Illinois Ctrl RR Co v. Mayeux, et al

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, 2002

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2
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 building a rail spur to a
chemical storage facility 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 line to a chemical storage facility that is owned and
operated by a French 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 dozens

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3
of chemical 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 contends 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 court 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 no

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1 The district court applied a more lenient standard of review
on the ground 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 trials, this circuit has not
actually adopted such a standard. See, 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 judgment based on inferences
drawn from incontrovertibly proven facts, so long as there is no
issue of witness credibility. United 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 Celotex 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 Review1
We review grants of summary judgment de novo.2 Summary
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 drawn

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5 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); Musser
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 light 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
expropriate “needed” private property when the owner of the
property and the corporation cannot agree upon a purchase price.7
A second provision, Louisiana Revised Statute § 45:353, allows
foreign railroad companies operating in Louisiana to expropriate
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 specifically provides that “[p]roperty shall not be
taken or damaged by any private entity authorized by law to

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9 La. Const. art. I, § 4 (West 1996) (emphasis added).
10 Id.; accord Calcasieu & S. Ry. Co. v. Bel, 69 So. 2d 40, 41
(La. 1953).
11 Melvin G. Dakin & Michael R. Klein, Eminent Domain in
Louisiana 360 (1970).
12 Id. (citing Bel, 69 So. 2d at 42; Gumbel 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
expropriate, except for a public and necessary purpose and with
just compensation to the owner.”9 The Louisiana Constitution also
makes 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.13 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 the

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15 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
Central 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., Bel, 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 owned 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 Dakin &
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 spur16 is inapposite; Louisiana courts have held
that the financing and ownership arrangement for a proposed spur
has no effect on whether the spur will serve a public purpose.17
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.

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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
made clear that in the context of railroad expropriation, the
number of potential shippers is a key factor in establishing public
purpose. In River & Rail Terminals, Inc. 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.19 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 company, 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 evidence clearly shows that the spur track 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 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, the proposed rail spur

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23 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 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; 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 Kansas 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.23 In Gumbel 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 proposed rail spur also
figures into the public purpose analysis. The Bel decision

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27 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 the 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 43. 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. See 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.’”); see also City of Shreveport v.
Chanse Gas Corp., 794 So. 2d 962, 972-74 (La. Ct. App. 2d Cir.
2001) (acknowledging and adopting the federal trend in “public
purpose” jurisprudence).
10
demonstrates that after River & Rail, the Louisiana Supreme Court
adopted a broader 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 welfare and
prosperity of the community in which it is located.27
The court then referred with approval to a section of Nichols on
Eminent Domain discussing the nationwide trend of interpreting
public purpose broadly to mean public utility.28 In the next
paragraph, the court cited River & Rail, but stated that it is “not

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29 Bel, 69 So. 2d at 43.
30 Id. The more recent Louisiana appellate court cases define
“public purpose” solely in terms of public benefit. See, e.g.,
Town of Vidalia v. Unopened Succession of Ruffin, 663 So. 2d 315,
319 (La. Ct. App. 3d Cir. 1995) (“[A]ny allocation to a use
resulting in advantages to the public at large will suffice to
constitute a public purpose.”); Dixie Pipeline 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 owned plant
with the proposed 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,
229 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), rev’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 difficult, if not
impossible, 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 initially 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 PetroUnited is presently the only company with
property adjacent to the proposed spur line, multiple shippers will
have access to the spur. Consequently, this case is

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31 It is also relevant to note that River & Rail was a trespass
suit, not a traditional expropriation suit. The plaintiff in River
& Rail sought to enjoin the defendant railroad company from
operating a rail spur on the plaintiff’s land without the
plaintiff’s permission or a court order. River & 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 retain 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 summary judgment evidence indicates that from 1995 to
1999, PetroUnited’s Sunshine facility stored chemicals for thirty-
three different companies. 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 facilitating the distribution and shipment of
other companies’ products.31

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the trespass suit after it had already been operating the rail spur
for some time. Id. Although this fact does not overtly figure
into the court’s public purpose analysis, it provides relevant
background from which to evaluate the case. Had the court simply
required the railroad to compensate the landowners 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 Kansas 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 would actually have occasion to use it.33 There is no

