Opinion
No. 17921.
November 29, 1943. Rehearing Denied January 10, 1944.
Appeal from Civil District Court, Parish of Orleans; Nat W. Bond, Judge.
Petitory action by Robert L. Emery and others against the Orleans Levee Board involving plaintiffs' title which was based on a certificate of redemption which they obtained from the Register of the State Land Office after having paid the amount of taxes and interest for nonpayment of which the property had been adjudicated to the state. From a judgment for plaintiffs, defendant appeals.
Reversed and judgment ordered for defendant.
See, also, 11 So.2d 652.
Severn T. Darden, and Hugh M. Wilkinson, both of New Orleans, for appellant.
F. Rivers Richardson, of New Orleans, for appellee.
This is a petitory action involving 34 68/100 acres of land fronting on the Mississippi River in the Parish of Plaquemines. The basis of plaintiffs' alleged title is a certificate of redemption which they obtained from the Register of the State Land Office on November 9, 1938, after having paid the Register $32.47, the amount of taxes and interest, for the nonpayment of which the property was adjudicated to the State of Louisiana on September 23, 1922.
The property in question is contained within the boundaries of what is known as the "Bohemia Spillway", a project undertaken and completed by the Board of Levee Commissioners of the Orleans Levee Board, which we shall hereafter refer to as the Orleans Levee Board, by direction and under authority of Act No. 99 of 1924.
The plaintiffs' alleged redemption of the property is claimed to have been authorized by Act No. 47 of 1938, which provides that "any lots or lands bid in for and adjudicated to the State, or any of its political subdivisions, for nonpayment of the 1936 taxes or the previous years' taxes * * *" may be redeemed by any "person interested personally or as heir, legatee, creditor or otherwise, except a judgment creditor of the owner."
The suit is brought against the Orleans Levee Board which is said to be in unlawful possession of the property. The defendant relies mainly upon the contention that the State of Louisiana in authorizing and instructing it to erect the Bohemia Spillway has dedicated the property to public use and that, consequently, it is not subject to redemption.
Plaintiffs contend that because of the redemption laws of the State of Louisiana, particularly Act No. 47 of 1938, the State's title under the adjudication for taxes is "inchoate" due to the fact that such title "can be, at any time, divested by the redemption of the property by the tax debtor as permitted by law". In this counsel is mistaken. The tax debtor may have an inchoate right of redemption, but the State, by reason of the adjudication to it for the unpaid taxes, secured an absolute, unequivocal title with every element of ownership including the "usus, fructus and abusus". There is no such thing as a "suspended fee" in Louisiana where all titles are allodial. It is of the very essence of our system of law that the ownership shall always be lodged in someone whatever may be the rule in other jurisdictions. For example, the breath barely leaves the body of a dying owner before the title vests in his heirs. Le mort saisit le vif. Revised Civil Code, Article 940. It follows that when the State acquired this property on September 23, 1922, for the nonpayment of taxes for the year 1921, it, like any other owner, had the right to do with it whatever it pleased.
The several levee board acts of the State contain phraseology which is somewhat misleading. For example, the Grand Prairie Levee Board, within the territorial jurisdiction of which this land is situated, was created by Act No. 24 of 1898. This act provided that all state lands within the district "now belonging or that may hereafter belong to the State of Louisiana * * * shall be, and the same are hereby given, granted, bargained, donated, conveyed and delivered unto said Board of Commissioners for the Grand Prairie Levee District". It further provided that it "shall be the duty of the State Land Office, on behalf of and in the name of the State, [to] convey to the said Board of Levee Commissioners by proper instruments of conveyance the lands hereby granted or intended to be granted and conveyed to said Board".
This and similar acts have been held, however, to convey no title to the levee boards who have not obtained proper certificates from the State Land Office. State ex rel. Fitzpatrick v. Grace, 187 La. 1028, 175 So. 656; Standard Oil Company of Louisiana v. Allison, 196 La. 838, 200 So. 273.
There is no contention here that any formal certificate of conveyance had been given by the State to the levee board, consequently, its ownership of the property is not affected by anything which is in the levee board statutes.
