DeSambourg v. BOARD OF COM'RS

Citations: 621 So. 2d 602; 1993 WL 244250Docket: 93-C-0167

Court: Supreme Court of Louisiana; July 2, 1993; Louisiana; State Supreme Court

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The Louisiana Supreme Court case 621 So.2d 602 (1993) involves Warren and Mary DeSambourg against the Board of Commissioners for the Grand Prairie Levee District, concerning the appropriation of fill dirt from their riparian lands without compensation. The landowners, whose claims stem from eleven consolidated suits, argued for compensation for the fill dirt taken, while the Board denied liability, asserting that the appropriated dirt constituted "batture" and was thus exempt from compensation under LSA-Const. Art. 6. 42 and LSA-R.S. 38:301(C)(1)(a). 

After a bench trial, the court found that all the appropriated land was batture, defined as alluvial accretions covered annually by the river's ordinary high water. Consequently, the court dismissed the plaintiffs' suits, a decision later affirmed by the court of appeal. The relevant area, Shingle Point, approximately fifty acres, lies between the Mississippi River and a levee, and has been subject to two levee improvement projects supervised by the U.S. Army Corps of Engineers, which specified the appropriated areas for borrow pits. The landowners filed suits seeking damages for the fair market value of the appropriated property and additional damages, but the Board's summary judgment motion claiming the batture exemption was ultimately upheld.

The trial court granted summary judgment in favor of Charles and Ina Miller, dismissing their claim for compensation because the levee servitude appropriated from their property was not utilized—the necessary borrow was not taken. Under LSA-R.S. 38:281(B), compensation is only warranted if property is "actually used, damaged or destroyed," which did not occur in this case. The court’s judgment against the Millers is final. 

In subsequent trials involving ten other suits, the court adopted a definition of "batture" from a previous case, noting batture is the part of the riverbed exposed at low water but covered during ordinary high water. The definition was further clarified by referencing the "ordinary high water stage," defined as the highest water level typically reached in a season. The trial court rejected the plaintiffs' approach of determining ordinary high water based on physical characteristics or vegetation, favoring PPG's view that it should be based on statistical annual river elevation data. 

Using this approach, the court calculated the mean high water level at 11.0 feet, concluding that Shingle Point, which is 97% inundated at this level, qualifies as batture and is exempt from compensation. This conclusion was supported by an inspection of Shingle Point, which revealed significant inundation. The court of appeal affirmed this decision, agreeing that Shingle Point is batture and noting that only isolated areas were not inundated due to human activity. 

The case was further reviewed to clarify the meaning of "batture" concerning the constitutional exemption from compensation for property appropriated under levee servitude. It was established that the constitutional requirement for just compensation does not apply to such appropriations, as the levee servitude is a longstanding burden on riparian lands and does not violate the Fifth and Fourteenth Amendments when administered impartially.

In Louisiana, land grants historically included a reservation for public access to the shores of navigable rivers and bayous, established during the territory's colonial period under French and Spanish rule. These countries maintained title to lands adjacent to navigable waters, and this policy influenced the development of legal principles concerning servitudes, particularly as codified in the First Civil Code of 1805. The legal framework ensures that riparian lands are subject to a public servitude for the construction and maintenance of levees and other public works. This principle has persisted through various iterations of the Civil Code, applying to lands that were riparian at the time of separation from the public domain, especially when levees are necessary for flood control.

Landowners are historically obligated to construct and maintain levees on their properties, as highlighted by earlier ordinances mandating that planters secure their levees or risk land forfeiture. This obligation stems from the recognition that riparian lands are significantly less valuable without adequate flood protection, thereby placing the responsibility of safeguarding against flood damage on the landowners for the benefit of the community.

In the case of Dickson v. Board of Comm'rs of Caddo Levee Dist., it is outlined that prior to the purchase of the Louisiana Territory by the United States, riparian landowners were required to construct and maintain levees at their own expense, with neighboring landowners having the right to sue for damages if levees were not maintained. The proprietor's lands were liable for construction costs, and failure to comply could lead to criminal charges. However, by the mid-nineteenth century, the responsibility for levee construction and maintenance shifted from individual landowners to the government, with the establishment of the first levee district in 1852 and government oversight since 1878.

Despite this shift, the state's right to levy servitudes and appropriate riparian lands remained intact. Compensation for appropriated lands was not mandated until legislation in 1892 and 1894 and the Louisiana Constitution of 1898, which required compensation from the Orleans Levee Board. The 1921 Louisiana Constitution extended this compensation requirement statewide, although compensation was considered a "mere gratuity." Both constitutions maintained that no compensation was owed for the taking of batture land.

