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 10, 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
Page 160 U. S. 453
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.
Page 160 U. S. 461
MR. JUSTICE SHIRAS, after stating the facts in the foregoing
language, delivered the opinion of the Court.
By an Act of the General Assembly of the State of Louisiana
approved February 10, 1879, there was created a Board of State
Engineers, whose duty it was to make a survey of the watercourses,
public works, and levees of the state. They were to report to the
governor of the state the improvements which they should deem
necessary and the construction of such levees as were of prime
importance to the state at large and were beyond the means of the
parochial authorities. They were also in said report to furnish
estimates and specifications of work necessary to be done. It was
thereupon made the duty of the governor to advertise for proposals
to make such improvements and construct such levees as were
recommended, and to award the contracts to the lowest responsible
bidder under proper and sufficient bonds for the faithful
performance of their contracts, and, upon completion of said works,
it was made the duty of the board of engineers to examine and
measure the work and to certify to its correctness, and, upon
approval by the governor, the auditor of public accounts of the
state was to draw his warrant therefor, payable out of the general
engineer fund or such fund as should be provided by law.
In the exercise of the powers thus conferred, the board of
engineers reported to the governor that it was necessary to
construct a levee across complainant's plantation; that such levee
was of prime importance to the state at large; would have to be of
large size; that the riverfront was a dangerous and constantly
caving bank, and that necessarily the levee had to be located some
distance from the river, and they
Page 160 U. S. 462
furnished estimates and specifications of the work necessary to
be done. Subsequently, after advertising for proposals, the
governor awarded the contract for constructing the levees proposed
to the defendant Peter J. Trezevant, as the lowest responsible
bidder, who was at the time of filing of the bill, proceeding with
the work.
The plaintiff expressly admits in his bill that although the
Constitution of the State of Louisiana contains a provision that
private property shall not be taken or damaged without adequate and
just compensation's being first paid, the laws of the state, as
interpreted by the supreme court of the state, provide no remedy
for cases of proceedings under the levee laws, and that the supreme
court of the state has decided that such taking, damage, and
destruction of property for the purpose of building a public levee
is an exercise of the police power of the state, and
damnum
absque injuria, because the state has a right of servitude or
easement over the lands on the shores of navigable rivers for the
making and repairing of levees, roads, and other public works. But
he contends that as he cannot sue the state for compensation, and
as an action at law, if such would lie, would not furnish that just
and adequate compensation first paid contemplated by the provision
of the state constitution, he has a right, as a citizen of another
state, to invoke, in the circuit court of the United States, the
protection of the Fourteenth amendment of the Constitution of the
United States, which provides that no state shall deprive any
person of life, liberty, or property without due process of law,
nor deny to any person within its jurisdiction the equal protection
of its laws.
The concession distinctly made by the complainant in his bill,
that the state courts refuse to recognize that owners of lands
abutting on the Mississippi River and the bayous running to and
from the same, where levees are necessary to confine the waters and
to protect the inhabitants against inundation, are entitled, when a
public levee is located upon such lands, to invoke the application
of that provision of the state constitution which provides that
"private property shall not be taken nor damaged for public use
without just and adequate compensation
Page 160 U. S. 463
first paid," and repeated in the brief filed on his behalf in
this Court, relieves us from an extended examination of the origin
and history of the state enactments, constitutional and legislative
and of the decisions of the state courts on this subject.
It is important, however, to observe the ground upon which the
state legislative and judicial authorities base their action. That
ground is found in the doctrine existing in the Territory of
Louisiana before its purchase by the United States and continuing
to this time -- that lands abutting on the rivers and bayous are
subject to a servitude in favor of the public whereby such portions
thereof as are necessary for the purpose of making and repairing
public levees may be taken in pursuance of law without
compensation. This doctrine is said to have been derived from the
Code Napoleon, whose 649th and 650th articles were as follows:
"Servitudes established by law have for object the public or
commercial utility, or the utility of private persons. Those
established for the public or commercial utility have for object
the towpaths along the navigable or floatable rivers, the
construction or repairing of roads and other public or commercial
works. All that concerns this kind of servitude is determined by
laws or particular regulations."
But whether the servitude in question was derived from French or
Spanish sources or from local and natural causes we need not
inquire, because it is explicitly asserted in the Civil Code of
Louisiana, article 661, in the following terms:
"Servitudes imposed for the public or common utility relate to
the space which is to be left for public use by the adjacent
proprietors, on the shores of navigable rivers, and for the making
and repairing of levees, roads, and other public or common
Page 160 U. S. 464
works. All that relates to this kind of servitude is determined
by laws or particular regulations."
