Illinois Central Railroad v. Mayeux

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
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

2
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

3
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

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
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

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
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

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
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.

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
 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

19
130 So. 337, 340 (La. 1930).
20
Id. at 339-40.
21
Id. at 340.
22
Id.

8
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

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
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

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
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

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
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

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
 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

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
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

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
 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

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
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

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
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

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
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.

18
JERRY E. SMITH, Circuit Judge, dissenting. shall not be taken or damaged by the

state or its political subdivisions except

I respectfully disagree with the panel for public purposes and with just

majority, because the taking of the Mayeuxs’ compensation paid to the owner or into

property was not for a public purpose. court for his benefit. Property shall not

Although, in my view, it is not necessary to be taken or damaged by any private

reach the issue of necessitySSbecause the case entity authorized by law to expropriate,

can be resolved on the public purpose criterion except for a public and necessary

aloneSSI express some reservations regarding purpose and with just compensation

the majority’s approach to that issue as well. paid to the owner; in such proceedings,

whether the purpose is public and

I. necessary shall be a judicial question.

Article I, § 4 of the Louisiana Constitution

of 1974 provides extensive protection for LA. CONST. art. I, § 4 (emphasis added). “Ar-

property rights: ticle I, section four of our Constitution was

intended to give far-reaching new protection

Every person has the right to the right of our citizens to own and control

acquire, own control, use, enjoy, private property. . . . Its language goes

protect, and dispose of private property. beyond other state constitutions, including our

This right is subject to reasonable 1921 Constitution, and the federal

statutory restrictions and the reasonable Constitution in limiting the power of

exercise of the police power. Property government to regulate private property.”
State v. 1971 Green GMC Van, 354 So. 2d & Rail Terminals, Inc. v. La. Ry. & Nav. Co.,

479, 486 (La. 1977) (quotation omitted). 130 So. 337, 340 (La. 1930),42 which

“‘[N]o other state constitution places such held that “construction . . .

extensive limitations on the power and of [a] spur track . . . for the

authority of government to regulate or ex- 42
Although River & Rail was
decided under the 1921
propriate private property.’” State v. Spooner, Louisiana Constitution rather
than the 1974 Constitution, the
520 So. 2d 336, 362 (La. 1988) (quoting two documents are alike in for-
bidding condemnations for non-
Louis Jenkins, The Declaration of Rights, 21 public purposes. In view of
the strong solicitude for
LOY. L. REV. 9, 19 (1975)). “[T]he rule is the property rights shown by the
1974 framers, it is safe to
assume that the public purpose
protection of property rights and the exception test under the 1974
Constitution isSSat the very
is regulation of those rights, the burden of leastSSno less stringent than
that under its predecessor.
proof must shift from the owner to the See W. Lee Hargrave, The
Declaration of Rights of the
regulator.” Id. at 366-67 (Dennis, J., Louisiana Constitution of 1974,
35 LA. L. REV. 1, 16-17 (1974)
concurring). The Mayeuxs’ claims must be (demonstrating that “the
deliberate aim [of art. I, § 4
viewed in light of these general principles. of the 1974 Constitution] was
to make expropriation more
difficult”); Jenkins, supra, 21
LOY. L. REV. at 10 (noting that
“[t]he new Louisiana
A. Constitution is the first state
or national constitution to be
The condemnation of the Mayeuxs’ influenced by modern
libertarian writers” and that
property violates the public purpose it reflects a “passion for
strong limitations on the power
of government and for both
requirement of the Louisiana Constitution.
economic and social freedom”).
Jenkins was a delegate to the
Properly understood, the present case is Louisiana Constitutional
Convention and co-author of the
controlled by the factually similar case of River Declaration of Rights of which
art. I, § 4 is a part.