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added); Gumbel v. New Orleans Terminal Co., 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 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; 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 built to serve one private shipper does
not serve a public purpose. See 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 shipper”);
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 indication that River & 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.35

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36 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); Dixie
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 purpose was established
because 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
serves three private companies operating from three private
terminals, but that a public purpose does not exist when a spur
serves dozens of companies shipping products from one terminal.
Thus, the public 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 components 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, the

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deference to the weight of Louisiana decisions, which discuss the
issue in terms of “necessity” and “public necessity,” we have
characterized it as an issue of necessary purpose.
38 Coleman 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 (La.
Ct. App. 1st Cir. 1984).
40 Coleman, 673 So. 2d at 297 (quoting Moeglich, 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 its 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 need 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 for

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41 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, however, 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 to

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18
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.

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JERRY E. SMITH, Circuit Judge, dissenting.
I respectfully disagree with the panel
majority, because the taking of the Mayeuxs’
property was not for a public purpose.
Although, in my view, it is not necessary to
reach the issue of necessitySSbecause the case
can be resolved on the public purpose criterion
aloneSSI express some reservations regarding
the majority’s approach to that issue as well.
I.
Article I, § 4 of the Louisiana Constitution
of 1974 provides 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 power. 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. Property shall not
be taken or damaged by any private
entity authorized by law to expropriate,
except for a public and necessary
purpose and with just compensation
paid to the owner; in such proceedings,
whether the purpose is public and
necessary shall be a judicial question.
LA. CONST. art. I, § 4 (emphasis added). “Ar-
ticle I, section four of our Constitution was
intended to give far-reaching new protection
the right of our citizens to own and control
private property. . . . Its language goes
beyond other state constitutions, including our
1921 Constitution, and the federal
Constitution in limiting the power of
government to regulate private property.”

-- 19 of 38 --

20
State v. 1971 Green GMC Van, 354 So. 2d
479, 486 (La. 1977) (quotation omitted).
“‘[N]o other state constitution places such
extensive limitations on the power and
authority of government to regulate or ex-
propriate private property.’” State v. Spooner,
520 So. 2d 336, 362 (La. 1988) (quoting
Louis Jenkins, The Declaration of Rights, 21
LOY. L. REV. 9, 19 (1975)). “[T]he rule is the
protection of property rights and the exception
is regulation of those rights, the burden of
proof must shift from the owner to the
regulator.” Id. at 366-67 (Dennis, J.,
concurring). The Mayeuxs’ claims must be
viewed in light of these general principles.
A.
The condemnation of the Mayeuxs’
property violates the public purpose
requirement of the Louisiana Constitution.
Properly 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 was
decided under the 1921
Louisiana Constitution rather
than the 1974 Constitution, the
two documents are alike in for-
bidding condemnations for non-
public 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 isSSat the very
leastSSno less stringent than
that under its predecessor.
See W. Lee Hargrave, The
Declaration of Rights of the
Louisiana Constitution of 1974,
35 LA. L. REV. 1, 16-17 (1974)
(demonstrating that “the
deliberate aim [of art. I, § 4
of the 1974 Constitution] was
to make expropriation more
difficult”); Jenkins, supra, 21
LOY. L. REV. at 10 (noting that
“ [ t ] h e n e w L o u i s i a n a
Constitution is the first state
or national constitution to be
i n f l u e n c e d b y m o d e r n
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.

-- 20 of 38 --

21
purpose of serving an
individual enterprise only” is
not “a public purpose.”
To show a public 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.” Id.
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 track
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 the

-- 21 of 38 --

22
public has ever used
the spur track of
defendant company, or
t h a t d e f e n d a n t
company’s spur track
will accommodate a num-
ber of plants on the
river front, and will
be open to all other
business enterprises,
present and future, in
the same vicinity. The
evidence fails to
establish, in our
opinion, that the en-
tire 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 property, 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 cases. The
Louisiana First Circuit Court
of Appeal, in fact, has adopted
the River & Rail standard as