In 1924, by Act No. 99, the Legislature provided for the construction of what is known as the "Bohemia Spillway" and, by this Act, the Orleans Levee Board, whose jurisdiction is co-extensive with the Parish of Orleans or the City of New Orleans, was authorized to go into the adjacent Parish of Plaquemines and construct the spillway in order to protect the City of New Orleans from overflow of the Mississippi River, and, to that end, in its discretion, to locate and design the spillway subject to the approval of the State Board of Engineers and the Mississippi River Commission (the governmental authority), as appears by the first section of the act: "Be it enacted by the Legislature of Louisiana, That the Board of Levee Commissioners of the Orleans Levee District be and it is hereby authorized in its discretion in order to reduce the flood levels of the Mississippi River and to better protect the City of New Orleans from danger of overflow by the high waters of the Mississippi River, to construct or cause to be constructed on the east bank of the Mississippi River in the Parish of Plaquemines a spillway or waste wier, or other works, so located and designed according to plans and specifications as shall have been approved by the State Board of Engineers and the Mississippi River Commission."
Section 2 provides: "That the Board of Levee Commissioners of Orleans Levee District be and it is hereby authorized to acquire by purchase, donation or expropriation the lands or other property necessary for the construction of such works. It shall also be authorized to receive and expend for said purpose any funds contributed to it by the United States Government or any of the Levee Districts of the State benefited by said works, which said Levee Districts be and they are hereby authorized to make such appropriations for that purpose as to them seem meet and proper."
Section 3 orders the Orleans Levee Board, before taking possession of any privately owned property within the area to be covered by the spillway, to acquire possession of it "by purchase or expropriation."
Section 5 of the act provides: "That the Board of Levee Commissioners for the Orleans Levee District be and it is hereby authorized and directed to arrange with the Board of Commissioners for the Grand Prairie Levee District and the Board of Commissioners for the Plaquemines Parish East Bank Levee District whereby the bonded and other indebtedness of said two levee districts, as to the area to be affected by the proposed works, shall be acquired by said Orleans Levee District, be paid for buy it, at values as of June 17, 1924, and cancelled; and said two levee districts be and they are hereby authorized, upon the completion of the plans and after their approval by the State Board of Engineers and the Mississippi River Commission, to consent to the removal, at the expense of the Orleans Levee District, of the Levee systems of these two districts in that portion of the levee systems thereof as may be determined by the Orleans Levee District shall be removed."
Acting under the direction of the Legislature the Orleans Levee Board constructed the spillway and within its confines is included the land claimed by plaintiffs. One of the contentions made by plaintiffs' counsel is that since the Orleans Levee Board did not expropriate the plaintiffs' land or pay for it, that it did not comply with the terms of the act authorizing the construction of the spillway and that, consequently, the land was open to them for redemption in 1938. Our answer to that is that the land, at the time of the passage of the spillway act of 1924, belonged to the State of Louisiana and we know of no method by which expropriation proceedings could be had contradictorily with the State of Louisiana, nor do we believe the Orleans Levee Board acting, in this instance, as the agent of the State of Louisiana, was required to tender to the State the value of any land contained within the limits of the Bohemia Spillway.
In 1926, when the spillway had been completed, the Legislature in Act No. 160, in its title, declared:
"Whereas, by Act No. 99 of 1924, the Board of Levee Commissioners of the Orleans Levee District was authorized to construct a spillway in the Parish of Plaquemines; and
"Whereas, acting under said authority said Board of Levee Commissioners did construct such spillway; and
"Whereas, the said Act authorized and directed the said Board of Commissioners of the Orleans Levee District to assume and pay the bonded and other indebtedness of the said Plaquemines Parish East Bank Levee District as to the area effected [affected] by the proposed works; and
"Whereas, to effect the legislative intent it is necessary to clothe the State Treasurer with certain powers."
The act then proceeds to provide in detail for the redemption of the bonds of the Plaquemines Levee District.
It is our opinion that these two acts, 99 of 1924, and 160 of 1926, constitute a dedication to public use of state owned property within the area known as the "Bohemia Spillway."
In La Salle Realty Company of Louisiana v. City of New Orleans, 169 La. 1035, 126 So. 545, 546, the court said: "There is no sacramental form to be followed in dedicating property to public use."
