Carroll v. Louisiana Highway Commission , 177 La. 865 ( 1933 )

Plaintiff is the owner of two squares of ground in Jefferson parish lying very near the shore of Lake Pontchartrain; that is to say, only a projected street, forming practically the shore of said lake, lies between said property and said lake.

In 1916 one of the drainage districts of Jefferson parish, for the purpose of protecting said property and others from the waters of said lake, built a dyke or levee across a portion of said property, with the consent or at least the acquiescence of plaintiff.

About ten years later the drainage districts built another, and somewhat larger, levee nearer the lake but still on plaintiff's property.

In order to get the earth with which to build said new levee, the drainage district dug a canal or borrow pit parallel to and on the outside of said levee; said canal or borrow pit being also on plaintiff's land.

Plaintiff protested against the building of this new levee, claiming that it should be built off his land and on the public street adjoining. But he took no steps whatever to interfere with the building of said levee.

About three years after the completion of said levee (1928), the defendant highway commission obtained permission from the levee district to build a highway on top of said levee, on condition, however, that it should widen said levee at its own expense.

The highway commission thereupon proceeded to widen said levee by filling, with sand taken from the lake bottom, the canal or borrow pit which ran parallel to and along side of said levee on the lake side thereof.

Plaintiff knew that said canal was being filled and that a road was to be laid over it, but he took no steps to prevent what was being done.

About two years after the canal had been filled and the sand had settled sufficiently to allow the road to be surfaced, the highway commission began spreading shells upon the road to surface it.

When the shelling of the road in front of plaintiff's property had been about, or entirely, completed (the record being not quite clear on that point), plaintiff attempted to enjoin the highway commission from proceeding further with its work.

The trial judge, who had issued a restraining order, recalled it when all the facts were made known to him; and refused to issue the injunction on the ground that no injunction could defeat the completion of the already completed, or practically completed, highway; and that plaintiff's only remedy, under the circumstances disclosed, was an action against the highway commission for the damages, if any, done to his property. From which judgment plaintiff has appealed.

The judgment is correct. "As pointed out in section 27 of Act No. 95 of 1921 (Ex. Sess.), the recourse of plaintiff, if any (under such circumstances) is an action of damages." Nunn v. List Weatherly Const. Co. et al., 175 La. 293, 143 So. 268.

Section 27 of Act No. 95 of 1921 (Ex. Sess.), above referred to, reads as follows:

"After the Commission has laid out a road over a certain tract of land and the contract therefor has been let and begun work thereon the land owner shall not be entitled to prevent or retard the construction of the road by any legal process, but shall be remitted to an action for damages."

Decree. For the reasons assigned, the judgment appealed from is affirmed.

O'NIELL, C.J., concurs in the decree and hands down reasons.

ROGERS, and ODOM, JJ., concur in the decree.