-- 22 of 38 --

23
its general rule for public
purpose claims.43
B.
The majority claims that to
meet the requirement of “a
general public right to a de-
finite 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”
itselfSSeven if it has no right
to use the PetroUnited
terminalSSand that “the spur
will actually be available to
multiple shippers.” Id.;
Majority op. at 8. This
approach fails for three
reasons.
1.
First and most importantly,
u n d e r t h e m a j o r i t y ’ s
interpretation, River & Rail
itself would have had to be
decided the other way. The
defendant railroad in River &
Rail was a common carrier, and
the general public undeniably
had a “right to a definite use”
of its rail spurs, including
that which connected its main
line to the 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
Police 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
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’”)
(quoting River & Rail, 130 So.
at 340), writ granted in part
on other grounds, 476 So. 2d
340 (La. 1985).

-- 23 of 38 --

24
public[’s] right to a definite
use of the property” and mere
benefits to “some portion of
the public” that arise from
“use by a private individual or
corporation.” Id. at 340. The
former, not the latter, is the
criterion for public use.
This language in River & Rail
contradicts the majority’s
suggestion that 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 the 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 “may prove beneficial or
profitable to some portion of
the public”SSthe standard of
proof rejected by River &
RailSSbut it is not enough to
show that there is “a general
public right to a definite use
of the property.” River &
Rail, 130 So. at 340.
2.
Second, the majority’s
interpretation fails because
the cases that River & Rail
cites in explication 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 Iron-Works, 8 S.E.
453 (W. Va. 1888); Atlanta,

-- 24 of 38 --

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
court concluded that the fact
that “the public will have a
right to use” the rail spur
itself “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
enterprise.” 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 line

-- 25 of 38 --

26
itself.44
3.
The third flaw 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 terminal
is utterly worthless 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
useless to the general public
but of benefit to politically
influential private parties.
For this reason, the majority
runs afoul of the public
p u r p o s e r e q u i r e m e n t ’ s
fundamental objective of
preventing the abuse of the
eminent domain 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 vi-
tiate the danger of abuse of
the eminent domain power.
Majority op. at 8. Any
expropriation that benefits an
44Kansas City, the third case
cited by the River & Rail
court, does not shed light on
the point at issue.

-- 26 of 38 --

27
individual private business is
also likely to benefit its
customers, in this case the
shippers that contract to store
goods at the PetroUnited ter-
minal. 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.” Id.
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 ap-
plicability to directly anal-
ogous factual circumstances.45
45 The district court claims
that later decisions have not
“followed [the] restrictive
line” of River & Rail, but the
court cites only three deci-
sionsSSall from the Louisiana
Third CircuitSSin 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.

-- 27 of 38 --

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.46 These decisions,
however, addressed factual
circumstances very different
from those of the present case
a n d a r e e a s i l y
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
law as interpreted by the state’s highest
court.” FDIC v. Abraham, 137 F.3d 264, 268
(5th Cir. 1998) (emphasis added) (quotations
omitted).
The majority claims that its holding is sup-
ported by several Louisiana Supreme Court
One 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.” La. Res.,
406 So.2d at 1364. The third
case distinguished River & Rail
on the ground that the facility
in questionSSa pipelineSSwas 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 pur-
pose”), 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 pipeline 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.

-- 28 of 38 --

29
decisions. The cases the majority 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 up-
held expropriation at issue in large part be-
cause the spur line in question connected to
more than one terminal.
Kansas City, the first case on which the
majority relies, is readily distinguishable and
was in any event 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 facilities of nine different firms is more
likely to serve a true public purpose than is
one that connects to just one facility 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 fa-
vorably cited an Arkansas decision that “held
that a railway cannot exercise the right of em-
inent domain to establish a private station for
an individual shipper.” Id. (citing St. Louis,
Iron Mountain & S. Ry. v. Petty, 21 S.W. 884
(Ark. 1893)).48
48The reasoning of the
Arkansas Supreme Court
strongly supports my position:
A railway cannot exercise
the right of eminent domain
to establish a private
shipping station for an
individual shipper. If the
station is for the exclusive
use of a single 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
a d d i t i o n a l p r i v a t e
facilities is not enough to
make the use public . . . .
To be public, the user must
concern the public. If it
is an aid in facilitating
the business for which the
public agency is authorized

-- 29 of 38 --

30
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. Gumbel
upheld the use of eminent
domain to operate a spur track
because “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.” Id. 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
such 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, Gumbel

-- 30 of 38 --

31
the proposed spur line connects
only to a single enterprise,
and there are no other enter-
prises to which it can connect,
even potentially. The Gumbel
c o u r t s p e c i f i c a l l y
distinguished River & 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 rail-
road 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
p r o p o s e d r a i l l i n e . ”
Calcasieu, 69 So. 2d at 42.
The court stressed that “upon
completion of the railroad
under construction, its
facilities would serve the pub-
lic 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. River & 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.