In City of New Orleans v. Carrollton Land Company, 131 La. 1092, 60 So. 695, 697, the Court quotes with approval the syllabus in the case of City of Shreveport v. Walpole, 22 La.Ann. 526: "No deed or act of conveyance is necessary to dedicate land or rights in immovable property to the public. Nor is any particular form necessary to the dedication of land to the public use. All that is required is the assent of the owner of the land, and the fact that it is being used for the purposes intended. [Pickett v. Brown], 18 La.Ann. 560; [City of Baton Rouge v. Bird], 21 La.Ann. 244. A third party occupying lands that have been dedicated to the public use is without the capacity to acquire title thereto, because such lands are from the moment of the dedication out of commerce, and are not subject to individual or private ownership. 21 La.Ann. 244".
Lands which have been dedicated to public use are not subject to private ownership. See Police Jury of Parish of Plaquemines v. Foulhouze et al., 30 La.Ann. 64, where it was said: "Property dedicated to public use can not be the subject of private ownership. It is out of commerce, and not liable to seizure. R.C.C. 449, 454, 455 and 458. Police Jury of West Baton Rouge v. Michel, 4 La.Ann. 84; (Municipality No. 2 v. Palfrey), 7 La.Ann. [497], 498; (Pickett v. Brown), 18 La.Ann. 560; (City of Shreveport v. Walpole), 22 La.Ann. [526], 527; (City of Baton Rouge v. Bird), 21 La.Ann. 244; (Burke v. Wall), 29 La.Ann. 38, (29 Am.Rep. 316); (Sheen v. Stothart), 29 La.Ann. 630 — Dillon on Municipal Corporations, Sec. 531."
Counsel, however, says that the Act of 1938 provides that "any lots or lands bid in for and adjudicated to the State, or any of its political subdivisions, for nonpayment of the 1936 taxes or the previous years' taxes * * *" may be redeemed by any "person interested * * *" and if the title to this property is still in the State of Louisiana why is it that the terms of the Act do not permit its redemption by a tax debtor? It is, of course, true that title to the land claimed by plaintiffs in this proceeding was in the State of Louisiana when the plaintiffs attempted to redeem the property in 1938 and, as a matter of fact, the title is still in the State of Louisiana, but since it has been dedicated to public use it is no longer subject to redemption by any tax debtor. The title to the land on which the State Capitol rests as well as the title to the land on which this Courthouse sits is in the State of Louisiana, as is also the title to the public highways of the State, but it is inconceivable that anyone would contend that any parcel of such land which might have been owned by a delinquent tax debtor could be redeemed under the provisions of the Act of 1938.
The land which plaintiffs seek to recover is contained within the area of the Bohemia Spillway, which has been completed by the Orleans Levee Board under the mandate of the Legislature for more than seventeen years and the record informs us that more than one million dollars has been spent in the maintenance of this public necessity. If these plaintiffs were entitled to redeem the property before the construction of the spillway they are certainly not entitled to do so now.
Since this appeal was taken James F. Baker, one of the plaintiffs, has died and his executor, the El Paso National Bank of El Paso, Texas, has been substituted for him as party plaintiff.
For the reasons assigned the judgment appealed from is annulled, avoided and reversed and it is now ordered that there be judgment herein in favor of the defendant, the Orleans Levee Board, dismissing plaintiffs' suit at their cost.
Reversed.
Being convinced that plaintiffs' action must fail for reasons which are somewhat different from those expressed in the main opinion, it is in order for me to set forth the views which I entertain.
Since this is a petitory action, the duty rested upon plaintiffs to establish a title to the property in controversy. They maintain that they have carried this burden and that the title which they received from the State is wholly valid under the redemption statute, Act No. 47 of 1938. On the other hand, the defendant contends that plaintiff's title is not good for the reason that the lands in question were dedicated to public use, i.e., flood control, by Act No. 99 of 1924. The holding of the main opinion sustains defendant's contention that is, that the legislature dedicated by implication, through Act No. 99 of 1924, the State's lands situated within the Spillway for public purposes; that title thereto remains in the State and that plaintiffs could not legally acquire title under Act No. 47 of 1938 or any other redemption act.