The Louisiana Constitution of 1974 reaffirmed the levee servitude as a legal construct and altered compensation measures, shifting from assessed value to fair market value for lands and improvements taken for levee purposes, while consistently exempting batture from compensation. Legislative adjustments in 1985 further refined compensation standards, yet the batture exemption persisted across all constitutional iterations.

The Louisiana Constitution of 1974 exempts appropriated batture lands from compensation but lacks a definition for "batture." The implementing legislation defines batture as per existing judicial definitions at the Constitution's effective date. Batture is synonymous with alluvion and is formed by gradual alluvial accretions. For batture to be privately owned, it must be reclaimed from the river, achieving sufficient elevation to become part of the bank. Ownership of alluvion is an accessory right linked to riparian ownership, meaning it cannot exist independently of it. The rights to alluvion or batture arise from both natural and municipal law, belonging to the riparian owner, but use remains public until it integrates with the land. The levee servitude applies only to levees and the batture between levees and the river, granting riparian landowners a mere legal title subject to this servitude without rights to use or enjoy the batture. Instances of private development on batture include cabins, railroad tracks, and city streets constructed parallel to the river.

Batture terrain is defined in several Louisiana legal cases, with its historical and legal significance highlighted. In Louisiana Ry. Navigation Co. v. Knox, batture is described as wooded pasturage, while in State v. Richardson, it is characterized as "soggy land" with specific vegetation. The term originates from a marine definition, indicating a mixture of sand, stone, or rock that rises toward the water's surface. It may refer to both submerged riverbed elevation and bank elevation when it rises above water. In Morgan v. Livingston, the court emphasized that batture is the portion of a riverbed that is uncovered during low water and may be covered during high water. 

Legal precedents, such as Hollingsworth v. Chaffe and Heirs of Leonard v. City of Baton Rouge, affirmed that batture has a precise legal meaning, and landowners unsuccessfully sought to claim batture from the city. The definition was further clarified in Boyce Cottonseed Oil Mfg. Co. v. Board of Comm'rs, where the court ruled that the plaintiff's land, located between a levee and the river, was not batture because it was not covered by ordinary high water, despite being inundated during extraordinary high water events. The ruling emphasized that land's classification as batture depends on its coverage during ordinary high water, and the court did not elaborate on the land's alluvial origin. The case illustrates that proximity to the river does not automatically qualify land as batture.

According to pre-1974 jurisprudence, batture is defined as land of alluvial origin that belongs to the riparian landowner when it rises above the stream or river bed. It is subject to levee servitude under Article 665 when located outside the levee. However, based on the limiting language from the Boyce case, alluvial accretions do not qualify for batture exemption from compensation if they are not annually covered by "ordinary high water," defined as the highest level the river reaches during regular high water seasons, not during extraordinary flood events.

The term "ordinary high water" is consistent with previous case law, describing it as land affected by annual swells and periodical overflow. This definition aligns with the purpose of the batture exemption, ensuring sufficient land surface is available for practical use. A narrower interpretation could undermine the exemption's social utility.

The plaintiffs' argument, which suggests that the upper boundary of batture should be determined by the physical characteristics of ordinary high water, contrasts with established definitions. Their expert, Dr. Holloway, defined ordinary high water based on federal criteria and observed vegetation, placing the ordinary high water mark at 8.5 feet. His definition suggests that much of Shingle Point could not be classified as batture due to its tree cover, which contradicts pre-1974 jurisprudence that described batture as semiaquatic land with specific vegetation. Additionally, on-site observations indicated that Shingle Point is inundated at the 8.5-foot level, and hydrologist Dr. Watson provided data showing varying water levels at Shingle Point throughout the year.

Dr. Holloway acknowledged that the natural floodplain at Shingle Point is approximately 11.0 feet. However, he defined "ordinary high water" as any water level above 8.5 feet, which he asserted would occur 20% of the year (around 73 days), triggered when water rises 0.2 feet above the levee's toe. His interpretation of ordinary high water conflicts with pre-1974 jurisprudence regarding batture and blurs the line between major flood events and typical high water levels. The legal definition of "ordinary high water" relevant to the batture exemption from compensation for levee servitudes is rooted in pre-1974 Louisiana jurisprudence, making external laws from France, other states, and federal law irrelevant to this context.

The trial and appellate courts found no error in concluding that Shingle Point qualifies as batture, identifying it as alluvial buildup shaped by sediment accumulation within a meander bend. They applied the guidelines established in the cases of Boyce and Wemple, which define "ordinary high water" as the highest level a river typically reaches annually, using statistical data regarding river stages over time. The trial court relied on mean high water data, representing the average peak river stages, to define ordinary high water, a method consistent with Louisiana's legal framework. The court's analysis utilized nearly a century of data from the Corps of Engineers, leading to the conclusion that the mean high water at Shingle Point was 11.0 feet, which they adopted as the ordinary high water level.

