BOARD OF LEVEE COM'RS.
road & Banking Company of Georgia, through its president and receiver, was not competent to borrow money which, as stated in the petition, was to be used on account of the Central Railroad & Banking Company, and to contract to pay the expenses of the committee selected by the corporation, and acting for it in the rehabilitation of the properties, and the refunding of its indebtedness. The court therefore authorized the contract proposed by the receiver and president of such corporation for it, except as to the expenses provided for in said sixth clause, the court reserving the right to pass upon these expenses thereafter, and this application is presented for that purpose. It is true, however, that since the order of January 10, 1893, was made, the attitude of the parties has been greatly changed. Since the Farmers' Loan & Trust Company of New York has filed a bill on its mortgage, and the receivership existing under the former proceeding has been extended to that bill, and modified so as to enable that creditor to reach certain equitable assets of the Central Railroad & Banking Company through the receivership. Other creditors have also intervened, or filed collateral proceedings upon liens against various properties of the Central Railroad & Banking Company of Georgia. Whether, in view of the changed aspect of the receivership, it would be competent for the court to allow these expenses, it is now unnecessary to decide. . It is sufficient to say that these changes in the litigation have introduced new parties into the suit, with new equities, and that they are entitled to be heard upon this question. For these reasons the allowance of these expenses will not be made, unless upon notice to all parties to the record, or until the final decree of the cause; and it will be so ordered. In open court, this 17th day of April, 1893.
HART v. BOARD OF LEVEE COY'RS FOR P ARlsn OF ORLEANS. (Circuit Court, E. D. Louisiana. No. 12,168. 1.
EMINENT DOMAIN-LEVEES-SERVITUDE OF RIPARIAN LANDS.
February 1, 1893.)
Const. La. 1879, art. 156, providing that private property shall not be taken or damaged for public purposes without compensation, has no application to the location of a levee on land by the proper authorities, for such location makes the land "riparian," although it is not actually washed by the river, within the meaning of Civil Code, § 457, which provides that "on the borders of the Mississippi and other navigable str('ams, where there are levees established according to law, the levees shall form the banks;" and as such it is subject to the servitude of having a levee placed upon it without compensation to the owner. Bass v. State, 34 La. Ann. 498, followed. Const. La. 1879, art. 214, gives to the levee commissioners the "supervision 01 the ('rection, repairs, and maintenance of the levees in said districts," and power to tax for that purpose property within the alluvial portions of said districts, subject to overflow. Held, that the servItude ot having levees placed upCln such lands without compeneation is coextensive with the liability to such taxation.
t. SAME-EXTENT OF SERVITUDE.
In ]:quity. Bill by tTu4ah Hart against the board of levee commissioners for the parish of to enjoin them from constructing a levee on the cOD.\plainant's land without compensation. Injunction denied. Farrar, Jonas & Kruttschnitt, for complainant. ,Bernard McCloskey, for defendants. BILLINGS, District· Judge. The ql1estion submitted :is whether the levee COmmissioners have the right to construct the levee upon the cbmplaina.nt's land' without previous compensation fOi' damages. Article156 of the oonstitution of 1879 :is as follows: "Private property sJ1all not be taken or damaged for purposes without just and adequate compensation being first paid." This is a limitation upon the on the part of the state of the right of eminent i:lomain. That right, is the superiOi' (eminent) domain or dominion,of the state over aJl the property within, the state, by which it is entitled, ,through constitutional agencies; to appropriate any part llecessa;ry to the public use. By this article of the cohstitl1tionthe' 'right of eminent domain is limited So ,that it cannot be exercised by the, state through any agency by the or damaging of property withQut previous If this was the wltole of the case, the complainant would be, entitled to an injunction,for his land is about ' to ,be damaged, as' there has been noprevi()us compensation. But wherever the taking or damaging of property is merely the enforcementofa servitudewhich that property o""es, or to which it is subjed, there is no ex;ercise of the right of. erp.inent domain, and the limitation making the compensation a . condition to be previously perforined has no application; for if the land or the owner is about to be compelled to submit to orily an obligation by the law impressed upon property by the original grant, or by a statute under which it has been acquired or held, and inof the right of eminent domain, there is no propriety in c6nsi&:J.ring whether a preVious'c'ompensation has been paid, for of any is due. no The question in this case is narrowed down to whether the land of the complainant owes the servitude of having the levee placed upon it. If it does, he is entitled to no relief. If it does not, he must have the injunction. There is a vast amount of learning con· cerning,tb,isquestion as related to lands located on rivers,-the learninlfOfthe civilians, and the lea.rning of the .common law. In Hollingsworth v. Parish of Tensas, 17 Fed. Rep. 109, the court dealt with the authority to locate levees as a question relative to an exercise of the right of eminent domain. In an unreported case (EI.dridge \T., Ehgineersl ) in the western district of this state, Mr. Justiee Lamar and Judge Pardee held, in substance, that the placing of levees upon riparian lands was but SUbjecting them to a servitude which they owed. As to riparian lands,this last is the view of the supreme,couJ.'t.in Bass,v.State, 34 La. Ann. 498: In the case before 'the cOUftltis conceded by'the complainant that riparian lands are
'No oplIiiori filed.
