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Statement of the Case.



No. 62. Submitted October 17, 1895. — Decided January 6, 1896.

In Louisiana the constitution and laws of the State, as interpreted by its highest court, permit the taking, without compensation, of land for the construction of a public levee on the Mississippi River, on the ground that the State has, under French laws existing before its transfer to the United States, a servitude on such lands for such a purpose; and they subject a citizen of another State owning such land therein, the title to which was derived from the United States, to the operation of the state law as so interpreted. Held, that there was no error in this so long as the citizen of another State receives the same measure of right as that awarded to citizens of Louisiana in regard to their property similarly situated.

The provisions of the Fourteenth Amendment to the Constitution do not override public rights, existing in the form of servitudes or easements, which are held by the courts of a State to be valid under its Constitution and laws.

WILLIAM B. Eldridge, a citizen of the State of Mississippi, filed in the Circuit Court of the United States for the Western District of Louisiana a bill of complaint against Henry B. Richardson, Chief of the Board of Engineers of the State of Louisiana, and Peter J. Trezevant, citizens of Louisiana, whereby he sought to have the defendants enjoined from the construction of a certain public levee through a plantation belonging to the complainant, and situated in Carroll township, State of Louisiana.

An answer was filed admitting that the State Board of Engineers had projected and laid out a public levee through the complainant's plantation, and that a contract to construct said levee had been awarded to Peter J. Trezevant, but claiming that such proceedings were in pursuance of an act of the general assembly of the State of Louisiana, approved February 14, 1879, and were therefore lawful.

The case was heard upon the issues presented by the bill and answer, supplemented with an admission that none of the

Argument for Appellant.

acts complained of in the bill were wanton, malicious, or arbitrary.

On June 20, 1891, a decree was rendered adjudging the sufficiency of the answer and dismissing the bill, from which decree an appeal was taken to this court.

Mr. Wade R. Young for appellant.

Article 156 of the constitution of Louisiana, adopted July 23, 1879, provides that private property shall not be taken nor damaged for public purposes without just and adequate compensation being first paid.

In construing this prohibition in Ruch v. New Orleans, 43 La. Ann. 275, the state Supreme Court said that the city was authorized to take the plaintiff's property, to the extent the same might be required for public use, in the enlargement of the public roadway immediately in front of it, in virtue of the right of appropriation vested in it by the police power of the State. The right of appropriation, which is recognized in the code, was held to be coexistent with the right of expropriation, as provided for in Rev. Civil Code. All of those provisions preëxisted in the constitution, with the 155th and 156th articles of which the right of appropriation is said to conflict. This, of itself, the court said, leads to the supposition of their entire compatibility. But the two principles are of well recognized and ancient origin, -one being an exercise of the police power, any loss sustained thereby entitling the injured party to no recompense, the same being damnum absque injuria; the other being the exercise of the right of eminent domain, the damages entailed being compensable. Bass v. State, 34 La. Ann. 494; Chaffe v. Trezevant, 38 La. Ann. 746.

In ordinary cases this interpretation would be binding on this court, but in determining whether the laws of a State are in conflict with the prohibitions of the Federal Constitution, this court must decide for itself, and if the decision requires a construction of state constitutions and laws, it is not necessarily governed by previous decisions of the state courts. Vicksburg &c. Railroad v. Dennis, 116 U. S. 665.

Argument for Appellant.

The prohibition against the taking of private property for public use is to be found in the Federal Constitution, and in the constitutions of most, if not all of the States, and has received a uniform interpretation, which has become a part of the jurisprudence of the country.

It was alluded to by this court in Pumpelly v. Green Bay Company, 13 Wall. 166, as a provision of constitutional law always understood to have been adopted for protection and security to the rights of the individual as against the government, and which has received the commendation of jurists, statesmen, and commentators as placing the just principles of the common law on that subject beyond the power of ordinary legislation to change or control them, and this court quoted the language of Dayton, J., in Sinnickson v. Johnson, 2 Harrison, (5 N. J. Law,) 129, “that this power to take private property reaches back of all constitutional provisions; and it seems to have been a settled principle of universal law that the right to compensation is an incident to the exercise of that power; that the one is inseparably connected with the other; that they may be said to exist, not as separate and distinct principles, but as part of one and the same principle."