It is to be conceded at the outset that the defendant, Orleans Levee Board, has not acquired a title to the property. The title to the land, unless it be that plaintiffs have reacquired a valid title when they redeemed the property under Act. No. 47 of 1938, is in the State. But I do not regard the State's title to be absolute and indefeasible. Rather, I think that it is an inchoate title, similar to that of a trust which inures to the benefit of the Orleans Levee Board and that the latter has the right to demand from the State, at any time, an absolute and unassailable title, by requiring the Register of the State Land Office to execute a conveyance of donation in favor of Grand Prairie Levee District and by exacting that the Board of Commissioners of that District execute a deed of transfer to it.
In order to give the reasons upon which my conclusion is predicated, it is necessary to consider the acts of the Legislature under which a former owner is given the right (after the constitutional prescriptive period for redemption has elapsed) to redeem property adjudicated to the State for non-payment of taxes; those acts by which the forfeited State lands have been donated to levee districts, and the jurisprudence under which the various statutes on the subject have been interpreted and explained.
It is admitted, in this case, that the land to which plaintiffs now claim title is situated within the confines of the Grand Prairie Levee District. This Levee District was created by Act No. 24 of 1898 and it was provided, in section 11 thereof (which is similar to other Levee District Acts), that, in order to enable the Board to assist in developing, establishing and completing a levee system in the District; "all lands now belonging or that may hereafter belong to the State of Louisiana, and embraced within the limits of the Levee District * * * shall be, and the same are hereby given, granted, bargained, donated, conveyed and delivered unto said Board * * * whether said lands have been or may hereafter be forfeited to or brought in by or conveyed or sold to the State at tax sales for non-payment of taxes, where the State has or may hereafter become the owner of lands by or through tax sales, conveyance whereof shall only be made to the said Board of Levee Commissioners, after the period of redemption shall have expired, provided, however, that any and all former owners of lands which have been forfeited to or purchased by or sold to the State for non-payment of taxes may at any time within said six months next ensuing, after the date of the passage of this act redeem said lands or any of them upon paying to the treasurer of the State all taxes, interest, costs and penalties due thereon down to the date of such redemption; but such redemption shall be deemed and be taken to be sales of land by the State, and all and every sum or sums of money so received shall be placed to the credit of the Grand Prairie Levee District." (Italics mine.)
It is further provided in this section that, after the six months period has expired, it shall be the duty of the State Land Office to convey to the Levee District by proper instruments the land donated to it and that, when such instruments of conveyance have been executed in favor of the Levee District and recorded in the Recorder's office of the Parish of Plaquemines, the title to the lands, with the possession thereof, shall from thenceforth vest absolutely in the Board of Levee Commissioners.
The redemption rights given to the former owners of the property referred to in the statute are the rights provided for by the Constitution of the State and also by section 62 of Act No. 170 of 1898, which declared that the owner of any land which had been adjudicated to the State for non-payment of taxes had the right, within twelve months from the time the adjudication was recorded, to redeem the property upon payment of the taxes, interest and costs, etc. When the twelve month prescriptive period accrued, the right of the former owner to redeem was nullified, except in cases where the lands were donated to the Levee Districts by the State, and, in those cases, the former owners were given an additional six months from the date of the passage of the Levee District Acts to reclaim their lands from the State. However, it is significant to note that, as shown by the language used in Section 11 of Act No. 24 of 1898 which I have italicised above, the Legislature plainly displayed its intention to give to the Levee District full benefit of all redemptions which were made by tax debtors within six months after the passage of the Act (where the tax debtors had allowed one year to expire from the date of the redemption) — for it was provided that the proceeds derived from the redemptions were to be credited to the Levee District.
