UNITED STATES COURT OF APPEALS

For the Fifth Circuit

No. 01-30880

ILLINOIS CENTRAL RAILROAD COMPANY,

Plaintiff-Appellee,

VERSUS

JAMES E. MAYEUX; ET AL.,

Defendants,

JAMES E. MAYEUX and BARBARA RICHARD MAYEUX,

Defendants-Appellants.

JAMES E. MAYEUX and BARBARA RICHARD MAYEUX,

Plaintiffs-Appellants,

VERSUS

ILLINOIS CENTRAL RAILROAD COMPANY,

Defendant-Appellee.

Appeal from the United States District Court

For the Middle District of Louisiana

August 1, 20022

Before REAVLEY, SMITH, and DENNIS, Circuit Judges.

DENNIS, Circuit Judge:

Illinois Central Railroad Co. seeks to expropriate a strip of

private property for the purpose of buildi ng a rail spur to a

chemical storage fa cility on the Mississippi River. Under

Louisiana law, a railroad company may expropriate private property

only if it establishes a “public and necessary purpose” for the

expropriation. The district court granted Illinois Central’s

motion for partial summary judgment on that issue, finding that the

railroad established a public and necessary purpose as a matter of

law. Because we find a genuine factual dispute over whether the

expropriation serves a necessary purpose, we reverse and remand for

further proceedings.

I. Facts and Procedural History

Illinois Central is a common carrier railroad that operates a

main line through Iberville Parish, Louisiana. In connection with

its business, Illinois Central seeks to construct a rail spur from

its main li ne to a chemical storage facility that is owned and

operated by a Frenc h corporation named LBC PetroUnited, Inc.

(“PetroUnited”).

The PetroUnited facility is situated on the banks of the

Mississippi River in St. Gabriel, Louisiana, approximately one mile

west of the Illinois Central main line. The facility serves dozens3

of chemic al producers who store their chemicals at the facility

until they can make arrangements to ship them elsewhere. The

facility is currently accessible by barge and by truck. Illinois

Central claims that making the facility rail-accessible would be

advantageous for companies storing chemicals at the facility. The

railroad also con tends that shipping chemicals via rail is safer

and more efficient than transporting them by truck or barge.

For the proposed spur to reach the PetroUnited facility,

however, it must cross land belonging to the appellants, James and

Barbara Mayeux. Despite the railroad’s offers to purchase a

servitude over the Mayeuxs’ land, the Mayeuxs have been unwilling

to sell.

After the Mayeuxs rejected its offers to purchase a servitude

over the land, Illinois Central filed a complaint for expropriation

in the Middle District of Louisiana. Illinois Central argued that,

as a railroad corporation operating in Louisiana, it was entitled

to expropriate a servitude over the Mayeuxs’ land because the

proposed spur would serve a public and necessary purpose under

Louisiana law. On February 8, 2000, Illinois Central filed a

motion for partial summary judgment on that issue. After hearing

arguments from both sides, the district court granted the

railroad’s motion. On June 6, 2001, the case proceeded to a bench

trial in which the district cou rt awarded $180,429.00 to the

Mayeuxs as “just compensation” for the taking. The Mayeuxs now

appeal from the district court’s judgment arguing that there was no1 The district court app lied a more lenient standard of review

on the gr ound that the case was set for a bench trial. Although

prior panels of this court have entertained the idea of applying a

more lenient standard in nonjury t rials, this circuit has not

actually adopted such a standard. S ee, e.g.

, United States Fid. &

Guar. Co. v. Planters Bank & Trust Co.

, 77 F.3d 863, 866 (5th Cir.

1996); Phillips Oil Co. v. OKC Corp. , 812 F.2d 265, 273 n.15 (5th

Cir. 1986). Under the suggested more lenient standard, the

district judge could grant summary j udgment based on inferences

drawn from incontrovertibly proven facts, so long as there is no

issue of witness credibility. U nited States Fid. & Guar.

, 77 F.3d

at 866. Because we determine that the Mayeuxs have controverted a

material issue of fact, we need not consider whether the more

lenient standard is appropriate in this context.

2 Mongrue v. Monsanto Co. , 249 F.3d 422 (5th Cir. 2001).

3 Fed. R. Civ. P. 56(c); accord Celote x Corp. v. Catrett , 477

U.S. 317, 322 (1986).

4 Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248 (1986).

4 right to expropriate because the proposed spur serves neither a

public nor a necessary purpose.

II. Discussion

A. Standard of Review 1

We review grants of summary judgment de novo. 2 S ummary

judgment is proper if “the pleadings, depositions, answers to

interrogatories, and admissions on file, together with the

affidavits, if any, show that there is no genuine issue as to any

material fact and that the moving party is entitled to a judgment

as a matter of law.” 3 An issue is material if its resolution could

affect the outcome of the case. 4 In deciding whether a fact issue

has been created, we view the facts and the inferences to be drawn5 Hotard v. State Farm Fire & Cas. Co.

, 286 F.3d 814, 817 (5th

Cir. 2002).

6 Erie R.R. Co. v. Tompkins , 304 U.S. 64, 79-80 (1938); M usser

Davis Land Co. v. Union Pac. Res. , 201 F.3d 561, 563 (5th Cir.

2000).

7 La. Rev. Stat. Ann. § 19:2(2) (West 1979 & Supp. 2002).

8 La. Rev. Stat. Ann. § 45:353 (West 1982).

5 from them in the li ght most favorable to the nonmoving party. 5

Since this diversity case involves solely questions of Louisiana

expropriation law, we must apply the state law in an attempt to

rule as the Louisiana Supreme Court would if presented with the

same issues. 6

B. Public and Necessary Purpose

Under Louisiana Revised Statute § 19:2(2), “[a]ny domestic or

foreign corporation created for the construction of railroads” may

exprop riate “needed” private property when the owner of the

property and th e corporation cannot agree upon a purchase price. 7

A second prov ision, Louisiana Revised Statute § 45:353, allows

foreign railroad companies operating in Louisiana to expropri ate

property needed to construct railroads and rail spurs and for other

“railroad purposes.” 8 Both of these statutes are, however, subject

to the state constitutional protections afforded to owners of

private property. Article I, Section 4 of the Louisiana

Constitution sp ecifically provides that “[p]roperty shall not be

taken or damaged by any private entity authorized by law to9 La. Const. art. I, § 4 (West 1996) (emphasis added).

10 Id. ; accord Ca lcasieu & S. Ry. Co. v. Bel , 69 So. 2d 40, 41

(La. 1953).

11 Melvin G. Dakin & Michae l R. Klein, E minent Domain in

Louisiana 360 (1970).

