Delhi Plantation, LLC v. Fifth Louisiana Levee District

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

22-666

DELHI PLANTATION, LLC, ET AL

VERSUS

FIFTH LOUISIANA LEVEE DISTRICT, ET AL

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APPEAL FROM THE
SEVENTH JUDICIAL DISTRICT COURT
PARISH OF CONCORDIA, NO. 50997
HONORABLE KATHY A. JOHNSON, DISTRICT JUDGE

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SHARON DARVILLE WILSON
JUDGE

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Court composed of Elizabeth A. Pickett, Sharon Darville Wilson, and Charles G.
Fitzgerald, Judges.

REVERSED AND RENDERED.

V. Russell Purvis
Bradley Burget
SMITH, TALIAFERRO & PURVIS
ATTORNEYS AT LAW
P.O. Box 298
Jonesville, LA 71343
(318) 339-8526
COUNSEL FOR PLAINTIFFS/APPELLEES:
Delhi Plantation, LLC
Allred Land Company, Inc.
Richard Calvin Alwood

Patrick B. McIntire
OATS & MARINO
Gordon Square, Suite 400
100 East Vermilion Street
Lafayette, LA 70501
(337) 233-1100
COUNSEL FOR DEFENDANT/APPELLANT:
State of Louisiana Department of Transportation
and Development

John D. Crigler, Jr.
James E. Paxton
BISHOP, PAXTON, CRIGLER & MOBERLEY, APLC
P.O. Box 97
St. Joseph, LA 71366
(318) 766-4892
COUNSEL FOR DEFENDANT/APPELLANT:
Fifth Louisiana Levee District

WILSON, Judge.

This case concerns the appropriation of a portion of land owned by

members of the Alwood family (Plaintiffs), by the Board of Commissioners Fifth

Louisiana Levee District (the Levee Board) for a project to raise and strengthen the

levee in Concordia Parish along the Mississippi River. The central issue is whether

the properties used for the project were non-compensable batture pursuant to

La.Const. art. 6 § 42 and what damages are owed to Plaintiffs. After a five-day

bench trial, the trial court rendered a judgment in favor of Plaintiffs. Defendants,

the Levee Board and the Louisiana Department of Transportation and Development

(DOTD), now appeal. For the reasons expressed below, we reverse the judgment of

the trial court and render judgment in favor of Plaintiffs in the amounts expressed

below.

I.

ISSUES

In this appeal, we must decide:

(1) whether the trial court erred in finding the
properties were not subject to the levee servitude
and that the Levee Board acquired no rights by
appropriation;

(2) whether the trial court erred in accepting Dr.
Suhayda’s calculation of batture and in finding
that none of the properties contained batture;

(3) whether the trial court erred in allowing
compensation for borrow pit excavation by the
cubic yard;

(4) whether the trial court erred in awarding
damages for lost CRP payments;

(5) whether the trial court erred in the calculation of
the acreage taken for berms;

(6) whether the trial court erred in awarding
damages for severance value or “loss of access”
to a portion of the properties; and

(7) whether the trial court erred in failing to dismiss
DOTD.

II.

FACTS AND PROCEDURAL HISTORY

The three plaintiffs are all members of the Alwood family and own

approximately nine hundred and eighty acres along the Mississippi River in

Concordia Parish. The mainline Mississippi River Levee runs through the

properties. Allred Land Company, Inc. is owned by John Alwood; Delhi Plantation,

LLC is owned by the children and grandchildren of Carolyn Alwood; and the

remainder of the properties are owned by Richard Alwood.

The Levee Board sent letters to the Alwoods on April 6, 2015, notifying

them that resolutions of appropriation had been passed on February 18, 2015, and

the Levee Board had adopted resolutions of appropriation of Alwood lands for a

project titled Flood Control/Mississippi River & Tributaries, West Bank Mississippi

River Levees, Waterproof to Upper Lake Concordia, Louisiana, Levee Enlargement

and Berms, Item 374-R (the project) on April 6, 2015. The purpose of the project

was to expand the existing levee. The project was managed by the Corps of

Engineers, and much of the dirt for raising and strengthening the levee was

excavated from Plaintiffs’ properties in the form of borrow pits. Ryan McMillin of

the DOTD performed a batture analysis to calculate how much of the borrow pit was

in the batture. The Levee Board then retained an appraiser, Gregg Wilbanks, Jr., to

value the properties taken.

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On March 8, 2016, the Levee Board informed plaintiffs that the

appraisals had been done by a DOTD approved appraiser. The appraisals consisted

of permanent and temporary servitudes. The Levee Board submitted offer letters to

each plaintiff, offering to pay the appraised value for the properties taken, though no

compensation was offered for what DOTD determined was batture. The Levee

Board made the following offers:

Delhi Plantation, LLC—$66, 288.00

Allred Land Co.—$22, 062.00

Richard Alwood—$69, 709.00

Plaintiffs refused to accept the offers and filed suit against the Levee

Board for compensation on October 4, 2017. Plaintiffs also named the Louisiana

Department of Natural Resources (DNR) as a defendant. On April 23, 2018, DNR

filed a motion for summary judgment seeking dismissal. On June 5, 2018, Plaintiffs

filed a first amended and supplemental petition for damages substituting DOTD in

place of DNR. DNR’s motion for summary judgment was decreed moot.

