Opinion
Nos. 94 CA 2610, 94 CA 2611.
April 23, 1996. Opinion Granting Limited Rehearing December 30, 1996.
APPEAL FROM TWENTY-FIRST JUDICIAL DISTRICT COURT, PARISH OF TANGIPAHOA, NO. 9101175, STATE OF LOUISIANA, HONORABLE JAMES E. KUHN, J.
J. Thomas Anderson, William Faller, Hammond, for Appellees, Danny P. and Mary G. Thompson.
Page M. Michell, Hammond, for Appellee, Michael Holland.
Duncan S. Kemp, III, Hammond, for Appellant, State of Louisiana, through the Department of Transportation and Development.
On September 21, 1990, plaintiff, Mr. Danny Paul Thompson (Mr. Thompson) was driving home from work on Louisiana Highway 628. This highway is located on a federal enclave, the Bonnet Carre Spillway, and is entirely surrounded by federal land. Plaintiff Michael Holland (Mr. Holland) was his guest passenger. According to the facts found by the trial court, when Mr. Thompson attempted to pass a vehicle driven by Mr. Robert Morse, Mr. Thompson's vehicle struck an overhanging limb, startling Mr. Thompson, and causing him to hit the Morse vehicle. Both vehicles ran off the road and Mr. Thompson's vehicle struck several trees. Both vehicles then returned to the road and collided a second time. Mr. Thompson was severely injured and Mr. Holland was injured also.
Whether the plaintiff struck any overhanging limbs is seriously contested by the defendant, but is a finding of fact not reviewed in this opinion.
After trial on the merits, the trial court, by judgment dated June 27, 1994, rendered judgment in favor of Mr. Thompson and against the State in the amount of $2,494,061.52, and in favor of Mrs. Thompson and against the State in the amount of $31,500. The trial court, in another judgment also dated June 27, 1994, ruled against the State and in favor of Mr. Holland in the amount of $601,379.72. According to its reasons for judgment, the trial court based its finding of liability upon La.C.C. art. 2317 and La.R.S. 9:2800.
The State is appealing both judgments, and makes the following assignments of error:
1. The trial judge ignored jurisprudence and set bad precedent in finding that the State of Louisiana through the Department of Transportation and Development (DOTD) had "garde" over the trees which were involved in this accident.
2. The trial judge erred as a matter of law by ignoring a specific statute and committed manifest error, ignored established jurisprudence, and set bad precedent in finding that the State of Louisiana obtained a sixty foot (60') right-of-way with respect to Louisiana Highway 628.
3. The trial judge erred as a matter of law in allowing into evidence, and basing his decision upon, evidence that was not authenticated and was irrelevant.
4. The trial judge committed manifest error in finding that the plaintiffs had proven by a preponderance of the evidence the existence of an overhanging limb and that said limb was a cause in fact of the accident.
5. The trial judge committed manifest error in unreasonably assessing the credibility and reliability of important witnesses.
6. The trial judge erred as a matter of law, ignored established jurisprudence, and set bad precedent in finding that the State of Louisiana through DOTD had actual or constructive notice of a vice or defect and reasonable opportunity to correct it within the meaning of La.R.S. 9:2800.
7. The trial judge erred as a matter of law, ignored established jurisprudence, and set bad precedent in holding that the State of Louisiana through DOTD had a duty imposed upon it by the adoption of "clear zone" standards by Aashto in 1977.
8. The trial judge ignored established jurisprudence and set bad precedent in ignoring the duty imposed upon the driver of an overtaking or passing vehicle to ascertain before attempting to pass a preceding vehicle that from all circumstances of traffic and conditions of the roadway, the passing can be completed with safety, and failing to find the plaintiff, Mr. Thompson's breach of this duty to be a complete bar to his recovery.
9. The trial judge ignored the jurisprudence and set bad precedent in failing to find that the breach of duty on the part of Mr. Thompson was the sole cause of the accident sued upon, thereby barring recovery by the plaintiff, Mr. Holland against the State of Louisiana through DOTD.
10. The trial judge ignored established jurisprudence and set bad precedent in failing to assess a greater degree of fault to the plaintiff, Mr. Thompson.
11. The trial judge committed manifest error with respect to his finding as to the nature and extent of the damages sustained by Mr. Thompson.
12. The trial judge committed manifest error with respect to his finding as to the nature and extent of the damages sustained by Mr. Holland.
Mr. and Mrs. Thompson answered the appeal, asking that the damage award be modified to increase the amount awarded for general damages, loss of consortium and life attendant care; asking that damages be awarded to their children for loss of consortium; and asking that the judgment be modified to decrease the amount of negligence assessed against Danny Paul Thompson from 10 percent to zero percent; and further, asking that appellant be condemned to pay the court costs in the trial court and in this appeal.
ANALYSIS
Critical to a finding of liability in this case is a determination of whether the defendant, DOTD, had custody or garde of the tree or tree limb which the trial court found was a cause of this accident. We reverse the trial court on its finding of strict liability under La.C.C. art. 2317 because of legal error.
LOUISIANA REVISED STATUTE 48:347The first legal error committed by the trial court was its reliance upon La.R.S. 48:347. The trial court interpreted La.R.S. 48:347 to mean DOTD had the authority to cut trees hanging over the traveled portion of the roadway. A simple reading of section A of that statute makes it clear that the statute has no applicability to trees, but is limited to the "installation of any structure, sign, obstacle, object, deposit, or thing within the limits of a highway. . . ." La.R.S. 48:347(A). It is clear from the statute and the cases interpreting the first paragraph of La.R.S. 48:347 that this statute refers to constructed objects such as buildings, fences, and signs. See Giardina v. Marrero Furniture Company, Inc., 310 So.2d 607 (La. 1975); Acme Poster Advertising Company v. State Department of Highways, 352 So.2d 397 (La.App. 3d Cir. 1977); Department of Highways v. Trichel, 343 So.2d 410 (La.App. 3d Cir. 1977); Department of Highways v. Capone, 248 So.2d 62 (La.App. 1st Cir.), writ denied, 259 La. 682, 251 So.2d 380 (1971). It is further clear that these structures must be "within the limits of a highway," which means within the highway right-of-way. Trichel, 343 So.2d at 413; Capone, 248 So.2d at 63; see Giardina, 310 So.2d at 609; Acme Poster Advertising Company, 352 So.2d at 401. Thus, structures, signs, obstacles, objects, deposits, or other things within the limits of a highway that are installed by an act of man, as opposed to natural incursions on a right-of-way by tree development, are governed by La.R.S. 48:347. In cases involving natural incursions on a right-of-way by tree development, the law requires a court order to remove such incursions unless they constitute a hazard. See Adams v. State Department of Highways, 357 So.2d 1239 (La.App. 2d Cir. 1978); Harkness v. Porter, 521 So.2d 832 (La.App. 2d Cir. 1988). Nothing in La.R.S. 48:347 or the jurisprudence interpreting it indicates that natural incursions by tree development on a right-of-way are within the intendment of this statute.
La.R.S. 48:347 provides:
A. The department may apply to the court for any process necessary to prevent the installation of any structure, sign, obstacle, object, deposit, or thing within the limits of a highway contrary to this Chapter or any lawful regulation issued hereunder.
B. Whenever any advertising sign located within fifty feet of the outer edge of the right of way constitutes a dangerous hazard to the traveling public, the department may, after due notice to the owner thereof to remove it, apply to the district court of the parish in which the sign is located for the process necessary to effect the removal of the sign.
C. Whenever any of the things described in Subsection A of this Section are found to exist within the limits of a highway, the department may summarily remove and dispose of it at the expense of the person responsible therefor. If it retains apparent value, the owner shall be notified, orally or in writing, to remove it within five days or such other period as may be agreed upon. If the owner be unknown or cannot be found, a written notice shall be affixed to the object setting forth that it must be removed within a period not less than five days from the date specified. Failure to remove within the specified period operates as a forfeiture of all rights thereto and the department may remove the object for its own use, or dispose of it at private or public sale, or destroy it, or dispose of it in any manner. The owner and any other person responsible therefor remains liable for any damage to public property or expenditure of highways [sic] funds resulting from the installation or removal of such things.