12 Id. (citing Bel

, 69 So. 2d at 42; G umbel v. New Orleans

Terminal Co.

, 173 So. 518, 521 (La. 1937); Kansas City, S. & G. Ry.

v. Louisiana W.R. Co. , 40 So. 627, 629 (La. 1905)).

13 Id

.

14 Id. at 361.

6 expropria te, except for a p ublic and necessary purpose and with

just compensation to the owner.” 9 The Louisiana Constitution also

m akes clear that, in a given expropriation case, whether “ the

purpose is public and necessary is a judicial question.” 10

1. Public Purpose

Whether a particular expropriation will serve a public purpose

is a two-pronged inquiry. 11 Under the first prong, the

expropriating corporation must show that there is a public right to

use the expropriated property (i.e., the right of way for the rail

spur). 12 This prong consists of two subparts. 1 3 Not only must the

public have the right to use the spur, but there must also exist a

possibility that more than one particular user will have access to

the spur. 14 Under the second prong, the court considers whether the

expropriation will contribute to the general welfare of the15 Id. (citing Texas E. Transmission Corp. v. Bowman

, 115 So. 2d

797, 798-99 (La. 1959); Bel , 696 So. 2d at 43).

16 At the time of summary judgment, PetroUnited and Illinois

Centr al had come to a tentative financing agreement whereby

PetroUnited would front the construction costs and maintain title

over the spur for twenty years or until Illinois Central fully

reimbursed PetroUnited, whichever came first.

17 See , e.g.

, B el

, 69 So. 2d at 43 (the fact that the

expropriating railroad’s parent company, which was not a railroad

company, was financing the construction of the proposed spur had no

effect on the public purpose of the spur); see also S. Natural Gas

Co. v. Poland , 384 So. 2d 528, 530 (La. Ct. App. 2d Cir. 1980)

(“[W]e see no reason to prohibit expropriation of property because

the eventual facility which will serve the public will not be

solely own ed by the expropriator. Where the law itself does not

impose such a restriction on the power, we shall not impose the

restriction.”)

.

18 La. Rev. Stat. Ann. § 45:1165 (West 1999); see also Da kin &

Klein, supra note 11, at 361 (“[A]ll corporations endowed with the

power of expropriation are public service corporations regulated by

the Louisiana Public Service Commission and obligated by law to

serve the public without discrimination.”).

7 community. 15

There is no question that the public will have the right to

use the spur in this case. The fact that PetroUnited will

initially “own” the spur 16 is inapposite; Louisiana courts have held

that the financing and ownership arrang ement for a proposed spur

has no effect on whether the spur will serve a public purpose. 1 7

Because Illinois Central proposes to connect the spur to its main

line, the spur is subject to regulation by the Louisiana Public

Service Commission, and Illinois Central must use it to serve the

public without discrimination. 18 Thus, the first subpart is

satisfied.19 130 So. 337, 340 (La. 1930).

20 Id. at 339-40.

21 Id. at 340.

22 Id.

8 The second subpart concerns whether the spur will actually be

available to multiple shippers. The Louisiana Supreme Court has

m ade clear that in the context of railroad expropriation, the

number of potential shippers is a key factor in establishing public

purpose. In R iver & Rail Terminals, In c. v. Louisiana Railway &

Navigation Co.

, the Court held that a rail spur built to serve only

one shipper was not built for a public purpose. 1 9 The railroad

company in River & Rail had built a rail spur exclusively to serve

the New Orleans Refining Company in the shipment of its own

products. 20 Because the spur benefitted no shipper other than the

one refining compan y, the court held that it did not serve a

“public purpose.” 21 The holding focused on the fact that the spur

exclusively served one private shipper:

The evid ence clearly shows that the spur track of

defendant company serves no other enterprise but the New

Orleans Refining Company, and that it was const ructed

solely for the purpose of enabling defendant company to

handle tank cars shipped out by the refinery.

There is nothing in the record to show that the

public has ever used the spur track of defendant company,

or that defendant company's spur track will accommodate

a number of plants on the river front, and will be open

to all other business enterprises, present and future, in

the same vicinity. 22

Although one shipper is not enough, th e proposed rail spur23 40 So. 627, 629 (La. 1905).

24 173 So. 518, 521 (La. 1937) (“It is clear that the spur tracks

involved here serve a public and not a mere private purpose. The

uncontradicted testimony in the record shows that the tra cks are

not restricted to the use of any single industrial plant, but, on

the contrary, are available to any i ndustrial plant which may

locate on any of the now vacant sites in the area; that there are

presently operating in the area three industrial plants which are

served by the tracks, which, in the past, also served a number of

other plants formerly located in this industrial area.”), overruled

in part by

, Lake, Inc. v. La. Power & Light Co. , 330 So. 2d 914,

918 (La. 1976).

25 69 So. 2d 40, 41 (La. 1953).

26 Id. at 42-43.

9 does not have to serve a large number of shippers to serve a public

purpose. In K ansas City, S. & G. Railway Co. v. Louisiana Western

Railroad Co.

, public purpose was established by showing that a spur

would reach nine private industrial plants. 2 3 In G umbel v. New

Orleans Terminal Co.

, a railroad company established a public

purpose by showing that the rail spur would be open to the public

and that it could potentially serve three private companies already

operating in the area along the spur. 24 In Calcasieu & Southern

Railway Co. v. Bel

, the court held that public purpose was

satisfied when a gravel company built a spur primarily to ship

gravel from its own gravel pit. 25 The court found a public purpose

because some of the land along the seven-mile rail spur belonged to

lumber companies that might use the spur to ship lumber. 26

The general public utility of a propo sed rail spur also

figures into the public purpose analysis. The B el decision27 Id. at 43; accord City of New Orleans v. New Orleans Land Co.

,

136 So. 91, 92-93 (La. 1931) (citing Corpus Juris for the

following: “The character of the use, and not its extent,

determines t he question of public use. It is not essential that

the use or benefit extend to the whole public or any considerable

portion thereof, nor that each and every individual member of the

community have the same degree of interest therein.”).

28 Bel

, 69 So. 2d at 4 3 . Although the court did not indicate

which edition of Nichols it was citing, the current edition of that

treatise contains statements to the same effect. S ee 2A Julius L.

Sackman, Nichols on Eminent Domain

, § 7.02[5] (rev. 3d ed. 2001)

(“Many courts have recognized the inadequacy of the narrow ‘use by

the general public’ rule and have opted to follow the liberal

construction of ‘public use.’”); s ee also City of Shreveport v.

Chanse Gas Corp.

, 794 So. 2d 962, 972-7 4 (La. Ct. App. 2d Cir.

