining defendant’s exception of

prescription.

AFFIRMED.

12 Wynat argues the doctrine of contra non valentem agere nulla currit

praescriptio applies to suspend running of prescription under La. R.S.

13:5111 because it was legally barred from enforcing its right to compen-

sation until one year after completion of the project because that is when

its damages could be ascertained and the Levee Board would be forced

propriating resolution. Contra non valentem, therefore, is not available

to Wynat to suspend the running of prescription in this case.

A-22

SUPREME COURT OF LOUISIANA

No. 97-C-2121

WYNAT DEVELOPMENT COMPANY,

AN ORDINARY LOUISIANA PARTNERSHIP,

AND WYNAT DEVELOPMENT CORPORATION

Versus

THE BOARD OF LEVEE COMMISSIONERS

FOR THE PARISH OF ORLEANS

Apr 14 1998

LEMMON, J., Dissenting

Prior to 1974, the cause of action for appropriation was

provided by La. Const. (1921) art. XVI, §6, which required

payment of compensation when property has been ap-

propriated for levee purposes and set the standard for deter-

mining such compensation “at a price not to exceed the

assessed value of the preceding year.” In 1958, the

Legislature enacted La. Rev. Stat. 9:5626 to provide a special

two-year prescriptive period governing such an action for com-

pensation under La. const. art. XVI, §6, commencing on the

date the property was actually occupied and used.

The majority concludes the 1974 Constitution and

subsequent legislation abolished the cause of action for pay-

ment of property appropriated for levee purposes created by

former La. Const. art. XVI, §6 and established a new cause

of action with a different prescriptive period, I disagree.

A-23

What actually occurred in 1974 is that the framers of

the new constitution continued in effect the constitutional

cause of action for payment, but delegated to the Legislature

the authority to set the standard for determining such

compensation.

Three provisions of the 1974 constitution are pertinent:

1. La. Const art. XIV, §16(AX12), a general provi-

sion that continued as a statute all the provisions

of La. Const. (1921) art. XVI, $6.

2. La. Const. art XIV, §32, a specific provision that

also (a) continued the provisions of the La. Const.

(1921) art. XVI, $6 as a statute “subject to change

by the legislature” and (b) further continued the

standard in the 1921 Constitution for determining

the amount of compensation “until the legislature

enacts a law to effectuate Article VI, Section 42 of

this constitution.”

3. La. Const. art. VI, §42, a provision that compen-

sation “shall be paid for as provided by law,”

thereby authorizing the Legislature to fix the stan-

dard for determining compensation.

The latter two provisions recognized the authority of

the Legislature to fix the standard for determining compen-

sation for appropriation of property used for levee purposes

and further maintained the existing standard until the

Legislature acted. The framers thus provided that during the

interim between the effective date of the 1974 Constitution

and the time the Legislature enacted such a statute fixing

the new standard for determining the “amount of compen-

sation,” the standard set forth in the 1921 Constitution

A-24

would apply. The Legislature enacted such a statute, La. Rev.

Stat. 38:281, in 1978 and in 1979.

In my view, the time limitation in La. Const. art. XTV,

§32 was intended only to apply to the standard for determin-

ing the “amount of compensation,” which the framers

authorized the Legislature to fix by subsequent act. In so do-

ing, the framers did not a set a time limit on the vitality of

the cause of action for compensation under the 1921 Constitu-

tion which had been continued as statute. Even after the

Legislature acted to fix the standard for determining the

amount of compensation, the cause of action under La. Const.

(1921) art. XVI, §6 (and continued as a statute) remained

viable and subject to the prescriptive period especially

enacted for that cause of action.

The framers of the 1974 Constitution and the redactors

of the subsequent revised statute did not expressly repeal

the cause of action established by La. Const. (1921) art. XVI,

§6 and continued as a statute by La. Const. art. XIV,

$16(AX12). Moreover, implied repeal is highly disfavored. In

my view, the majority erred in holding that the specific

prescriptive period, which was designed to cover the issue

presented here, no longer applies because the underlying

cause of action was implicitly repealed in 1974 by La. Const.

art. VI, $32, effective upon the enactment of La. Rev. Stat.