D. Notwithstanding any other provision of law to the contrary, political campaign signs shall not be erected, displayed, or posted within any highway right of way or litter free zone, subject to the provisions and penalties of R.S. 25:1111(E) and R.S. 25:1118, and the collection and distribution of fines as provided in R.S. 25:1112.
In its Reasons for Judgment, the trial judge stated that "in accordance with R.S. 48:347, the State has the power and authority and obligation to remove obstacles or hazards from its highways." There is another similar quote in the Reasons for Judgment, referring to the State's authority and obligation under La.R.S. 48:347. A reading of the Reasons for Judgment in their entirety reveals that the trial judge deemed tree limbs as "obstacles" within the meaning of La.R.S. 48:347.
RIGHT-OF-WAY UNDER 1923 CONTRACT
The trial court based its finding of liability under La.C.C. art. 2317 on the theory that the trees with overhanging limbs were growing within the right-of-way of DOTD and thus, DOTD was responsible for their condition. The trial court was in error in concluding on the basis of a 1923 contract that the highway right-of-way was sixty feet (60') in width.
In its reasons for judgment, the trial court found as follows:
Again referring to joint Exhibit 31 [sic] and transcript Page 33, in connection with that grant, the chief state engineer wrote to the U.S. District Engineer a letter concerning this agreement authorizing the State to construct a road from the toe of the levy [sic] to the edge of the Corps of Engineer's [sic] property. A contract was then entered into between the State and the Pontchartrain Levy [sic] District Board and the Louisiana Highway Commission where it was agreed that Highway 628 was to extend thirty (30') feet on each side of the centerline.
The above quoted statement actually makes reference to two exhibits, Exhibit 41 (Appendix A) and Exhibit 40 (Appendix B). [Editor's Note: Not Reproducible.] Exhibit 41 (erroneously referred to as Exhibit 31 by the trial court) does contain a letter by the State's chief of engineers dated July 10, 1933, wherein he requests permission from the United States government to construct a highway on both sides of the Bonnet Carre Spillway levees from the Mississippi River to what is now Highway 61. This letter does indicate that the highway is to be between the toe (bottom edge) of the levee and the U.S. government property line. It further references maps which indicate the center line of the highway and a profile of a typical cross section of the highway. One of those maps shows the cross section of a right-of-way thirty feet (30') in total width.
The next sentence in the above quoted trial court opinion refers to a contract between the State of Louisiana and the Pontchartrain Levee Board and the Louisiana Highway Commission (Exhibit 40). A close reading of this exhibit will show that it does not have anything to do with Highway 628. The contract on its face clearly indicates that it was entered into on August 16, 1923, fully ten years before permission was sought by the State of Louisiana to construct what is now Highway 628. The very documents upon which the plaintiffs rely to show authority to build this road clearly indicate that the road on which this accident occurred did not exist in 1923. The contract relied upon by the court and the plaintiffs' expert was between basically the Louisiana Highway Commission, the Pontchartrain Levee District Board and Robinson Construction Company to do work on the old Baton Rouge/New Orleans Highway — Route 1. The Baton Rouge/New Orleans Highway — Route 1 is the old River Road, or the old U.S. 61, that existed in the area of the Bonnet Carre Spillway before the construction of the spill way. This contract is of critical importance because it is the one upon which both the trial court and the expert relied to determine there was a sixty foot (60') right-of-way. The trial court cited a provision in the printed part of the 1923 contract which states that "the right of way extends thirty (30) feet on each side of the center line." Exhibit 40 is the only document which alludes to a sixty foot (60') right-of-way. However, a contract by the State with a local contractor to do work on a different road, fully ten years before the construction of what is now Highway 628, is absolutely and totally irrelevant. Counsel for the State objected to this evidence. The United States government is not a party to the contract. The records in this case clearly indicate that the spillway was not completed until 1935. The United States, which is being asked to give a right-of-way in the 1933 letter, had no interest in the land in 1923 as can be determined from the record. Thus, in 1923, the United States could not have given permission for a servitude in this area.
In their request for production of documents, the plaintiffs asked DOTD to furnish all maintenance records on Highway 628 and for the Bonnet Carre Spillway area. There were several highways in the Bonnet Carre Spillway area over time, including old River Road, new U.S. 61 and new Interstate 10. The plaintiffs contend all of these documents are relevant because they are documents possessed by the State. The State possesses many documents concerning highway construction and maintenance. The mere possession of those documents does not make them relevant to this case. An objection as to relevancy was made and should have been sustained. The admission of these records caused critical damage to the defendant because they were the basis of an erroneous ruling.
To show how important this evidence was, it is necessary to examine the testimony of the plaintiffs' expert, Mr. James Clary. Additionally, it was apparently not until the morning of trial that Mr. Clary advised the court and all counsel of the need to place Exhibit 40 into evidence.
As our law indicates, there are several ways for the State to acquire ownership of land or to establish servitudes. Servitudes can be dedicated to the State by several methods, including formal dedication, implied dedication, statutory dedication and tacit dedication. A.N. Yiannopoulos, 2 Louisiana Civil Law Treatise, Property § 95, at 204-205 (1991). Further, to obtain ownership of land for the construction of highways, the State can acquire the land by purchase, exchange or donation, expropriation of the land, or by acquisitive prescription. A.N. Yiannopoulos, Common, Public and Private Things in Louisiana: Civilian Tradition and Modern Practice, 21 La.L.Rev. 697, 730-31 (1961).
There is no evidence in the record showing an expropriation or the purchase of property connected with this matter, nor any attempt to claim ownership or a servitude by virtue of prescription. The plaintiffs rely on Exhibit 41 wherein the State of Louisiana requested permission to construct a highway with a thirty foot (30') right-of-way. That consent was given in 1933 by the United States government through the then-Acting Secretary of War, Douglas MacArthur. The United States, as owner of the land in 1933, is the only party who could grant a right-of-way for what was to become Highway 628. The record is clear that the road was constructed, does exist, and has been maintained by DOTD and used by the citizens of the United States.
There is also no evidence of any statutory dedication which would comply with La.R.S. 33:5051. Therefore, the only issue for determination is whether there has been an implied dedication.
La.R.S. 33:5051 provides:
A. Whenever the owner of any real estate desires to lay off the same into squares or lots with streets or alleys between the squares or lots and with the intention of selling or offering for sale any of the squares or lots, he shall, before selling any square or lot or any portion of same:
(1) Cause the real estate to be surveyed and platted or subdivided by a licensed land surveyor into lots or blocks, or both, each designated by number.
(2) Set stakes, which shall be permanent in nature, at all of the corners of every lot and block thereof, properly marked so as to designate the correct number of each lot and block.
(3) Write the legal description of the land on the plat or map, and cause to be made and filed in the office of the keeper of notarial records of the parish wherein the property is situated and copied into the conveyance record book of such parish, and a duplicate thereof filed with the assessor of the parish, a correct map of the real estate so divided.
B. The map referenced in Subsection A of this Section shall contain the following:
(1) The section, township, and range in which such real estate or subdivision thereof lies according to government survey.
(2) The number of squares by numerals from one up, and the dimensions of each square in feet and inches.
(3) The number of each lot or subdivision of a square and its dimensions in feet and inches.
(4) The name of each street and alley and its length and width in feet and inches.
(5) The name or number of each square or plat dedicated to public use.
(6) A certificate of the parish surveyor or any other licensed land surveyor of this state approving said map and stating that the same is in accordance with the provisions of this Section and with the laws and ordinances of the parish in which the property is situated.
(7) A formal dedication made by the owner or owners of the property or their duly authorized agent of all the streets, alleys, and public squares or plats shown on the map to public use.
C. Formal dedication of property as a road, street, alley, or cul-de-sac shall impose no responsibility on the political subdivision in which the property is located until:
(1) The dedication is formally and specifically accepted by the political subdivision through a written certification that the road, street, alley, or cul-de-sac is in compliance with all standards applicable to construction set forth in ordinances, regulations, and policies of the political subdivision, which certification may be made directly on the map which contains the dedication; or
(2) The road, street, alley, or cul-de-sac is maintained by the political subdivision.