2001) (acknowledging and adopt ing the federal trend in “public

purpose” jurisprudence).

10 demonstrates that after River & Rail , the Louisiana Supreme Court

adopted a bro ader view of public purpose that encompasses the

general public utility of a proposed expropriation. In determining

that the gravel company’s rail spur served a public purpose, the

Bel court considered the economic benefits that the spur would

bestow upon the general public:

It was shown that

. . . the construction of the road

will be a public advantage and will tend to enlarge the

resources, increase the industrial energies, and promote

the productive powers of a considerable number of the

inhabitants or businesses of a section of the state, and

manifestly will contribute to the general welfa re and

prosperity of the community in which it is located. 27

The court then referred with approval to a section of N ichols on

Eminent Domain discussing the nationwide trend of interpreti n g

public purpo se broadly to mean public utility. 2 8 In the next

paragraph, the court cited River & Rail

, but stated that it is “not29 Bel , 69 So. 2d at 43

.

30 Id. The more recent Louisiana appellate court cases define

“public purpose” solely in terms of public benefit. S ee, e.g.

, Town of Vidalia v. Unopened Succession of Ruffin , 663 So. 2d 315,

319 (La. Ct. App. 3d Cir. 199 5) (“[A]ny allocation to a use

resulting in advantages to the public at large will suffice to

constitute a public purpose.”); Dixie Pipeli ne Co. v. Berry , 227

So. 2d 1, 7 (La. Ct. App. 3d Cir. 1969) (finding a public purpose

where a proposed pipeline would connect a privately ow ned plant

with the pr oposed expropriator’s pipeline because “the effect of

the pipeline will be to transport large quantities of propane gas

from the plant to a large market in several states”), writ ref’d

, 2 29 So. 2d 731 (La. 1970) (“On the facts found by the Court of

Appeal the result is correct.”); Texas Pipe Line Co. v. Stein

, 190

So. 2d 244, 252 (La. Ct. App. 4th Cir. 1966), re v’d on other

grounds as moot

, 202 So. 2d 266 (La. 1967) (“The public purpose is

no less served because the pipeline initially will deliver to only

one consumer. If this were reason to reject its qualification as a

public utility carrier, it would be very difficu lt, if not

impossi ble, for any new common carrier pipeline for delivery of

crude oil to a refinery to qualify, for we may fairly assume they

are initially connected to only one refinery. It is not the number

of persons who initial ly contract for use of the line, nor the

number who might actually use it at any given time, which

determines its public character, but rather the extent of the right

to its use by the public.”); see also Town of Vidalia , 663 So. 2d

at 319 (“Despite this restrictive language [in River & Rail ], the

Louisiana jurisprudence has not defined ‘public purpose’ so

narrowly.”). We do not speculate, however, on whether the

Louisiana Supreme Court would follow River & Rail today.

11 pertinent to, or determinative of, the issue in the instant case.” 29

Having determined that the gravel company’s rail spur was available

to other shippers and that it would generally benefit the public,

the court simply dismissed River & Rail as irrelevant to its

analysis. 30

Although Petro United is presently the only company with

property adjacent to the proposed spur line, multiple shippers will

have access to the spur. Consequently, this case is31 It is also relevant to note that R iver & Rail was a trespass

suit, not a traditional expropriation suit. The plaintiff in R iver

& Rail sought to enjoin the defendant railroad company from

operati ng a rail spur on the plaintiff’s land without the

plaintiff’s permission or a court order. R iver & Rail

, 130 So. at

337-38. That is, the railroad tortiously, and perhaps criminally,

trespassed on the plaintiff’s property to build and operate a rail

line. The railroad company raised expropriation as a defense to

12 distinguishable from River & Rail

. PetroUnited is in the chemical

storage and distribution business; it does not merely manufacture

and ship its own products. Rather, various companies deliver their

products to the facility for storage until they make arrangements

to ship them elsewhere. The arrangement is one of bailment; at all

times, PetroUnited’s customers reta in ownership of the products

stored at the facility. Thus, PetroUnited’s customers decide when,

where, and how to ship their products from the facility.

The s ummary judgment evidence indicates that from 1995 to

1999, PetroUnited’s Sunshine facility stored chemicals for thirtythree different com panies. The evidence also shows that, on

several occasions, various chemical companies asked Illinois

Central to build a spur to the PetroUnited facility so that they

could ship their chemicals via rail from that location. Thus,

unlike the spur in River & Rail , there is uncontroverted evidence

that the rail spur in this case could serve numerous shipping

companies and benefit the general public. Since PetroUnited

produces nothing, the only way that its facility generates a profit

is by storing and facilitat ing the distribution and shipment of

other companies’ products. 31the trespass suit after it had already been operating the rail spur

for some time. I d. Although this fact does not overtly figure

into the court’s public purpose analys is, it provides relevant

background from which to evaluate the case. Had the court simply

required the railroad to compensate the lan downers for the land

that it had tortiously occupied, there would be no incentive for it

(or others similarly situated) to negotiate with landowners or to

bring expropriation suits before forcefully seizing land. Not only

would that conclusion be inequitable under the facts of River &

Rail

, but it would undermine eminent domain law and breed bad

public policy.

32 Id. at 340.

33 Kansas City, S. & G. Ry. Co. v. La. W. R.R. Co.

, 40 So. 627,

629 (La. 1905) (holding that a public purpose was established where

“the proposed spur track of plaintiff company will reach nine

industrial plants

. . . and will be open to public use”) (emphasis

13 Contrary to the dissent, our public purpose analysis does not

conflict with the holding in River & Rail . We do not hold that a

public purpose is established merely because the public will have

a theoretical right to use the spur; the expropriator must also

show that a sufficient number of shippers will have actual access

to the spur. There was no public purpose in River & Rail because

at the time of the lawsuit, only one shipper had access or occasion

to use the spur. 32 In the present case, dozens of shippers will

have access to the spur.

Furthermore, there is no basis for the dissent’s claim that

the general public must have access to the terminal served by the

rail spur. Neither K ansas City

, Gumbel

, nor Bel involved public

terminals. In each of these cases, public purpose was established

by showing that the spur was open to the public and that several

companies w ould actually have occasion to use it

. 33 There is noadded); Gumbel v. New Orleans Terminal Co. , 173 So. 518, 521 (La.

1937) (“It is clear that the s pur tracks involved here serve a

public and not a mere private purpose. The uncontradicted

testimony in the record shows that the tracks are not restricted to

the use of any single industrial plant, but, on the contrary, are

available to any industrial plant which m ay locate on any of the

now vacant sites in the area; that there are presently operating in

the area three industrial plants which are served by the tracks .

. . .”) (emphasis added); Bel , 69 So. 2d at 42-43.