A bench trial was conducted beginning on September 20, 2021. Trial

continued September 21, 23, 24, and December 10, 2021. At the conclusion of trial,

the trial court took the matter under advisement. On July 20, 2022, the trial court

rendered judgment in favor of Plaintiffs. The trial court found that the properties

were not subject to the levee servitude and that none of the land was batture. The

trial court then awarded each plaintiff compensation for:

1. The value of the dirt excavated from the borrow pit, priced by the

cubic yard;

2. The value of lost Conservation Reserve Program (CRP) payments;

3. The value of the land taken on the river side of the levee;

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4. The value of the land taken for berm construction on the protected

side of the levee; and

5. Severance damage for land on the river side of the levee for which

access was cut off.

Richard Alwood was awarded $686,511.21; Delhi Plantation was awarded

$940,995.88; and Allred Land Company was awarded $292,833.86. The total

amount awarded was $1,920,340.95. Defendants now appeal.

III.

STANDARD OF REVIEW

In its written reasons for judgment, the trial court notes that this case

presents a classic battle of the experts that was resolved by the trier of fact through

factual findings and credibility determinations. It is well settled that a court of appeal

may not set aside a trial court’s finding of fact in absence of manifest error or unless

it is clearly wrong. Rosell v. ESCO, 549 So.2d 840 (La.1989). Ordinarily, questions

of expert credibility are for the trier of fact, “unless the stated reasons of the expert

are patently unsound.” Lirette v. State Farm Ins. Co., 563 So.2d 850, 853 (La.1990).

However, when the trial court applies incorrect principles of law, and

such error materially affects the outcome and deprives a party of substantial rights,

a prejudicial legal error has occurred. Evans v. Lungrin, 97-541 (La. 2/6/98), 708

So.2d 731. “[W]here one or more trial court legal errors interdict the fact-finding

process, the manifest error standard is no longer applicable, and, if the record is

otherwise complete, the appellate court should make its own independent de novo

review of the record and determine a preponderance of the evidence.” Id. at 735.

The factual findings in this case required conformity with the requirements set out

in DeSambourg v. Bd. of Comm'rs for Grand Prairie Levee Dist., 621 So.2d 602

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(La.1993). In the instant case, we find that the trial court misunderstood the

requirements set out by the Louisiana Supreme Court in DeSambourg and this legal

error resulted in erroneous factual findings that require a de novo review by this

court.

IV.

LAW AND DISCUSSION

LEVEE SERVITUDE

In their first assignment of error, Defendants assert that the trial court

erred in finding that the properties were not subject to the levee servitude, and that

the Levee Board had acquired no rights by appropriation. In its written reasons for

judgment, the trial court held, “The Court as shown hereafter finds that the Alwood

lands did not constitute batture and are not subject to the levee servitude. As such

the appropriation by the Levee Board was a wrongful illegal taking and no servitude

was acquired by the Levee Board.” The trial court then goes on to discuss the legal

requirements for the determination of batture. The trial court appears to have

conflated the issue of whether the levee servitude applied with the issue of whether

the land taken was non-compensable batture.

Louisiana Civil Code article 665 provides,

Servitudes imposed for the public or common utility
relate to the space which is to be left for the public use by
the adjacent proprietors on the shores of navigable rivers
and for the making and repairing of levees, roads, and
other public or common works. Such servitudes also exist
on property necessary for the building of levees and other
water control structures on the alignment approved by the
U.S. Army Corps of Engineers as provided by law,
including the repairing of hurricane protection levees.

All that relates to this kind of servitude is
determined by laws or particular regulations.

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“In Louisiana, title to riparian lands fronting on navigable rivers is

subject to the superior right of the public's legal servitude for the making and

repairing of levees, roads and other public and common works.” DeSambourg, 621

So.2d at 606. “It applies to those lands that were riparian when separated from the

public domain, and when the levee is necessary for the control of flood waters from

the river to which the land taken is riparian.” Id. at 607. In this case, the parties

stipulated that the properties were riparian when separated from the sovereign and

remained riparian when appropriated. Moreover, Mr. Mayeaux, a professional

surveyor recognized as an expert, testified without contradiction that the properties

have always been riparian to the Mississippi River. Riparian land may be subject to

the levee servitude without consisting of batture. This is reflected in La.R.S.

38:301(C) which provides, in pertinent part,

(1)(a) All lands, exclusive of batture, and
improvements hereafter actually taken, used, damaged, or
destroyed for levee or levee drainage purposes shall be
paid for at fair market value to the full extent of the loss.

(b)(i) The owner shall be given written notice of the
appropriating resolution by the levee board within ten days
of the date of its passage.

Thus, it is apparent that riparian land may be subject to appropriation

under the levee servitude although it does not constitute batture. Accordingly, it was

legal error for the trial court to determine that the appropriation was illegal, and the

levee servitude did not apply because the land was not batture.