An implied dedication is one where there is consent of the owner to permit a servitude and acceptance by the person in whose favor the servitude is granted by use. Based on the information in this record, there has been an implied dedication of a thirty foot (30') right-of-way to the State of Louisiana for Highway 628. However, the plaintiffs' expert, Mr. James Clary, in his testimony on at least six (6) occasions referred to Exhibit 40 as the basis of his opinion that the right-of-way was sixty feet (60'). As pointed out above, Exhibit 40 is a contract for the wrong road, the wrong period of time, and between the wrong parties; and as also noted, it was totally irrelevant.
The expert, Mr. Clary, also relied on the deposition of Mr. Roth, who gave the legal opinion that La.R.S. 48:491 grants some sort of right-of-way or servitude on behalf of the State. The defense objected to the expression of a legal opinion by this unqualified witness.
Louisiana Revised Statute 48:491 provides:
A. All roads or streets in this state that are opened, laid out, or appointed by virtue of any act of the legislature or by virtue of an order of any parish governing authority in any parish, or any municipal governing authority in any municipality shall be public roads or streets, as the case may be.
B. (1)(a) All roads and streets in this state which have been or hereafter are kept up, maintained, or worked for a period of three years by the authority of a parish governing authority within its parish, or by the authority of a municipal governing authority within its municipality, shall be public roads or streets, as the case may be, if there is actual or constructive knowledge of such work by adjoining landowners exercising reasonable concern over their property.
(b) Actual or constructive knowledge is presumed if prior to or during the work the public body notifies the last known adjoining landowners of same by written notice by certified or registered mail, return receipt requested. When such notice is given more than two years and ten months from commencement of such work, it shall suspend the foregoing prescription for sixty days.
(c) Actual or constructive knowledge is conclusively presumed within all parishes and municipalities, except as otherwise provided by R.S. 48:491(B)(3), if the total period of such maintenance is four years or more, unless prior thereto and within sixty days of such actual or constructive knowledge, the prescription is interrupted or suspended in any manner provided by law.
(2) When a local governing authority for any reason decides to dispose of any road, street, or property used for right-of-way purposes which was originally donated to the authority or its ancestor in title, the property shall revert to the original donor or his heirs or assigns. The authority shall notify the donor or his heirs of its intention to donate the property by sending written notice via certified mail, return receipt requested, to the donor or his heirs at his last known address. The notice shall inform the donor or his heirs or his assigns of the authority's intention to have the land revert and provide him ninety days from receipt in which to respond. If, upon the expiration of the ninety-day period, no response has been received by the authority, it shall dispose of the property in accordance with applicable law. In the donation deed from the authority to the donor or his heirs or his assigns, the authority shall reserve rights of passage for landowners who own property contiguous to the property to be reverted.
(3) In the parish of Vermilion only such maintenance operations are conducted by authority of a parish or municipal governing authority pursuant to a written contract with the landowner which specifies that a private road or street shall not be or become a public road or street.[1a]
C. All roads or streets made on the front of their respective tracts of lands by individuals when the lands have their front on any of the rivers or bayous within this state shall be public roads when located outside of municipalities and shall be public streets when located inside of municipalities.
[1a] In par. B(3), the language is as it appears in the enrolled bill (Acts 1988, No. 869, § 1).
The deposition of Mr. Roth is not in the record, however his testimony is. In his testimony, Mr. Roth discussed servitudes and rights-of-way under La.R.S. 48:491. He also discussed La.R.S. 48:220.1, but opined that statute was not applicable because, "we don't have a roadside ditch here . . . ." Mr. Roth also made a distinction between roadways where there was a dedicated right-of-way, and those where there was no dedicated right-of-way. When he said, "[w]ell my answer was, and to clarify the difference between a roadway where we had a dedicated right or way and where we do not. If we have a dedicated right of way, we maintain in one fashion or the other, the entire dedicated right of way. Now, that's not to say that we mow the entire dedicated right of way. In some cases we don't. We, we typically mow fifteen feet. Now, when we do not have a dedicated right-of-way, but have a roadside ditch, then, we'll maintain to the back side of the roadside ditch. Where we have neither, then, we'll maintain what's practical to maintain. In this case it's, because of the steep embankment, 7 feet is a reasonable — ." We cannot tell what Mr. Clary was referring to when he said, "I agree with Mr. Roth in his deposition, that in the absence of a right of way, if a highway has been operated for three years by the State of Louisiana they have a right of servitude that includes the traveled way, the shoulders, the ditches, to a point 18 inches on the far side of the ditch. And that would make it well in excess of 100 feet in that way." We cannot be sure what Mr. Clary meant by this statement. It seems that Mr. Clary confused maintenance under La.R.S. 48:491 with servitudes acquired under La.R.S. 48:220.1.
A simple reading of La.R.S. 48:491 indicates a right-of-way under this statute (tacit right-of-way) can be acquired only by parish governing authorities or municipal governing authorities. Not only was Mr. Clary's opinion in this area totally wrong, but neither he nor Mr. Roth qualified as a legal expert to give an opinion as to the meaning of La.R.S. 48:491. His error in this regard is why the defense's objection to this legal opinion testimony should have been sustained.
A third basis for Mr. Clary's opinion as to the right-of-way was plaintiffs' Exhibit 23. Based on this document, he opined the right-of-way may have been as wide as one hundred feet (100'). In attempting to lay the foundation for the admission of the document, the witness, Mr. Clary, was unable to authenticate the offering. The map was handed to Mr. Clary in court by plaintiffs' counsel and the trial court had no evidence that it was what it was purported to be. No one testified that it was a business record of anyone and no attempt was ever made to lay a foundation as to its authenticity or to its status as a business record. Objection to the authenticity of this exhibit was also made and should have been sustained.
In addition to not being authenticated, the document was rank hearsay and was the unsworn, out of court statement of the person who drafted the map. The purpose of the map was to show certain encroachments over the U.S. government property line on both sides of the levee in the entire Bonnet Carre Spillway area. In the top left-hand corner of the map, there is an insert showing not Highway 628, but Highway 608. On one portion of that insert is a line with the figure "100" between it. Mr. Clary used this document to claim a possible one hundred foot (100') right-of-way for the State of Louisiana. The problem with this testimony is that there is no documentation to support this map. Whoever the draftsman of this map was, he could not have relied on any more information relative to the right-of-way of the State than that which was presented by the plaintiff in Exhibit 41, showing permission by the United States to construct a thirty foot (30') right-of-way. That "100" figure on the map does not have any identification of feet behind it, although everywhere else on the map where feet are indicated, the symbol for feet is affixed. The highway number, of course, is Highway 608 and no explanation is given as to why Highway 608 is indicated on the map rather than Highway 628.
Perhaps the most glaring error relative to plaintiffs' Exhibit 23 is that all the evidence in this record indicates there is not enough room between the toe of the levee and the U.S. government property line for the figures on this map to make any sense. If this were a one hundred foot (100') right-of-way, the remaining portion of the property between the toe of the levee and the U.S. government property line as shown by this map would have to be twice as large. There would have to be three hundred feet (300') from the toe of the levee to the U.S. government property line. No other map in the entire record indicates such a distance in the area in question.
Finally, even if the map were authentic and accurate, it is simply not the law that a draftsman drawing two lines on a sheet of paper can create a servitude of passage against the United States. The law on servitudes is that they are fixed as of the time consent is given for the servitude and cannot be made more burdensome by the person who has the right.
In an alternative attempt to increase the width of the right-of-way, the expert relied upon La.R.S. 48:220.1 which states a right-of-way "shall include the roadway, shoulder, roadside ditch and an area extending one and one half feet beyond the rear or outside slope of the roadside ditch." Much time and effort was expended at the trial attempting to show a right-of-way under the provisions of this statute. However, a plain reading of the statute and the cases thereunder indicate that this right-of-way exists only where the department has constructed a highway "without a recorded conveyance or dedication . . . by the landowner." (Emphasis added.) Plaintiffs' own evidence in Exhibit 41 shows there was a dedication by the landowner, the United States government, for the construction of Highway 628. Therefore, this is not a highway that was constructed without a dedication by the landowner, and La.R.S. 48:220.1 does not apply. Where there has been a dedication, the width of the right-of-way is determined by the dedication. Even if there had been no dedication, it is doubtful that DOTD could acquire a servitude under this provision against the United States, a separate sovereign. Basic federal constitutional principles dictate that this statute is not applicable to the property of the United States. See U.S. v. City of Detroit, 355 U.S. 466, 78 S.Ct. 474, 2 L.Ed.2d 424 (1958); McCulloch v. The State of Maryland, 17 U.S. (4 Wheat) 316, 4 L.Ed. 579 (1819).