34 See River & Rail , 130 So. at 340 (stating that “[t]here is

nothing in the record to show that the public has ever used the

spur track of defendant company, or that defendant company’s spur

track will accommodate a number of plants on the river front”)

(emphasis added).

35 The court summarized its holding in River & Rail as follows:

“Our conclusion is that the construction by the defendant company

of the spur track from its main line was for the purpose of serving

an individual enterprise only and not for a public purpose.” Id.

The cases that River & Rail relied on for its statement that “there

must be a general public right to a definite use of the property,

as distinguished from a use by a private individual or corporation”

merely state that a spur buil t to serve one private shipper does

not serve a public purpose. S ee Kansas City

, 40 So. at 629

(acknowledging that there is no public purpose where the proposed

spur would serve “a private station for an individual shippe r”);

Atlanta, S. M . & L. R. Co. v. Bradley , 81 S.E. 1104, 1105 (Ga.

1914) (holding that a spur serving only one shipper did not satisfy

a public purpose); Pittsburg, W. & K. R. Co. v. Benwood Iron-Works

, 8 S.E. 453, 455, 467 (W. Va. 1888) (holding that a public purpose

was not established where the proposed spur would serve one steel

factory)

. None of these cases hold that a proposed spur must serve

a public terminal for it to serve a public purpose.

14 indication in any of these cases that the public would have a right

to use the private terminals that abutted the proposed spurs. Nor

is there any indica tion that R iver & Rail requires that the rail

terminal be open to the public. 34 The holding of River & Rail is

simple: a spur built to serve one private shipper does not serve a

public purpose. Neither it, nor the cases that it relied upon,

require the spur to serve a public terminal. 3536 Gumbel , 173 So. at 521.

37 City of Westwego v. Marrero Land & Improvment Ass’n

, 59 So. 2d

885, 886 (La. 1952); Claiborne Elec. Coop., Inc. v. Garrett

, 357

So. 2d 1251, 1255 (La. Ct. App. 2d Cir. 1978); S.W. Elec. Power Co.

v. Conger

, 254 So. 2d 98, 99 (La. Ct. App. 2d Cir. 1971); D ixie

Pipeline Co. v. Barry

, 227 So. 2d 1, 7 (La. Ct. App. 3d Cir. 1969);

see also Dakin & Klein, supra note 11, at 363.

Academically, the public demand inquiry might fall under the

heading of “public purpose” rather than “necessary purpose,” but in

15 In Gumbel

, for instance, public pu rpose was established

b ecause there were three private companies operating along the

track that could use it for shipping products. 36 It would be

nonsensical to conclude that a public purpose exists when a spur

s erves three private companies operating from three private

terminals, but that a public purpos e does not exist when a spur

serves dozens of companies shipping products from one terminal.

Thus, the pub lic purpose requirement is satisfied in this

case. The undisputed evidence shows that the spur will be open to

the public and that the dozens of companies who use the St. Gabriel

facility will have access to the spur as a means of shipping their

products through the region. Summary judgment was therefore proper

on the issue of public purpose.

2. Necessary Purpose

There are at least two co mponents to the necessary purpose

inquiry under Louisiana law. First, the private expropriator must

show that there is a public necessity for the expropriation; i.e.,

that there is a public demand for the expropriation. 37 Second, thedeference to the weight of Louisiana decisions, which discuss the

issue in t erms of “necessity” and “public necessity,” we have

characterized it as an issue of necessary purpose.

38 C oleman v. Chevron Pipe Line Co.

, 673 So. 2d 291, 296 (La.

Ct. App. 4th Cir. 1996) (quoting City of New Orleans v. Moeglich

, 126 So. 675, 677 (La. 1930)); accord Calcasieu-Cameron Hosp. Serv.

Dist. v. Fontenot , 628 So. 2d 75, 78 (La. Ct. App. 3d Cir. 1993) ;

see also Dakin & Klein, supra note 11, at 363 (characterizing the

quantity and the location of the taking as “expediency issues”).

39 Mo. Pac. R.R. Co. v. Nicholson

, 460 So. 2d 615, 620-21 (L a

. Ct. App. 1st Cir. 1984).

40 C olema n , 673 So. 2d at 297 (quoting M oeglich

, 126 So. at

677); accord Fontenot , 628 So. 2d at 78.

16 expropriator must show that the expropriation is expedient; i.e.,

“[t]he amount of land and the nature of the acreage taken must be

reasonably necessary for the purpose of the expropriation

. . . .” 38

The district court erred in i ts necessary purpose analysis

because it focused only on the expediency aspect of the inquiry.

The court stated that the necessary purpose requirement is

satisfied if the taking is for “railroad purposes,” 39 and emphasized

that the expropriator ne ed not “show actual, immediate, and

impending necessity for the expropriation.” 40 Since the Mayeuxs did

not allege that Illinois Central was attempting to expropriate more

property than was needed for the proposed spur, the court found

that summary judgment was proper.

Before reaching the expediency issue, however, the court

should have considered whether there was a public necessity for the

spur. A key aspect of the public necessity inquiry under Louisiana

expropriation law is whether there is an actual public demand for41 City of Westwego

, 59 So. 2d at 886 (considering evidence of

the public demand for the expropriation before reviewing propriety

of the proposed location); Claiborne Elec. Coop.

, 357 So. 2d at

1255 (evaluating the demand for the expropriation as part of the

necessary purpose inquiry); Conger , 254 So. 2d at 99 (evaluating

the public necessity (i. e., public demand) before discussing

expediency issues); Dixie Pipeline

, 227 So. 2d at 7; see also Dakin

& Klein, supra note 11, at 363-65 (explaining that an expropriation

must be necessary for a public benefit).

17 the expropriation. 41 The court should have examined this issue and

found a genuine issue of fact regarding the public demand for the

proposed spur. Illinois Central presented evidence of public

demand for the spur by showing that certain chemical companies had

directly petitioned the railroad to build a spur to this location.

The Mayeuxs, h owever, presented expert testimony from a

transportation and logistics specialist stating that there is no

public demand for the proposed spur because it will be unattractive

to companies in the business of shipping bulk chemicals. The

Mayeuxs’ expert opined that the proposed spur will rarely, if ever,

be used to ship chemicals from the Mississippi Valley. Despite its

relevance to the public demand or public necessity inquiry, the

district court’s summary judgment opinion makes no mention of this

expert testimony.

Because the Mayeuxs have shown that there is a genuine dispute

as to whether there is a public demand or public necessity for the

spur, summary judgment on this material issue of fact was

unwarranted. On remand, the district court must determine whether

there is a sufficient public demand for the proposed spur to18

satisfy the necessary purpose requirement under Louisiana law.