20
purpose of serving an permission to use its

individual enterprise only” is facilities are allowed to use

not “a public purpose.” the terminal that the proposed

Illinois Central spur would

To show a public purpose, serve.

there must be a “general public

right to a definite use of the The factual similarities

property, as distinguished from between River & Rail and the

a use by a private individual instant case are striking:

or corporation which may prove

beneficial or profitable to The evidence clearly

some portion of the public.” shows that the spur track

Id. Like the proposed spur of defendant company serves

track to the PetroUnited no other enterprise but the

facility, the spur line in New Orleans Refining

River & Rail would have served Company, and that it was

the facility of a single constructed solely for the

“private enterprise whose purpose of enabling

premises the public has no defendant company to handle

right to enter, but is tank cars shipped out by

prohibited from so doing.” Id. the refinery.

at 339. Only those firms that

have signed contracts with There is nothing in the

PetroUnited and obtained its record to show that the

21
 public has ever used a private individual or

the spur track of corporation which may prove

defendant company, or beneficial or profitable to

that defendant some portion of the public

company’s spur track . . . .

will accommodate a num-

ber of plants on the Our conclusion is that

river front, and will the construction by

be open to all other defendant company of the

business enterprises, spur track from its main

present and future, in line was for the purpose of

the same vicinity. The serving an individual

evidence fails to enterprise only and not for

establish, in our a public purpose.

opinion, that the en-

tire public has the Id. at 340.

right to use the spur

track . . . . River & Rail has not been

overruled and remains good law,
It is well settled that at least with respect to other
there must be a general factually similar cases. The
public right to a definite Louisiana First Circuit Court
use of the property, as of Appeal, in fact, has adopted
distinguished from a use by the River & Rail standard as

22
its general rule for public will actually be available to

purpose claims.43 multiple shippers.” Id.;

Majority op. at 8. This

B. approach fails for three

The majority claims that to reasons.

meet the requirement of “a

general public right to a de- 1.

finite use of the property” First and most importantly,

spelled out in River & Rail, under the majority’s

Illinois Central need only show interpretation, River & Rail

that “the public [will] have a itself would have had to be

right to use the spur” decided the other way. The

itselfSSeven if it has no right defendant railroad in River &
to use the PetroUnited Rail was a common carrier, and
terminalSSand that “the spur the general public undeniably

had a “right to a definite use”

43
See Terrebonne Parish of its rail spurs, including
Police Jury v. Kelly, 472
So. 2d 229, 232 (La. App. 1st that which connected its main
Cir.) (holding that “to show a
public purpose there must be a line to the New Orleans
‘general public right to a
definite use of the property, Refinery Company property.
as distinguished from a use by
a private individual or River & Rail, 130 So. at 339.
corporation which may prove
beneficial or profitable to The River & Rail court took
some portion of the public’”)
(quoting River & Rail, 130 So. great pains to distinguish
at 340), writ granted in part
on other grounds, 476 So. 2d between the “general
340 (La. 1985).

23
public[’s] right to a definite spur “may prove beneficial or

use of the property” and mere profitable to some portion of

benefits to “some portion of the public”SSthe standard of

the public” that arise from proof rejected by River &

“use by a private individual or RailSSbut it is not enough to

corporation.” Id. at 340. The show that there is “a general

former, not the latter, is the public right to a definite use

criterion for public use. of the property.” River &

Rail, 130 So. at 340.

This language in River & Rail

contradicts the majority’s 2.

suggestion that a spur line Second, the majority’s

connecting solely to a interpretation fails because

privately owned terminal to the cases that River & Rail
which the public lacks a right cites in explication of the
of access meets the test so requirement “general public
long as the public has a right right to a definite use of the
of access to the spur line property” cut the other way.
(though not the terminal) and Id. at 340. In the passage at
“the spur will actually be issue, the River & Rail court
available to multiple cited three decisions:
shippers.” Majority op. at 8.
Pittsburg, Wheeling & Ky. R.R.
Such availability might show
v. Benwood Iron-Works, 8 S.E.
that the construction of the
453 (W. Va. 1888); Atlanta,

24
Stone Mountain & Lithonia R.R. condemnation was private gain.”

v. Bradley, 81 S.E. 1104 (Ga. Id. at 467. Access to the

1914); and Kansas City, terminal, not to the rail spur,

Shreveport & Gulf Ry. v. La. was the determining factor.