-- 31 of 38 --

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 some 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 pri-
vate entities. Under the 1921
Constitution, authorized
private expropriators were
required only to prove that the
expropriation was for a public
purpose. The 1974 Constitution

-- 32 of 38 --

33
imposes the additional require-
ment that takings by private
entities must be for a “public
and necessary purpose.” LA.
CONST. art. I § 4 (emphasis
added).
The only published opinion
explicitly to have considered
the impact of the 1974 Consti-
tution on the necessity
standard is Judge Watson’s
concurring opinion in La. Re-
sources, 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
difficult.” Id. 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
create 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 The majority opinion in
Stream did not address the
issue raised by Judge Watson.
51 See Hargrave, supra, 35
L A . L . R E V . a t 1 6 - 1 7
(demonstrating that “the
deliberate aim [of art. I, § 4]
was to make expropriation more
difficult”); Jenkins, supra, 21
LOY. L. REV.at 21-22 (same).

-- 33 of 38 --

34
this wording to set a “con-
siderably more onerous”
standard for takings by private
entities. Jenkins, supra, 21
LOY. L. REV. at 21-22 (emphasis
added).
The Louisiana Supreme Court
has refused to accept
interpretations of the state
Constitution that render
p a r t i c u l a r p r o v i s i o n s
“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, § 4SSwhich applies
to private but not governmental
takingsSSwould 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 nec-
essity for takings by private
entities that is much more
rigorous than that currently
required of government agencies
or that required 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. State, 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 1921
Constitution must not be
interpreted in the same way as
the latter, because otherwise
the new wording would be
superfluous).

-- 34 of 38 --

35
on public agencies, Illinois
Central’s position becomes even
more precarious than the major-
indicates. A sound approach to
the necessity standard should
at the very least require that
the public purpose the taking
is intended to achieve cannot
be accomplished with comparable
efficacy without 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 achieve 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 of 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); Clai-
borne 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
“ a b s o l u t e l y r e q u i r e d . ”
WEBSTER’S THIRD NEW INTERNATIONAL
DICTIONARY 1151 (1986).
Certainly, there can be no
“absolute requirement” for
expropriation if noncoercive
alternatives are readily
available.

-- 35 of 38 --

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
b e a c h i e v e d w i t h o u t
expropriation is stronger than
the majority’s stated
r e q u i r e m e n t t h a t t h e
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 position
that the existence of a
“public demand” is sufficient
to justify an expropriation
o n c e “ e x p e d i e n c y ” i s
established either predate the
1974 Constitution or concern
expropriation by public
agenciesSSwhich are not bound
by the necessity requirement of
art. 1, § 4SSor both.55 These
55See 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
1 9 7 4 C o n s t i t u t i o n ) ;
Southwestern Elec. Power Co. v.
Conger, 254 So. 2d 98, 99 (La.
App. 2d Cir. 1971) (predating
1974 Constitution); and Dixie

-- 36 of 38 --

37
cases are irrelevant 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 purpose 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). Claiborne
did not even come close to
holding that the existence of a
“public demand” obviates the
n e e d t o p r o v e t h a t
expropriation of some property
is necessary.56
The majority’s approach might
even allow the necessity
standard to be satisfied in
cases where some segment of
“the public”SSin this case, a
segment as small as a few
s h i p p e r s S S s u p p o r t s
expropriation despite the fact
that the public purpose in
question could just as ef-
fectively be achieved by
noncoercive means. The degree
of danger posed by the majority
position remains uncertain,
Pipeline, 227 So. 2d at 7
(same)).
56Indeed, 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.” Claiborne, 357 So.
2d at 1255.

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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.

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