BATTURE CALCULATION

In their second assignment of error, Defendants assert that the trial court

erred in accepting Dr. Suhayda’s calculation of batture and in finding that none of

the properties contained batture. As previously noted, batture land is exempted from

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the need for compensation when taken for levee purposes. Louisiana Constitution

Article 6 § 42 provides that “lands and improvements thereon hereafter actually used

or destroyed for levees or levee drainage purposes shall be paid for as provided by

law.” It then goes on to state, “[h]owever, nothing contained in this Paragraph with

respect to compensation for lands and improvements shall apply to batture or to

property the control of which is vested in the state or any political subdivision for

the purpose of commerce.” As such, the determination of batture is critical in this

case and lays at the heart of Defendants’ appeal.

Louisiana Revised Statutes 38: 281 (1) provides, “‘Batture’ shall have

the same meaning as that term was defined by the courts of this state as of the

effective date of the Constitution of Louisiana.” The Louisiana Supreme Court set

out to define the term batture for purposes of the batture exemption and approve a

method for determining batture in the seminal case of DeSambourg, 621 So.2d 602.

In DeSambourg, the court reviewed relevant jurisprudence and

determined that “[i]n the context of the batture exemption from compensation,

‘batture’ is alluvial accretions annually covered by ‘ordinary high water,’ the highest

stage the river can be expected to reach annually in seasons of high water.” Id. at

604. The court further specified that “‘[o]rdinary high water’, then, is the highest

water stage the river can be expected to reach annually, but not the level the water

reaches during major flood events, i.e., reaches “on several occasions in periods of

extraordinary high water during the last half of the century.’” Id. at 611. The court

reasoned:

this definition, derived from pre–1974 jurisprudence,
peacefully coexists with the purpose of the batture
exemption, as it exposes a sufficient land surface for the
exemption to be practicably utilized. A more restrictive
meaning of ordinary high water would threaten the social

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utility of the exemption, as well as emasculating its
practical purpose.
Id.

After defining the term batture, the court determined that “the method

used for determining mean high water, the highest stage reached by the river

approximately every year[,]” is an appropriate method for determining ordinary high

water. Id. at 613. “It is consistent with the methodology accepted by this court for

determining ordinary low water. See Esso Standard Oil Co. v. Jones, 98 So.2d at

242. Likewise, the corollary method is acceptable for determining the level of

ordinary high water.” Id.

All parties agree that the DeSambourg protocol is the appropriate

method to determine the ordinary high-water mark and whether the land constitutes

batture in this case. The Plaintiffs argued, and the trial court agreed, that Plaintiffs’

expert, Dr. Suhayda, was the only witness who followed the DeSambourg protocol.

After reviewing Dr. Suhayda’s report and testimony, it appears that Dr. Suhayda

misunderstood the requirements of DeSambourg. Dr. Suhayda testified that batture

must be found in the riverbed or main channel of the river. He asserted that under

DeSambourg, there is no batture on the floodplain, and as such, he excluded data

from any year when the water was above 65 feet, the elevation of the floodplain. In

total, he excluded thirty of the fifty-four years used in the dataset. This is not the

protocol established in DeSambourg, and the trial court erred in holding that Dr.

Suhayda was the only expert to follow DeSambourg.

The court in DeSambourg never limits batture to the riverbed or main

channel of the river. In fact, the court specifically rejected the method of

determining batture by the physical characteristics of the bank stating that the

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“theory that the upper boundary of batture must be determined by the physical

characteristics of ordinary high water on the bank, is inharmonious and discordant

with Louisiana’s jurisprudential definition of batture.” Id. at 612. Instead, the court

determined that the method used for determining mean high water by the defense

experts was appropriate for determining ordinary high water.

Contrary to the assertions of Dr. Suhayda, DeSambourg makes no

mention of excluding data from the mean calculation; rather, the court excludes “the

level water reaches during major flood events” and “periods of extraordinary high

water” from the definition of ordinary high water. Id. at 611. The court concluded

that using the mean “reflected the normal behavior of the river without consideration

of unusually high or low annual readings.” Id. at 613. This is because, by nature of

using a mean calculation, the unusually low and high readings balance each other

out to come up with the average. In the DeSambourg case, the trial court accepted

the defense’s theory that “the upper boundary of batture is the equivalent of mean

high water and is determined by reviewing the statistics on the elevations the river

usually reaches annually over a sufficient period of time.” Id. at 605. The supreme

court held that this method was the acceptable approach for finding batture.

In excluding every year that the high water entered the flood plain, Dr.

Suhayda veered away from the approach approved in DeSambourg. Of the fifty-

four years of data available, Dr. Suhayda excluded thirty. The purpose of using the

mean is to determine the ordinary high water i.e. the level the water is expected to

reach annually. If the water levels enter the floodplain more often than not, it cannot

be said that such levels are extraordinary or represent a major flood event. In fact,

entering the flood plain can be expected. By excluding the thirty highest years of

water levels, Dr. Suhayda’s mean calculation only included twenty-four years of

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data and his calculation of the ordinary high-water mark was artificially low at 61

feet. This in turn resulted in a finding that none of the property contained batture.

However, because Dr. Suhayda misunderstood the law as provided in DeSambourg,

he did not follow the proper protocol for determining ordinary high water, and the

trial court erred in accepting Dr. Suhayda’s calculation of batture.