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

The first two of these cases Similarly, in Atlanta, 81

directly contradict the S.E. at 1105, the court

majority’s claims, and the invalidated a condemnation

third does not address the undertaken “for the purpose of

question at hand. constructing a spur track from

its main line merely to afford

In Pittsburg, the court held transportation facilities for

that a proposed condemnation to the owners of an individual

build a rail spur failed the enterprise.” Here too, the

public purpose test because it railroad was a common carrier,

connected only to a single and the general public had a

steel works owned by a private right of access to all its rail

firm. 8 S.E. at 466-67. The lines, including the spur in

court concluded that the fact question. Once again, the

that “the public will have a determining factor is the

right to use” the rail spur status of the enterprise to

itself “amounts to nothing in which the spur line connected,

the face of the fact that the not the status of the spur line

only incentive to ask for the

25
itself.44 therefore cannot prevent the

use of the eminent domain power

3. to construct a line that is

The third flaw in the useless to the general public

majority’s approach is that it but of benefit to politically

undermines the fundamental influential private parties.

objective of the public purpose For this reason, the majority

requirement: to ensure that runs afoul of the public

condemnations serve the public purpose requirement’s

as a whole and not merely fundamental objective of

narrow private interests. The preventing the abuse of the

“right” to use a rail spur that eminent domain power “for the

connects to only one terminal purpose of serving an

is utterly worthless to the individual enterprise only.”

general public if it does not River & Rail, 130 So. at 340.

also have a right to use the

terminal itself. Such was the The majority’s additional

situation in both River & Rail requirement that “the spur will

and the present case. actually be available to

The public’s theoretical multiple shippers” does not vi-

right to use the spur line tiate the danger of abuse of

the eminent domain power.

Majority op. at 8. Any
44
Kansas City, the third case
cited by the River & Rail expropriation that benefits an
court, does not shed light on
the point at issue.

26
individual private business is River & Rail, but even those

also likely to benefit its courts have reaffirmed its ap-

customers, in this case the plicability to directly anal-

shippers that contract to store ogous factual circumstances.45

goods at the PetroUnited ter-
45
minal. The majority’s approach The district court claims
that later decisions have not
requires only that the business “followed [the] restrictive
line” of River & Rail, but the
in question can show that “the court cites only three deci-
sionsSSall from the Louisiana
spur will . . . be available to Third CircuitSSin support.
Ill. Cent., 178 F. Supp. 2d at
multiple shippers;” it need not 668 (citing Dixie Pipeline Co.
v. Barry, 227 So. 2d 1 (La.
even show that the shippers App. 3d Cir. 1969), writ
denied, 229 So. 2d 731 (La.
will actually take advantage of 1970)); La. Res. Co. v. Greene,
406 So. 2d 1360 (La. App. 3d
this “availability.” Id. Cir. 1981), writ denied, 412
So. 2d 84 (La. 1982); Town of
Such a weak restriction does Vidalia v. Ruffin, 663 So. 2d
315, 319 (La. App. 3d Cir.
little, if anything, to prevent 1995). One of the courts
cited, however, took care to
the use of the eminent domain point out that River & Rail
“reached the correct conclusion
power for the benefit of narrow under the particular facts
before it,” because the
private interests. proposed spur track in that
case would link only to a
“‘private enterprise whose
premises the public has no
C. right to enter, but is
prohibited from so doing.’” Id.
Several of Louisiana’s lower
at 319 n.2 (quoting River &
courts, cited by the district Rail, 130 So. at 339) (emphasis
added by Ruffin). Thus, it
court and the majority, have seems likely that the Ruffin
court would not have upheld the
sought to narrow the scope of expropriation in the present
case.