38:281 in 1978 and in 1979.

A-25

APPENDIX B

SUPREME COURT

STATE OF LOUISIANA

NEW ORLEANS

Pascal F. Calogero, Jr.

CHIEF JUSTICE 301 Loyola Ave. 70112

JOHN TARLTON OLIVER TELEPHONE 504-568-5707

CLERK OF COURT

June 26, 1998

Timothy S. Madden, Esq. John E. Sudderth, Esq.

3800 First NBC Center 650 Poydrae Street

201 St. Charles Avenue Suite 1515

New Orleans, LA 70170 New Orleans, LA 70130

Alan D. Weinberger, Esq.

Wade P. Webster, Esq.

201 St. Charles Avenue

. 81st Floor

New Orleans, LA

70170-3100

Re: Wynat Development Co.

vs. Board of Levee Comm.

No. 97-C-2121

Dear Counsel:

Enclosed please find a News Release documenting this court’s

denial of the application for rehearing, in the above entitled

A-26

referenced case.

This judgment is now final. By copy of this letter we are ad-

vising both the trial court and appellate court of the finality

of this case and instructing them to do whatever is necessary

to implement the judgment.

With kindest regards, I remain,

Very truly yours,

/s/ John Tarlton Oliver

John Tarlton Oliver

Clerk of Court

JTO:cag

ENCLOSURE

ces: Hon. Max N. Tobias

Hon. Dale Atkins

Hon. Danielle Schott

x OE eae ee

A-27

SUPREME COURT OF LOUISIANA

FOR IMMEDIATE NEWS RELEASE

NEWS RELEASE # 059

FROM: CLERK OF SUPREME COURT OF LOUISIANA

On the 26th day of June, 1998, the following action was taken

by the Supreme Court of Louisiana in the case(s) listed below:

REHEARINGS DENIED:

97-C -0956 EDWARD MORGN v. ABC MANUFAC.

TURER, DEF INSURANCE COMPANY

GHI PARTS SUPPLIERS, ET AL (Parish

of Jefferson)

MARCUS, J. - would grant a rehearing.

JOHNSON, J. - not on panel.

VICTORY, J.- would grant rehearing.

TRAYLOR, J. - would grant a rehearing.

97-C - 2121 WYNAT DEVELOPMENT COMPANY,

AN ORDINARY LOUISIANA PARTNER-

SHIP, AND WYNAT DEVELOPMENT

CORPORATION v. THE BOARD OF

LEVEE COMMISSIONERS FOR THE

PARISH OF ORLEANS (Parish of Orleans)

CALOGERO, C.J. - would grant a

rehearing.

MARCUS, J. - would grant a rehearing.

LEMMON, J. - would grant a rehearing.

JOHNSON, J. - not on panel.

A-28

APPENDIX C

PUBLIC CONTRACTS, WORKS AND IMPROVEMENTS

La. R.S. 38 § 301. Construction and maintenance of

levees and drainage; care and in-

spection of levees; measure of com-

pensation; right of entry

A. The levee boards and levee and drainage boards of

this state may construct and maintain levees, drainage, and

levee drainage, and do all other things incidental thereto.

The levee boards and levee and drainage boards may do all

drainage work incidental to or made necessary by the con-

struction of the levee system in this or adjoining states.

However, any construction project undertaken shall be in ac-

cordance with the provisions of R.S. 38:2211, et seq.

B. The care and inspection of levees shall devolve on

resident commissioners, assisted by such inspectors and wat-

chmen as may be appointed pursuant to regulations which

the boards are hereby authorized to adopt. Each resident com-

missioner and any inspector or watchman who may be ap-

pointed shall attend once during his term of office an educa-

tional training program conducted by the office of public

works or its successor.

C. (1Xa) All lands, exclusive of batture, and im-

provements 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.