The trial court’s acceptance of Dr. Suhayda’s batture calculation was a

legal error and, as such, we will now review the record de novo to determine the

proper calculation of batture. The defendants put on three different witnesses who

testified concerning batture. Mr. Ryan McMillin, the DOTD engineer, testified that

he determined batture by calculating the elevation at which it would flood 70% of

the time. This approach is clearly not in line with DeSambourg. Mr. McMillin

admitted that he was unaware of the DeSambourg decision and Defendants do not

argue that the approach used by Mr. McMillin was correct. Accordingly, Mr.

McMillin’s ordinary high-water calculation of 64 feet is rejected by this court.

Similarly, Mr. Michael Mayeux testified that he calculated the ordinary

high water by cutting off any annual high at the flood stage of 65.28 feet and using

instead a value that was 1/100 of a foot below that level (65.27 feet) in his calculation

of the mean. This approach resulted in a mean annual high of 65.4 feet. By altering

the numbers used, however, Mr. Mayeux also veered away from the protocol

established in DeSambourg, and his calculation is also rejected.

A review of the record reveals that Dr. Richard Kessel was the only

witness who accurately followed DeSambourg in his approach. Dr. Kessel testified

that he calculated the batture by adding up the annual high-water data from the

Natchez and Vicksburg gauges and dividing to calculate the mean at those locations.

He also mentioned that he throws out the highest number from his calculation. This

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is the same approach used in DeSambourg. In fact, Dr. Kesel testified that he

testified in the DeSambourg case, and it was his method that was approved by the

court.

Dr. Kesel also testified in Biglane v. Bd. of Commissioners, Fifth

Louisiana Levee Dist., 18-100 (La.App. 3 Cir. 6/19/17), 256 So.3d 1052, writ

denied, 18-1767 (La. 1/8/19), 260 So.3d 588. Plaintiffs argue that Dr. Kesel’s

testimony should be rejected in this case because in calculating the mean he excluded

a different year than he did in the Biglane case. Dr. Kesel explained that when he

calculates a mean, he always excludes the highest number. Trial in the Biglane case

began in 2009 and included the years 1960-2008 in its dataset. As such, in that case

he excluded the year 1973 because it was the highest year in that dataset. In the

present case, the data covered the years 1960-2013 and the highest annual high water

recorded was not in 1973, but in 2011. Consequently, using his method of excluding

the highest year only, he excluded the year 2011. Although the numbers varied from

the Biglane case, it is clear that Dr. Kesel used the same method that was approved

in both DeSambourg and Biglane.

Plaintiffs point out that Dr. Kesel admitted to making a mistake in his

calculation; however, that error was minor. Dr. Kesel testified that, when changing

his data between computer programs, he accidently input fifty-two units of data

when it should have been fifty-three. This error resulted in a mean high water of 69

feet. The mistake was acknowledged, and Dr. Kesel submitted a revised final report

using fifty-three units of data and rendering a mean high-water elevation of 68 feet.

We find that because Dr. Kesel was the only witness to follow the DeSambourg

protocol, his calculation of batture is correct, and we will use it to determine the

appropriate measure of compensation.

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Plaintiffs also argue that Dr. Kesel’s calculation should be rejected

because it was based on his determination of the slope of the river while Dr. Suhayda

based his calculation on the gauge placed on the river adjacent to the Alwood

properties. The DeSambourg protocol requires the use of annual high-water

readings over a sufficient period of time. Unfortunately, there is no historical data

for the precise location of the subject property.

The nearest Corps of Engineer’s gauge is located 11 miles downstream

at Natchez. To determine the ordinary high water at the location, Dr. Kesel

determined the ordinary high at the Natchez gauge (64.6 feet) and the ordinary high

at the Vicksburg gauge (87.1 feet) which is 72 miles upstream from the Natchez

gauge. Using those numbers, he determined that the river has an average slope

between Natchez and Vicksburg of .31 feet per river mile. He then interpolated the

ordinary high water at the properties by multiplying the distance from the Natchez

gauge (11 miles) by the slope (.31 ft/mile) and adding that number (3.4 feet) to the

ordinary high-water elevation at Natchez. This is how he came up with an ordinary

high water at the properties of 68 feet.

Dr. Suhayda directed the plaintiffs’ engineer, Bryant Hammett, to place

gauges on the riverbank adjacent to the Alwoods’ properties and compared readings

with the readings from the Natchez gauge. Based on this gauge, Dr. Suhayda

adjusted the Natchez gauge readings by adding 1 ½ feet to the readings to determine

the ordinary high-water mark of the Alwood properties to be 61.2 feet. Plaintiffs

argue that the landowner placed gauges are more accurate than using the slope of the

river, because this assumes that the river slope is constant. However, there were

several issues affecting the accuracy of the landowner gauges. Foremost, the gauges

were placed about a mile downriver from the actual property and only used to collect

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a few water level readings over a length of time spanning less than a year (November

2019-July-2020). Additionally, these gauges were not capable of showing water

elevations when the river was at its highest because they were too short. Dr. Suhayda

acknowledged that the difference in elevation between two points is at its highest

when the elevation of the river is highest. Moreover, Mr. Hammett acknowledged

that there were several errors in the reports of gauge readings from the landowner

gauges, some of which were off by almost a foot. Accordingly, we refuse to accept

the readings from the landowner-placed gauges.