III. Conclusion

Because there is a genuine factual dispute over whether there

is a public necessity for the proposed spur, and summary judgment

on the necessary purpose issue was improper, we therefore reverse

the district court’s judgment and remand the case for trial or

other proceedings.

REVERSED and REMANDED for further proceedings.J ERRY E. S MITH , Circuit Judge, dissenting.

I respect fully disagree with the panel

majority, because the taking of t he Mayeuxs’

property was not for a public purpose.

Although, in my view, it is not necessary to

reach the issue of necessity 

### SS because the case

can be resolved on the public purpose criterion

alone 

### SS I express some reservations regarding

the majority’s approach to that issue as well.

I.

Article I, § 4 of the Louisiana Constitution

of 1974 pro vides extensive protection for

property rights:

Every person has the right to

acquire , own control, use, enjoy,

protect, and dispose of private property

.

This right is subject to reasonable

statutory restrictions and the reasonable

exercise of the police pow er. 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

court for his benefit. P roperty shall not

be taken or damaged by any private

entity authorized by law to expropriate,

except fo r a public and necessary

purpose and with just compensation

paid to the ow ner ; in such proceedings,

whether the purpose is public and

necessary shall be a judicial question.

L A

. C ONST

. art. I, § 4 (emphasis added). “Article I, section fo ur of our Consti tuti on was

intended to give far-reaching new p rotecti on

the right of our citi zens to own and control

private property . . . . Its l anguage goes

beyond other state constitutions, including our

1921 Constitution, and the federal

Constitution in limit

ing the power of

government to regulate private pro p erty.”20

State v. 1971 Green GMC Van

, 354 So. 2d

479, 486 (La. 1977) (quotati on om itted).

“‘[N]o other state cons t it ution places such

extensive lim

it ations on the power and

authority of government to regulate or expropriate private property .’” S tate v. Spooner

,

520 So. 2d 336, 362 (La. 1988 ) (quoti ng

Louis Jenkins, The Declaration of Rights

, 21

L OY

. L. R EV

. 9, 19 (1975)). “[T]he rule is the

protecti on of property rights and the exception

is regulation of those rights, the burden of

proof m ust shift from the owner to the

r egulator.” I

d. at 366-67 (Dennis, J.,

concurri ng). The Mayeuxs’ claims must be

viewed in light of these general principles.

A.

T he condemnation of the Mayeu xs’

property violates the public purpose

requirement of the Louisiana Cons t itution.

Properl y understood, the present case is

controlled by the factually similar case of River & Rail Terminals, Inc. v. La. Ry. & Nav. Co.

,

130 So. 337, 340 (La. 1930), 42 which

held that “construction

. . .

of [a] spur track

. . . for the

42 Although River & Rail w as

decided under the 1921

Louisiana Constitution rather

than the 1974 Constitution, the

two documents are alike in forbidding condemnations for nonpublic purposes. In view of

the strong solicitude for

property rights shown by the

1974 framers, it is safe to

assume that the public purpose

test under the 1974

Constitution is SS at the very

least SS no less stringent than

that under its predecessor.

See W. Lee Hargrave, The

Declaration of Rights of the

Louisiana Constitution of 1974

, 35 L A

. L. R EV

. 1, 16-17 (1974)

(demonstrating that “ the

deliberate aim [of art. I, § 4

of the 1974 Constitut ion] was

to make expropriation more

difficult”); Jenkins, supra

, 21

L OY

. L. R EV

. at 10 (noting that

“[t]he new Louisiana

Constitution is the first state

or national constitution to be

influenced by modern

libertarian writers” and that

it reflects a “passion for

strong limitations on the power

of government and for both

economic and social freedom”).

Jenkins was a delegate to the

Louisiana Constitutional

Convention and co-author of the

Declaration of Rights of which

art. I, § 4 is a part.21

purpose of serving an

individual enterprise only” is

not “a public purpose.”

To show a pub lic purpose,

there must be a “general public

right to a definite use of the

property, as distinguished from

a use by a private individual

or corporation which may prove

beneficial or profitable to

some portion of the public.”

Id

. Like the proposed spur

track to the PetroUnited

facility, the spur line in

River & Rail would have served

the facility of a single

“private enterprise whose

premises the public has no

right to enter, but is

prohibited from so doing.” I d.

at 339. Only those firms that

have signed contracts with

PetroUnited and obtained its permission to use its

facilities are allowed to use

the terminal that the proposed

Illinois Central spur would

serve.

The factual similarities

between River & Rail and the

instant case are striking:

The evidence clearly

shows that the spur t rack

of defendant company serves

no other enterprise but the

New Orleans Refining

Company, and that it was

constructed solely for the

purpose of enabling

defendant company to handle

tank cars shipped out by

the refinery.

There is nothing in the

record to show that the22

public has ever used

the spur track of

defendant company, or

that defendant

company’s spur track

will accommodate a number o f plants on the

river front, and will

be open to all ot her

business enterprises,

present and future, in

the same vicinity. The

evidence fails to

establish, in our

opinion, that the entire public has the

right to use the spur

track . . . .

It is well settled that

there must be a general

public right to a definite

use of the propert y, as

distinguished from a use by a private individual or

corporation which may prove

beneficial or profitable to

some portion of the public

. . . .

Our conclusion is that

the construction by

defendant company of the

spur track from its main

line was for the purpose of

serving an individual

enterprise only and not for

a public purpose.

Id. at 340.

River & Rail has not been

overruled and remains good law,

at least with respect to other

factually similar case s. The

Louisiana First Circuit Court

of Appeal, in fact, has adopted

the River & Rail standard as23

its general rule f or public

purpose claims. 43

B.

The majori ty claims that to

meet the requirement of “a

general public right to a defini te use of the property”

spelled out in River & Rail

,

Illinois Central need only show

that “the public [will] have a

right to use the spur”

itself SS even if it has no right

to use the PetroUnited

terminal SS and that “the spur will ac tually be available to

multiple shippers.” Id. ;

Majority op. at 8. This

approach fails for three

reasons.

1.

First and most importantly,

under the majority’s

interpretation, River & Rail

itself would have had to be

decided the other way. The

defendant railroad in R iver &

Rail was a common carrier, and

the general public undeniably

had a “right to a definite use”

of its rail spurs, including

that w hich connected its main

line to th e New Orleans

Refinery Company property.

River & Rail

, 130 So. at 339.

