On Rehearing.
MONROE, O. J.Our reconsideration of this case having led to a change of opinion as to the interpretation of the law in which plaintiff’s right to compensation is to be found, the following reasons for that change are assigned, to wit:
It will be conceded that the purpose for which this republican government was established was to secure those by whom it was established and their successors, in their rights of life, liberty, and property, and that, even though the Constitutions, federal and state, contained no special provisions upon tho subject, it would, in a great measure, defeat that purpose if a citizen could be deprived of those rights without due process of law, and as to his property without just compensation. In order, however, 'that there should be no room for doubt, the Fifth and Fourteenth Amendments were added to the Constitution of the United States — the one, *111confiñed in its application to the federal government, and declaring, inter alia, that no person shall be “deprived of life, liberty or property without due process of law, nor shall private property be taken for public use without just compensation”; the other, ■ reading in part, “nor shall any state deprive any person of life, liberty, or property without due process of law, nor deny to any person within its jurisdiction the equal protection of its laws.” And similar provisions have been incorporated in the Constitutions of probably all of the states. In the meanwhile the courts, having been called on to determine when property is to be considered “taken for public use,” within the meaning of those amendments and provisions, reached different conclusions upon that subject, some of them holding that the expression applies only to tangible property actually taken; others, that it includes the impairment of any right, constituting an element of ownership in such property, though the thing itself be not taken. In some instances the state Constitutions have been amended by the addition of the words “or damaged” after the word “taken,” and it has been held that under such amended provisions it is not necessary for the recovery of compensation that the damage shall be caused by an actual taking of, or trespass upon, the property, but that if the public use of the property which is taken is of such a character as to impair the owner’s use and enjoyment of property not actually taken or trespassed on, he may recover.
In this state the Constitution of 1812 contained nothing more specific upon the subject of taking or damaging property for public purposes than the declaration in the Bill of Rights that the Constitution was ordained “in order to secure [to the citizens] the enjoyment of the right of life, liberty and property.” In the Constitutions of 1845, 1852, 1864, and 1868 there are provisions to the effect that “vested rights” shall not be devested, except for purposes of public utility, and for adequate compensation previously made (the word “previously” being omitted from the Constitution of 1S68). To those provisions there are added in the Constitutions of 1879, 1898, and 1913, the articles 156 and 167, respectively, identical ini terms, and reading:
“Private property shall not be taken nor damaged for public purposes without just and adequate compensation being first paid.”
Since 1855, however, the general statute law of Louisiana authorizing the expropriation of private property for public purposes has contained the provision (which appears to have been sometimes overlooked) that the juries in such cases “shall determine, after hearing the parties and their evidence, what is the value of the land described in the petition with its improvements, and what damages, if any, the owner would sustain, in addition to the loss of the land by its expropriation.” R. S. 700, 1481; C. C. 2632; Acts 1855, p. 33, § 3.
On the other hand, it hás long been settled by decisions of this court and of the Supreme Court of the United States that under our law riparian lands are burdened with a servitude in favor of the public, by reason whereof such portions of them as are necessary for the making or repairing of the levees which confine the waters of the streams upon which they border may be taken or damaged without compensation to the owner; the doctrine upon that subject being, that the state does not exercise the power of eminent domain by expropriating the property, but lawfully appropriates it to the use to which it is subjected by the title under which it is held, and hence that the private injury resulting therefrom is damnum absque injuria. C. C. 665; Hanson v. Lafayette, 18 La. 205; Bourg v. Niles, 6 La. Ann. 77; Zenor v. Parish of Concordia, 7 La. *113Ann. 150; Dubose v. Commissioners, 11 La. Ann. 165; Bass v. State, 34 La. Ann. 494; Ruch v. City, 43 La. Ann. 275, 9 South. 473; Peart v. President of Levee Dist., 45 La. Ann. 421, 12 South. 490; Sauter v. Town of Vidalia, 110 La. 386, 387, 34 South. 558; Eldredge v. Trezevant, 160 U. S. 452, 16 Sup. Ct. 345, 40 L. Ed. 490.
•To the general rule thus established and recognized an exception has been provided, first by statute (Acts 41 of 1892, p. 46, and 25 of 1S94, p. 28), then by the Constitution of 1898 (article 312), and again by statute (Acts 79 of 1S98, p. 101, and 35 of 1902, p. 43) in favor of property owners in the Orleans levee-district. The reasons for and terms of the exception appear in the preamble and body of the act of 1892, as follows, to wit:
“Whereas, it has become necessary to construct new levees in the sixth and seventh municipal districts of the city of New Orleans; and
“Whereas, the location and construction of these levees has been made under peculiar conditions which arise from the large number of small properties and tenements on the line of the said levees, which conditions do not usually exist.