Hence, it is obvious that, under Act No. 24 of 1898, the Grand Prairie Levee District obtained an inchoate title (or at least a right which could only be revoked by the Legislature itself) to all lands situated within the District, which had been adjudicated to the State for non-payment of taxes and which had not been redeemed by the former owners within one year from the date of the recordation of the adjudication. Of course, the Levee District did not obtain an absolute and indefeasible title because it has been held by the Supreme Court on numerous occasions that the grants to the Levee Districts were not in praesenti but, rather, that they afforded to the Districts the right to acquire the lands by a conveyance from the proper state officers. See McDade et al. v. Bossier Levee Board, 109 La. 625, 33 So. 628; Hartigan v. Weaver, 126 La. 492, 52 So. 674; Atchafalaya Land Company, Ltd., v. Dibert, Stark Brown Cypress Company, Ltd. et al., 157 La. 689, 102 So. 871; State v. Cross Lake Shooting Fishing Club, 123 La. 208, 48 So. 891; State ex rel. Atchafalaya Basin Levee Board v. Capdervielle, Auditor, 142 La. 111, 76 So. 327; Atchafalaya Land Company v. F.B. Williams Cypress Company et al., 146 La. 1047, 84 So. 351; State v. Board of Commissioners of Caddo Levee District, 188 La. 1, 175 So. 678; State ex rel. Fitzpatrick v. Grace, 187 La. 1028, 175 So. 656; Ballard Island Oil Gas Company v. Douglas, 172 La. 385, 134 So. 257; State ex rel. Hodge v. Grace, 191 La. 15, 184 So. 527; Ellerbe v. Grace, 162 La. 846, 111 So. 185, and Standard Oil Co. of Louisiana v. Allison, 196 La. 838, 200 So. 273.
However, the jurisprudence is also firmly established that, even though the Levee Districts to whom the lands were donated failed to obtain a written conveyance from the Register of the State Land Office, the effect of the legislative grants were of such a nature as to vest in such districts the right to demand at any time that proper instruments of conveyance be delivered to them; that lands in that category were withdrawn from the operation of the general land laws and that, until the grants were revoked by the Legislature, the officers of the State were without right or power to grant to anyone a title to such lands by patent or otherwise. See State ex rel. Board of Commissioners of Caddo Levee District v. Grace, 145 La. 962, 83 So. 206; Atchafalaya Land Co. v. Dibert, Stark Brown Cypress Company, Ltd., et al., supra, Ellerbe v. Grace, supra, and Atchafalaya Land Co. v. F.B. Williams Cypress Co., supra. And see also Board of Commissioners v. Hardtner, 164 La. 632, 114 So. 494, and State ex rel. Fitzpatrick v. Grace, supra, where the effect of the passage of certain statutes, which were said to repeal the grants to the levee districts, are fully discussed.
Thus, it seems clear that, under Act No. 24 of 1898, the Grand Prairie Levee District obtained an inchoate title to all lands sold for taxes within the confines of the district, which had not been redeemed within one year from the date of the adjudication, and that the former owners of such property were without right to redeem it under Act No. 170 of 1898. This apparently continued to be the law until 1912 for, although section 62 of Act No. 170 was amended by Act No. 315 of 1910, no change was made in the statute with respect to the rights of former property owners who failed to redeem their land (which had been adjudicated to the State for non-payment of taxes) within twelve months from the date of the recordation of the adjudication. However, by Act No. 41 of 1912, which amended section 6 of Act No. 315 of 1910 and section 62 of Act No. 170 of 1898, the former owners of lands adjudicated to the State for nonpayment of taxes were given the right to redeem the property by the payment of taxes, interest and costs, etc. "as long as the title thereto is in the State * * *" and, by Act No. 72 of 1928 which amended Act No. 41 of 1912, the right of redemption was enlarged so as to include lands adjudicated to any of the political subdivisions of the State as well as the State itself.
These acts (No. 41 of 1912 and No. 72 of 1928) which specifically grant to the former owner the right to redeem his lands which have been adjudicated for nonpayment of taxes as long as title thereto remains in the State or any of its political subdivisions, necessarily revoked the right of the levee districts to demand and obtain an absolute and indefeasible title to any land donated to them in all cases where the former owners had previously exercised their rights and had redeemed their property (even though the constitutional prescriptive period of redemption had accrued). See Woods v. Jastremski, 201 La. 1092, 11 So.2d 4. In State ex rel. Hodge v. Grace, supra, it was held that a former owner seeking to take advantage of the provisions of Act No. 161 of 1934, which amended Act No. 72 of 1928 and permitted the redemption of property adjudicated to the State for the amount of the taxes for the year in which the property was adjudicated, could not require the Register of the Land Office to recognize his right of redemption where the property had been previously conveyed by appropriate act of transfer to the Ponchartrain Levee District. But that decision was predicated on the fact that the Levee District had acquired an absolute title from the Register of the Land Office, as the opinion clearly distinguishes the situation there obtaining from the case where the Levee District has failed to get a deed and it was recognized that, in the latter instance, the right of the former owner to redeem must prevail.
