
    (36 South. 912.)
    
    No. 15,123.
    BOARD OF LEVEE COM’RS, ORLEANS LEVEE DIST., v. JACKSON’S ESTATE. SAME v. BRITTIN.
    (April 25, 1904.)
    EMINENT DOMAIN — LEVEE COMMISSIONERS — DISCRETION — VALUATION—APPEAL—REVIEW — POWERS OIP COURT.
    _ 1. Plaintiffs have large powers and broad discretion in determining the area of land needful in constructing new levees or in repairing the old.
    Although it is not unlimited, where the Board of State Engineers have approved a proposed plan for repairing or constructing a levee, and the Board of Levee Commissioners have finally acted on the plan as approved, the courts will not interfere, unless it is evident that the Board of State Engineers have erred and the Board of Levee Commissioners have exceeded their authority.
    2. Defendant may show that plaintiffs seek to expropriate too large an area of land, and may plead and prove very prejudicial error about to be committed.
    This must be sustained by decided preponderance of evidence, otherwise the action of the board will not be interfered with.
    
      3. Although it has been repeatedly held that valuation placed upon property by a jury for expropriation will not be changed on appeal, this ruling is not always controlling where, on the face of the papers, it appears that the verdict as to valuation was not accepted with absolute certainty of its correctness.
    On Rehearing.
    4. In matters of expropriation the conclusions reached by the jury as to the value of property will not be disturbed by the Supreme Court, unless such conclusions are very clearly wrong; particularly is this so where it is the state itself which is exercising the right of eminent domain for the benefit of the general public.
    5. A party who has for years paid taxes to the state on property which is sought to be expropriated, by the state itself, for purposes strictly public, is not in position to argue that the assessment made of that- property for many years back should not enter at all as a factor in the consideration of the question of value.
    Breaux, C. J., dissenting in part.
    (Syllabus by the Court.)
    Appeal from Civil District Court, Parish of Orleans; Thomas C. W. Ellis, Judge.
    Action by the Board of Levee Commissioners, Orleans Levee District, against the estate of James Jackson, to condemn land, and by the same plaintiff against Emma Louise Brittin. Judgment for plaintiff, and defendants appeal.
    Modified.
    Richardson & Soulé, for appellant Mrs. Emma Louise Brittin. John Taylor Whitaker, for appellant Jackson’s Estate. Mc-Closkey & Benedict, for appellees.
   BREAUX, C. J.

This is a suit by plaintiffs to expropriate the lands of defendants fronting on the Mississippi river at Second street, in the city of New Orleans.

The lot plaintiffs seek to expropriate is described as a portion of ground in the Fourth District, bounded by First, Second, Water,- and Tchoupitoulas streets, and measuring 132 feet 4 inches front on Water street, or line of the levee, same front on Tchoupitoulas street, and 123 feet 8 inches 4 lines front on First street.

Plaintiffs, it is well known, have charge of the levees, and to them is intrusted the duty of repairing levees, and of building others whenever it becomes necessary.

They, it seems, have examined into the necessity of adding to the defense from overflow at a point deemed weak. During the last high water a break was apprehended at this place. They propose to add to the strength of the levee. Plaintiffs urge to that end that the land in question is necessary, and they ask for its expropriation.

There are three suits by plaintiffs, which have been consolidated into one by agreement of counsel.

One of the defendants, Mrs. Brittin, owns part of the land which plaintiffs seek to expropriate. She denies that her property is necessary for levee purposes in order to protect the city from inundation, as claimed by plaintiffs, and she avers that the levee in front of her property can be repaired or rebuilt without taking her property; that in any event, the space demanded exceeds that which is necessary for the purposes intended by the board.

She alleges further, if, despite her opposition, plaintiffs should succeed in obtaining judgment expropriating her land, then she asks judgment for its value. The other defendant’s defense is substantially the same.

The lessee of the property, Douglas M. Kilpatrick, made a defendant, claims that his loss will be, should he be ousted from his lease, at least $3,000, for which he prays judgment.

The judgment appealed from allows Mrs. Brittin the sum of $10,937.50, and costs of suit, and defendant is condemned to make title to plaintiff of the property described.

In another judgment the estate of James Jackson is allowed the sum of $6,562.50 and costs, and defendant is also condemned to make title to the property described. To the lessee, D. M. Kilpatrick, $1,500 is allowed.

These are the issues presented by the pleadings. A number of witnesses were examined, maps were introduced in evidence, and a number of questions were raised in tbe course of the trial.

One of the most important of these questions grows out of the extent of the authority of the board to determine in regard to the location of levees and how they should be constructed. As made evident by our synopsis of the answer, defendants challenged the right of plaintiffs to locate the levees as they proposed, and they charge that the expropriation of their property was unnecessary.