Louisiana Revised Statute 48:220.1 provides:
Whenever the Department of Highways, under its statutory authority takes over an existing road from a parish or municipality, unless there is an agreement between the two agencies to the contrary, the department shall acquire all of the rights which the ceding agency possessed with regard to the ceded road or street. In those instances where the highway was constructed by the parish or municipality without a recorded conveyance or dedication of the right of way by the landowner, and in those instances where the department has constructed a highway without a recorded conveyance or dedication by the landowner, the width of the right of way servitude for the said highway shall include the roadway, shoulder, roadside ditch and an area extending one and one-half feet beyond the rear or outside slope of the roadside ditch. Nothing herein shall affect title to any buildings or fences, nor require their removal without payment of just compensation therefor, nor shall anything herein affect title to the soil beneath the highway right of way nor to any minerals thereunder. The existence of the highway for a period in excess of three years shall vest title to the right of way servitude in the Department of Highways.
Lands devoted to a particular use by the federal government, and over which jurisdiction or ownership has been ceded to the United States, cannot be taken under the right of eminent domain of a state, unless such use has been abandoned. Furthermore, a state can create no right to condemn federally owned lands.
29A C.J.S. Eminent Domain § 61 at 190 (1992) (footnotes omitted).
The rationale of McCulloch which describes the nature of the federal-state relationship, makes it absolutely clear that the State of Louisiana, which was given a thirty foot (30') servitude in 1933, cannot acquire a wider servitude such as a sixty foot (60') or one hundred foot (100') servitude without the express consent of the United States.
The use of La.R.S. 48:220.1 by the plaintiffs and their expert to establish a right-of-way is highly misplaced for other reasons. First of all, factually, the record does not disclose the existence of a roadside ditch, although of course, it does disclose a roadway and a shoulder. Under this statute, the servitude would extend one and one half feet (1 1/2') beyond the rear slope of a roadside ditch. However, the photographs and the entire record show that on the land side of the road, as opposed to the levee side of the road, there is no ditch or drainage area — there is just a sloping shoulder that goes into a large swampy area.
There is an additional reason why La.R.S. 48:220.1 does not apply. The statute was enacted in 1976. The highway must have been constructed after 1976 by DOTD and existed for an additional period of three years for the statute to apply. Two cases have refused to give retroactive effect to this statute. See State, Department of Transportation and Development v. Richardson, 453 So.2d 572, 576 n. 3 (La.App. 1st Cir. 1984); and State, Department of Highways v. Traina, 347 So.2d 55, 57 (La.App. 2d Cir. 1977). Since the record in this case reflects that the road in question was constructed in 1933, this fact alone makes La.R.S. 48:220.1 inapplicable to this particular highway.
Since all of the theories of the expert upon which the trial court based a finding of custody or garde are in error, the finding of liability based on La.C.C. art. 2317 is erroneous.
CLEAR ZONE
The court also found liability based on a violation of some clear zone concept as advanced by the plaintiffs. Apparently, the clear zone finding in this case rested heavily upon the erroneous determination that the right-of-way of Highway 628 was sixty feet (60').
For a discussion of the clear zone concept, see Beecher v. Keel, 94-0314 (La.App. 4th Cir. 9/29/94), 645 So.2d 666, 670-671, writ denied 95-0108 (La. 3/10/95), 650 So.2d 1185.
The record, photographs and video tape in this case indicate that Highway 628 is a rural highway running along the side of the Bonnet Carre Spillway levee from the Mississippi River to U.S. Highway 61. There are no buildings or structures encroaching upon this highway. Two railroad tracks traverse it. At the site of these railroad tracks the road is elevated. To the right (or east side when heading north) of the highway is a large open area that begins with the slope of the levee. To the left of the highway, there is a fairly wide shoulder which is cleared more than ten feet (10') beyond the edge of the pavement and which is more than five feet (5') beyond DOTD's right-of-way. The photographs of the site of the accident indicate that the highway is absolutely straight, and thus there is nothing in the highway's configuration which would cause a motorist to exit the highway on the side by the swamp and trees.
The trial court found that the State was negligent for violating the so-called "clear zone" standards. This finding was legally erroneous for several reasons.
The trial court apparently based its conclusion about the applicability of clear zones upon certain testimony by Mr. Clary. In addition to being extremely confusing, this testimony nowhere establishes that the clear zone standards, which apparently are part of the AASHTO guidelines adopted in 1989, require DOTD as of that date to go back and reconstruct every road to provide for those clear zones. A fair reading of the clear zone concept is that DOTD is to identify danger areas on existing highways and, when funds become available, to make improvements that will provide for "clear zones." The testimony of Mr. Clary set out in footnote 11 does not establish that, when this road was overlaid in 1964, DOTD was required to obtain additional rights-of-way and reconstruct this road with eighteen feet (18') of additional shoulders on each side. The record does not reveal that a reconstruction of this highway occurred at all. The work done in 1964 was a simple overlay of an existing highway. There could not be a reconstruction of this road to that extent because DOTD did not own this roadway, but only had a thirty foot (30') servitude. Also, DOTD had no way of acquiring an additional right-of-way without the consent of the United States Congress.
On direct examination, the plaintiff's expert witness, Mr. Clary, testified in part as follows:
Q. Well, would this be an opportunity for the state to come in and say we have a reconstruction project not over the entire roadway, but in a certain part of it and look and see any standards that weren't in effect at that time and make them or any defects that weren't meeting current standards and make those defects to meet current standards at that opportunity, the reconstruction project?
A. MR. KEMP: Judge, I object to the form of the question, because it asks for an opportunity, as oppose [sic] to a requirement and what we are concerned with here is a requirement or a duty placed upon the D.O.T.D. to upgrade the road under certain circumstances, not simply the opportunity to do so.
THE COURT: I didn't understand the question any way. Would you rephrase the question?
BY MR. ANDERSON:
Q. All right. Would you have thought that at the time that they entered into these reconstruction projects on Highway 628 that the highway department would have had a duty to implement any design standards or safety standards that were in effect at that time?
A. My understanding is if there is a reconstruction they are suppose to follow the current standards, yes.
Q. And Mr. Clary, would you tell the Court about the concept of clear zones?
A. The concept of clear zones is a concept that began in the '50s, and publications regarding the clear zone concept are included in the Highway Safety Design and Operating Practices Manuals beginning in the '60s through today and the object of the clear zone concept is to provide an unencumbered roadside area of such dimensions and such slopes that a vehicle leaving the road for whatever reason will be able to regain the traveled way, and according to the highway safety standards, that if this is provided, 80 percent of the cars that leave the road will regain the traveled way.
Q. And are those clear zones published in any publication?
A. Yes, they are published in the, what is currently called the Roadside Design Guide which was formally [sic] the Handbook of Highway Safety Design and Operating Practicing published by the United States Department of Transportation and the Federal Highway Administration.
Q. And is that something that is adopted by the Louisiana Department of Transportation and Development.
A. Yes, sir.
Q. And the current standards of the Roadside Design Guide includes [sic] a clear zone is also something that is adopted by the Department of Transportation and Development.
A. Yes, sir.
Q. And, Mr. Clary, on clear zone is a desired width — is a desired width of the highway or traffic volume or roadside geometry come [sic] into play or effect in connection with clear zones?
A. Say it again.
Q. The roadside geometry and traffic volume, are those entered into a formula of determining clear zones for certain areas?
A. The parameters for clear zone are whether you are in a cut or fill section, the classification of a highway by average daily traffic, the highway design speed and with all of these you can enter a chart and it will tell you what your clear zone is suppose to be. You are suppose to be in an area of a recoverable slope.