The River & Rail court took

great pains to distinguish

between the “general 43 See Terrebonne Parish

Polic e Jury v. Kelly , 472

So. 2d 229, 232 (La. App. 1st

Cir.) (holding that “to show a

public purpose there must be a

‘general public right to a

d efinite use of the propert y

, as distinguished from a use by

a private individual or

corporation which may prove

beneficial or profitable to

so me portion of the public’”)

(quoting River & Rail , 130 So.

at 340), writ granted in part

on other grounds

, 476 So. 2d

340 (La. 1985).24

public[’s] right to a definite

use of the property” and mere

benefits to “some portion of

the public” that a rise from

“use by a private individual or

corporation.” I d. at 340. The

former, not the latter, is the

criterion for public use.

This language in River & Rail

contradicts the majority’s

suggestion tha t a spur line

connecting solely to a

privately owned terminal to

which the public lacks a right

of access meets the test so

long as the public has a right

of access to the spur line

(though not t he terminal) and

“the spur will actually be

available to multiple

shippers.” Majority op. at 8.

Such availability might show

that the construction of the spur “m ay prove beneficial or

profitable to some portion of

the public” SS the standard of

proof reje cted by R iver &

Rail SS b ut it is not enough to

show that there is “a general

public right to a definite use

of the property.” R iver &

Rail , 130 So. at 340.

2.

Second, the majority’s

interpretation fails because

the cases that River & Rail

cites in explicat ion of the

requirement “general public

right to a definite use of the

property” cut the other way.

Id. at 340. In the passage at

issue, the River & Rail court

cited three decisions:

Pittsburg, Wheeling & Ky. R.R.

v. Benwood I ron-Works , 8 S.E.

4 53 (W. Va. 1888); Atlanta

,25

Stone Mountain & Lithonia R.R.

v. Bradley

, 81 S.E. 1104 (Ga.

1914); and Kansas City,

Shreveport & Gulf Ry. v. La.

W.R.R. , 40 So. 627 (La. 1905).

The first two of these cases

directly contradict the

majority’s claims, and the

third does not address the

question at hand.

In Pittsburg , the court held

that a proposed condemnation to

build a rail spur failed the

public purpose test because it

connected only to a single

steel works owned by a private

firm. 8 S.E. at 466-67. The

co urt concluded that the fact

that “the public will have a

right to use” the rail spur

i tself “amounts to nothing in

the face of the fact that the

only incentive to ask for the condemnation was private gain.”

Id. at 467. Access to the

terminal, not to the rail spur,

was the determining factor.

Similarly, in Atlanta

, 81

S.E. at 1105, the court

invalidated a condemnation

undertaken “for the purpose of

constructing a spur track from

its main line merely to afford

transportation facilities for

the owners of an individual

e nterprise.” Here too, the

railroad was a common carrier,

and the general public had a

right of access to all its rail

lines, including the spur in

question. Once again, the

determining factor is the

status of the enterprise to

which the spur line connected,

not the status of the spur line26

itself. 44

3.

The third fl aw in the

majority’s approach is that it

undermines the fundamental

objective of the public purpose

requirement: to ensure that

condemnations serve the public

as a whole and not merely

narrow private interests. The

“right” to use a rail spur that

connects to only one termi nal

is utterly worthles s to the

general public if it does not

also have a right to use the

terminal itself. Such was the

situation in both River & Rail

and the present case.

The public’s theoretical

right to use the spur line therefore cannot prevent the

use of the eminent domain power

to construct a line that is

useles s to the general public

but of benefit to politic ally

influential private parties.

For t his reason, the majority

runs afoul of the public

purpose requirement’s

fundamental objective of

preventing the abuse o f the

eminent domai n power “for the

purpose of serving an

individual enterprise only.”

River & Rail , 130 So. at 340.

The majority’s additional

requirement that “the spur will

actually be available to

multiple shippers” does not vitiate the danger of abuse of

the eminent domain power.

Majority op. at 8. Any

expropriation that benefits an 44 Kansas City

, the third case

cited by the River & Rail

court, does not shed light on

the point at issue.27

individual private business is

also likely to benefit its

customers, in this case the

shippers that contract to store

goods at the PetroU nited terminal. The majority’s approach

requires only that the business

in question can show that “the

spur will

. . . be available to

multiple shippers;” it need not

even show that the shippers

will actually take advantage of

this “availability.” I d.

Such a weak restriction does

little, if anything, to prevent

the use of the eminent domain

power for the benefit of narrow

private interests.

C.

Several of Louisiana’s lower

courts , cited by the district

court and the majority, have

sought to narrow the scope of River & Rail

, but even those

courts have reaffirmed its applicability to directly analogous factual circumstances. 45

4 5 The district court claims

that later decisions have not

“followed [the] restrictive

line” of River & Rail , but the

court cites only three decisions SS all from the Louisiana

Third Circuit SS in support.

Ill. Cent. , 178 F. Supp. 2d at

668 (citing Dixie Pipeline Co.

v. Barry

, 227 So. 2d 1 (La.

App. 3d Cir. 1969), writ

denied

, 229 So. 2d 731 (La.

1970)); La. Res. Co. v. Greene

, 406 So. 2d 1360 (La. App. 3d

Cir. 1981), writ denied

, 412

So. 2d 84 (La. 1982); Town of

Vidalia v. Ruffin

, 663 So. 2d

315, 319 (La. App. 3d Cir.

1995). One of the courts

cited, however, took care to

point out that River & Rail

“reached the correct conclusion

under the particular facts

before it,” because the

proposed spur track in that

case would link only to a

“‘ private enterprise whose

premises the public has no

right to enter, but is

prohibited from so doing .’” Id.

at 319 n.2 (quoting River &

Rail

, 130 So. at 339) (emphasis

added by Ruffin ). Thus, it

seems likely that the Ruffin

court would not have upheld the

expropriation in the present

case.28

Some other Louisiana lower

courts have adopted broader

standards for public purpose

determinations, holding that

almost any expropriation that

promotes economic development

or increases consumer access to

the products of industry passes

the test

. 4 6 These decisions, however, addressed factual

circumstances very different

from those of the present case

and are easily

distinguishable. 47 In any

event, we are not bound by

these later lower court

decisions, because in diversity

cases we are required “to apply the

la w as interpreted by the state’s h ighest

court.” F DIC v. Abraham

, 137 F.3d 264, 268

(5th Cir. 1998) (emphasis added) (quotati ons

omitted).

The majority claims that its holding is supported by sev e ral Louisiana Supreme Court O n e of the other cited

opinions similarly noted that

River & Rail was correctly

decided, because a rail spur

“to the site of a private

industrial plant [is not a

public purpose] because the

public had no right of access

to this facility.” L a. Res.

, 406 So.2d at 1364. The third

case distinguished River & Rail

on the ground that the facility

in question SS a pipeline SS was a

common carrier facility open to

all customers that met

generally applicable rules.