27
Some other Louisiana lower however, addressed factual

courts have adopted broader circumstances very different

standards for public purpose from those of the present case

determinations, holding that a n d a r e e a s i l y

almost any expropriation that distinguishable.47 In any

promotes economic development event, we are not bound by

or increases consumer access to these later lower court

the products of industry passes decisions, because in diversity

the test.46 These decisions, cases we are required “to apply the

law as interpreted by the state’s highest
One of the other cited
opinions similarly noted that court.” FDIC v. Abraham, 137 F.3d 264, 268
River & Rail was correctly
decided, because a rail spur (5th Cir. 1998) (emphasis added) (quotations
“to the site of a private
industrial plant [is not a
public purpose] because the omitted).
public had no right of access
to this facility.” La. Res.,
406 So.2d at 1364. The third
case distinguished River & Rail The majority claims that its holding is sup-
on the ground that the facility
in questionSSa pipelineSSwas a ported by several Louisiana Supreme Court
common carrier facility open to
all customers that met
generally applicable rules.
Dixie Pipeline, 227 So. 2d at Res., 406 So. 2d at 1364
6. This distinction does not (holding that a pipeline that
apply to the PetroUnited provided gas only for selected
terminal. private industries “serves a
public purpose merely by
46
See City of Shreveport v. placing more gas in the stream
Chanse Gas Corp., 794 So. 2d of commerce”).
962, 973 (La. App. 2d Cir.
2001) (finding that “economic 47
For example, the Louisiana
development is a public pur- Resources and Chanse Gas courts
pose”), writ denied, 805 So. 2d considered expropriations for
209 (La.), and writ denied, 805 the purpose of building
So. 2d 209 (La. 2002); La. pipelines for public utilities.

28
decisions. The cases the majority cites, There is no indication that the Kansas City

however, do not advance the conclusion that court would have upheld a condemnation of

a spur line that connects to only one privately the latter type. To the contrary, that court fa-

owned terminal can pass the public purpose vorably cited an Arkansas decision that “held

test. To the contrary, all of these decisions up- that a railway cannot exercise the right of em-

held expropriation at issue in large part be- inent domain to establish a private station for

cause the spur line in question connected to an individual shipper.” Id. (citing St. Louis,

more than one terminal. Iron Mountain & S. Ry. v. Petty, 21 S.W. 884

(Ark. 1893)).48

Kansas City, the first case on which the
48
The reasoning of the
majority relies, is readily distinguishable and Arkansas Supreme Court
strongly supports my position:
was in any event decided twenty-five years
A railway cannot exercise
before River & Rail. The Kansas City court, the right of eminent domain
to establish a private
shipping station for an
40 So. at 629, upheld a condemnation for the
individual shipper. If the
station is for the exclusive
purpose of building a “spur track . . . [that] use of a single individual,
or a collection of
will reach nine industrial plants already in individuals less than the
public, that stamps it as a
existence.” Undeniably, a track that services private use, and private
property cannot be taken for
the facilities of nine different firms is more private use. The fact that
the railway’s business would
likely to serve a true public purpose than is be increased by the
additional private
facilities is not enough to
one that connects to just one facility owned by
make the use public . . . .
To be public, the user must
a single enterprise. concern the public. If it
is an aid in facilitating
the business for which the
public agency is authorized

29
 Gumbel v. New Orleans tracks, which, in the past,

Terminal Co., 173 So. 518 (La. also served a number of other

1937), and Calcasieu & S. Ry. plants formerly located in this

v. Bel, 69 So. 2d 40 (La. industrial area.” Id. at

1953), the two other cases 521.49 In the present case,

relied on by the majority, are
49
Citing Gumbel, the
also distinguishable. Gumbel majority opines that “[i]t
would be nonsensical to
upheld the use of eminent conclude that a public purpose
exists when a spur serves three
domain to operate a spur track private companies operating
from separate terminals, but
because “the tracks are not that a public purpose does not
exist when a spur serves dozens
restricted to the use of any of companies shipping products
from one terminal.” Majority
single industrial plant, but, op. at 15. Such a conclusion,
though, is in fact perfectly
on the contrary, are available reasonable. However many
companies ship products to the
to any industrial plant which one terminal, it is still the
case that access to the
may locate on any of the now terminal is controlled by a
single private owner, and only
vacant sites in the area; . . . such parties as serve its
interests will be allowed to
there are presently operating use it. There is therefore no
assurance that the spur line
in the area three industrial will be used for a public
purpose beneficial to the
plants which are served by the public as a whole. By
contrast, in the case with
three terminals, access to
to exercise the power to stations on the spur line is no
condemn, or if the public longer controlled by a single
may enjoy the use of it, party, and there is at least
not by permission, but of somewhat greater assurance that
right, its character is the public interest will be
public. served.