In contrast, Dr. Kesel testified that it was standard practice for the Corps

of Engineers to utilize the slope of the river to make its calculations. It would be

impractical for the Corps to place gauges at every single mile marker, and under the

circumstances, interpolating the ordinary high water based on the river slope was a

reasonable and reliable method. Moreover, Dr. Kesel testified that he used this same

method of interpolation in his calculations for the DeSambourg case. We accept Dr.

Kesel’s calculation of ordinary high water at the properties.

According to Dr. Kesel’s calculations, the ordinary annual high-water

elevation of the Mississippi River at the properties is 68 feet. Using the Corps of

Engineers topographic survey on the unprotected/flood side of the levee for the

properties, there are only two acres of permanent servitude on the unprotected side

of the levee that are not batture. One acre belongs to Richard Alwood and one

belongs to Delhi Plantation. Mr. Wilbanks’ appraisal valued the land on the

unprotected side of the levee at 90% of $2,850.00 per acre for the permanent

servitudes. Therefore, we reverse the award of the trial court as it relates to

compensation for the permanent servitudes on the unprotected side of the levee and

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award compensation in the amount of $2,565 each to Richard Alwood and Delhi

Plantation for the permanent servitudes on the unprotected side of the levee.

COMPENSATION BY THE CUBIC YARD

In their third assignment of error, Defendants argue that the trial court

erred in allowing compensation for borrow pit excavation by the cubic yard. The

largest part of the trial court’s damage award was the $1,305,128.75 awarded for the

excavated dirt. After reviewing the record, we find that the trial court erred in its

award for the dirt excavation. As previously stated, virtually all the land in the

borrow pit was batture and, as such, is not compensable. Even if the borrow pits did

not consist of batture, it was error to compensate Plaintiffs by the cubic yard for the

borrow pit excavation.

Louisiana Constitution Article 6, § 42 states that, “[n]otwithstanding

any contrary provision of this constitution, lands and improvements thereon

hereafter actually used or destroyed for levees or levee drainage purposes shall be

paid for as provided by law.” Under La.R.S. 38:301(C)(1)(a), “[a]ll lands, exclusive

of batture, and improvements hereafter actually taken, used, damaged, or destroyed

for levee or levee drainage purposes shall be paid for at fair market value to the full

extent of the loss.” Louisiana Revised Statutes 38:301(C)(1)(h) further provides;

The measure of compensation for lands and improvements
taken or destroyed for levee and levee drainage purposes
by way of a permanent levee servitude shall be the fair
market value of the property taken or destroyed before the
proposed use of the property or construction of the levee
facilities, without allowing any change in value caused by
the construction of the levee facilities.

Plaintiffs rely on National Food & Beverage Co., Inc. v. United States,

105 Fed.Cl. 679 (2012) for their contention that they are entitled to compensation

for the cost of the dirt removed from their properties. In National Food, the

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landowner was compensated by the cubic yard when the Corps of Engineers

excavated 383,000 cubic yards of clay from the property to repair levees after

Hurricanes Katrina and Rita. The court noted that,

courts are often reluctant to calculate the value of a mineral
deposit by “estimating the number of tons in place and
then multiplying the tonnage by a unit price per ton.”
United States v. 91.90 Acres of Land, 586 F.2d 79, 87 (8th
Cir.1978). Instructively, however, an exception to the
disinclination to rely on volumetric measurement “occurs
where the mineral deposit itself is the property being
condemned,” for “[i]n such a case the deposit is treated as
merchandise rather than land.” 4 Nichols on Eminent
Domain § 13.14[3]; see also United States v. 22.80 Acres
of Land, More or Less, 839 F.2d 1362, 1364 n. 2 (9th
Cir.1988) (approving a cubic-yard basis of compensation
where “the government is taking the [material] itself, [and]
not the overlying parcel of land”).

Id. at 700. The court held that the highest and best use of the property in that case

was a borrow pit, and the best measure of the taking was the value of the removed

clay.

We find that this case is inapplicable to our present case. It is important

to note that National Food was analyzed under the standards of the Fifth Amendment

and not Louisiana law. In S. Lafourche Levee Dist. v. Jarreau, 16-788 (La. 3/31/17),

217 So.3d 298, this court distinguished National Food and refused to award

compensation by the cubic yard for dirt removed. In Jarreau, the landowner was in

the business of excavating dirt when a portion of his property was appropriated for

hurricane protection projects. After determining that the 2006 amendments to La.

Const. art. I, § 4; La. Const. art. VI, § 42; and La.R.S. 38:281(3) and (4) reduced,

rather than eliminated, the measure of damages to be paid to a property owner for

hurricane protection projects from “full extent of the loss” to the more restrictive

“just compensation” measure required by the Fifth Amendment to the United States

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Constitution, which is the fair market value, the court determined that, “The dirt’s

value in this case is subsumed in the value of the surface, and it is only after

extraction and delivery to another location that the dirt has additional value.” Id. at

313. The court distinguished National Food because “National Food did not involve

a levee servitude appropriation where the government had a pre-existing right to the

landowner’s property.” Id.