The state court seems to have appreciated this difficulty, and to have disposed of it by giving the thing another name, and justifying the taking as an exercise of the police power, entirely compatible with the right of expropriation, and provided by the statute for the making and repairing of levees, roads, and other public or common works.

It becomes necessary, then, to inquire into the origin and history of the servitude. The article was taken from articles 649, 650, of the Code Napoleon: "Servitudes established by law have for object the public or communal utility, or the utility of private persons. Those established for the public or communal utility have for object the towpaths along the navigable or floatable rivers, the construction or repairing of roads and other public or communal works. All that concerns this kind of servitude is determined by laws or particular regulations."

The laws which formerly regulated this servitude have been

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long repealed, as the necessity therefor ceased to exist, and nothing remains of the legislation except the principle embodied in the article of the Code. But the principle of indemnity for damage so inflicted was early recognized by legislation, which, though local in its character, was a legislative recognition of the right to full compensation, and an abandonment of the principle of servitude, and received the support of the courts. Zenor v. Concordia Parish, 7 La. Ann. 150; Dubose v. Levee Commissioners, 11 La. Ann. 165; Mithoff v. Carrollton, 12 La. Ann. 185; Inge v. Police Jury, 14 La. Ann. 117.

After the war the former laws were repealed, and a new and different system adopted, by which the State undertook the duty of making and repairing levees. Police Jury v. Tardos, 22 La. Ann. 58; Surgi v. Matthews, 24 La. Ann. 613. The constitution of 1868, article 110, contained the same provision that "vested rights should not be divested, unless for purposes of public utility and for adequate compensation made."

The case of Bass v. State, 34 La. Ann. 494, arose and was decided under that constitution, and the court held that private property could be taken for public use, in the exercise of the general police powers of the State, without making compensation therefor. In 1879 the people adopted a new constitution, and in that appears for the first time the provision in the words of the Fifth Amendment to the Constitution of the United States, and of so many of the States, that "private property shall not be taken for public purposes without just compensation."

This provision had at that time been construed by this court and by the courts of many of the States, and it had come to be understood that the exercise of the police power, as distinguished from the right of eminent domain, was a matter of public law, rather than a matter of legislative or judicial discretion. The constitution of Mississippi contained the provision that private property shall not be taken for public use without just compensation being first made. In the case of Penrice v. Wallis, 37 Mississippi, 172, the same argument was

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used, that the Levee Commissioners could take private property for the purpose of making public levees, without compensation. The court said: "In cases of public emergencies, such as the calamities of fire, flood, war, pestilence, and famine, private property may be taken and applied to public use without just compensation being made therefor, upon the principle of imperative necessity for the public protection; but in order to justify such appropriation, the necessity must be apparently present, and the apprehended danger must be so imminent and impending, as not to admit of the delay incident to legal proceedings for the condemnation of the property."

The constitution of Wisconsin provided that "the property of no person shall be taken for public use without just compensation therefor." In construing this provision in Pumpelly v. Green Bay Co., supra, this court said: "We are not unaware of the numerous cases in the state courts in which the doctrine has been successfully invoked, that for a consequential injury to the property of the individual arising from the prosecution of improvements of roads, streets, rivers, and other highways for the public good, there is no redress; and we do not deny that the principle is a sound one in its proper application, to many injuries to property so originating. And when, in the exercise of our duties here, we shall be called upon to construe other state constitutions, we shall not be unmindful of the weight due to the decisions of the courts of those States. But we are of opinion that the decisions referred to have gone to the uttermost limit of sound judicial construction in favor of this principle, and, in some cases, beyond it, and that it remains true that where real estate is actually invaded by superinduced additions of water, earth, sand, or other material, or by having any artificial structure placed on it, so as to effectually destroy or impair its usefulness, it is a taking, within the meaning of the Constitution, and that this proposition is not in conflict with the weight of judicial authority in this country, and certainly not without sound. principle."

It would naturally appear that the framers of the Louisiana

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