A-29

(b) The owner shall be given written notice of the ap-

propriating resolution by the levee board within ten days of

the date of its passage.

under existing or prior law, for the loss of lands or im-

provements used, damaged, or destroyed for levee or levee

drainage purposes shall constitute payment in full for the

exercise of a permanent levee servitude as provided by law

over the lands and improvements when taken, used, damag-

ed, or destroyed. No additional payment shall be due the

owner for future work performed on, or the future taking,

use, damage, or destruction of, the same lands or im-

provements over which the permanent servitude is taken and

for which any compensation has been paid, for levee or levee

drainage purposes.

(d) The term “same lands or improvements” shall in-

clude, but not be limited to, the levee servitude right of way,

borrow areas, and areas determined to have been depreciated

in value from the former use, drainage, or destruction for

levee or levee drainage purposes.

(e) Notwithstanding any other provision to the contrary,

the various levee districts shall also have the authority to

appropriate lands and improvements for temporary ser-

vitudes for levee construction purposes. As to these temporary

servitudes, the “fair market value” shall mean the use value

of the lands actually used for the period of time utilized by

the appropriating agency.

(f) It shall be the duty of the appropriating agency to

specify and delineate at the time of the appropriating resolu-

tion, whether areas taken shall be burdened with a perm-

A-30

anent levee servitude or a temporary servitude for levee con-

struction purposes.

(g) “Use” shall be deemed to occur at the time the levee

board formally adopts its resolution specifically describing

an area to be utilized for levees and levee drainage purposes

through the exercise or acquisition of a permanent levee ser-

vitude or a temporary servitude provided that actual use of

the property commences within two years of the adoption of

the resolution. Notice by certified mail shall be given to the

owner within five days of the adoption of the resolution.

(th) The measure of compensation for lands and im-

provements taken or destroyed for levee and levee drainage

purposes by way of a permanent levee servitude shall be the

fair market value of the property taken or destroyed before

the proposed use of the property or construction of the levee

facilities, without allowing any change in value caused by

the construction of the levee facilities. The measure of

damages, if any, to the remaining property of the owner by

reason of the use or destruction of a portion of the property

is determined on a basis of immediately before and im-

mediately after the use or destruction of the property for levee

drainage construction, taking into consideration the effects

of the completion of the project in the manner proposed or

planned.

(i) The compensation for a permanent levee servitude

defined herein shall apply to all lands, exclusive of batture,

and improvements appropriated, taken, used, damaged, cr

destroyed for levee purposes after the effective date of this

Act.

A-31

@) 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.

(2Xa) The compensation due under the provisions of this

Subsection shall be paid to the owner within one year after

the actual taking, use, damage, or destruction of the proper-

ty in accordance with the provisions of this Section.

(b) Immediately after the actual taking, use, damage,

or destruction of the property, the levee board shall make

an estimate of the compensation due under the provisions

of this Section, and shall make an estimate of the revenues

available to the levee board from all sources from which to

make the payment of the compensation; however, the

estimate of revenues shall not take into account any taxes

levied after the time of the actual taking, use, damage or

destruction of the property, except such taxes as may be levied

pursuant to authorization and approval by the voters in the

district. If revenues available to the levee board are suffi-

cient to pay the compensation due to the owner, the levee

board shall pay the owner within one year of the actual tak-

ing, use, damage, or destruction of the property.

be paid from funds appropriated by the legislature by the of-

fice of public works of the Department of Transportation and

Development. The levee board shall immediately notify the

office of public works of the estimate of the amount of com-

pensation due to the owner, the amount of revenues available

to the board, and the amount of insufficient revenues. Upon

such notification, the office of public works shall make its

own estimate of the monies available to the levee board, and

A-32

the amount of compensation to the owner. If the estimates

of the levee board and the office of public works differ, the

estimates of the office of public works shall be controlling.

(d) As used in this Paragraph, the term “levee board”

shall not apply to the governing authority of a levee district

which has been merged or consolidated into a local govern-

ment pursuant to the provisions of Article VI, Section 16 of

the Constitution of Louisiana.

(e) The owner shall be compensated as provided in this

Section only when and if, in its discretion, the legislature,

the levee board, or the federal government, appropriates the

funds therefor.