* Jit * * * *
“Section 1. Be it enacted * * * that the board of commissioners of the Orleans levee district be and is hereby authorized and directed to levy an additional special tax for the year 1892, not exceeding four-fifths of a mill on the dollar, * * * for the purpose of indemnifying the owners of property in said Orleans levee district, appropriated, damaged or destroyed by said board in the construction of levees in said district; * * * that, in no case shall the amount paid to such owners of the appropriated property exceed the assessed value thereof at the time of the appropriation.”
The act of 1894 is confined in its application to the owners of the property situated in the sixth and seventh municipal districts.
[1] The new article that was incorporated in the Constitution of 1898 reads in part as follows:
“Art. 312. Any person whose property has been appropriated within twelve months prior to the adoption of this Constitution, or whose property may hereafter be appropriated by the Orleans levee board, for levee purposes, shall have a right in action against said board * * * for the value of said property.” [Then follow exceptions in regard to batture, vacant land and certain other property, after which:] “Provided, that said board shall have power to appropriate property subject to such servitude, for levee building, as under existing laws, without making such compensation in advance.”
The act of 189S, adopted after the Constitution went into effect, authorizes the levy of a special tax for that year “for the purpose of indemnifying the owners of the property in said Orleans levee district, appropriated, damaged or destroyed by said board,” and contains the proviso: »
“That no payment shall be made under the provisions of this act unless and until the property owner shall, in consideration thereof, sell, transfer and deliver to the city of New Orleans all his right, title and interest in and to the property so appropriated.”
The act of 1902 purports to authorize the payment of claims for property appropriated, damaged, or destroyed out of the unexpended balance of the tax authorized by Act 79 of 1898, and is prefaced by a preamble which recites that many persons whose property was so dealt with had been compensated; that others, who are named, had received nothing; and that it would be inequitable not to compensate them. Therefore:
“Be it enacted * * * that said parties hereinabove named and all others similarly situated do have a right of action against the Orleans levee board for the losses sustained by them on account of the damage, taking or destruction of their property for levee purposes during the years 1894 and 1895; and the amount of the claims established by them shall be payable out of the fund collected under Act 79 of 1898: Provided that not more than $15,-000.00 shall be set aside and made available for the payment of all claims under this act.”
It is quite possible that the purpose of article 312 of the Constitution, in its original form, was to restrict the right of recovery to the bare valué of the tangible property actually taken; but it is also quite possible that the original form was changed before the adoption of the proposed article, or it may be that the body of the convention placed an interpretation upon it not contemplated by its *115authors, and yet admissible. The question to be here determined then is not what may have been the purpose of the framers of the article, but whether, as it now stands in the Constitution, it is reasonably susceptible of the interpretation that has been adopted by the General Assembly.
Interpreting the Fifth Amendment to the Constitution of the United States where it has been invoked in support of claims for consequential damages resulting from government work for the improvement of navigable streams, the Supreme Court of the United States has rested its rejection of such claims upon the two grounds, to wit, that the damages were the incidental consequences of the lawful and proper exercise of governmental power, and that riparian property is subject to the obligation to suffer the consequences of the improvement of navigation in the exercise of the dominant right of the United States in that regard. There appears to be a single exception to the jurisprudence of the court upon the proposition first mentioned (Pumpelly v. Canal Co., 13 Wall. [80 U. S.] 166, 20 L. Ed. 557); but, whether in the cases constituting the rule or the exception, the, court has always, as it appears to us, rather emphasized the fact that the property with respect to which the damage was claimed constituted a different unit from, and formed no part of that which had been actually and physically taken.
In the Pumpelly Case, supra, the damage was caused by the building of a dam across an outlet of Winnebago Lake in Wisconsin under the authority of territorial and state legislation, as a result of which a distant tract of land was invaded by water, earth, and other material, and rendered useless to the owner. In deciding the case in favor of the plaintiff the court, through Mr. Justice Miller, said:
“We are not unaware of the numerous cases in the state court in which the doctrine has been successfully invoked that, for a consequential injury to the property of the individual, arising from the prosecution of improvements of roads, streets, rivers, and other highways, for the public good, there is no redress; and we do not deny that the principle is a sound one, in its proper application to many injuries to property so originating. * * * But we are of opinion that the decisions referred to have gone to the uttermost limit of sound judicial construction in favor of this principle, and, in some cases, beyond it, and that it remains true that, where real estate is actually invaded by superinduced additions of water, earth, sand or other material, or by having any artificial structure placed on it, so as to effectually destroy it or impair its usefulness, it is a taking, within the meaning of the Constitution,” etc.