Then, too, it is pertinent to note at this point that the land grants contained in the various Levee District Acts have been revoked since 1924. This was decreed by the Supreme Court in State ex rel. Fitzpatrick v. Grace, supra, where it was held that Act No. 237 of 1924 impliedly repealed the previous land grants. And, in Airey v. Tugwell, 197 La. 982, 3 So.2d 99, the court reaffirmed this ruling and held that a former owner of lands situated within a levee district had the right to redeem, under Act No. 47 of 1938, where the deed from the Register of the State Land Office to the levee district was executed subsequent to the passage of Act No. 237 of 1924.
Applying the law and the jurisprudence to the facts of the case at bar, it will be at once seen that, unless it can be said that Act No. 99 of 1924 had the effect of withdrawing the lands situated within the "Bohemia Spillway" from the operation of the general land laws and of revoking plaintiffs' right to redeem under Act No. 41 of 1912, Act No. 72 of 1928 and the subsequent redemption laws (particularly Act No. 47 of 1938), plaintiffs have acquired a valid title to the property in controversy.
Therefore, the main inquiry addresses itself to a consideration of the provisions of Act No. 99 of 1924. That act, as stated in the main opinion, is a special law which authorizes and directs the Orleans Levee District to construct a spillway or waste wier on the east bank of the Mississippi River in the Parish of Plaquemines to be located and designed, according to plans to be approved by the State Board of Engineers and the Mississippi River Commission, for the purpose of reducing the flood levels of the Mississippi River and to better protect the city of New Orleans from danger of overflow by the high waters of the river. (See section 1.) In section 2, the Orleans Levee District is authorized to acquire, by purchase, donation or expropriation, all lands and other property necessary for the construction and maintenance of the spillway and the Board is further authorized to receive any donations which may be made to it by the United States Government or any of the levee districts of the State which will be benefited by the spillway. This section contemplates that the levee board shall not only have the right to obtain private lands by purchase or expropriation but that it shall also acquire all public lands within the project by donation or purchase. This seems manifest to me because section 3 of the statute deals exclusively with the acquisition of private lands by the Orleans Levee District and requires that, as a condition precedent to taking possession of any property within the project, it shall obtain, by purchase or expropriation, all of the lands "privately owned within the area covered by the proposed plan * * *."
The provisions of section 5 of the Act, which are quoted in full in the main opinion, are conflicting and ambiguous. This section declares that the Orleans Levee District is authorized and directed to arrange with the Grand Prairie Levee District and the Plaquemines Parish East Bank Levee District "whereby the bonded and other indebtedness of said two levee districts, as to the area to be affected by the proposed works, shall be acquired by said Orleans Levee District, [to] be paid for by it, at values as of June 17, 1924, and cancelled * * *." While it is quite obvious to me that this provision of the statute was intended to require that the Orleans Levee District assume the bonded indebtedness of the two levee districts of Plaquemines Parish with respect to the area which was to be used by the Orleans Levee District in the construction, operation and maintenance of the project, the language used in the expression of this idea could have been more direct and concise. In addition, the section also indicates an intention that the lands belonging to the Grand Prairie and Plaquemines Levee Districts, which were to form part of the Spillway, were to be acquired from those districts by the Orleans Levee District and that the latter should pay for those lands "at values as of June 17, 1924." True enough, the language employed to express this intention is not clear but, when the provisions of the Act are considered as a whole, it becomes quite plain to me that this interpretation is inescapable.
Section 7 of the law repeals all laws or parts of laws in conflict therewith and it is further declared that "As this act is designed to meet an emergency, it shall be broadly construed."