Q. Do you have in your possession any evidence or any information that would lead you to believe what the clear zone that was in effect for the area where this accident occurred?
MR. KEMP: Judge, I would ask that a foundation be laid to show that the publication or documents or whatever that he is going to refer to were adopted prior to the construction of this road, the same as before and that has not yet been done. I think he has identified them by name but hasn't gone into when they were published.
BY MR. ANDERSON:
Q. Mr. Clary, is a clear zone something that the clear zone concept that is published by AASHTO is that something that the highway department has a duty to follow or is that something that they have the discretion to follow and if so, would you explain the answer?
MR. KEMP: I would object to that, Your Honor, because that calls for a legal conclusion.
THE COURT: The objection is overruled.
BY THE WITNESS:
A. The clear zone concept is a safety concept that the highway department is suppose to take their accidents statistics and formulate a plan to eliminate spots that are hazardous. They are to, in their yearly analysis of all of their roads when they prepare their highway needs summary, that every mile of road is suppose to be categorized and if they have problem areas then they are suppose to try through a safety program and there is what they call a Highway Spot Program that you can actually reconstruct an area of road or remove hazards with federal money without having to reconstruct a whole area of highway. It is for the promotion of safety and it does not necessarily have to be done in connection with minimum design standards.
Mr. Clary's testimony does indicate that if there is a reconstruction of a highway, DOTD is supposed to follow "current" standards. Apparently, by "current" standards he means those existing at the time of his testimony. Even assuming that the work in 1964 was a reconstruction, there is nothing in Mr. Clary's testimony to indicate that these standards were in existence in 1964. In describing the clear zone concept, Mr. Clary points out that these ideas were developed in the "sixties through today." He does no identify exactly when they were developed. Given the fact that the plaintiffs totally failed to establish the existence of these standards at the time of the 1964 road work, that alone would normally be sufficient to justify a reversal of a finding of fault based on the applicability of those standards. But in addition, in the case of Beecher v. Keel, 645 So.2d at 670, the court noted that the clear zone standards were not in effect in 1968. Since there is no showing in the record that clear zone standards were in effect in 1964 and the jurisprudence indicates they were not in effect until after 1968, obviously these standards could not be applicable to a resurfacing of Highway 628 in 1964.
There is nothing in the law relative to clear zones which requires DOTD to cut down trees or obstacles on property which it does not own. DOTD could not cut the trees on land belonging to the United States, and they could not expropriate or buy this property without the consent of the United States.
NOTICE TO THE STATE — LA.R.S. 9:2800
La.R.S. 9:2800 states as follows:
A. A public entity is responsible under Civil Code Article 2317 for damages caused by the condition of buildings within its care and custody.
B. Except as provided for in Subsection A of this Section, no person shall have a cause of action based solely upon liability imposed under Civil Code Article 2317 against a public entity for damages caused by the condition of things within its care and custody unless the public entity had actual or constructive notice of the particular vice or defect which caused the damage prior to the occurrence, and the public entity has had a reasonable opportunity to remedy the defect and has failed to do so. C. Constructive notice shall mean the existence of facts which infer actual knowledge.
D. A violation of the rules and regulations promulgated by a public entity is not negligence per se.
E. "Public entity" means and includes the state and any of its branches, departments, offices, agencies, boards, commissions, instrumentalities, officers, officials, employees, and political subdivisions and the departments, offices, agencies, boards, commissions, instrumentalities, officers, officials, and employees of such political subdivisions. Public entity also includes housing authorities, as defined in R.S. 40:382(1), and their commissioners and other officers and employees.
The trial court based its judgment in part upon La.R.S. 9:2800. The trial court found the accident was caused in part by some broken limbs that had temporarily dropped into the plaintiffs' path of travel. It is obvious from the record and plaintiffs' own d contentions that this was a temporary condition. A temporary condition existing in the travelled portion of the roadway does not constitute a defect in the roadway as contemplated by La.C.C. art. 2317. A "defect" is some flaw or fault existing or inherent in the thing itself. Nicholes v. St. Helena Parish Police Jury, 604 So.2d 1023, 1027 (La.App. 1st Cir.), writ denied, 605 So.2d 1378 (La. 1992); Kyle v. City of Bogalusa, 506 So.2d 719, 726 (La.App. 1st Cir. 1987); Naylor v. La. Department of Public Highways, 423 So.2d 674, 681-82 (La.App. 1st Cir. 1982), writs denied, 429 So.2d 127, 134 (La. 1983).
We note that this court found La.R.S. 9:2800 unconstitutional in Rhodes v. State, Department of Transportation and Development, 94-1758 (La.App. 1st Cir. 5/5/95), 656 So.2d 650, writs granted, 95-1848 (La. 1/3/96), 665 So.2d 1173. However, this finding of unconstitutionality does not affect the La.R.S. 9:2800 issue in the present case because the Rhodes decision was rendered after the trial court's judgment in this case. Moreover, since Rhodes, there has been constitutional, legislative and judicial activity in this area. Louisiana Constitution article XII, § 10(C) has been amended by the legislature and vote of the people relative to sovereign immunity. In connection with that constitutional amendment, there was implementing legislation that has been interpreted by other circuits. See Ayers v. Brazell, 27,756 (La.App. 2d Cir. 12/6/95), 665 So.2d 694, Begnaud v. State, Department of Transportation and Development, 95-714 (La.App. 5th Cir. 2/14/96), 679 So.2d 113. Thus, the question of damages and whether there is any type of limited sovereign immunity available to the State, will have to be evaluated when and if this court ever reaches that question. However, in light of constitutional, legislative and judicial activity in this area since the time of the trial court's opinion in this case and the First Circuit's opinion in Rhodes, serious questions of retroactivity have come before the courts and the legislature may well impact on that determination.
When trees are outside the right-of-way, they are outside the ownership or "garde" of the entity charged with maintaining the highway. Accordingly, La.C.C. art. 2317 is inapplicable and simple negligence principles apply. To establish a breach of DOTD's duty to maintain safety for the motoring public, a plaintiff must show that a hazardous condition existed and that DOTD had actual or constructive knowledge of said condition, but failed to take corrective action within a reasonable time. Briggs v. Hartford Ins. Co., 532 So.2d 1154 (La. 1988).
The record merely shows that Highway 628 had a partial overhang of living trees on one side. ( See Appendix C). To impose liability on DOTD, therefore, the trial court must have determined that a partial overhang of living trees is a hazardous condition. This interpretation would require the entities responsible for highway maintenance to decimate the trees alongside many of the most beautiful rural roadways in the state. The jurisprudence has never classified a partial overhang of living trees as a hazardous condition.
Assuming the overhanging limb constituted a hazard or defect, DOTD would have to have notice of such a hazard or defect before it could be negligent for failing to remove such an overhanging limb. In the instant case, of all of the people who traveled Highway 628 the day of the accident, before and after it occurred, only one of them saw the offending tree limb. Thus, there is absolutely no evidence in the record to indicate that DOTD was in any way given notice of the limb which Thompson struck. Therefore, we find that the trial court erred in making a finding of liability against DOTD based on La.R.S. 9:2800 or simple negligence. DECREE
Finally, because we reverse the trial court's finding of liability against the State, it is not necessary to address plaintiffs' assignments of error regarding the amount of damages awarded by the trial court.
Therefore, for the foregoing reasons, the trial court judgments are REVERSED. The plaintiffs shall bear all court costs of the trial and appeal.
APPENDIX A
DEPARTMENT OF THE ARMY
NEW ORLEANS DISTRICT, CORPS OF ENGINEERS
P.O. BOX 60267
NEW ORLEANS, LOUISIANA 70160-0267
September 3, 1992
REPLY TO ATTENTION OF:
Real Estate Division
FILED IN EVIDENCE
Date: 9-17-92
DONNA BLADES
DEPUTY CLERK OF COURT
Mr. J. Thomas Anderson
Attorney at Law
P.O. Drawer 1937
Hammond, LA 70404
Dear Mr. Anderson:
This is in reference to the copies of maps given to you by this office relating to State Highway 628 located along the outside edge of the Bonnet Carre Spillway, St. Charles Parish, Louisiana.
