Opinion
No. 41315.
July 3, 1953.
APPEAL FROM 10TH JUDICIAL DISTRICT COURT, PARISH OF RED RIVER, STATE OF LOUISIANA, HONORABLE L. P. STEPHENS, J.
Bethard Bethard, Coushatta, for defendant-appellant.
Cook, Clark Egan, Shreveport, for plaintiff-appellee.
The Interstate Oil Pipe Line Company, plaintiff-appellee, relying on the provisions of LSA-R.S. 19:13, is seeking to have this court dismiss, in so far as it suspends the execution of the judgment, the appeal taken by the defendant-appellant, Leslie A. Cowley, from the judgment of the district court decreeing a right-of-way and servitude in favor of plaintiff over defendant's property, on the ground that the plaintiff's right to expropriate was not seriously contested nor was the statute under which such expropriation was had, LSA-R.S. 19:1 et seq., attacked.
The record shows that the defendant not only raised the question of the right of the plaintiff to expropriate his property, but also contested the area of land demanded by the plaintiff; and in this court, by way of exception of no cause or right of action, he contests the constitutionality of LSA-R.S. 45:254 (granting to "common carrier pipe lines" the right to expropriate under state expropriation laws) on the ground that the provisions of that law infringe on guarantees of Article 1, Section 2 of the Constitution of Louisiana — thus bringing the issues squarely under the holding of this court in the case of Tennessee Gas Transmission Co. v. Wyatt Lumber Co., 221 La. 886, 60 So.2d 713, in which we held that where the plaintiff's right to expropriate or the constitutionality of the act authorizing the expropriation is attacked, the provisions of LSA-R.S. 19:13 do not apply; and we directed the Court of Appeal, Second Circuit, to grant a suspensive appeal to the defendant.
For the reasons assigned, the motion to dismiss the suspensive appeal is denied.