
    (105 So. 361)
    No. 27040.
    RUSSELL v. BOARD OF COM’RS OF LAKE BORGNE BASIN LEVEE DIST. (PERKINS, Intervener).
    (June 22, 1925.)
    
      (Syllabus by Editorial Staff.)
    
    1. Levees and flood control <&wkey;20—-District not liable for land washed away by flood, under Constitution.
    Where land formerly within levee was washed away by flood, and was left outside by new levee and in'bed of river, under Rev. Oiv. Code, art. 457, levee district held not liable as for destroying land for levee purposes, under Const. 1921, art. 16, § 6; lands being already destroyed by act of God.
    2. Levees and flood control «&wkey;26—Land left outside of reconstructed levee held destroyed, within meaning of Constitution allowing recovery.
    Where flood destroyed levee, land left outside by reconstruction held destroyed for levee purposes, within meaning of Const. 1921, art. 16, § 6, for which owner would be entitled to compensation, lands being in the bed of the river and therefore public property, no longer available to owner for private purposes, in view of Rev. Civ. Code arts. 453 and 457.
    3. Appeal and error <&wkey;878( I)—Allowance of lien claim against judgment recovered cannot be disturbed, in absence of appeal.
    Allowance of lien claim of intervener against judgment recovered cannot be disturbed, in absence of appeal from that allowance.
    Appeal from Twenty-Ninth Judicial Dis-' trict Court, Parish of St. Bernard; Leander H. Perez, Judge.
    Proceeding by John S. Russell against the Board of Commissioners of the Lake Borgne Basin Levee District for the value of lands .alleged destroyed by the levee district. Miss Frances Perkins intervened under claim of lien against amount recovered. Judgment for plaintiff and intervener and defendant appeals.
    Affirmed as to intervener, and affirmed as amended and reduced, as to plaintiff.
    Philip R. Livaudais, of New Orleans, for appellant Board of Gom’rs of Lake Borgne Basin Levee Dist.
    Lazarus, Weil & Lazarus, of New Orleans, for appellee Russell.
    Joseph Harris Brewer, of New Orleans, for appellee Perkins.
   ST. PAUL, J.

The Constitution of 1921 (article 16, § 6, p. 115) provides that:

“Lands and improvements thereon, hereafter actually used or destroyed for levees or levee drainage purposes shall be paid for at, a price not to exceed the assessed value for the preceding year. * * * ”

I.

On April 29, 1922, the Mississippi river rose, burst through the levee in front of plaintiff’s property, and washed away 19 acres of plaintiff’s land before subsiding.

A new levee was then built by the defendant. This leVee occupies 14.50 acres of plaintiff’s land, and leaves on the outside thereof additional 38.93 acres of plaintiff’s land, that is to say, 38.93. acres between the line of the old levee and that of the new, so that these 38.93 acres, which were formerly inside of the levee and protected thereby, are now outside the levee and in the bed of the river (R. C. C. 457); the said 38.93 acres being exclusive of, and in addition to, the 19 acres, also now outside the levee, which were washed away by the waters of the flood.

II.

It is shown that plaintiff’s lands were worth $180 per acre, which was not in excess of “the assessed value for the preceding year”; and plaintiff sues for, and was allowed by the trial judge, the value of said 72.43 acres, to wit, 14.50 plus 38.93 plus 19 acres.

IIÍ.

It is not denied that plaintiff is entitled to compensation for the 14.50 acres actually occupied by the levee itself. These were used for levee purposes.

And, on the other hand, we are quite certain that plaintiff is not entitled to compensation for the 19 acres washed away by the flood waters. These are indeed destroyed; but they had already been destroyed by an “act of God,” and hence were not destroyed “for levee purposes.”

IV.

As to the 38.93 acres, now placed outside of the levee, we think they were “destroyed” within the meaning of the Constitution. They are now in the bed of the river, and are thus public property to all intents and purposes, and no longer available to the owner for any private purpose whatsoever. R. C. C. 453, 457. Cf. Pulley & Irwin v. Municipality, 18 La. 278; also McKeen v. Kurfust, 10 La. Ann. 523. And see, also, Bickham v. City of Shreveport, 156 La. 648, 650, 101 So. 8, 9.

Our conclusion is tAat plaintiffs are entitled to-compensation for ^ these 38.93, as well As for the 14.50 acres occupied by the levee, but not for the 19 acres previously destroyed by the flood; say for 53.43 acres altogether, which at $180 per acre makes $9,617.40.

V.

Miss Frances Perkins intervened for the sole purpose of claiming from plaintiff, as a lien, $150 out of what plaintiff might recover herein. This was allowed her by the judgment below, and plaintiff has not appealed therefrom. That part of the judgment, therefore, will not ■ (cannot) be disturbed.

Decree.

The judgment appealed from is therefore amended by reducing the amount allowed plaintiff from $13,037.40 to $9,617.40 (say $9,617.40), and, as thus amended, it is affirmed at the cost of defendant in both courts.

OVERTON, J., takes no part.

BRUNOT, J., concurs in decree and hands down reasons.

BRUNOT, J.

I concur in the decree in this case, but I respectfully dissent from the conclusion announced in the opinion with respect to the right of the owner of lands left outside the line of a new levee to compensation therefor.