Dixie Pipeline

, 227 So. 2d at

6. This distinction does not

apply to the PetroUnited

terminal.

46 See City of Shreveport v.

Chanse Gas Corp.

, 794 So. 2d

962, 973 (La. App. 2d Cir.

2001) (finding that “economic

development is a public purpose”), writ denied

, 805 So. 2d

209 (La.), and writ denied

, 805

So. 2d 209 (La. 2002); La. Res.

, 406 So. 2d at 1364

(holding that a pipe line that

provided gas only for selected

private industries “serves a

public purpose merely by

placing more gas in the stream

of commerce”).

47 For example, the Louisiana

Resources and Chanse Gas courts

considered expropriations for

the purpose of building

pipelines for public utilities.29

decisions. The cases the majorit y cites,

however, do not advance the conclusion that

a spur line that connects to only one privately

owned terminal can pass the public purpose

test. To the contrary, all of these decisions upheld expropriation at issue in large part because the spur line in question connected to

more than one terminal.

Kansas City

, the first case o n which the

majority relies, is readily distinguishab le and

was in any ev ent decided twenty-five years

before River &

Rail . The Kansas City court,

40 So. at 629, upheld a condemnation for the

purpose of building a “spur track

. . . [that]

will reach nine industrial plants already in

existence.” Undeniably, a track that services

the facilit ies of nine differen t firms is more

likely to serve a true pub l ic purpose than is

one that connects to just one facilit y owned by

a single enterprise. There is no indication that the Kansas City

court would have upheld a condemnation of

the latter type. To the contrary , that court favorably cited an Arkansas decision that “held

that a railway cannot exercise the right of eminent domain to establish a private stati on for

an indiv idual shipper.” I d. (citing St. Louis,

Iron Mountain & S. Ry. v. Petty

, 21 S.W. 884

(Ark. 1893)). 48

48 The reasoning of the

Arkansas Supreme Court

strongly supports my position:

A railway cannot exercise

the right of emi nent domain

to establish a private

shipping station for an

individual sh ipper. If the

station is for the exclusive

use of a si ngle individual,

or a collection of

individuals less than the

public, that stamps it as a

private use, and private

property cannot be taken for

private use

. The fact that

the railway’s business would

be increased by the

additional private

facilities is not e nough to

make the use publi c . . . .

To be public, the user must

concern the public. If it

is an aid in facilitating

the business fo r which the

public agency is authorized30

Gumbel v. New Orleans

Terminal Co. , 173 So. 518 (La.

1937), and Calcasieu & S. Ry.

v. Bel

, 69 So. 2d 40 (La.

1953), the two other cases

relied on by the majority, are

also distinguishable. G umbel

upheld the use of eminent

domain to operate a spur track

bec ause “the tracks are not

restricted to the use of any

single industrial plant, but,

on the contrary, are available

to any industrial plant which

may locate on any of the now

vacant sites in the area;

. . .

there are presently operating

in the area three industrial

plants which are served by the tracks, which, in the past,

also served a number of other

plants formerly located in this

industrial area.” I d. at

521. 49 In the present case,

to exercise the power to

condemn, or if the public

may enjoy the use of it,

not by permission, but of

right

, its character is

public.

St. Louis

, 21 S.W. at 885

(emphasis added). 49 Citing Gumbel

, the

majority opines that “[i]t

would be nonsensical to

conclude that a public purpose

exists when a spur serves three

private companies operating

from separate terminals, but

that a public purpose does not

exist when a spur serves dozens

of companies shipping products

from one terminal.” Majority

op. at 15. Such a conclusion,

though, is in fact perfectly

reasonable. However many

companies ship products to the

one terminal, it is still the

case that access to the

terminal is controlled by a

single private owner, and only

su ch parties as serve its

interests will be allowed to

use it. There is therefore no

assurance that the spur line

will be used for a public

purpose beneficial to the

public as a whole. By

contrast, in the case with

three terminals, access to

stations on the spur line is no

longer controlled by a single

party, and there is at least

somewhat greater assurance that

the public interest will be

served.

Furthermore, contrary to the

majority’s suggestion, Gumbel31

the proposed spur line connects

only to a single enterprise,

and there are no other enterprises to which it can connect,

even potentially. The G umbel

court specifically

distingu ished R iver & Rail on

the ground that “the spur track

involved there, differently

from the spur track involved

here, was constructed solely

for the purpose of serving a

single industry.” Id.

In Calcasieu, likewise, the

court upheld a condemnation for

a spur line because the railroad had established that the proposed spur would connect

not only to a single private

facility but also to properties

owned by “lumber corporations,

owners of large tracts of land

situated in the vicinity of the

proposed rail line.”

Calcasieu

, 69 So. 2d at 42.

The court stressed t hat “upon

completion of the railroad

under construction, its

facilities would serve the public generally and any

industries located near its

tracks.” Id.

Louisiana precedent may not

definitively answer the

question of how many privately

owned terminals a proposed spur

line has to connect to before

it can be considered a public

purpose. R iver & Rail does,

however, plainly state that one does not hold that a connection

to three terminals is by itself

sufficient to meet the River &

Rail standard. Rather, it

holds that this was sufficient

in an area in which there also

were empty lots that

previously had contained

numerous other industrial

plants and might do so again.

Gumbel , 173 So. at 521.32

is not enough.

There is, therefore, every

reason to believe that River &

Rail is the Louisiana precedent

most applicable to the present

case. We need not decide to

what it extent it also may

apply in situations that are

materially different. For this

reason, I would reverse the

district court’s decision on

the ground that the proposed

expropriation is not for a

public purpose.

II.

Because I conclude that the

proposed condemnation of the

Mayeuxs’ property runs afoul of

the public purpose requirement,

I do not consider it essential

for this court to address the

necessity issue. Assuming that the issue does have to be

resolved, I agree with the

majority’s conclusion that a

remand is necessary. I write

separately, however, to point

out s ome critical flaws and

omissions in the majority’s

reasoning.

A.

The most important

shortcoming of the majority

opinion is its failure to give

proper consideration to the

fact that the Louisiana

Constitution of 1974 imposes a

new and more strict necessity

requirement on takings by private entities. Under the 1921

Constitution, authorized

private expropriators were

required only to prove that the

expropriation was for a public

purpose. The 1974 Constitution33

imposes the additional requirement that takings by private

entities must be for a “public

and nece ssary purpose.” L A

.

C ONST

. art. I § 4 (emphasis

added).