The maps are true copies of the maps that we maintain as a part of our normal record keeping process.
Sincerely,
Thad J. Brown
Chief, Real Estate Division
Act Feb. 15, 1933.
[Public — No. 351 — 72D CONGRESS]
[H.R. 13523]
AN ACT
In reference to land in the Bonnet Carre Floodway Area.
Be it enacted by the Senate and House of Representatives of the United States of America. Congress assembled, That the proviso in section 4 of the Act for the control of floods on the Mississippi River and its tributaries approved May 15, 1928, "That any land acquired under the provisions of this section shall be turned over without cost to the ownership of States or local interests," shall not apply to the lands heretofore acquired or that may be hereafter acquired in connection with the construction, maintenance, or operation of the Bonnet Carre Spillway and Floodway. The Secretary of War is hereby authorized to grant to any citizen, association, railroad, or other corporation, State or public agency thereof, rights of way, easements, and permits, over, across, in, and upon said lands for railway, highway, telephone, telegraph, and pipe-line crossings, and other purposes. The grants issued in pursuance of this authority shall be under such terms and conditions as the Secretary of War may deem advisable for the protection of the public interests, and may be perpetual or temporary in his discretion.
Approved, February 15, 1933. INSTRUMENT.
The State of Louisiana is hereby granted, pursuant to the provisions of an Act of Congress approved February 15, 1933. (Public No. 351 — 72d Congress), the light, power, and privilege to construct and maintain highways on lands of the United States?? the landside toes of the Bonnet Carre Spillway Side Levees as shown on the plans attached hereto, subject to the following conditions:
Editor's Note: Word illegible in original.
1. That the construction and maintenance of said highways shall be subject to the supervision and approval of the District Engineer, Engineer Department at Large, in charge of the locality.
2. That this instrument does not authorize the use or occupation of railroad right of ways which have not been acquired by the United States.
WITNESS my hand this 4th day of August, 1933.
/s/ Douglas MacArthur ACTING Douglas MacArthur Acting Secretary of War.
STATE OF LOUISIANA
OFFICE
BOARD OF STATE ENGINEERS
207 NEW ORLEANS COURT BUILDING
New Orleans, La.
July 10th, 1933.
Lt. Col. J.N. Hodges,
U.S. District Engineer,
Second New Orleans Engineer District,
Foot of Pryterie St.,
New Orleans, La.
My dear Colonel: —
It is contemplated to use the C.C.C. troops now stationed at La Flece, La., for the construction of highways on both sides of the Bonnet Carre Spillway levees from the Mississippi River to the New Orleans-Hammond Highway.
These highways will have a 24 ft. crown and will be built approximately 3 feet above the natural ground surface.
It is understood that there is suitable space for the construction of these roads between the land toe of the levees and the edge of the right-of-way acquired by the United States for the construction of these levees thruout the dry land section, and permission is hereby requested to construct these roads in this area. Permission is also requested to utilize the top of the wide hydraulic fill in the swamp section for the same purpose.
Maps in quadruplicate showing the location of the center line of the highway, together with profile of typical cross sections, are sent herewith.
Yours very truly,
/s/ Signature
Harry Jacobs, Chief State Engineer.
ON REHEARING
We grant rehearing in this case for the limited purpose of addressing the issues raised by the plaintiffs in their application for rehearing. Our reversal of the trial court judgment in our original opinion remains the same.
The plaintiffs argue that this court failed to apply the standards set forth in Stobart v. State, through Department of Transportation and Development, 617 So.2d 880 (La. 1993), in reversing factual findings of the lower court. We did not apply the Stobart standard to this case because we found legal errors which so interdicted the fact findings of the lower court that we conducted a de novo review, in accord with Ragas v. Argonaut Southwest Ins. Co., 388 So.2d 707, 708 (La. 1980). Those legal errors are set forth in our original opinion and need not be fully repeated herein.
A short history of Louisiana Highway 628 is helpful for an understanding of this case. From the testimony, the maps, the Exhibits and other documents in the record, it can be determined that a road existed along the eastern banks of the Mississippi River between Baton Rouge and New Orleans for quite some time. This was one of the earliest roads in Louisiana, and apparently at one time was named "Route 1." (A legal servitude along the banks of navigable rivers has been part of our civil law for centuries. See La.C.C. arts. 665 and 666.) Some maps denote this road as old Highway 61, although the date of its designation as U.S. Highway 61 does not appear in the record. At some point in time a decision was made to construct the Bonnet Carre Spillway (a project carried out by the United States Corps of Engineers) on land apparently ceded to the United States for the purpose of relieving flood pressure from the Mississippi River on the City of New Orleans. The configuration of the floodway, with the Mississippi River on one end and Lake Pontchartrain on the other, necessitated the destruction of a portion of old Route 1. It also meant that the two sections of the old river road would dead-end into the levees of the new spillway. Apparently, it was because of the dead-ending that the Louisiana Highway Commission requested permission from the United States to build a new section of road which would run from the Mississippi River to intersect with a new highway soon to be constructed. Thus, Highway 628, as it came to be known, consisted basically of two sections. The old section runs from the town of LaPlace along the side of the Mississippi River to the town of Montz and thence to the levee at the Bonnet Carre Spillway. The new section runs north from the river and connects into U.S. Highway 61. This latter section is only new in relative terms because apparently it was constructed sometime around 1933, on or about the same time both the spillway and the elevated section of new U.S. Highway 61 traversing the spillway were constructed. We will refer to the older portion of Highway 628 along the Mississippi River as the Gypsy Levee section and refer to the newer portion as the Bonnet Carre Spillway section.
See La.R.S. 48:191. In its listing under State Rural Major Collector Routes, La. Highway 628 is described as running "From LaPlace via Montz to La-US 61 near the west levee of Bonnet Carre Spillway."
THE GYPSY LEVEE SECTION
One of the legal errors made by the trial court in this case was its reliance upon documents which did not pertain the correct section of Highway 628. One of these documents relied upon by the trial court is a contract contained in Exhibit 40. A full analysis of Exhibit 40 is important to an understanding of this case. The first six pages of Exhibit 40 which plaintiff counsel referred to as "records pertaining to Highway 62802" are two copies of a standard contract between the Louisiana Highway Commission (represented by W.T. Peterman, Chairman), the Pontchartrain Levee District Board (represented by Hunter C. Leake), and Robinson Construction Company. It was agreed at trial that the correct date for the contract is August 16, 1923. The contract states that it is for repair work on the Gypsy Levee Section of the Baton Rouge-New Orleans Highway La. Route 1 (Project # 317). The contract additionally sets out the amounts to be paid and the compilation dates. The parties, dates, amounts, and other variable information are filled into the blanks in longhand on the first copy of the contract and typed into the blanks on the second copy in Exhibit 40. The exact nature of the work is either not written into the contract or is in those portions which are illegible. The width of the right-of-way of the highway is not an issue in the contract, but in part of the boilerplate language the following is found:
The first six pages of Exhibit 40 are attached as Appendix A. [Editor's Note: Not Reproducible.]
It is further understood and agreed that the center line of said highway is as shown on plan and that the right-of-way extends thirty (30) feet each side of the center line. If the right-of-way should be insufficient for the grading and for the side slopes in cuts or fills the Board of the Pontchartrain Levee District will provide any extra right-of-way necessary for the grading slopes and barrow pits, etc.
This quoted language refers to a plan, but no plan is attached to the contract in Exhibit 40. The United States is not a party to this document (note that the Bonnet Carre project did not come into being until 10 years later.) The request by the State to the United States government for permission to construct the road at issue in this case (later designated Highway 628) was not made until 1933.
THE BONNET CARRE SPILLWAY SECTION
As pointed out in our original opinion, the plans attached to the 1933 request (upon which the approval was based) show a proposed road of 30 feet for the project. Logically the section of road running from the Mississippi River generally north to U.S. Highway 61 was built sometime between 1923 and 1964 but, remarkably, no records of construction or repair for this significant period are found in the record.