The instant case does not involve a hurricane protection project, so

Plaintiffs are entitled to compensation at the fair market value to the full extent of

the loss. Louisiana Revised Statutes 38:281(3) defines fair market value as “the

value of the lands or improvements actually taken, used, damaged, or destroyed for

levees or levee drainage purposes as determined in accordance with the uniform

criteria for determining fair market value as defined in R.S. 47:2321 et seq.” Under

La.R.S. 47:2321,

Fair market value is the price for property which would be
agreed upon between a willing and informed buyer and a
willing and informed seller under usual and ordinary
circumstances; it shall be the highest price estimated in
terms of money which property will bring if exposed for
sale on the open market with reasonable time allowed to
find a purchaser who is buying with knowledge of all the
uses and purposes to which the property is best adapted
and for which it can be legally used.

“The current use of the property is presumed to be the highest and best use, and the

burden of overcoming that presumption by proving the existence of a different

highest and best use based on a potential, future use is on the landowner.” W.

Jefferson Levee Dist. v. Coast Quality Const. Corp., 640 So.2d 1258, 1275

(La.1994).

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Unlike the land in National Food, the highest and best use of the land

in the present case was not a borrow pit but rather recreation and row crops, as this

was the current use of the property. The burden was on Plaintiffs to show that the

full extent of the loss included the price per cubic yard of the dirt removed. Under

La.R.S. 38:281(4), “‘[f]ull extent of the loss’ shall not be construed to include

payment for uses which are remote, speculative, or contrary to law; uses for which

the property is still suitable; or elements of property ownership which are not

actually taken, used, damaged, or destroyed for levees or drainage purposes.”

The prospect of selling dirt from the lands in this case was both remote

and speculative. There was no evidence presented that any of the land was currently

being used for dirt sales or that any of the plaintiffs had any plans to sell dirt from

any of the properties. The only dirt sale that could be identified from any of the

properties was to the state for a highway project in the 1990s. Moreover, the

evidence presented to determine the value of the excavated dirt was inadequate.

Plaintiffs did not hire an appraiser, but relied on the testimony of their engineer, Mr.

Hammett, who merely called around to a few people to inquire about what they pay

for dirt. Specifically, Mr. Hammett asked the dirt contractors to price the dirt for the

levee project itself. This is in violation of La.R.S. 38:301(C)(1)(h) which prohibits

any change in valuation of the property caused by construction of the levee itself.

In National Food, experts testified to the preexisting demand for clay

before the Corps began their project. If plaintiffs were entitled to any compensation

for the value of the dirt, they were required to prove the market value of such dirt

aside from the levee project. Plaintiffs failed to establish that they were entitled to

compensation for the value of the excavated dirt, and the value of the dirt was

subsumed in the value of the surface. The trial court erred in awarding compensation

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by the cubic yard for the removal of dirt. We therefore reverse the $1,305,128.75

awarded to Plaintiffs for excavated dirt.

LOST CRP PAYMENTS

In their next assignment of error, Defendants assert the trial court erred

in awarding damages for lost CRP payments. The plaintiffs each had contracts with

the Farm Services Administration to keep portions of their property in the

Conservation Reserve Program (CRP). As part of the program, Plaintiffs were paid

to allow the affected area to grow trees. Inevitably, some of Plaintiffs CRP acreage

was lost when the Corps cleared the land as a part of the levee project. As stated

previously, Plaintiffs are entitled to compensation to the full extent of the loss. Our

courts have determined that the full extent of the loss includes business losses such

a lost profit which are distinct from the value of the land. Vela v. Plaquemines Par.

Gov’t, 00-2221 (La.App. 4 Cir. 3/13/02), 811 So.2d 1263, writ denied, 02-1350 (La.

6/21/02), 819 So.2d 337, and writ denied 02-1224 (La. 6/21/02), 819 So.2d 343.

Unlike the claim for the value of the dirt, Plaintiffs lost CRP payments

were neither remote nor speculative. The record includes copies of the CRP

contracts for each plaintiff revealing the rates paid per acre under the program and

the exact extent of the loss can be properly calculated. However, Plaintiffs are not

entitled to compensation for the loss of CRP payments on any land that is considered

batture. The trial court awarded $62,722.00 to Richard Alwood, $80,866.00 to Delhi

Plantation, and $7,630.70 to Allred Land Company for lost CRP payments.

All of the lost CRP for Allred Land Co. was within the borrow pit area,

and within the batture. Thus, the trial court’s award of compensation for lost CRP

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to Allred Land Co. was in error and is hereby reversed. The Delhi Plantation lost

approximately 44.04 acres of CRP due to the levee project. Only one acre of the

Delhi Plantation property on the unprotected side of the levee was non batture, thus

Delhi Plantation can only be compensated for lost CRP on one acre of land. Under

Delhi Plantation’s CRP contract, they were paid at a rate of $144.58 per acre

annually. Delhi Plantation’s contract was reduced in 2018 and was set to expire in

2029, therefore they lost twelve years of CRP payment. We award Delhi Plantation

a total of $1,734.96 for the lost CRP on one acre.

Mr. Richard Alwood also had one acre of non batture land on the

unprotected side of the levee. Under his CRP contract, he was paid at a rate of

$117.60 per acre annually. The CRP was lost starting in 2018 and was set to expire

in 2029, therefore Mr. Alwood lost twelve years of CRP payment. We award Mr.