In the later case of Northern Trans. Co. v. Chicago, 99 U. S. 635, 25 L. Ed. 336, it appeared that plaintiff owned land at the intersection of La Salle street and the Chicago river, upon which it had valuable dock and warehouse accommodations, at which many steamers made their landings, and that it was interrupted in the use of its property by the excavation, by authority of a state-law, of a tunnel under the river, which necessitated the obstruction of the street, and by the building of a coffer dam in the river, which obstructed that stream; wherefore it sued the city for damages. It was, however, held that the injury complained of was damnum absque injuria; the court, through Mr. Justice Strong, saying (inter alia):
“But acts done in the proper exercise of governmental powers, and not directly encroaching upon private property, though their consequences may impair its use, are universally held not to be a taking within the meaning of the constitutional provision. They do not entitle the owner of such property to compensation from the state or its agents, or give him any right of action. This is supported by an immense weight of authority. Those who are curious to see the decisions will find them collected in Cooley on Constitutional Limitations, p. 542, and notes. The extremist qualification of the doctrine is to be found * * * in Pumpelly v. Green Bay Co., 13 Wall. (80 U. S.) 166, 20 L. Ed. 557, and in Eaton v. Railroad Co., 51 N. H. 504 [12 Am. Rep. 147]. In those cases it was held that the permanent flooding of private property may be regarded as a ‘taking.’ In those cases there was a physical invasion of the real estate of the private owner, and a practical ouster of his possession. But in the present case there was no such invasion. No entry was made upon the *117plaintiff’s lot. All that was done was to render for a time its use more inconvenient.”
In Chicago v. Taylor, 125 U. S. 161, 8 Sup. Ct. 820, 31 L. Ed. 638, it appeared that a lot owned by Taylor was damaged by reason of the construction, by authority of a city ordinance, of a viaduct in its immediate vicinity. The court said:
“For many years prior to, as well as at, the time this viaduct was built, the lot in question was used as a coalyard, having upon it sheds, machinery, engines, boilers, tracks, and other contrivances required in the business of buying, storing, and selling coal. The premises were long so used and were peculiarly well adapted for such business. There was evidence before the jury tending to show that, by reason of the construction of the viaduct, the actual market value of the lot, for the purposes for which it was specially adapted, or for any other purpose for which it was likely to be used, was materially diminished, access to it from Eighteenth street being greatly obstructed, and, at some points, practically cut off; and that, as a necessary result of this work, the use of Lumber street, as a way of approach to the coalyard by its occupants and buyers, and as a way of exit for teams carrying coal from the yard to customers, was seriously impaired.”
The court found that the Constitution of Illinois, adopted in 1848, provided that no naan’s property should “be taken or applied to public use without just compensation being made to him,” and that it had been held by the Supreme Court of that state in construing the provision that acts done in the proper exercise of governmental power and not directly encroaching upon private property, though their consequences might impair its use, were universally held not to be a taking within the meaning of such provision. It further found that the Constitution of 1870 contained the provision, “Private property shall not be taken or damaged for public use without just compensation,” and that thereaffer it became the settled doctrine of the Illinois court that:
“Any actual physical injury to private property by reason of the erection, construction or operation of a public improvement in or along a public street or highway, whereby its appropriate use or enjoyment was materially interrupted or its value substantially impaired, was regarded as a taking of private property, within the meaning of the Constitution to the extent of the damages thereby occasioned,” etc.
In Gibson v. U. S., 166 U. S. 269, 17 Sup. Ct. 578, 41 L. Ed. 996, it appeared that plaintiff owned a tract of highly cultivated land devoted to truck farming, on Neville Island, in the Ohio river; that under the direction of the chief of engineers and Secretary of War, a dike was constructed in the river with a view of improving the navigation, but one of the effects of which was to obstruct the communication between the channel and plaintiff’s landing during the greater part of the year, thereby reducing the value of the land from $600 to $150 or $200 an acre. Among the facts found by the Court of Claims, from which the case was appealed, were the following:
“There was no water thrown back on plaintiff’s land by the building of said dike, and said dike has not itself come into physical contact with claimant’s land and has not been the cause of any such physical contact in any other-way. In making the improvement the defendants did not recognize any right of property in the claimant, in and to the right alleged.”
