City of New Orleans v. Morrison

ON APPLICATION FOR REHEARING PER CURIAM. On application for rehearing, appellees request our consideration of the exception of no right of action and the motion for summary judgment additionally urged in the trial court as the basis of dismissal of the petition for expropriation. The exception of no right of action is without merit, as the petitioner possesses the interest necessary to institute suit. *316 The motion for summary judgment is based on the alleged fact that the subject property, sought to be expropriated for use as a street, has not been placed on the Major Street Plan of the City of New Orleans. Since an expropriation must be of “needed property,” this argument is apparently leveled at the requirement of “necessity,” there being no necessity for the expropriation for street purposes until the proposed street has been included in the major street plan. The theoretical basis is that the need has not yet arisen and indeed may never arise. However, the documents attached to ap-pellee’s motion do not establish all the material facts necessary to entitle them to a summary judgment as a matter of law. In fact, the resolution of the City Planning Commission dated January 3, 1967 indicates that the road encompassing the subject property was changed from a four-lane to a six-lane major street, indicating that the road was included in the major street plan even prior to this date. Application denied.