Land elevation measurements taken at Shingle Point from 1973 to 1975 ranged from 5.5 to 10.8 feet. Prior to the English Turn project excavation, the COE recorded twenty-five elevations, with only two marginally exceeding 11.0 feet. Evidence indicated that 97% of Shingle Point is inundated when the river reaches 11.0 feet, with only isolated high spots remaining dry due to prior man-made excavations. Following an on-site inspection, the trial court determined that, apart from a few high spots, water covered the area at 8.5 feet. The appellate court reviewed historical maps, hydrographic surveys, and river gauge data, confirming that annual high water elevations typically exceed Shingle Point’s highest land elevations. Experts concluded that 97 to 99% of Shingle Point is inundated at the 11.0 feet stage, validating the trial court's finding that all of Shingle Point qualifies as batture and is thus exempt from compensation during state appropriation. The appellate court found no error in the trial court's factual findings or its assessment of expert testimony. Consequently, the judgments favoring the defendant and dismissing the plaintiffs' claims were affirmed, with costs assigned to the plaintiffs. Justice Lemmon concurred, emphasizing that the river consistently reaches the 11-foot level for extended periods, supporting the trial court's conclusions regarding the ordinary high water stage.

Marcus, J. did not participate in the decision of this case, as noted in Rule IV, Part 2.3 and referenced in State v. Barras. According to the Louisiana Constitution of 1974, the state and its political subdivisions are not required to compensate riparian landowners for land used or destroyed for levee purposes when such land is classified as "batture." This constitutional provision is further detailed in LSA-R.S. 38:301(C)(1)(a). Appropriation involves the state's right to take a servitude over riparian property for levee purposes without immediate compensation, based on the principle that riparian owners’ rights are subject to public use for levees and similar infrastructure. Unlike expropriation, appropriation does not transfer title to the state. The Grand Prairie Levee District was merged into the Parish of Plaquemines, ceasing to exist as a separate entity. A "borrow pit" is defined as an area from which material is extracted for use elsewhere. Under the Mississippi River Flood Control Act of 1928, the Corps of Engineers (COE) manages the levee system, and local governments are responsible for acquiring necessary rights of way, although the COE and U.S. government are not parties to this action. The resolutions by the Plaquemines Parish Government (PPG) state that the U.S. is not liable for damages from levee construction. The Louisiana Constitution guarantees the right to property but allows for reasonable restrictions and stipulates that property cannot be taken without just compensation for public purposes.

The section specifies that it does not apply to the appropriation of property needed for levee and levee drainage purposes. Under LSA-Const. Art. 6, § 42, compensation is mandated for land and improvements used or destroyed for these purposes, although this does not pertain to batture or property controlled by the state or political subdivisions for commerce. The law allows for the appropriation of such property prior to payment. Legal servitudes, defined as restrictions on ownership for public benefit, are discussed, particularly regarding public utility servitudes for navigable rivers and public works. Historical context is provided through the La. Const. of 1898 and La. Const. of 1921, indicating rights to compensation for property appropriated for levees, with exceptions for batture. In Ward v. Board of Levee Comm'rs, the court highlighted issues of fairness in land appropriation when land ownership is fragmented. Additionally, amendments in 1985 clarified that lands (excluding batture) taken for levee purposes must be compensated at fair market value.

Acts of 1979, No. 676 amended LSA-R.S. 38:281, specifically Subsection B, which mandates that compensation for lands and improvements used, damaged, or destroyed for levee or levee drainage purposes must be at fair market value prior to any proposed use or construction, disregarding value changes caused by the levee construction. This provision excludes batture lands and properties held by the state or political subdivisions for commerce. Furthermore, Acts of 1979 and LSA-R.S. 38:301 exempt batture from compensation. The Acts of 1976, No. 103 modified the usufructuary rights related to land formed by alluvion, stating that such rights extend to land increases caused by alluvion or dereliction. Legal precedents indicate that batture properties can lose their status as such. In State v. Richardson, the court clarified that while Louisiana's boundary on navigable waters is set at the mean/ordinary high water mark, riparian landowners own the land between ordinary low and high water marks, which includes land adjacent to levees. The decision emphasized that Louisiana law governs these rights, independent of federal or external jurisprudence. Additionally, trial evidence indicated that significant floods, classified as reaching a minimum flood stage, occur roughly every nine years, with a notable level of 12.5 feet recorded at Shingle Point.