The relevant portion of that Exhibit is attached as Appendix B.
The plaintiffs claim on rehearing that the defendant did not object to the introduction of Exhibit 40. The record shows in pertinent part as follows:
MR ANDERSON: At this time, Mr. Kemp, if you want to — I would like to offer, introduce and file into the record those records that you made available to me through the request for production and Mr. Clary has relied upon, if you would want to put those in by way of joint Exhibits at this time. I would offer to do that. Your Honor, at this time I would like to offer, introduce and file into the record the highway construction records pertaining to Highway 62802 which is in District 2 of the D.O.T.D. running from the St. Charles-St. John parish line to the Highway 61. Mr. Kemp has agreed not to object to those records with the exception of records dealing with the Gypsy Setback in the town of Montz and the contract dealing with the railroad crossings, is that correct? (Footnote added.)
Exhibit 40.
MR. KEMP: That's correct.
Later in Mr. Clary's testimony, he is asked to give an opinion as to the width of the right-of-way on Highway 628, to which Mr. Kemp objected as being a legal conclusion and beyond the scope of Mr. Clary's expertise as a civil engineer. This objection was overruled by the court. Mr. Clary then went on to refer to the contract of August 16, 1923, as the basis of his 60 foot right-of-way claim. Later again, while on cross-examination, Mr. Clary conceded that the United States owned the property, and had only given the State permission to construct and maintain a highway. Following that testimony, Mr. Clary conceded that Exhibit 40 is the contract of 1923 and that the United States Government is not a party to that contract.
Analysis of the 1923 contract makes it clear that this contract involved the (Gypsy Levee Section initially objected to by Mr. Kemp. The thrust of the initial objection is that this portion of the Exhibit (the first six pages relied on by the expert) did not involve the United States. This should have called everyone's attention to the fact that these pages involved the old River Road ten years before the construction of the Bonnet Carre Levee section. The first six pages of Exhibit 40 are the ones involving the Gypsy Levee section. We consider irrelevancy to have been the proper objection to the introduction of Exhibit 40. The irrelevant portions of Exhibit 40 should have been excluded. To the contrary, the court in its reasons of judgment, found (referring to the August 16, 1923 contract in Exhibit 40):
Highway 628 was built upon land acquired by the United States for the construction of the Bonnet Carre Spillway. By virtue of 33 U.S.C. § 702, the Secretary of War was authorized to grant to the State rights-of-way for highway and other purposes. Joint Exhibit 41 reflects that on August 4, 1933, the State was granted the right and privilege to construct and maintain highways on the lands of the United States along the "toes" of the Bonnet Carre Spillway side levees. Again referring to joint Exhibit 31 and transcript page 33, in connection with that grant, the chief state engineer wrote to the U.S. District Engineer a letter concerning this agreement authorizing the State to construct a road from the toe of the levy to the edge of the Corps of Engineer's property. A contract was then [emphasis added] entered into between the State and the Pontchartrain Levy District Board and the Louisiana Highway Commission where it was agreed that Highway 628 was to extend thirty feet (30') on each side of the centerline.
The trial court obviously believed, as evidenced by its use of the word "then," that the 1923 contract followed, rather than preceded, the grant of servitude or implied dedication contained in the McArthur letter. The trial court also erroneously believed that the 1933 owner of the land (the United States) was somehow involved in the 1923 contract. The refusal to exclude the 1923 contract relative to the Gypsy Levee setback was the legal error which interdicted the fact finding of the trial court.
Once it has been determined that the right-of-way for this road is 30 rather than 60 feet, the plaintiffs' claim of negligence takes on a whole new meaning. The plaintiffs did not contend at trial, or even on appeal, that the right-of-way was anything less than 60 feet. The plaintiffs' expert's own drawings show that if the right-of-way is 30 feet, the trees in question belong to and are in the custody of the United States. The plaintiffs' basic allegations and attempts of proof were aimed at showing that DOTD did not properly maintain the shoulders and allowed trees to grow in the claimed 60 foot right-of-way. The record shows that DOTD actually maintained beyond its right-of-way. The paved road width was 20 feet and mowing and clearing was done seven feet (the width of the mowers) on either side, which is two feet beyond its five foot right-of-way on either side. There is no evidence showing the trunks of trees within the 30 foot area.
If these trees had actually been in the State's right-of-way, the State would have had an entirely different duty. The State does not need permission to cut or trim its own trees. The jurisprudence cited in the original opinion discusses the trimming of trees belonging to another.
Herein, we do not delve into predial servitudes as defined by La.C.C. art. 646 or disagreements of neighboring landowners under La.C.C. art. 688. Limited personal servitudes are real rights that confer on a person limited advantages of use or enjoyment over an immovable belonging to another person. Likewise, the State does not own the land under this road; it only has a servitude. See A.N. Yiannopoulos, 3 La. Civil Law Treatise, Personal Servitudes, § 223, p. 448-449 (3d ed. 1989). Because permission by the landowner, the United States, was given to construct a highway for public use, we found in our original opinion that there was an implied dedication. In 2 La. Civil Law Treatise, Property, § 98, pp. 210-211 (3d ed. 1989) Yiannopoulos says:
The essential feature of implied dedication is the absence of requisite formalities. However, there must be, 'a plain and positive intention to give and one equally plain to accept.' Thus, the two indispensable elements of implied dedication are: proof of a positive intent to dedicate, frequently qualified as 'offer', and proof of acceptance by the public. The offer may be implied from facts or acts of the owner that exclude any other rational hypothesis except an intent to dedicate and the acceptance may be inferred from actual use of the property by the public. (Footnotes deleted.)
This test squarely fits the facts of this case. Mr. Thompson's complaint that no document was recorded in the public records supports our holding that there was no statutory dedication, which has other requirements.
The plaintiffs argue that the State can trim trees belonging to another without seeking permission of the owner if the trees pose a nuisance or an immediate hazard. However, this is incorrect. The cases on this issue cited in our original opinion, Adams v. State, Department of Highways, 357 So.2d 1239 (La.App. 2d Cir. 1978) and Harkness v. Porter, 521 So.2d 832 (La.App. 2d Cir. 1988), stand for the proposition that branches which intrude into the traveled portion of the roadway cannot be removed unless they are a nuisance or pose an immediate threat to the traveling public. Only tree branches which present immediate danger can be removed immediately, without seeking the owner's permission or a court order. However, the determination of nuisance is a judicial one. Adams, 357 So.2d at 1241. In both the Adams and the Harkness cases, defendants cut trees and were condemned to pay damages for trespass because the court did not find that either nuisance or immediate peril existed. The Adams case relies upon Oglesby v. Town of Winnfield, 27 So.2d 137 (La.App. 2nd Cir. 1946). In Oglesby, the court correctly enunciated the different procedures to follow when a tree is a public nuisance rather than an immediate hazard. The Oglesby court stated at 27 So.2d at 140:
Unless a nuisance does in fact exist, no one, not even the municipality in which it is located, is protected against suit for damages for voluntarily removing that which is deemed to be the nuisance. The safe rule is to have the alleged nuisance judicially declared to be a nuisance and its abatement procured through processes of government orderly exercised. It is only in cases of emergency that abatement of a nuisance may be accomplished without prior adjudication of a court authorizing such to be done, and even in such cases, the abatement is done at the actor's risk and peril.
The claim of nuisance need only be addressed when dealing with property of others. It is not an issue for trees that are owned by the State. Since it has never been the plaintiffs' contention that these trees belonged to another (the United States), the claim of nuisance makes no sense.
There is no question that DOTD owes a duty to keep the roads clear. If a tree or a branch falls into the traveled portion of the road, DOTD owes a duty to remove it and make the roadway safe for travelers. This duty begins when the State has knowledge of the hazard, regardless of who owns the tree limbs, other objects or material on the roadway.
There was no attempt to prove the State had knowledge of this particular limb dangling onto the roadway. Indeed, Mr. Thompson himself, on his way to work earlier that same day, passed under the very spot where the limb impacted his car on the way home that afternoon, yet he did not see the tree limb intruding onto the road. He was in the passing lane of the road at the time of impact with the tree limb, which was the same side of the road he traveled on that morning on his way to work.