BART V. BOABD OF LEVBB 00)('··
subject to a servitude as to levees which makes it unnecessary to make any compensation; but he contends that, as to those lots owned by him which do not abut or lie upon the river, they, not being riparian, owe no such servitude, and there must be previous compensation. Before considering the question at is'sue, it may be observed that in Morgan v. Livingston, 6 Mart. (La.) 235, Judge Martin says that the servitude was impressed upon the riparian lands in the original grant from the Spanish government. It would seem that, if the large tracts thus originally granted by the sovereign .had this servitude impressed upon them, the dividing the:rn, into smaller tracts or lots would not relieve from this servitude evEW those lots which were separated from the river by other lots. The servitude would remain upon each and every part as it did upon the whole. But there is a simpler view which, it seems to me, disposes of the wh91e question. Those lands are riparian which actually extend to the river; that is, which come down to the banks of the river. Now, since 1825 the banks of the Mississippi river have been defined to be as follows: Civil Code, art. 457, provides:
"The banks of a river or stream are understood to be that whlchcontalns in its ordinary state of high water; fQr the nature of the banks does not change, although for some cause they may be overflowed for a time. Nevertheless; on the borders of the Mississippi and other navigable streams, where 1Ihereare levees established according to law, the levees shall form the
1825, and were acquired by the complainant under this rule or law of definition. It follows that, no matter what would be the law -in other states, in Louisiana, so far as relates to the Mississippi river,
The lands of the complainant have been bought and sold since
the levees established according to law are the banks. Wherever the levees are located, there are the banks of the river. It is conceded that the proper levee authorities have located this levee upon the complainant's lots., Therefore the proper authorities have de· termined that the present bounds of the river bring it to the land of the complainant,and it is in the strictest statutory sense "riparian." In other liltates the river comes to land only when by the flow QJ its water it touches the soil or earth which composes it. In this state, by law and according to legal intendment, the Mississippi river touches land when its artificial banks or levees touch it. Under the operation of this statute the complainant's land is riparian. It is as if the statute had said: "Whenever the lands of any person are adjacent to the artificial banks of the Mississippi river, they are to be deemed and held to be adjacent to the river itself." This would make the land of complainant, upon his own showing, ex vi termini riparian, and subject to the servitude. When it is considered that the Mississippi river is such a vast body of water, continually changing its bed or channel, not alone by abrupt movements, but by those insidious and impalpable changes which require new banks to be built to protect .not alone the land immediately adjacent, but that lying in the rear over which the floods, if unrestrained, would sweep ,and flow, it is seen. how wise, and, at the same time, how just, is the v..54F.no.4-36
statutorydeterniination of 'the ba.nks of the Mississippi river, a.nd consequently the statutory definition of what shall be "riparian lands." This definition of the banks seems to have been adopted from an early period as being the controlling direction as to what courts shall consider the bed of the Mississippi river. As an ex· ample, in Henderson v. Mayor, 3 La. 567, the court say:
"The only question· remaining on this point relates to what must be COIlo sidered lUI the banks of the Mississippi. To solve this question, we need only refer to the. Louisiana Oode. The article 448 defines what is meant by the bank. of.a river generally;., and is in relation to the shores of the Mississippi. It is there declared tha,t, where there are. levees, the levees shal1 form the banks. According to this definition, all the space between the levees lUid the natural banks of the river at low water, which, in most places, is annually inundat(!d ata certain selUIon of the year, must be alternately a part of the bed or a part of the bank, according to the periodical changes between the highest and lowest stages of the water."
