JAMES M. BIGLANE AND CHARLOTTE BIGLANE NOBILE
BOARD OF COMMISSIONERS, FIFTH LOUISIANA LEVEE DISTRICT, ET AL.
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
D. Crigler, Jr. Bishop Paxton Crigler & Moberley COUNSEL
FOR DEFENDANT/APPELLANT: Board of Commissioners for the Fifth
Louisiana Levee District
composed of Billy Howard Ezell, Shannon J. Gremillion, and D.
Kent Savoie, Judges.
HOWARD EZELL JUDGE
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.
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."
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.
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.
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.
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.
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 ...