(dissenting).
I concur with the decision of the Trial Court and reasons assigned in the unanimous opinion of the Court of Appeal, Third Circuit. In addition to those reasons, there are certain facts involved in this case which point out more clearly what I consider to be error in the majority opinion. At the outset, and generally speaking, the highway involved in this suit is not alleged to have nor does it have in fact any relationship to the Red River, a navigable stream. The highway is not on the “shores” of the river. Civil Code Article 665, L.S.A. It does not “border” 1 the river and, except to say that it follows the direction of the river in a general way and, at times, is in close proximity to its banks, it does not serve the river’s use, nor does the river serve the highway’s use. Nowhere is it contended that the highway is located where it is because it relates to the “nature, navigable character, or use of the stream”, as this Court has recognized that it should for the riparian owner to owe the servitude for which the State Highway Department contends here. See Hebert v. T. L. James & Co., Inc., 224 La. 498, 70 So.2d 102. To the contrary, it is clearly established that its construction does not relate to the nature, navigable character, or use of the stream.
With reference to the particular property involved in the Hornsby case, it is noted that the river’s edge is approximately 1,100 feet at its nearest point from the highway right-of-way; the distance from the toe of the levee to the highway right-of-way is slightly in excess of 200 feet. Furthermore, the circumstances affecting the Hornsby property do not involve a relocation of the levee nor was the highway at this point “destroyed or carried away” nor was the road traversing their property “injured or inundated by the water, without being carried away” which are essential factual requisites to permit the application of Civil Code Article 707, L.S.A. The opinion of the majority disregards these essential factual requisites contemplated by the codal articles and in so doing it is to be assumed will permit the appropriation of servitudes for roads *875in the near vicinity of bodies of water of any character, whether navigable or not, and, thereby, apply articles of the Code to factual situations totally unrelated to their very language and clear intent.
The appropriated area in the Hornsby case simply involved the widening of the existing highway right-of-way approximately 36 feet to 51 feet along a width of 100 feet of the Hornsby property, a situation which makes it strikingly similar to the Hebert case with the exception that in the Hornsby case the previously existing right-of-way had been acquired from the Horns-by ancestors by conventional deed, whereas, in the Hebert case, the road involved had existed from time immemorial — a circumstance that distinguishes the Hornsby case and furnished an additional basis for denying the application of Articles 665 and 707, L.S.A.
No riparian owner and no one involved in the drafting of the pertinent codal articles 2 ever contemplated that the whole of an estate bordering a navigable stream would be subject to a servitude for general road purposes entirely removed from the stream. Clearly that area of the riparian estate along the “shore” or “border” of the stream is taken by the owner subject to the servitude imposed by law (Civil Code Articles 665 and 707, L.S.A.) and its use for public purposes does not entitle him to indemnity; but there the obligation imposed upon his estate by law ceases, and the Constitution of our ■ State, Article I, Section 2, Article XVI, Section 6, L.S.A., assures him that his property outside that area will not be taken without due process of law and until compensation has been paid. In this case neither of these sacramental conditions has been fulfilled. The State has gone upon the lands in question without the owner’s permission and is vigorously resisting the payment of any compensation.
The majority opinion has failed to take into consideration facts which are undisputed and clearly necessary to be considered.
I respectfully dissent.
SUMMERS, J., is of the opinion that a rehearing should be granted.
. La.Civil Code art 707 (1870), LSA-C.C.
. 2 Fuzier-Herman, Code Civil Armóte, Art. 660 and annotations found therein (1936) ; 6 Baudry-Lacantinerie et M. Chauveau, Traite Theorique et Pratique de Droit Civil, Sec. 926 et seq. (3d ed. 1906); 3 Aubry et Rau, Droit Civil Francais, p. 8 (5th ed. 1902) ; 2 Maleville, Analyse Raisonnee de la Discussion du Code Civil au Conseil d’Etat, Sec. 682 et seq. (3d ed. 1822).