Unquestionably the commissioners, when acting within the discretion with which they are intrusted, should not be interfered with. They under the requirement of the statute, are advised by the Board of Engineers of the state, and the presumption is that the new work, approved by the Board of Engineers, and the methods recommended for its accomplishment, are about as near correct as any approval or recommendation can be.

This view does not exclude the idea that all testimony should be excluded. Gross error may be shown, or any arbitrary act on the part of the board. There was testimony admitted and testimony excluded. Sufficient was admitted to enable us to decide whether or not the expropriation complained of was grossly erroneous and an act of malfeasance.

It does not fall within the category last mentioned, and if we were to remand the case to admit further testimony, and to enlarge the scope of the inquiry heretofore followed, we are confident that it would not result in arriving at a different conclusion than that heretofore found.

The experience of trained engineers has been called into service. The statutes creating the plaintiff board, and directing how it should lay out the work and improvements to be done, with clearness and directness state that the approval of the State Board of Engineers is to be obtained before levee work is performed. The courts should be slow in | substituting their judgment to that of those who have made a study of the Mississippi, its waters, and its inundation, which prepares them for the duties with which they are intrusted.

None the less we must say their plans and specifications are not hedged around with any authority which should prevent examination into the work and improvement they propose, although public safety requires that they should not lightly be interfered with.

This was the trend of the decision in Peart & Husband v. Prest. Levee District, 45 La. Ann. 421, 12 South. 490.

Similar and strong views in the same direction were pronounced in Brennan v. Sewerage Co., 108 La. 583, 32 South. 563.

We do not think that they (the plaintiffs) have exceeded their power in the premises. We have no reason to find that gross error has been committed, and nothing need be said about fraud, for it is neither alleged nor intimated.

True, as contended by defendants, that private property cannot be expropriated for public purposes unless it is shown necessary. It is also true that defendants in an expropriation suit may set up and show that the land demanded exceeds the quantity needful for the work.

It remains the state in her sovereign capacity has selected as agents engineers, skilled in their profession, to determine upon plans and specifications. We would scarcely be justified in condemning these plans and specifications unless it was evident that they were all wrong, and that they invaded private rights in contravention of all law and justice. We have not arrived at that point in the decision of this case, and we, therefore, will have to let things remain as they are as relates to these plans and specifications, for, as before stated, the testimony admitted to prove that they are erroneous has not sustained the defense.

Defendants seek to establish inconsistencies of opinion in the approval of the State Board of Engineers réported to the plaintiff board. There are expressions contained in a communication of these officers to the State Board which certainly have the appearance of being more favorable to the defendants’ cause than is the regular report made conveying official approval in regard to the contemplated expropriation. In the communication in question (that dated the 28th September, 1902) the Board of Engineers was of opinion that defendant’s warehouse might be permitted to remain on the terrace, which it is proposed to construct in order to strengthen the levees, without in any manner weakening the levee or rendering it less secure. It seems that that idea was abandoned entirely. Something in regard to the extent of the expropriation may have been changed, but this is not cause enough to set aside their approval as ill advised. It may be that it was admissible to make the change. Changes are sometimes advisable to accommodate the enterprise to other circumstances than those which were considered when the communication was written.

We have read as carefully as we could the testimony relating to this communication, and the explanation given by the members of the board as to it, and have found no reason to infer that wrong was intended, or that error was committed, that is made evident by this communication.

The area demanded, another of defendant’s contentions, presents another question. Is the space demanded unreasonably large? Engineers who are members of the State Board of Engineers, and others who are not members, testified that it is entirely within the limit of the necessary, in view of the fact that it is intended to construct a safe levee.

Here, again, we would scarcely be justified in substituting our judgment to that of these engineers. Large interests are intrusted to these boards. They have a discretion, and of this discretion it has been said that it should not be lightly set aside. Am. & Eng. Ency. of Law (2d Ed.) vol. 20, p. 239, and notes.

If it were evident that the purpose was anything other than levee protection, then it would be proper for us to curtail the area, for the duty of plaintiffs is one due to the public only in matter of levees and protection from inundation. Witnesses connected with plaintiff board disavow all idea of extending the work of building or repairing levees any further than necessary for protection .from inundation. We must decline to reverse a finding, sustaining the board’s action in this respect, returned by a jury composed of citizens having knowledge of the subject.

We might dwell further upon the details of the case. This we will not do, for we are confident that it would only be to return to the conclusion before expressed, for the testimony all leads to this one conclusion.

This brings us to the question of the value of the property plaintiffs seek to expropriate..

The verdict of the jury as relates to -valuó has not in this instance the weight that it originally had.

