PLAQUEMINES DIRT CLAY COMPANY v. PLAQUEMINES PARISH GOVERNMENT (2020)

Writ application denied.

Crichton, J., would grant and docket for the reasons assigned by Justice Crain.

The proper interpretation of Louisiana Civil Code article 665 has significant state-wide impacts, particularly across south Louisiana, and warrants granting and docketing this writ application for closer scrutiny of the 2006 amendment to that provision. Historically, the appropriation of a levee servitude on riparian property was not a “taking” of the owner's property under the 5th and 14th Amendments of the U.S. Constitution, because the government owned the servitude since the property's separation from the public domain. See Eldridge v. Trezevant, 160 U.S. 452, 466, 16 S.Ct. 345, 348, 40 L.Ed. 490 (1896); Delaune v. Board of Commissioners for Pontchartrain Levee Dist., 230 La. 117, 123, 87 So.2d 749, 751 (1956); Dickson v. Board of Commissioners of Caddo Levee Dist., 210 La. 121, 135, 26 So.2d 474, 479 (1946). In those instances, the government is not taking anything it does not already own; it is simply using a right reserved when the property first entered private ownership. The use of that right is suited for the more streamlined appropriation procedure. A much different scenario is presented by a servitude purportedly created on non-riparian property privately owned in full and complete ownership and previously unburdened by the right the government seeks to acquire and exercise. The Constitutional ramifications of such governmental action has not previously been addressed by this court. While I would grant the writ application at this time, I recognize the issue may be more appropriately reviewed after the parties have developed a complete evidentiary record at trial.

Crichton, J., would grant and docket and for reasons assigned by Justice Crain. Crain, J., would grant and docket and assigns reasons.