St. Louis, 21 S.W. at 885 Furthermore, contrary to the
(emphasis added). majority’s suggestion, Gumbel

30
the proposed spur line connects proposed spur would connect

only to a single enterprise, not only to a single private

and there are no other enter- facility but also to properties

prises to which it can connect, owned by “lumber corporations,

even potentially. The Gumbel owners of large tracts of land

court specifically situated in the vicinity of the

distinguished River & Rail on proposed rail line.”

the ground that “the spur track Calcasieu, 69 So. 2d at 42.

involved there, differently The court stressed that “upon

from the spur track involved completion of the railroad

here, was constructed solely under construction, its

for the purpose of serving a facilities would serve the pub-

single industry.” Id. lic generally and any

industries located near its

In Calcasieu, likewise, the tracks.” Id.

court upheld a condemnation for

a spur line because the rail- Louisiana precedent may not

road had established that the definitively answer the

question of how many privately
does not hold that a connection owned terminals a proposed spur
to three terminals is by itself
sufficient to meet the River & line has to connect to before
Rail standard. Rather, it
holds that this was sufficient it can be considered a public
in an area in which there also
were empty lots that purpose. River & Rail does,
previously had contained
numerous other industrial
however, plainly state that one
plants and might do so again.
Gumbel, 173 So. at 521.

31
is not enough. the issue does have to be

resolved, I agree with the

There is, therefore, every majority’s conclusion that a

reason to believe that River & remand is necessary. I write

Rail is the Louisiana precedent separately, however, to point

most applicable to the present out some critical flaws and

case. We need not decide to omissions in the majority’s

what it extent it also may reasoning.

apply in situations that are

materially different. For this A.

reason, I would reverse the The most important

district court’s decision on shortcoming of the majority

the ground that the proposed opinion is its failure to give

expropriation is not for a proper consideration to the

public purpose. fact that the Louisiana

Constitution of 1974 imposes a

II. new and more strict necessity

Because I conclude that the requirement on takings by pri-

proposed condemnation of the vate entities. Under the 1921

Mayeuxs’ property runs afoul of Constitution, authorized

the public purpose requirement, private expropriators were

I do not consider it essential required only to prove that the

for this court to address the expropriation was for a public

necessity issue. Assuming that purpose. The 1974 Constitution

32
imposes the additional require- persuasive: It is difficult

ment that takings by private to believe that the 1974

entities must be for a “public framers would have added the

and necessary purpose.” LA. “necessary” provision if they

CONST. art. I § 4 (emphasis had not intended to raise the

added). applicable standard and to

create a higher standard than

The only published opinion that applied to public

explicitly to have considered agencies.

the impact of the 1974 Consti-

tution on the necessity Evidence gathered by academic

standard is Judge Watson’s commentators confirms Judge

concurring opinion in La. Re- Watson’s view.51 Louis Jenkins

sources, in which he concluded points out that “[t]he

that art. I, § 4 of the 1974 convention debated at length

Constitution “was adopted after the desirability of providing

great controversy and was that property could not be

intended to make expropriation taken except for a ‘public and

by private entities more necessary’ purpose” and

difficult.” Id. at 521 deliberately chose to adopt

(Watson, J., concurring).50
51
See Hargrave, supra, 35
Judge Watson’s reasoning is LA. L. REV.at 16-17
(demonstrating that “the
deliberate aim [of art. I, § 4]
50
The majority opinion in was to make expropriation more
Stream did not address the difficult”); Jenkins, supra, 21
issue raised by Judge Watson. LOY. L. REV.at 21-22 (same).

33
this wording to set a “con- demanded of government

siderably more onerous” agencies, the term “necessary”

standard for takings by private in Art. I, § 4SSwhich applies

entities. Jenkins, supra, 21 to private but not governmental

LOY. L. REV. at 21-22 (emphasis takingsSSwould be rendered

added). superfluous, because it would

not create a higher standard

The Louisiana Supreme Court for the former. In sum, the

has refused to accept Louisiana Constitution of 1974

interpretations of the state supports a standard of nec-

Constitution that render essity for takings by private

particular provisions entities that is much more

“superfluous.”52 If the rigorous than that currently

standard for necessity required required of government agencies

of private expropriators is not or that required of private

held to be higher than that expropriators before 1974.