A consideration of all the foregoing provisions of the Act has convinced me that it was the intention of the Legislature to withdraw all of the lands situated within the project, to which the State or any of its subdivisions had title, from the provisions of the general land laws of the State and to revoke any rights which had been accorded by law to former owners of any property situated within the confines of the Spillway, to redeem their lands, where the time for redemption prescribed by the Constitution had expired. In other words, I think that the Legislature intended that any public lands in the Spillway, which, under the provisions of the levee district grants, were owned either absolutely by the Grand Prairie and Plaquemines East Bank Levee Districts or as to which the levee districts had the right to acquire title by certificate to be issued by the Register of the Land Office, were to be transferred by those levee districts to the Orleans Levee District. If this is correct, then it is manifest that this special law had the effect of repealing the redemption rights granted to former owners by Act No. 41 of 1912, insofar as it concerned the lands situated within the confines of the project which had been adjudicated to the State for non-payment of taxes and as to which the Grand Prairie and Plaquemines East Bank Levee Districts had the right to acquire from the State an absolute title by application to the Register of the Land Office for an appropriate certificate.
If this be so, then what effect did the passage of Act No. 237 of 1924 have with respect to these lands? It is my firm opinion that that statute, which regulates the manner and terms on which property adjudicated for unpaid taxes may thereafter be sold, did not repeal the special provisions of Act No. 99, which was passed at the same session of the Legislature. The fact that the Supreme Court has held in State ex rel. Fitzpatrick v. Grace that the prior grants to the levee districts were repealed, by implication, in Act No. 237 of 1924 does not detract from this conclusion because the court did not have before it for consideration the provisions of this special statute which deals with particular lands devoted to a special purpose. To hold otherwise would be to attribute to the Legislature an utter lack of consistency of purpose.
Nor can I conceive that Act No. 72 of 1928 and the subsequent redemption acts, particularly Act No. 47 of 1938, under which plaintiffs claim to have derived their right to redeem, can be regarded as giving to the plaintiffs greater rights of redemption than they had under Act No. 41 of 1912, insofar as the lands situated within the confines of the Bohemia Spillway are concerned. Those general laws merely provide a method for the redemption of lands by tax debtors at a reduced price and on the installment plan. They do not grant greater rights of redemption than were given by Act No. 41 of 1912, except with regard to property adjudicated to a political subdivision of the State. They cannot be considered as effecting a repeal of the provisions of Act No. 99 of 1924 which is a special law pertaining to a special subject matter.
Hence, it is my opinion that, while the title to the lands in question is presently in the State, the title of the State is not absolute and indefeasible because Act No. 99 of 1924 clearly contemplates that the Orleans Levee District should acquire this title and own all the property situated within the Bohemia Spillway. The fact that the officials of the Orleans Levee District have not gone through the mechanics of obtaining a title from the State by having the State Register to execute a certificate in favor of the Grand Prairie Levee District cannot assist the plaintiffs in any way, since they, as plaintiffs in a petitory action, must show that they have a title in themselves. The redemption deed which they have obtained from the State is, in my opinion, wholly invalid and, therefore, their action cannot be maintained.
For these reasons, I respectfully concur in the decree.
Act No. 99 of 1924 provided for the construction by the Orleans Levee District of the Bohemia Spillway, and authorized the District "to acquire by purchase, donation or expropriation the lands or other property necessary for the construction of such works."
As a condition precedent to removing any levees or taking possession of any property, the said District was required "to acquire by purchase or expropriation and to pay for all lands and property privately owned within the area covered by the proposed plan. * * *"
The lands involved in this suit were and are within that area and were and are within the area composing the Grand Prairie Levee District.
When the said spillway was authorized in 1924, these lands had been adjudicated to the State for unpaid taxes and the period for redemption had expired but the Grand Prairie Levee District had not required the State to transfer to it the said lands as it might have done in accordance with the statute under which it was created, to-wit, Act No. 24 of 1898. That act provides, as does each of the other acts creating a levee district within the State, except that creating the Pontchartrain Levee District, that "it shall be the duty of the State Land Office * * * [to] convey to the said Board of Levee Commissioners by proper instruments of conveyance" such lands. It is well settled that such a grant as that contained in that statute is not a grant in praesenti and becomes complete only when the Levee District obtains from the proper State officials the necessary document. This is conceded by both my associates and is well settled. See many authorities cited in Judge McCaleb's concurring opinion. Therefore, even though those lands were consecrated to that Levee District by the act which created it, the original owners might have redeemed those lands for it is settled that such lands, even though adjudicated to the State and even though the period for redemption has expired, may still be redeemed by the former owner so long as no disposition thereof has been made by the State. In other words, though there are many cases which hold that such lands are removed from the operation of the general public land laws still they remain subject to the right of redemption so long as the State has not disposed of them. Woods v. Jastremski, 201 La. 1092, 11 So.2d 4; State ex rel. Hodge et al. v. Grace et al., 191 La. 15, 184 So. 527.