In the case of
Zenor v. Parish of Concordia, 7 La.Ann.
150, where the legislature had enacted that the police jury of a
parish exposed to inundation should have plenary power to locate
and construct levees, and where such police jury, in pursuance of
these powers, had placed and built a levee on the lands of the
complainant, greatly to his detriment, it was held that the
enactment was valid and that no liability for damages was caused by
a
bona fide proceeding under it. The court said:
"In this state, so much exposed to ruinous inundations, the
public have the undoubted right, on the shores of the Mississippi
River, to the use of the space of ground necessary for the making
and repairing of the public levees and roads. C.C. Art. 665. It was
the condition of the ancient grants of land on the Mississippi
River, and sufficient depth was always given to each tract to
prevent the exercise of the public rights from proving ruinous to
the individual."
"Speculations and other motives have in later times caused the
division and sale of some tracts and entries of others with large
fronts and little depth, in opposition to the general policy of the
country. Thus, in the present case, the plaintiff has scarcely any
depth, with a large front, in a deep bend, with a curving bank. The
policy of the country and the laws of the land, made for the
general safety, cannot yield to cases of individual hardship. Those
who purchase and own the front on the Mississippi River gain all
that is made by alluvion, and lose all that is carried away by
abrasion. And those who choose to purchase tracts with little
depth, in caving bends, expose themselves knowingly to total loss,
and must suffer the consequences when they occur. They suffer
damnum absque injuria."
In
Dubose v. Levee Commissioners, 11 La.Ann. 165, the
plaintiff sued for damages occasioned to his land by the acts of
the commissioners in changing the line of the public levee, but the
court, citing the provisions of the code, article 665, held
that
"the law concerning the expropriation of private property for
public use does not apply to such lands upon the
Page 160 U. S. 465
banks of navigable rivers as may be found necessary for levee
purposes. The quantity of land to be taken for such purposes
presents a question of policy or administration to be decided by
the local authorities, whose decision should not be revised by this
tribunal except for the most cogent reasons and where there has
been manifest oppression or injustice."
In the case of
Bass v. State of Louisiana, 34 La.Ann.
494, the supreme court again held that an owner of land abutting on
the Mississippi River could not recover for damages inflicted upon
his property by the state board of engineers and contractors in
locating and constructing a public levee, but put the immunity of
the state mainly upon the proposition that such public works are
done in the exercise of the police power, and did not advert to the
doctrine of servitude, upon which the previous decision had placed
such immunity.
But we do not understand that the supreme court of the state
intended thereby to repudiate the doctrine of a servitude,
explicitly declared in the code, and recognized through a long
period by many decisions. If, to approve the judgment in that case,
it were necessary to hold that the state and its agents can take
private property wherever situated and apply it to any public
purposes, and escape from the duty of compensation, by terming such
action an exercise of the police power, it is difficult to see how
such a conclusion could be reached by the courts of a state in
whose constitution is to be found a provision that private property
shall not be taken for public use without just and adequate
compensation first made. But, as we have said, it is not necessary
to so read the decision in question, nor to consider whether, even
in such a case, a remedy could be found in any provision of the
federal Constitution.
This, we think, clearly appears by the later case of
Ruch v.
New Orleans, 43 La.Ann. 275, where the supreme court reviewed
the law and the cases, and again put the immunity of the city from
liability for damages occasioned to the front of the plaintiff's
property by a public work upon the long established doctrine of a
servitude, and declared that
"the riparian owner enjoys his property
sub modo, i.e.
subject to
Page 160 U. S. 466
the right of the public to reserve space enough for levees,
public works, and the like; that over this space the front
proprietor never acquires complete dominion. It never passes free
of this reservation to a purchase."
With the admission that, under the state constitution and laws,
as construed by the highest court of the state, the plaintiff below
was not entitled to the remedies he sought, we are requested to
hold that he can obtain relief by invoking, in a circuit court of
the United States, the protection of the Fourteenth Amendment of
the Constitution of the United States, which declares that no state
shall deprive any person of life, liberty, or property without due
process of law, nor deny to any person within its jurisdiction the
equal protection of the laws.
The first contention of the plaintiff in error is that, as it is
admitted that he owns the land in fee through title derived by
patent from the United States, without reservation, whatever may
have been the conditions of the ancient grants, no such condition
attaches to his ownership, and the lands, although bordering on a
navigable stream, are as much within the protection of the
constitutional principle awarding compensation as other property.
In other words, the claim is that the servitude under which are
held lands whose titles are derived by grant from Spain of France,
or from the state, does not attach to lands whose titles are
derived from the United States.
Previous decisions of this Court furnish a ready answer to this
contention.