Alwood $1,411.20 for the lost CRP on one acre on the unprotected side of the levee.

Mr. Alwood had some property within Parcels 3-1 and 3-3 on the

protected side of the levee under CRP contract which was non-batture. Prior to the

levee project, Mr. Alwood had 202.8 acres in CRP on the protected side of the levee.

He was compensated at a rate of $149.60 per acre which amounted to $30,339.00

annually. After the levee project, Mr. Alwood’s acreage was reduced to 183.94 acres

and his annual income was reduced to $27,517.00 annually. As a result of the levee

project, Mr. Alwood’s annual lost income was $2,822.00 for a total loss of

$19,754.00 for the remaining seven years of his contract. We reverse the trial court’s

award of $62,722.00 for lost CRP to Mr. Alwood and award him a total amount of

$21,165.20 for lost CRP payments.

BERM ACREAGE

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In their fifth assignment of error, Defendants allege that the trial court

erred in the calculation of the acreage taken for the berms on the protected side of

the levee. The appraisals from Mr. Wilbanks included offers of compensation for

the extension of the berms. Those parcels may be summarized as follows:

Allred Land Co.—Tracts 5-2 (1.71 acres permanent
servitude) and 5-3 (0.81 acres temporary servitude)

Richard Alwood—Tracts 3-1(9.38 acres permanent
servitude) and 3-3 (3.33 acres temporary servitude)
Delhi Plantation—Tracts 4-2 (1.58 acres permanent
servitude), 4-3,4-4,4-5, and 4-6 (collectively 3.14 acres
temporary servitude).

It was brought out during the trial that the berms were extended by more

than the acreage set forth in the right of way plans and Mr. Wilbanks’ appraisals.

Mr. Hammett testified that he determined the berm acreage by taking a map of the

area provided by the Corps of Engineers and overlaid it with plot points of the taking

and property lines. He then used a computer program to calculate the acreage. He

determined that a total of 39.01 acres was taken for the berms, as opposed to the

19.95 acres included in Mr. Wilbanks’ appraisals. Mr. Hammett determined that a

total of 22.22 acres was taken from Richard Alwood, a total of 10.21 acres was taken

from Delhi Plantation, and a total of 6.58 acres was taken from Allred Land

Company. In contrast, the appraisals included 12.710 acres for Richard Alwood,

4.720 for Delhi Plantation, and 2.52 for Allred Land Company. These numbers

included acreage for both the permanent and temporary servitudes.

The trial court left the record open for Mr. Mayeaux to do a survey of

the berms and give Defendants an opportunity to address the issue. Mr. Mayeaux

received the coordinates that Mr. Hammett used to map the perimeter of berm as

illustrated by Mr. Hammett. Using these coordinates, Mr. Mayeaux went onto the

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property to investigate the actual perimeter of the berm. Mr. Mayeaux testified that

based on his on the ground observations, the boundaries illustrated by Mr. Hammett

were inaccurate and included areas that were not actually part of the berm or were

part of the pre-existing berm. He also submitted photographs showing areas that

were claimed to be berm by Mr. Hammett, but clearly were not. Plaintiffs’ counsel

even offered to stipulate that portions of Mr. Hammett’s berm calculation incorrectly

included certain areas that were not part of the berm. Moreover, when confronted

with the inaccuracies in Mr. Hammett’s illustration of the berm area, Plaintiffs’

counsel asserted that Mr. Hammett never intended for it to be an accurate depiction

but was merely a reference. Accordingly, we find that it was error to rely on Mr.

Hammett’s determination of berm acreage.

Mr. Mayeaux determined that only an additional 9.01 acres were taken

for the berms. Defendants argue that nearly all of the additional acreage was

accounted for by a prior acquisition in the 1960s. However, the parties stipulated

during the pre-trial conference that any claim of a previous taking was waived. Mr.

Wilbanks’ appraisal valued the berm on Richard Alwood’s property at 90% of $2850

($2,565) per acre for the permanent servitudes and 10% of $2850 per acre per year

for the temporary servitudes. The temporary servitude was for a period of four years,

so the value of the temporary servitude is 40% of $2850 ($1,140) per acre. Delhi

Plantation and Allred Land Company’s properties were valued at 90% of $3850

($3,465) per acre for permanent servitudes and 40% of $3850 ($1,540) per acre for

the temporary servitudes. It was also discovered that .49 acres attributed to Allred

Land Company belonged to Delhi Plantation.

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Based on Mr. Mayeaux’s survey and supplemental report, in

conjunction with Mr. Wilbanks’ appraisals of the properties, the plaintiffs are

entitled to the following compensation for the berm area:

Richard Alwood—$30,292.65($2850/acre x 90% x (9.38 acres+2.43 acres berm))

+ $3,796.20 ($2850/acre x 40% x. 3.33 acres temporary)

Delhi Plantation—$17,394.30 ($3850/acre x 90% x (1.58+2.95+0.49 acres berm))

+ $4,835.60 ($3,850/acre x 40% x 3.14 acres temporary)

Allred Land Co.—$16,805.25 ($3,850/acre x 90% x (1.71+3.63-0.49 acres berm))

+ $1,247.40 ($3,850/acre x.40% x 0.81 acres temporary).

