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Biglane v. Board of Commissioners

Court of Appeals of Louisiana, Third Circuit

September 26, 2018

JAMES M. BIGLANE AND CHARLOTTE BIGLANE NOBILE
v.
BOARD OF COMMISSIONERS, FIFTH LOUISIANA LEVEE DISTRICT, ET AL.

          APPEAL FROM THE SEVENTH JUDICIAL DISTRICT COURT PARISH OF CONCORDIA, NO. 44712 HONORABLE JOHN C. REEVES, DISTRICT JUDGE

          Randall Alan Smith Tiffany Hawkins Davis Mary Nell Bennett Smith & Fawer COUNSEL FOR PLAINTIFFS/APPELLEES: James M. Biglane Charlotte Biglane Nobile

          Patrick Bayard McIntire Oats & Marino COUNSEL FOR DEFENDANT/APPELLANT: Board of Commissioners for the Fifth Louisiana Levee District

          Madaline Cross Gibbs Seventh Judicial District Court Assistant District Attorney COUNSEL FOR DEFENDANT/APPELLANT: Board of Commissioners for the Fifth Louisiana Levee District

          John D. Crigler, Jr. Bishop Paxton Crigler & Moberley COUNSEL FOR DEFENDANT/APPELLANT: Board of Commissioners for the Fifth Louisiana Levee District

          Court composed of Billy Howard Ezell, Shannon J. Gremillion, and D. Kent Savoie, Judges.

          BILLY HOWARD EZELL JUDGE

         These consolidated appeals concern the taking of land by the Fifth Louisiana Levee District Board of Commissioners (FLD) for a project to raise and strengthen the levee in Concordia Parish lying between Louisiana Highway 131 and the Mississippi River. At issue is whether the property used for the project was un-compensable batture pursuant to La.Const. Art. 6, § 42, and whether the property had been previously appropriated. Additionally, there is the issue of whether the FLD should have raised these issues as affirmative defenses, resulting in the exclusion of much of its evidence. The award of attorney fees and costs are also at issue.

         FACTS

         James Biglane and his sister, Charlotte Biglane Nobile, (collectively referred to as the Biglanes) co-owned approximately 3, 000 acres of land in Concordia Parish next to the Mississippi River. The property is known as the Scotland and Genevieve Plantations. A levee existed on the property. Pursuant to La.R.S. 38:281(6), a levee district is "a political subdivision of this state organized for the purpose and charged with the duty of constructing and maintaining levees, and all other things incidental thereto within its territorial limits."

         Pursuant to its authority under La.R.S. 38:281(6), the FLD sent a letter to the Biglanes on July 14, 2008, notifying them that on July 9, 2008, the FLD adopted a Resolution of Appropriation for Louisiana lands required for rights-of-way for a project known as Levee Enlargement and Berms, Item 361-R. The FLD attached information to the letter indicating that it needed approximately eighty acres of dirt from the Biglanes' property for the project.

         Jason Trichelle, superintendent of operations for the FLD, testified that the FLD's primary responsibility is to maintain the Mississippi River levee and the Concordia backwater levee. He stated that the levee on the Biglane property was an intact levee but deficient in regard to the rest of the system. Mr. Trichelle explained that a record flood occurred in 2011 and, had the project at issue not been completed, it would have impacted all of Concordia Parish, including the Biglane property. Mr. Trichelle testified that the federal government pays for construction of the levee and the levee districts acquire the needed land, which is paid for by the State. He explained that the Corps of Engineers determines the least environmental impact and best potential borrow area and sends a right-of-way request to the levee district. The Louisiana Department of Transportation and Development (DOTD) prepares the ownership map and prepares the batture determination. The DOTD then determines whether the property should be appropriated or expropriated. Subsequently, the FLD determines the compensation based on appropriation or expropriation.

         Lee Hines, vice president of Chustz Surveying, testified that his company performed a topographic survey of the property for the project. He presented the survey results to the Corps of Engineers indicating the elevation of the property.

         Terry Lightsey, a licensed surveyor, was asked to determine the locations where dirt was previously removed from the property and draw a right-of-way map. To perform this task, he used old maps from the FLD and Corps of Engineers. Mr. Lightsey went to the property in May 2007 and measured distances based on the older maps to determine what right-of-way had previously been acquired versus what right-of-way was needed for the project. He explained that the area needed for the project was Parcel 3-3 on the river side of the levee, which contained 65.145 acres, and Parcel 3-2 on the land side of the levee, which contained 17.223 acres.

         Paul Colquette, a civil engineer who worked with the DOTD, was asked to calculate the amount of batture in Parcel 3-3. He explained that the DOTD serves as the engineer for levee districts. He determined that there were ...


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