Calder v. Police Jury , 44 La. Ann. 173 ( 1892 )

The opinion of the court was delivered by

Breaux, J.

A number of residents of the parish of Terrebonne presented a petition to the defendant police jury, asking that steps be taken by that body to expropriate a road over certain designated lands.

A resolution was adopted appointing twelve freeholders to trace and lay out a public road, in accordance with the requirements of the statutes authorizing such expropriation.

The police jury directed that the road be laid out from. Bayou Terrebonne to Bayou Point au Chien, thence down the right descending bank of said bayou to Dupre’s bridge, and from this bridge to other points stated in the ordinance.

The committee of freeholders reported that they had laid out a road in compliance with the ordinance.

In the report, describing the road, it is stated that the point of beginning is the lower line of the Aragon plantation-, belonging to plaintiff.

The committee further reports that $200 will be ample compensation to plaintiff for his property sought to be expropriated, and for all damages.

The report was received by the police jury and accepted, and that body ordered that the road, as stated and traced in the report, be declared to be a public road, and that due publication be made, for thirty days, in the official journal.

Before the thirty days had elapsed, plaintiff sued out an injunction, alleging that at an expense of $3000 he built a road and causeway, through a marsh on his place, in order to make the rear portion accessible to cultivation.

That the settlement seeking a right of way, over this road to the public road, passing in front along the Bayou Terrebonne, should seek their way to the front over another plantation, named as owing them a servitude of way.

He alleges that the ordinance of the police jury and the action of the committee of freeholders are illegal and void, for the reason that the road was laid off by the police jury and not by the committee.

He further urges that no appropriation was made and no ordinance was adopted with the view of compensating him, and that the declaration that the road is public, made without any action to secure an amount for his property, is void.

The case was tried by jury.

The judgment dissolves the injunction; declares the road public, and allows five hundred dollars to the plaintiff. He prosecutes the appeal.

The defendant charges that the total claimed, viz., $5000, is fictitious, and that this court is without jurisdiction.

The alleged value' of the property is stated, and the damages claimed. These allegations are sworn to by the plaintiff.

“The amount in disputéis the highest sum for which judgment can be rendered.”

This court has jurisdiction. Forstall vs. Larche, 39 An. 287.

Merits.

Although there is some similarity between the ordinance of the police jury and the report of the committee of freeholders, recommending the expropriation, it is not complete.

In the ordinance no reference is made to defendant’s place. In the report of the committee the road is traced over the place of the defendant.

It is not made apparent that only one line could be followed by the committee.

The petition, in compliance with which the ordinance was adopted and the committee appointed, was for the purpose of expropriating a right of way to the Bayou Terrebonne.

The isolated condition of the settlement and the reasonable desire of the inhabitants to secure a needed road preclude the inference that they sought an expropriation over defendant’s place only, and were unwilling to secure another elsewhere, although equally as advantageous.

Police juries have no right to actually trace a line of road, it must be laid out by a jury of freeholders.

The police juries have some power entrusted to them “as to the proportion and direction” of the roads. Sec. 2743, R. S.

The ordinance did not, in this respect, exceed their power.

The declaration making the road public, without adopting any measure toward paying therefor, presents a question for our determination.

Police juries can act only in the mode prescribed by the law creating them.

In ordering this road to be opened they incurred a pecuniary liability, for the payment of which provision should have been made. R. S. 2786.

In proceedings for expropriation of private property all the formalities required by law must be strictly observed.

An ordinance which authorizes a taking must provide for compensation. Denison, Eminent Domain, Sec. 452.

The tender of the compensation may be readily waived. The least act manifesting intention not [to accept, and showing that the offer would be useless, has been held as justifying the omission of the tender.

But in making an expropriation it should appear of record that provision has been made for the payment of the value which the expropriating authority admits as that of the property expropriated.

The failure to make the required appropriation vitiates the jury’s verdict. Although the testimony makes it obvious that petitioners have good reason to petition for a road and that its advantages would prove considerable, the Constitution and the statutes have placed safeguards around private property which must be upheld, and one of these safeguards is that appropriation must be made to compensate the owner for the value of the property and the damages found.

Provision must be made for compensation. Potter’s Dwarris, p. S78.

Private property can not be taken for public use without securing ho the owner just compensation. Elliott on Roads and Streets, p. 179. Watson, Ex., vs. Trustees, 21 Ohio, 667.

“ If we are right in this view of the question, it would follow if the Act of 1834 had made provision for compensation for the land taken for the right of way, the act would have been constitutional.” Brener vs. Bowman, 9 Georgia 71.

It is, therefore, ordered, adjudged and decreed that the vex’dict and judgment appealed from be annulled, avoided and reversed, and that the injunction is made perpetual in prohibiting the police jury from enforcing an ordinance expropriating said road without appropriating the amount recommended by the jury of freeholders as a compensation for the expropriation.