In affirming the judgment rejecting plaintiff’s demand the court, through Chief Justice Fuller, said:
“The Fifth Amendment to the Constitution of the United States provides that private property shall not ‘be taken for public use without just compensation.’ Here, however, the damage of which Mrs. Gibson complained was not the result of the taking of any part of her property, whether upland or submerged, * * * but the incidental consequence of the lawful and proper exercise of governmental power.”
[2] In the case that we are now considering, the injury of which plaintiff complains is the direct result of the actual physical encroachment upon and appropriation of (say) one-half of a tract of land which (with its improvements), considered as a unit, appears to have been well adapted to the purpose for which it was being used, and (with or without the improvements) may have been desirable for other purposes, for which the remain*119ing half, left to the owner, would he wholly inadequate or unsuited. Article 312 of the Constitution gives plaintiff a right of action for the value of the property appropriated, and it would be as inconsistent with that grant to hold that such value can he ascertained merely by dividing the aggregate market value per square,foot of the entire tract as it stood at the time of the appropriation, and attributing the •quotient to the part which has been appropriated as it would be to apply that process to the ascertainment of the value of the one half of an oil painting, severed from the other half and so appropriated, or of a single building, or of a collection of buildings constituting an industrial plant. In almost any case that can be conceived the principal value of the half of a thing consists in its serving as the complement of, and thereby giving value to, and receiving it from, the other half. A building may be well worth $10,000; cut it in half and that which remains may be worth no more than the cost of the wreckage, or practically nothing. The half which is taken while in place may therefore be worth $10,-000, not only to the owner, but in determining the value of the property as a whole for any purpose, and if the owner receives but $5,000, he submits to a loss of $5,000. The evidence shows, that the building of the Ursulines was about 400 feet long, and the chaplain of the convent gives the following testimony as to what was done with it in the construction of the levee here in question, to wit:
“The building had to be cut in two, and one" part of the building was on the levee side and the other on the other side of the levee, just like one might put up an immense house and cut it in two; now you take the parlor and dining room and run a levee, not only through the dining room, but the kitchen; you cut it in two, and they are not worth anything; you have the dining room in the front part and the kitchen was in the rear part, and we could not do anything with it.”
[3] The Lambou & Noel Company owned a manufacturing plant consisting of a number of buildings, assembled, presumably, with a view to economy of labor and power and general efficiency. The levee having been laid off and constructed solely with a view of protecting the public from the waters of the Mississippi river, the levee board took so much of that property as was needed for that purpose, hut, in so doing, it also took part of an established plant and plant site, which had a value distinct from its value as mere land to be occupied by levee; and, we understand, the owners were compensated with reference to that condition. We therefore conclude that article 312 of the Constitution, in giving to an owner — one-half we will say, of a particular unit of whose property has been appropriated — a right of action for the recovery of its value, contemplates the recovery of the value of such half, when in place and serving as the complement of the other half, and hence that such value is to he ascertained by deducting from the value of the entire unit, as it stood prior to the appropriation, the value of the remaining half, as it stands since the appropriation. We further conclude that, inasmuch as the grant contained in the article in question is exceptional in character, goes no further than to confer a right of action to recover the value of the property taken for levee purposes in a particular district, and differs from article 167 in that the latter requires the payment of damages, as well as value, in eases of expropriation, the plaintiff herein is not entitled to recover consequential damages, as such, for inconvenience of ingress and egress, deprivation of light or view, impairment of use, etc., save in so far as those conditions may affect that portion of its property which remains, and the value of which, as it stands, is to he deducted from the value of the whole, as it stood before the appropriation. The case, not having been considered in the district court from the point of view thus stated, and testimony offered on behalt of both litigants, tending to show the value *121of the property as a whole prior to, and of the remaining portion after, the appropriation, having been, as we think, improperly excluded, must be tried anew. It is therefore ordered that the judgment appealed from be annulled, and this case remanded to the trial court, to be there proceeded with according to law and to the views hereinabove expressed, the costs of the appeal to be borne by the litigants in equal proportions, and those of the trial court to await the final judgment.
PROVOSTY and SOMMERVILLE, JJ., dissent, for reasons assigned in original opinion, and in dissenting opinion of PROVOSTY, J. See 78 South. 259.