The only published opinion

explicitly to have considered

the impact of the 1974 Constitution on the necessity

standard is Judge Watson’s

concur ring opinion in L a. Resources , in which he concluded

that art. I, § 4 of the 1974

Constitution “was adopted after

great controversy and was

intended to make expropriation

by private entities more

diffic ult.” I d. at 521

(Watson, J., concurring). 50

Judge Watson’s reasoning is persuasive: It is difficult

to believe that the 1974

framers would have added the

“necessary” provision if they

had not intended to raise the

applicable standard and to

creat e a higher standard than

that applied to public

agencies.

Evidence gathered by academic

commentators confirms Judge

Watson’s view. 51 Louis Jenkins

points out that “[t]he

convention debated at length

the desirability of providing

that property could not be

taken except for a ‘public and

necessary’ purpose” and

deliberately chose to adopt

50 T h e majority opinion in

Stream did not address the

issue raised by Judge Watson. 51 See H argrave, supra

, 35

L A

. L . R E V .at 16-17

(demonstrating that “ the

deliberate aim [of art. I, § 4]

was to make expropriation more

difficult”); Jenkins, supra

, 21

L OY

. L. R EV .at 21-22 (same).34

this wording to set a “ considerably more onerous ”

standard for takings by private

entities. Jenkins, s upra

, 21

L OY

. L. R EV

. at 21-22 (emph a sis

added).

The Louisiana Supreme Court

has refused to accept

interpretations of the state

Constitution that render

particular provisions

“superfluous.” 52 If the

standard for necessity required

of private expropriators is not

held to be higher than that demanded of government

agencies, the term “necessary”

in Art. I, § 4 SS

which applies

to private but not governmental

takings SS

would be rendered

superfluous, because it would

not create a higher standard

for the former. In sum, the

Louisiana Constitution of 1974

supports a standard of n ecessity for takings by p rivate

entities that is much more

rigorous than that currently

required of government agencies

or that requir ed of private

expropriators before 1974.

B.

If we accept, as we must, the

conclusion that the 1974

Constitution requires private

expropriators to meet a

standard of necessity that goes

beyond the requirements imposed 52 Manuel v. St ate , 692

So. 2d 320, 324 (La. 1996); see

also City of Baton Rouge v.

Ross

, 654 So. 2d 1311, 1328

(La. 1995) (Calogero, C.J.,

concurring) (arguing that a

provision of the 1974

Constitution that contained

wording deliberately changed

from that of the 1 921

Constitution must not be

interpreted in the same way as

the latter, because otherwise

the new wording would be

superfluous).35

on public agencies, Illinois

Central’s position becomes even

more precarious than the majorindicates. A sound approach to

the necessity standard should

at the very least require that

t he public purpose the takin g

is intended to ach ieve cannot

be accomplished with comparable

efficacy wit hout expropriation.

This requirement is consonant

with the current caselaw’s

insistence that proof of

necessity must include proof of

the necessity of the purpose

though not of the necessity of

the specific location. 53 Even

if the expropriator need not

prove that the condemnation of

any specific site is required, it still must prove that the

expropriation of some location

is necessary to a chieve its

public purposes. If the public

purpose can be achieved by

voluntary means, it cannot

possibly be “ necessary ” to

achieve it by means of coercive

expropriation. 54

This line o f reasoning is

supported by Coleman

, one of

the cases relied on by the

majority. Coleman held that

“ [o]nce public necessity is

established

, the extent and

location for the property to be

53 Coleman v. Chevron Pipe

Line Co.

, 673 So. 2d 291, 296

(La. App. 4th Cir. 1996); Claib orne Elec. Coop. v. Garrett

, 357 So. 2d 1251, 1255 (La. App.

2d Cir. 1978). 54 The most relevant

dictionary definition of

necessary is a thing “that

cannot be done without” or is

“absolutely required.”

W EBSTER ’ S T HIRD N EW I NTERNATIONAL

D ICTIONARY 1151 (1986).

Certainly, there can be no

“absolute requirement” for

expropriation if noncoercive

alternatives are readily

available.36

expropriated are within the

sound discretion of the

expropriation authority.”

Coleman

, 673 So. 2d at 296

(emphasis added). This

demonstrates that proof of

“public necessity” is separate

from proof of the need for any

particular site. The

expropriator first must

establish that expropriation is

necessary at all.

The requirement that

expropriators prove that the

public purpose at issue cannot

be achieved without

expropriation is stronger than

the majority’s stated

requirement that the

expropriator merely prove the

existence of a “public demand

for the expropriation” and the

“expediency” of expropriating the particular property at

issue. Majority op. at 17.

Here, the majority’s failure to

acknowledge the importance of

the 1974 Constitution comes

home to roost. All but one of

the cases that the majority

cites to support its pos ition

that the existence of a

“public demand” is sufficient

to justify an expropriation

once “expediency” is

established either predate the

1974 Constitution or concern

expropriation by public

agencies SS

which are not bound

by the necessity requirement of

art. 1, § 4 SS or both. 55 These

55 See Majority op. at 17 n.41

(citing City

of Westwego v.

Marrero Land & Improvement

Ass’n , 59 So. 2d 885, 886 (La.

1952) (both addressing a public

expropriation and predating the

1974 Constitution);

Southwestern Elec. Power Co. v.

Conger , 254 So. 2d 98, 99 (La.

A pp. 2d Cir. 1971) (predatin g

1974 Constitution); and Dixie37

cases are irreleva nt to the

task of interpreting art. 1, §

4.

Claiborne Electric Power, the

sole post-1974 decision cited

by the majority to support its

position on this point, does

not in fact do so. The

Claiborne court held merely

that the existence of a demand

for the public purp ose served

by the expropriation refuted

the property owners’ claim that

the power company was required

to prove the need to

expropriate “the specific

location of the servitude.”

Claiborne

, 357 So. 2d at 1255

(emphasis added). C laiborne

did not even come close to

holding that the existence of a “public demand” obviates the

need to prove that

expropriation of some property

is necessary. 56

The majority’s approach might

even allow the necessity

standar d to be satisfied in

cases where some segment of

“the publi c” SS in this case, a

segment as small as a few

shippers S S supports

expropriation despite the fact

that the public purpose in

question could just as effectively be achieved by

noncoercive means. The degree

of danger posed by the majority

position remains uncertain,

Pipeline

, 227 So. 2d at 7

(same)). 56 Indeed, the Claiborne court

was careful to emphasize that

the defendants were arguing

that “the expropriating

authority [must] prove [that]

the particular route chosen [by

the expropriator] was

necessary.” C laiborne

, 357 So.

2d at 1255.38

however, because the majority

fails to indicate how high a

level of “public demand” needs

to be demonstrated before its

standard is met.

For the reasons indicated, I

respectfully dissent.