Pyle v. City of Shreveport , 215 La. 257 ( 1948 )

The written reasons which I assigned for dissenting with the majority holding on the original hearing I now reaffirm.

The additional conclusion announced by the majority on this rehearing, with which I also disagree, fails to take into consideration the jurisprudence of this court to the effect that the burden of proving the unreasonableness of the proposed annexations is upon those asserting it (in this case the plaintiffs), and that the unreasonableness must be made to appear by abundant evidence. Lawrence v. Town of Mansfield,129 La. 672, 56 So. 633; Bowman-Hicks Lumber Company et al. v. Town of Oakdale, 144 La. 849, 81 So. 367; Harvey Canal Land Improvement Co. et al. v. Gelbke, 166 La. 896, 118 So. 75. Such a burden, as the record before us discloses, has not been discharged by these plaintiffs.

The majority opinion states that, according to a map attached to the original opinion, the boundary lines are irregular, thereby including and excluding property in the same vicinity. At two or three points on the map which are near each other, it is true, slight jogs or offsets appear. But plaintiffs offer no evidence whatever, as was their duty, to show that the irregularity (if it be such) tended to render the proposed annexations unreasonable. And I am aware of no law requiring a boundary to run in a straight line. On the other hand, defense counsel, in their brief, give the reason for the offsets as follows:

"* * * In other words, there is no necessity for the boundary line to reach out and take part of a landowner's property, place it within a municipality and leave the remainder out. That accounts for the location of the boundary line at this place. * * *"

Further, it is said that the map reveals that a large area within the boundary is excluded (referring to property of the Shreveport Country Club), and that this exclusion is not only unreasonable but is discriminatory. As I view the map, and as shown by the testimony of defendant's engineer, the Country Club area proposed to be annexed does not completely surround the Country Club property; the area bounds it on three of its four sides. As to the holding that the exclusion of the Country Club property would be discriminatory, it evidently has as a basis an assumption that the owner thereof would enjoy all the benefits and advantages afforded the owners in the annexed territory, yet it would not have to pay any taxes therefor. But there is nothing in the record to support that assumption. On the contrary, it appears that the Shreveport Country Club has provided, and it now maintains, at its own cost all of the facilities which might or could be furnished by defendant.

Neither do I deem the boundaries of the territory proposed to be annexed, both of the areas therein being contiguous to defendant's present corporate limits, to have been arbitrarily fixed, as the majority opinion indicates was done. These boundaries were decided upon by property owners themselves within each area (at least 25% in number and representing at least 25% of the value of the property included), and were delineated in the two separate petitions which they presented to defendant's Commission Council. By a unanimous vote of its members that body approved the boundaries as thus recommended and determined.

Moreover, at the present time, according to the record, the entire proposed Werner Park area is well developed, and defendant is supplying almost 100% of the residents therein with water, 90% with sewerage, and most of them with fire protection. While not quite so thickly populated, the Country Club area is also well developed, it being suitable for residential, commercial and industrial purposes; and it is now receiving some benefits from the utilities of defendant. Too, therein is located the Jewella School, and the lands of that area have been platted into subdivisions with dedicated streets. And for improving utility services to both areas, defendant has already completed elaborate plans and it has available the necessary funds and much of the required materials.

Appropriate here is the following comment found in New Orleans N.W. R. Co. et al. v. Town of Vidalia, 117 La. 561,42 So. 139, 144, a decision cited in support of the majority holding on this rehearing:

"* * * Upon the whole, we consider that the public at large and the community of the town will derive a distinct advantage from the proposed extension, and we do not discover in what way it will operate to the disadvantage to the plaintiffs, save in the possible increase, to a limited extent, of their taxation, and this, we think, will be measurably compensated by the benefits to accrue from the additional facilities, in the way of water, light, and police, which the town proposes to furnish."

I respectfully dissent.