In Bass v. State, 34 La. Ann. 498, 499, the supreme court, through the. chief jU$tice, reaffirmed this doctrine. The state board of engineers, including the city engineer, had l0cated the levee of the Mississipi river upon the complainant's lots. They became in law as truly riparian as if the Mississippi river, as it fiowed, came in physical contact with them. They are riparian. If riparian, the complainant· conceded the servitude, and that compensa· tion is not l;iprerequisite to the of the levee. It is true that the eighth section of Act No. 93 of 1890, under which the levee board of this district is created and is acting, gives to that body the authority to expropriate land; but, as it seems to me, that power is not exercised nor is it needed in the location of a levee. That may be done without any expropriation, for the obligation to suffer or per· mit the levee has been impressed upon and inheres in the land. The power to expropriate was given to the board in order that it might obtain earth for building levees, if necessary, ,from places outside the district, or beyond the extent of the servitude. In precise accordance with this view, the constitution of 1879 (article 214) delegates to the levee commissioners of the various levee districts the "supervision of the erection, repairs, and maintenance of the levees in said districts;" and to that effect they may impose a tax upon the taxable property situated within the alluvial portions of said districts subject to overflow. As it seems to me, the territory subject to the servitude is coextensive with the territory declared subject to the tax. All the lands within the alluvial portions of the districts subject to overflow may be taxed for the levees, and the law and the reason of the thing subject the same extent of land to the servitude. With reference to the Mississippi river, the obligation to submit to the location of levees-the servitude that is being consideredhas a much greater geographical expansion or extent than the ordinary obligations with reference to smaller streams. The obliga· tions of the proprietor of land with. reference to ordinary streams ilpring, as do the injuries, from the abrasion of the stream and the <lhange of its bed; but the obligations of the proprietors of lands lying upon or in the vicinity of the Mississippi river originate, as do
SEYMOUR V. HENDEE.
the dangers,not from mere abrasion of the earth and the change of the channel, but from the fact that the body of the stream is so vast, and the bulk of the water so imineasurable, that the inundation and devastation are threatened upon all the low-lying lands, whether they be immediately proximate to the river or miles distant. The forced diffusion of the danger from a cause acting so resistlessly has caused the statute to impress upon the lands a servitude for a common protection equally extended. My opinion, therefore, is that, the levees of the Mississippi having been located by the lawful authorities upon the complainant's lands, notwithstanding their re·· moteness from the natural bed 9f the river, they are by statute wisely made riparian, and subject to the levee servitude, which dis· penses the defendants from making compensation for the dam.age which the location of the levee may cause to complainant. The injunction must therefore be refused.
SEYMOUR v. HENDEE et aI. (Circuit Court, D. Vermont.
March 6, 1893:)
A mere understanding between a principal and BUl'ety that R part of certain bonds of the principal held by a bank shall be held for the seCurity of the surety does, not operate as a pledge when none of the bonds are delivered for that purpose either to the bank, for the surety, or to the surety.
In Equity. Suit by Horatio P. Seymour against George W. Hendee, receiver, and Bradley B. Smalley. Bill dismissed. Wilson & Hall, for orator. Albert P. Cross and F. W. McGettrick, for defendant Smalley. Geo. W. Hendee, pro se. WHEELER, District Judge. This cause has been heard on bill and answers. The answers in such cases are taken as true. The bill is brought to recover bonds or their avails, alleged to have been pledged to a surety on notes to the orator, held by the defendant .Hendee as receiver of a national bank, and sold to the defendant Smalley, being a part of a lot pledged to the bank. There may have been an understanding between the principal and surety that a part of the bonds held by the bank should be held for the security of the surety; but none were, according to the answers, delivered to the bank for that purpose, or for the surety, or to the surety. "It is of the essence of the contract that there should be an actual delivery of the thing to the pledgee. Until the delivery of the thing, the whole rests in an executory contract, however strong may be the engagement to deliver it; and the pledgee acquires no right of property in the thing." Story, Bailm. § 297. As the surety acquired no right to the bonds, the orator could be subrogated to none. Bill 4ismissed.