The following excerpts from the written opinion of the learned judge of the district court, on rule for new trial, sets forth that:

“On the question of value, all the evidence is in the record. The weight of the testimony, perhaps, would indicate a higher valuation than that fixed by the jury, but this issue also will go to the Supreme Court. It seems to me that the amount awarded to the lessees may be under estimate of his damage; but while I have doubts, this was an issue of fact, and the jury passed upon it.” (Italics ours.)

The learned judge heard the witnesses, saw their manner of testifying, and had opportunity at first hand of determining in regard to the weight of the testimony as relates to the value of the property.

There must be reasonable compensation made for lands expropriated. This is a requirement of the organic law. Compensation is in accordance with the intention of the government on that particular subject.

The value of the property testified to by the witnesses varies from a very small amount to a considerable sum. We shall endeavor to avoid both extremes, the high and the low, testified to by the witnesses of the respective parties. Upon an average basis we find that $22,500 would be the value.

Upon a basis of the rental of the property, the value would be near the same.

The lessee’s amount, as laid down in the judgment, will remain unchanged.

For reasons assigned, the law and the evidence being with defendants, the amount allowed heretofore is increased to $22,500, and said board, instead of the amount of the verdict, is condemned to pay unto the owner, Mrs. Emma Louise Brittin, the sum of $14,062.50, and to the estate of James Jackson the sum of $8,437.50.

As amended, the judgment is affirmed.

On Rehearing.

(June 30, 1904.)

NICHOLLS, J.

The Orleans Levee Board urges earnestly that this court has erred in setting aside the verdict of the jury as to value, and ,increasing the amount awarded to the defendants. They press upon us the following considerations:

(1) The decision of the court in Texas & Pacific R. R. v. Wilson & O’Beirne, 108 La. 1, 32 South. 173, and the authorities therein cited, to the effect that in matters of expropriation the conclusions reached by the jujy as to value should not be disturbed, save in a perfectly clear case.

(2) The assessed valuation of the property, which was $10,000 for both pieces.

(3) The testimony of Peter Gallagher, the sworn expert of the Orleans Levee Board, who fixed the value of the property at $17,-500.

(4) The valuation placed upon the property by the Orleans Levee Board itself, composed of nine members.

(5) The opinion of Mr. Leonard L. Stern, an expert testifying for the defendants, who testified as follows:

“Q. You don’t mean to swear that the property put up at auction would bring $25,000?
“A. Not to-day.
“Q. Would it bring $20,000?
“A. Not in the condition it is.
“Q. Would it bring $15,000?
“A. I don’t think there would be a sale for it at all to-day.
“Q. Why?
“A. The property is down in a hollow behind an embankment.”

On the part of the owners it is urged that the property has steadily, for a great number of years back, been leased at $1,960 per year; that the building which will have to be torn down has been recently repaired and placed in condition for same continued rental in the future. It is urged that the district judge, though he did not set aside the award of the jury, expressed his opinion that the amount awarded was too small. It is also contended that the valuation placed upon the property for taxation purposes and in succession matters should not be considered in matters of expropriation; that in matters of that kind the owner should receive just compensation, whatever that amount should be found to be by the testimony.

We have given this matter our most serious consideration.

We have repeatedly announced, as plaintiff says, a reluctance to go behind the award of the jury. In this particular instance it is to be noticed that the plaintiff is not a railroad or other corporation, to whom the power has been delegated to exercise the right of eminent domain, actuated to a great extent for the purposes of private gain, but by the state itself, solely in the interest of the general public and tbe protection of tbe property or tbe rights of citizens. It is further to be observed that the plaintiff in this ease is a levee board acting for the prevention of overflow, the property sought to be expropriated being property which until very recently, and when acquired by the defendants, being subject to a servitude for levee purposes without compensation. It is said that the smallness of the valuation placed upon the property for taxa•tion ought not to enter into consideration as a factor in this ease, but we think otherwise in this particular class of cases. The defendants have for a number of years past escaped their proper extent of contribution for tax purposes, and the state has lost to that extent. There may have been no element of moral wrong in this particular case, but certainly when the state herself comes to claim what rightly belongs to her, as she does now in the case at bar, we scarcely think it lies in the mouth of the owners to say that the matter of assessment is not a matter to be taken into view. If the owners for these many years have with propriety paid taxes upon a valuation of $10,000, we are of the opinion that valuation plays a very important part in this matter. If the valuation stated was the proper standard by which the owners should pay money to the state, it certainly should not be ignored when they call upon the state to pay money for it.

Taking into consideration all the facts of this particular case, we think it one where we can and should accept as correct the award of the jury.

For the reasons assigned, it is hereby ordered, adjudged, and decreed that the judgment of this case heretofore rendered by us be amended so as to conform, as to the amount, to the award made by the verdict of the jury, and, as so amended, the judgment remain unchanged.

BREAUX, O. J., dissents.  