All of the Oodes of Louisiana have burdened the lands adjacent to navigable rivers within its borders with a public servitude, and the jurisprudence of the state prior to 1921 consistently recognized and enforced the right of the'state, in the exercise of its police power, to use the lands subject thereto without compensation to the owner. In Peart v. Meeker, 45 La. Ann. pp. 422, 423, 12 So. 490, this court said:

“Whatever may be the law elsewhere, we consider the law of Louisiana too well settled to admit of further dispute to the following effect: 'That under article 665 of our Civil Code riparian property on' navigable rivers in this state is subject to a servitude or easement imposed by law for the public or common utility, authorizing the appropriation by the government, un■der proper laws, of the space required for the making and repairing of levees, roads, and other public works; that the state is charged with the administration of this public servitude; that in locating and building levees she does not expropriate the property of the citizens, but lawfully appropriates it to a use to which it is subject under the title itself; that in so doing she acts not under the power of eminent domain, but in the exercise of the police power; that laws, constitutional or statutory, concerning the expropriation of private property for public use and requiring adequate compensation therefor, have no application to property legitimately required for levee purposes; and that private injury resulting from the legitimate exercise of this legal right is damnum absque injuria, to which the individual must submit as a sacrifice to the public safety and welfare.”

Prior to 1866 it was the duty of each reparian proprietor along the Mississippi river to construct and maintain the levee on his land. This duty was enforced through the police juries of the river parishes, and the cost thereof was a lien upon the property. Since 1866 the construction and maintenanecof levees has devolved upon the state, and, for the past 46 years, the federal government, in aid of foreign and interstate commerce, has co-operated in this work.

Article 16, § 6, of the Constitution of 1921, provides for limited compensation to the owner for such portion of his property as. is actually used or destroyed for levee purposes. The provision is as follows:

“Section 6. Lands and improvements thereon hereafter actually used or destroyed for levees or levee drainage purposes.shall be paid for at a price not to exceed the assessed value for the preceding year: Provided, this shall not apply to batture, nor to property control of which is vested in the state or any subdivision thereof for the purpose of commerce.”

Plaintiff contends that all of his lands now lying between the lines of the old and the new levee have been destroyed, because these lands are outside of the levee line and no longer have levee protection. Use and destroy are terms which have well-defined meanings, and, where the significance of the terms is emphasised, they must be applied in that sense. The Constitution provides for compensation only where property is actually used or destroyed. Corpus Juris, vol. 18, p. 975, defines the term destroy as follows:

“To break up the structure and organic existence; to demolish; to .dismantle;'to kill; to knock or pull to pieces; to pull down; to raze; to .separate violently into its component parts; to tear down; to unbuild; to wrench apart.”

The term ordinarily implies complete or total destruction. It is true, there are decisions which construe it liberally and apply it to acts which render the thing useless for the purpose for' which it is intended, but we have been unable to find a sipgle case in which the words “actually destroyed,” or “wholly destroyed,” have been given a liberal construction, and counsel has cited none. Where the words actually or wholly are found in the law in connection with the word destroyed, the courts have invariably held to a technical construction thereof. In Ampleman v. Citizens’ Ins. Co., 35 Mo. App. 308, 316, the court says:

“The words wholly destroyed as used in the law have necessarily a technical meaning, different from the ordinary meaning of the words in common usage. In common usage they denote a change of form, or substance.”

In this connection Seyk v. Millers’ Nat. Ins. Co., 74 Wis. 67, 41 N. W. 443, 3 L. R. A. 523; German Insurance Co. v. Eddy, 36 Neb. 461, 54 N. W. 856, 19 L. R. A. 707, are in point.' There are a number of decisions in which the foregoing authorities are followed or cited with approval. It is true that they are cases growing out of the destruction of property by fire, but they have application to the case before us, as aids in determining the significance and meaning of the words “actually used or destroyed” as they appear in article 16, § 6, of the Constitution of 1921,.

We are of the opinion that so much of plaintiff’s land which was formerly protected by the old levee, but which is now outside of the line of the new levee, has been rendered valueless for the particular use to which it had been applied. This is not an actual destruction of the land. Man’s ingenuity may render lands useless for any practical purpose, but man’s power has its limitations. (The Constitution makes no provision for compensating the owner of land or improvements thereon, for damage thereto, by reason of the proper exercise of the state’s legal right to change its levee lines, to build new levees, or to maintain its levee system along navigable streams within its borders. Injupies of this character are damnum absque injuria.

Prom the record in this case, we find that 14.50 acres of plaintiff’s land is occupied by the new levee, and 38.93 acres by the berm and borrow pits. So much of the land as was removed from the borrow pits was actually used for levee purposes. It is true that silt deposit from successive flood stages of the river will ultimately refill the pits, but. the time required for it to do so is purely problematical. We are therefore of the opinion that the board of commissioners of the Lake Borgne Basin levee district has actually used 53.43 acres of plaintiff’s land for levee purposes. This land was assessed at $180 per acre during the year preceding its use for levee purposes; therefore the defendant is liable to plaintiff for 53.43 acres, of land at that assessed valuation, or a total of $9,617.40. The decree of the court, is for that sum, and I concur therein.  