In
Barney v. Keokuk, 94 U. S. 324, where
the dispute was as to the nature of the title as to the riverfront,
and as to new ground formed by filling in upon the bed of the
river, and where some conflict was shown to exist between the
common law rules as to such ownership and those asserted by the
State of Iowa in her legislation and the decisions of her courts,
Mr. Justice Bradley, speaking for the Court, said:
"It is generally conceded that the riparian title attaches to
subsequent accretions to the land affected by the gradual and
imperceptible operation of natural causes. But whether it attaches
to land reclaimed by artificial means from the bed of the river, or
to sudden accretions produced by unusual
Page 160 U. S. 467
floods,
is a question which each state decides for
itself. . . . The confusion of navigable with tidewater, found
in the monuments of the common law, long prevailed in this country
notwithstanding the broad differences existing between the extent
and topography of the British island and that of the American
continent. It had the influence for two generations of excluding
the admiralty jurisdiction from our great rivers and inland seas,
and under the like influence, it laid the foundation in many states
of doctrines with regard to the ownership of the soil in navigable
waters above tide water at variance with sound principles of public
policy. Whether, as rules of property, it would now be safe to
change these doctrines where they have been applied, as before
remarked,
is for the several states themselves to
determine. If they choose to resign to the riparian proprietor
rights which properly belong to them in the sovereign capacity, it
is not for others to raise objections."
In
Packer v. Bird, 137 U. S. 662,
where a similar question arose, and where it was claimed that the
fact that the title was derived by a grant from the United States
afforded a reason for decision, MR. JUSTICE FIELD states the
question as follows:
"The courts of the United States will construe the grants of the
general government without reference to the rules of construction
adopted by the states for their grants, but whatever rights or
incidents attach to the ownership of property conveyed by the
government will be determined by the states, subject to the
condition that their rules do not impair the efficacy of the grants
or the use and enjoyment of the property by the grantee. As an
incident of such ownership, the rights of the riparian owner, where
the waters are above the influence of the tide, will be limited
according to the law of the state, either to low or high water
mark, or will extend to the middle of the stream."
The language of
Barney v. Keokuk was cited with
approval, and the conclusion reached was that the law of the state,
as construed by its supreme court, was decisive of the
controversy.
Page 160 U. S. 468
The question was again presented in
Hardin v. Jordan,
140 U. S. 372,
and, after a review of the cases, Mr. Justice Bradley stated the
conclusion as follows:
"We do not think it necessary to discuss this point further. In
our judgment, the grants of the government for lands bounded on
streams and other waters, without any reservation or restriction of
terms, are to be construed as to their effect according to the law
of the state in which the lands lie."
In
Shively v. Bowlby, 152 U. S. 1, this
Court had to deal with a conflict as to the title in certain lands
below high water mark in the Columbia River, in the State of
Oregon, between parties claiming respectively under the United
States and under the State of Oregon. The entire subject was
thoroughly examined, involving a review of all the cases, both
state and federal, and one of the conclusions reached was thus
stated by MR. JUSTICE GRAY:
"Grants by Congress of portions of the public lands within a
territory to settlers thereon, though bordering on or bounded by
navigable waters, convey of their own force no title or right below
high water mark, and do not impair the title and dominion of the
future state when created, but leave the question of the use of the
shores by the owners of uplands to the sovereign control of each
state, subject only to the rights vested by the Constitution of the
United States."
These decisions not only dispose of the proposition that lands
situated within a state, but whose title is derived from the United
States, are entitled to be exempted from local regulations admitted
to be applicable to lands held by grant form the state, but also of
the other proposition that the provisions of the Fourteenth
Amendment extend to and override public rights, existing in the
form of servitudes or easements, held by the courts of a state to
be valid under the Constitution and laws of such state.
The subject matter of such rights and regulations falls within
the control of the states, and the provisions of the Fourteenth
Amendment of the Constitution of the United States are satisfied
if, in cases like the present one, the state law, with its benefits
and its obligations, is impartially administered.
Page 160 U. S. 469
Walker v. Sauvinet, 92 U. S. 90;
Davidson v. New Orleans, 96 U. S. 97;
Missouri v. Lewis, 101 U. S. 31;
Hallinger v. Davis, 146 U. S. 314.
The plaintiff in error is, indeed, not a citizen of Louisiana,
but he concedes that as respects his property in that state, he has
received the same measure of right as that awarded to its citizens,
and we are unable to see, in the light of the federal Constitution,
that he has been deprived of his property without due process of
law, or been denied the equal protection of the laws.
The decree of the court below is
Affirmed.
MR. JUSTICE BREWER dissenting.