Louisiana Constitution Requires Payment of Fair Market Value for Levee Improvement Servitudes

In January 2010, in an effort to upgrade the size of permanent levee servitudes, the Board of Commissioners of the South Lafourche Levee District (“BOC”) approved a resolution appropriating a permanent levee servitude affecting certain tracts of land located on the west bank of Bayou Lafourche. Chad M. Jarreau owned a 17.1 acre tract of land and was notified that one acre of that land was within the appropriated area. Jarreau received notification that he was to stop all activity on that tract immediately. In spite of this notice, Jarreau continued excavating dirt. The BOC filed for permanent injunction, and issued a check to Jarreau for $1,326.69 as compensation for value of the appropriated property. Jarreau rejected the dollar amount and filed a reconventional demand seeking compensation for the appropriated land, severance damages, economic and business losses, general damages, and statutory attorney’s fees. The district court awarded the BOC $16,956.00 for the dirt excavated by Jarreau, and awarded Jarreau $11,8609.00 as compensation for the appropriated tract, $164,705.00 for economic and business losses, $43,811.85 for attorney’s fees, and $26,490.95 for expert witness fees. The court of appeal affirmed the award for fair market value, but reversed the award of economic and business losses.

The Louisiana Supreme Court granted supervisory writ and considered what compensation, if any, to Jarreau was appropriate. The Supreme Court looked to both the United States Constitution and the Louisiana Constitution, which both contain provisions regarding the taking of private property for public use. The Louisiana Constitution provides for governmental taking of property that allows for: (1) expropriation of private property used for public purposes and (2) appropriation of private property necessary for levee or levee drainage purposes. Where expropriation refers to the taking of ownership, appropriation involves taking of merely a servitude. Under La. R.S. 38:301, where property is taken by way of a permanent levee servitude, compensation shall be the “fair market value of the property taken or destroy before the proposed use of the property or construction of the levee facilities.” The Supreme Court concluded that Jarreau was entitled to fair market value of the appropriated property at the time of the appropriation, which did not include lost profits or other severance damages. The court affirmed the award of $11,869.00 to Jarreau as compensation for the appropriated tract. Based on this award, the Court also awarded attorney’s fees of $2,635.57.

South Lafourche Levee District v. Jarreau

Daniel P. Sullivan
dsullivan@mblb.com