(f) Reasonable attorneys’ fees may be awarded by the

court if the amount found to be due by the state, the levee

board, or the federal government is less than the amount of

compensation awarded in any judgment seeking additional

compensation. The attorneys’ fees shall not exceed twenty-

five percent of the difference between the award and the

amount found to be due by the state, the levee board, or the

federal government.

D. Levee boards and levee and drainage boards and

their authorized agents and employees shall also have the

power to enter upon any lands, waters, and premises in the

state for the purpose of making such surveys, soundings, drill-

ings, and examinations as they may deem necessary or con-

venient for carrying out the purposes of this Chapter, which

entry shall not be deemed a civil or criminal trespass nor

a temporary construction servitude, nor shall it be deemed

an entry under any eminent domain proceedings which may

A-33

be then pending, provided that prior written notice of five

days to resident owners and fifteen days to nonresident

owners be given to the last record property owner as reflected

in the parish assessmet rolls. Written notice shall consist in

mailing the notice by certified mail to the last known address

of the owner as shown in the current assessment records. The

levee boards and/or levee and drainage board shall indem-

nify the property owner for any loss of injury resultant from

entry upon the property and shall make reimbursement for

any actual damages resulting to lands, waters, and premises

as a result of these activities.

Acts 1986, No. 785, § 1, eff. July 22, 1985. Amended by Acts

1992, No. 182, § 1, eff. June 8, 1992.

POE RE EDS SA RGA LIEDER LE: OLS TO ROLE NETS

A-34

APPENDIX D

WEST’S LOUISIANA STATUTES ANNOTATED

LOUISIANA REVISED STATUTES

TITLE 38. PUBLIC CONTRACTS, WORKS

AND IMPROVEMENTS

CHAPTER 4. LEVEE DISTRICTS

PART III. GENERAL PROVISIONS

§301. Construction and maintenance of levees and drainage;

care and inspection of levees; measure of compensation; right

of entry

CROSS REFERENCES

Authority of levee districts to appropriate property not af-

fected by provisions authorizing expropriation, see R.S.

38:396.

“Batture”, definition, see R.S. 38:281.

Compensation for property used or destroyed for levee pur-

poses, see Const. 1921 (Ancillaries), Art. 16, § 6.

Expropriation by declaration of taking, Generally, see R.S.

38:351 et seq.

Compensation for expropriated property, see R.S. 38:387.

“Fair market value”, definition, see R.S. 38:281.

“Full extent of the loss”, definition, see R..S. 38:281.

Legal public servitudes for levees, see C.C. art. 665.

A-35

Oil, gas or water pipelines, notification of owners before con-

struction or removal of levees, see R.S. 38:312.

Prescription, actions and claims for lands and im-

provements used or destroyed for levees or levee drainage

purposes, see R.S. 9:5626.

Timber on levee board lands, sale, see R.S. 41:1041 et seq.

Wharves, buildings and improvements, uncompensated ap-

propriation from riparian landowners, see R.S. 9:1102.1.

A-36

APPENDIX E

Art. XVI, § 6. Compensation for property used or

destroyed; tax

Section 6. Lands and improvements thereon hereafter

actually used or destroyed for levees or levee drainage pur-

poses, and for acquiring property within the limits of any duly

incorporated municipality of one hundred thousand popula-

tion or over to be used for constructing new streets or

highways where it was necessary to take a previously ex-

isting street or highway for levees 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 purpose of commerce;

and provided, further, that streets and highways within the

limits of any duly incorporated municipality of one hundred

thousand population or over shall be restored by the gover-

ning authorities of the levee district upon the new location

so acquired in order to replace any street or highway actually

used or destroyed for levees or levee drainage purposes, and

such street or highway shall be of a similar type or character

as that of the street or highway used or destroyed.

If the district has no other funds or resources out of

which such payment can be made, it may levy, on all tax-

able property situated therein, a tax sufficient to pay for said

property so taken, and for such streets and highways so

relocated and restored, within the limits of any municipali-

ty of one hundred thousand population or over not to exceed

one-fourth of one mill on the dollar, to be used solely in the

district where collected. This shall not prevent the appropria-

tion of said property before payment. (As amended Acts 1928,

No. 165, adopted Nov. 6 1928.)

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.