SEVERANCE

In their sixth assignment of error, Defendants assert that the trial court

erred in awarding damages for severance value or loss of access to a portion of the

properties. Plaintiffs Delhi Plantation and Allred Land Company were awarded

$112,149.00 and $43,605.00 respectively for loss of access. Mr. Hammett claimed

that Allred Land Company lost access to its entire 17.1-acre tract. However, all of

that acreage was in the borrow pit and therefore constituted non-compensable

batture. Moreover, John Alwood, the owner of Allred Land Company, testified that

levee contractors had constructed a ramp off the levee across his property which he

requested be left in place. The contractors refused and removed the ramp. John

Alwood claimed that without the ramp, he now has no access to his property located

on the river side of the property. John Alwood’s testimony, however, failed to show

how the levee project caused him to lose access to the property. He testified that an

older ramp existed, but it had partially washed away over the years. While he could

walk over the ramp, he did not recall ever being able to drive across it.

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The only thing his testimony mentioned as cutting off his access to the

property was the removal of the newly constructed ramp. In La.R.S.

38:301(C)(1)(h), the law provides that:

The measure of damages, if any, to the remaining property
of the owner by reason of the use or destruction of a
portion of the property is determined on a basis of
immediately before and immediately after the use or
destruction of the property for levee drainage construction,
taking into consideration the effects of the completion of
the project in the manner proposed or planned.

Immediately before construction began, this complained of ramp did not exist and it

was removed at the end of the project. Removal of the temporary ramp cannot

support an award of damages.

With respect to the Delhi Plantation property, much of the claimed

severance damage is for acreage within the borrow pit area and is therefore non-

compensable batture. However, even for the acres that were not in the batture,

Plaintiffs failed to present any testimony to establish the amount of any loss in value

for any severed property or how the value of the loss wasn’t subsumed in the value

of the servitude for which they were compensated. The trial court erred in awarding

compensation for loss of access, and as such the awards to Delhi Plantation and

Allred Land Company are reversed.

DISMISSAL OF DOTD

In their last assignment of error, Defendants contend that the trial court

erred in failing to dismiss DOTD. Prior to trial, DOTD filed an exception of no

cause of action arguing that the Levee Board was the one who did the taking and

DOTD is not liable for any compensation. Plaintiffs argued that DOTD is a joint

actor with the Levee Board because the Levee Board relied on DOTD’s

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determination of batture when making their initial offers. We find that the trial court

should have granted DOTD’s exception.

The exception of no cause of action “is designed to test the legal

sufficiency of the petition to determine whether the plaintiff is afforded a remedy in

law based on the facts alleged in the petition.” Ebey v. Avoyelles Par. Sch. Bd., 03-

765, p. 4 (La.App. 3 Cir. 12/17/03), 861 So.2d 910, 912, writ denied, 04-196 (La.

3/26/04), 871 So.2d 349. “[T]he exception is tried on the face of the petition, with

supporting documentation,” and “the well-pleaded facts in the petition must be

accepted as true.” Id. Plaintiffs are seeking compensation for the taking of their

property and damages caused by the taking. By the well-pleaded facts of their

petition, that taking was done by the Levee Board, not DOTD. As this case involves

an appropriation by a levee district, the cause of action is governed by La.R.S.

38:301. The statute provides that “after the taking, use, damage, or destruction of

the property. . . the levee board shall pay the owner[.]”

In this case, compensation is only authorized from the levee board for

the appropriation. Thus, Plaintiffs have no cause of action against DOTD. Because

the statute does not provide a cause of action against DOTD, we find that Plaintiffs

have failed to state a cause of action against DOTD, and the trial court erred in

denying DOTD’s exception of no cause of action. We dismiss Plaintiffs’ petition

against DOTD with prejudice.

IV.

CONCLUSION

For the foregoing reasons, the award of the trial court is reversed and

DOTD is dismissed with prejudice. Judgment is rendered in favor of Plaintiffs and

against the Levee Board in the following amounts:

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Richard Alwood—$57,819.05

($2,850.00/acre x 90% x 1 acre non-batture borrow) = $2,565.00

+ ($2,850.00/acre x 90% x (9.38 acres+2.43 acres berm)) = $30,292.65

+ ($2,850.00/acre x 40% x. 3.33 acres temporary) = $3,796.20

+ lost CRP = $21,165.20

Delhi Plantation—$26,529.86

($2,850.00/acre x 90% x 1 acre non-batture borrow) = $2,565.00

+($3,850.00/acre x 90% x (1.58+2.95+0.49 acres berm)) = $17,394.30

+($3,850.00/acre x 40% x 3.14 acres temporary) = $4,835.60

+ lost CRP = $1,734.96

Allred Land Company—$18,052.65

($2,850.00/acre x. 90% x 0 acres non-batture borrow)= $0.00

+($3,850.00/acre x 90% x (1.71+3.63-0.49 acres berm))= $16,805.25

+($3,850.00/acre x.40% x 0.81 acres temporary) = $1,247.40

+ lost CRP = $0.00

REVERSED AND RENDERED.

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