The question then is whether the statute, which authorized the construction of the Bohemia Spillway impliedly authorized the Orleans Levee District to take state lands without requiring the formal transfer which, up to that time, though required by law, had not been made. I think that the statute does not evidence such intention to make unnecessary such a formal transfer. All that the statute does is to provide that the District may acquire all lands or property necessary and that it must pay for all privately owned lands. I do not see that there is any implication that the District may take short cuts in acquiring public lands, and, I therefore think that even after the passage of Act No. 99 of 1924 it was necessary for the Grand Prairie Levee District to demand the formal transfer to it of the property which had been adjudicated to the State, and that it was also necessary for the Orleans Levee District to then require the Grand Prairie Levee District to transfer those lands to it.
One of my associates feels that that statute authorizes the District to take such lands without any formal transfer; that by this statute such land is dedicated to the Levee District, and that therefore the Levee District's title to it is perfected. My other associate thinks that the act merely sets aside such lands for the use of the Levee District to such an extent as to make it impossible for the former owners to make effective redemption.
I concede that the former owners may not obtain possession of the land itself for use in any way which would interfere with its use as a part of the spillway, for that land is now in actual use in said spillway. The Levee District would have had the right to expropriate it had the former owners redeemed it prior to the time at which it was taken for the spillway, and therefore, since the District did not expropriate but did appropriate, the former owners must be relegated to a claim for the value of the lands to a claim for the rights of which they have been deprived.
In order to maintain a petitory action it is not necessary that there be a claim for the possession of the land itself. Article 5 of our Code of Practice provides that: "The petitory action is that by which he who has the property of a real estate, or of a right upon or growing out of it, proceeds against the person having the possession, in order to obtain the possession of the immovable property, or the enjoyment of the rights upon it, to which he is entitled."
It is the mineral rights which are really involved here. The record shows that the Levee District has granted mineral leases on these lands. That a mineral lease represents a real right and may be claimed in a petitory action can no longer be doubted. See Act No. 205 of 1938. See also Gulf Refining Co. of Louisiana v. Glassell et al., 186 La. 190, 171 So. 846, which made the said act of 1938 necessary. See also 11 Tulane Law Review 607, 13 Tulane Law Review 416, 16 Tulane Law Review 586 and 1 La. Law Review 102.
It will not do to say that since the Levee District might have expropriated the land no claim may now be made for such real rights as those represented by oil leases. In an ordinary expropriation all that is acquired is the right to make such use of the land as is necessary to carry out the purpose for which the land is expropriated. See dissenting opinion in Parish of Jefferson v. Texas Co. et al., 192 La. 934, 189 So. 580, and authorities cited therein. It is true that it was held in that case that the fee itself had been expropriated but that result was reached only because of the wording of the judgment of expropriation. There was no disagreement over the doctrine that ordinarily in an expropriation there is acquired only the right to use the property for such purpose as is necessary for the work for which it is expropriated.
The fact that such oil leases do not interfere with the use of the land for spillway purposes cannot be gainsaid by the Orleans Levee District since it, itself, has granted mineral leases on this same land.
My belief is that since the lands had not been transferred by the State when the former owners redeemed them that redemption was effective but that the former owners by that redemption took them subject to such conditions and such burdens as had been imposed upon them at that time by the State. The State had imposed the condition that those lands were to be included within the spillway. This made it impossible for the former owners to actually take possession of the lands but it does not deprive them of their right to claim the value of the lands or to claim the rights which still may be exercised in and on the lands so long as the exercise of those rights does not interfere with the use of the lands as a part of the spillway.
I respectfully dissent.