Plaintiffs' expert claimed to have found this limb 16 months after the accident. This leaves on the limb which he found were still green.
There is no general duty on the part of the State to clear the highways of overhead objects which do not present a danger to motorists. Many objects go across or above the streets and highways of our State. Power and telephone lines, traffic lights and signs, and other lighting devices hang harmlessly and benignly overhead. These objects provide safety or other useful functions. To remove all overhanging trees or objects which exist in thousands of locations would not only be prohibitively expensive but entirely unnecessary. As long as these objects are insulated from the roadway by height they pose no hazard. If trees belonging to another do not pose an immediate hazard, DOTD must request the owner's permission or seek court authority to remove them. Since the plaintiffs have never contended that these trees belonged to another, they never attempted to prove that DOTD was negligent in failing to take seek an owner's permission or seek court authority to remove them.
Plaintiffs argue that this court erred in ignoring Exhibit 25, a highway needs summary. This document (which was objected to by the State as being irrelevant) is an inventory taken by the State for purposes of highway maintenance. It cannot, and does not, create a servitude against the United States, the owner of the property. See La.C.C. art. 642. An employee of the State cannot create a servitude, make a dedication, or change the size of a right-of-way on land owned by the United States by filling in a blank on a DOTD highway needs summary entitled "apparent right-of-way."
Another argument made in the application for rehearing is that the evidence of nineteen run-off-the-road accidents along a control section of Highway 628 during a seven year period served as evidence that the shoulder was defective. However, there was no evidence whatsoever linking these accidents to tree limbs. Further, no comparison evidence whatsoever was given to show that an average of 2.5 accidents per year was an unusually high number for this type of highway.
The last page of this Exhibit is attached as Appendix C. In introducing this evidence, in response to the State's argument that the list was irrelevant, Mr. Thompson's attorney stated:
I am not offering this at this time to prove the truth of the matter asserted therein. So therefor this is an objection to hearsay. These are offered just to show the Highway Department had notice of accidents occurring on this particular control section and what I [sic] going to really point out is that they had notice of run off the road vehicular accidents and that is what I have laid the foundation for and that is what I want to prove notice.
Plaintiffs' case is not in negligence, so knowledge is only an issue under La.R.S. 9:2800. Knowledge of accidents not related to some road defect are totally irrelevant. A review of the Exhibit fails to show any connection to trees, branches or any other type of road defect. The nature of the road itself, which consists of a wide levee on one side, and no businesses on the other side, as shown on the maps in evidence, lends itself to run-off accidents. We are further aware of a large industrial plant (the Norco refinery) in the area leading to the obvious utilization of this road by employees thereof at all times of the day or night.
Although the trial court did not rely upon La.R.S. 48:220.1 in its reasons for judgment, Mr. Thompson continues to argue that La.R.S. 48:220.1 is somehow applicable to this case. As pointed out in our original opinion, there are several reasons why La.R.S. 48:220.1 is not applicable and why Mr. Thompson's interpretation thereof is flawed.
First, Highway 628 was constructed in 1933 and La.R.S. 48:220.1 was not enacted until 1976. As clearly pointed out in our original opinion, the courts of this state have refused to give retroactive effect to this statute. Second, Louisiana Revised Statute 48:220.1 applies only to determine the width of the servitude only in situations where the Department of Highways takes over an existing road from a parish or municipality. A parish or municipality is not involved in the case herein.
Further, the use of property is an element of ownership. Louisiana Constitution Art. 1, § 4 provides in pertinent part:
Property shall not be taken or damaged by the state or its political subdivisions except for public purposes and with just compensation paid to the owner or into the court for his benefit.
Mr. Thompson and his expert would have us interpret La.R.S. 48:220.1 to mean that in those instances where DOTD has constructed a highway without a recorded conveyance or a dedication of any kind (that is, a compete trespass) DOTD shall have a right-of-way if the highway exists for a period of three years. That is not the meaning of this section, and such an unconstitutional interpretation is clearly not the intent of this legislation. No jurisprudential support has been advanced by the parties or is found in our research for such a position, particularly as to land belonging to the United States.
Further, Mr. Thompson argues that we were clearly wrong when we held there was a "recorded conveyance or dedication." Mr. Thompson apparently believes that we held that the facts of this case constituted a dedication recorded in the public records. On the contrary, it was our holding that, under the facts and circumstances of this case, wherein the United States, by virtue of a letter signed by General McArthur agreeing to the construction of the road, created an implied dedication. Professor A.N. Yiannopoulos, in his scholarly work, 2 La Civil Law Treatise, Highways, Roads, and Streets, § 95, pp. 204-205 states:
The Louisiana Civil Code provides modes by which an owner may transfer to the public the ownership of lands or establish servitudes, but it does not deal with dedication to public use. As a matter of fact, Louisiana has never enacted comprehensive legislation dealing with dedication, and courts have had to struggle over the years to develop an impressive body of jurisprudence governing the requisites for, and the incidents and effects of, dedication to public use.
Under the Civil Code, an owner has always been able to dedicate land to public use in accordance with the provisions governing gratuitous dispositions. However, this faculty has not been frequently used. Since early in the nineteenth century question has arisen whether dedication may be effected in a less formal way; and, in the course of almost two centuries, several forms of dedication have become established.
One mode of dedication is by virtue of a written act, whether in notarial form or under private signature. This mode of dedication is known as "formal dedication". A second mode of dedication is by virtue of the sale of lots with reference to a plan showing streets, squares, and other public places or by an informal offer to the public to use a road and acceptance by the public by actual use. This is known as "implied" dedication. A third mode of dedication is by compliance with the provisions of R.S. 33:5051, which impose on subdividers of land certain duties, including the filing of plats and the recordation of a formal dedication. This is known as "statutory" dedication. Finally, a fourth mode of dedication is by virtue of R.S. 48:491, that is, the maintenance of roads, streets, and alleys by the public for three years. This is known as "tacit" dedication.
[Emphasis added; footnotes omitted.]
As we have previously pointed out, tacit dedication is available only to local and municipal governments and does not fit the facts of this case. The requirements of a statutory dedication were not met in this case because there was no filing of a plat plan and recordation of a formal dedication. There is no document in notarial form or under private signature which conveys a right-of-way or servitude to the state and, thus there is no formal dedication under the facts of this case.
The remaining type of dedication is the implied dedication. It can be accomplished by two modes. The first type of implied dedication occurs when a sale of a lot with reference to a plat plan showing streets, squares and other public places. That certainly does not apply to the facts of this case. However, the second form of implied dedication, an informal offer to the public to use a road, and acceptance by the public by actual use, is applicable to the present case.
As discussed by Yiannopoulos in the aforementioned treatise, in many cases our courts have found implied dedications in urban settings and have liberally construed in favor of the concept of dedication for public use. One of the earliest such cases, City of New Orleans v. Gravier, 11 Mart. (O.S.) 620 (La. 1822) indicates that there can be an implied dedication without any written act at all. Again, the concept of public recordation has no applicability herein. Further, Yianoppoulos states the following in 2 Louisiana Civil Law Treatise, Highways, Roads, and Streets, § 98, p. 210:
[A]fter much litigation, it became settled that dedication to public use may be accomplished without any express or written act. This mode of dedication came to be known, in contradistinction with formal dedication, as "implied dedication."
The essential feature of implied dedication is the absence of requisite formalities. However, there must be, "a plain and positive intention to give and one equally plain to accept." Thus, the two indispensable elements of implied dedication are: proof of a positive intent to dedicate, frequently qualified as "offer", and proof of acceptance by the public. The offer may be implied from facts or acts of the owner that exclude any other rational hypothesis except an intent to dedicate and the acceptance may be inferred from actual use of the property by the public.
[Footnotes omitted.]
Based on this reasoning, we found that the consent given by the United States to construct the road on its property and the actual construction and use of that road by the state of Louisiana constituted an implied dedication. Since there was a dedication, the provisions of La.R.S. 48:220.1 do not apply to this case.
In conclusion, we conclude that our original opinion, although vigorously attacked by plaintiffs in their application for rehearing, was correct.
PARRO, J., concurs.