52
Manuel v. State, 692 B.
So. 2d 320, 324 (La. 1996); see
also City of Baton Rouge v. If we accept, as we must, the
Ross, 654 So. 2d 1311, 1328
(La. 1995) (Calogero, C.J., conclusion that the 1974
concurring) (arguing that a
provision of the 1974 Constitution requires private
Constitution that contained
wording deliberately changed expropriators to meet a
from that of the 1921
Constitution must not be standard of necessity that goes
interpreted in the same way as
the latter, because otherwise beyond the requirements imposed
the new wording would be
superfluous).

34
on public agencies, Illinois it still must prove that the

Central’s position becomes even expropriation of some location

more precarious than the major- is necessary to achieve its

indicates. A sound approach to public purposes. If the public

the necessity standard should purpose can be achieved by

at the very least require that voluntary means, it cannot

the public purpose the taking possibly be “necessary” to
is intended to achieve cannot achieve it by means of coercive
be accomplished with comparable expropriation.54
efficacy without expropriation.

This requirement is consonant This line of reasoning is
with the current caselaw’s supported by Coleman, one of
insistence that proof of the cases relied on by the
necessity must include proof of majority. Coleman held that
the necessity of the purpose
“[o]nce public necessity is
though not of the necessity of
established, the extent and
53
the specific location. Even
location for the property to be
if the expropriator need not

prove that the condemnation of
54
The most relevant
any specific site is required, dictionary definition of
necessary is a thing “that
cannot be done without” or is
“absolutely required.”
WEBSTER’S THIRD NEW INTERNATIONAL
53
Coleman v. Chevron Pipe D ICTIONARY 1151 (1986).
Line Co., 673 So. 2d 291, 296 Certainly, there can be no
(La. App. 4th Cir. 1996); Clai- “absolute requirement” for
borne Elec. Coop. v. Garrett, expropriation if noncoercive
357 So. 2d 1251, 1255 (La. App. alternatives are readily
2d Cir. 1978). available.

35
expropriated are within the the particular property at

sound discretion of the issue. Majority op. at 17.

expropriation authority.” Here, the majority’s failure to

Coleman, 673 So. 2d at 296 acknowledge the importance of

(emphasis added). This the 1974 Constitution comes

demonstrates that proof of home to roost. All but one of

“public necessity” is separate the cases that the majority

from proof of the need for any cites to support its position

particular site. The that the existence of a

expropriator first must “public demand” is sufficient

establish that expropriation is to justify an expropriation

necessary at all. once “expediency” is

established either predate the

The requirement that 1974 Constitution or concern

expropriators prove that the expropriation by public

public purpose at issue cannot agenciesSSwhich are not bound

be achieved without by the necessity requirement of

expropriation is stronger than art. 1, § 4SSor both.55 These

the majority’s stated
55
See Majority op. at 17 n.41
requirement that the
(citing City of Westwego v.
expropriator merely prove the Marrero Land & Improvement
Ass’n, 59 So. 2d 885, 886 (La.
existence of a “public demand 1952) (both addressing a public
expropriation and predating the
for the expropriation” and the 1974 Constitution);
Southwestern Elec. Power Co. v.
“expediency” of expropriating Conger, 254 So. 2d 98, 99 (La.
App. 2d Cir. 1971) (predating
1974 Constitution); and Dixie

36
cases are irrelevant to the “public demand” obviates the

task of interpreting art. 1, § need to prove that

4. expropriation of some property

is necessary.56

Claiborne Electric Power, the

sole post-1974 decision cited The majority’s approach might

by the majority to support its even allow the necessity

position on this point, does standard to be satisfied in

not in fact do so. The cases where some segment of

Claiborne court held merely “the public”SSin this case, a

that the existence of a demand segment as small as a few

for the public purpose served shippers SSsupports

by the expropriation refuted expropriation despite the fact

the property owners’ claim that that the public purpose in

the power company was required question could just as ef-

to prove the need to fectively be achieved by

expropriate “the specific noncoercive means. The degree

location of the servitude.” of danger posed by the majority

Claiborne, 357 So. 2d at 1255 position remains uncertain,

(emphasis added). Claiborne
56
Indeed, the Claiborne court
did not even come close to was careful to emphasize that
the defendants were arguing
holding that the existence of a that “the expropriating
authority [must] prove [that]
the particular route chosen [by
the expropriator] was
Pipeline, 227 So. 2d at 7 necessary.” Claiborne, 357 So.
(same)). 2d at 1255.

37
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.

38