Could St. Landry Parish pay to improve a private drainage ditch that benefited only one landowner?

Plain-English summary

St. Landry Parish asked whether it could spend public money to improve a natural drainage ditch on private land, or litigate to acquire a right-of-way, when the work would benefit only the adjacent owner. The official opinion answered no to both. The parish engineer's field survey supplied the key fact: the improvement would serve only that owner.

The AG applied Louisiana's constitutional bar on donating public resources to a private person. Its analysis required a public purpose, a transfer that was not gratuitous, and a reasonable expectation of something substantial in return. The described project failed at the public-purpose stage, so the AG did not reach the other two elements.

Earlier AG opinions supplied a contrast: improving a private ditch that drained about a quarter of a municipality could benefit the public, while work serving only private property did not. The conclusion here depends on the engineer's finding of exclusively private benefit.

Currency note

This opinion was issued in 2023. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Could the parish clean a private ditch that would benefit only the adjacent landowner?

No. The AG said the reported work would serve only the landowner and would be a gratuitous expenditure of public money.

Could the parish instead pay to sue for a drainage right-of-way?
No. On the same exclusively private-benefit facts, the AG said paying to acquire that right-of-way through litigation would also be a prohibited donation.

Would the answer necessarily be the same for a ditch that drained a larger public area?
The opinion distinguished earlier work on a private ditch that drained roughly one quarter of a municipality and benefited taxpayers. It did not decide a new public-benefit fact pattern.

Background and statutory framework

La. Const. art. VII, § 14(A) prohibited gratuitous donations of public funds or property. The opinion applied the three-part public-expenditure analysis described in its cited authorities and stopped after finding no public purpose for the project as presented.

Citations and references

Law cited: La. Const. art. VII, § 14(A). Earlier AG opinions discussed: Nos. 89-335, 04-0177, and 12-0233.

Source

• Landing page: https://www.ag.state.la.us/Opinions
• Original PDF: https://www.ag.state.la.us/Opinion/Download/23-0065

Original opinion text

State of Louisiana
DEPARTMENT OF JUSTICE
CIVIL DIVISION
P.O. BOX 94005
BATON ROUGE
70804-9005
Jeff Landry
Attorney General
August 25, 2023
OPINION 23-0065
90-A-2 PUBLIC FUNDS
90-A POLITICAL SUBDIVISIONS
The Honorable Chad Pitre
La Const. art. VII, § 14(A)
District Attorney
St. Landry Parish
Parish governments may not use public funds to conduct drainage
operations on, or to acquire a right-of-way over, private property for P 0 D rawer I OQ
. . the sole benefit of the owner of immovable private property, as this
Opelousas, LA 70571
would amountto a gratuitous donation of public funds in violation of
La Const. art. VII, § 14(A).

Dear Mr. Pitre:

Our office received your request for an opinion regarding whether St. Landry Parish may use public funds to conduct drainage operations on, or to acquire a right-of-way over, private property for the sole benefit of an owner of immovable private property. Your question is answered below.

Whether St. Landry Parish may use public funds to conduct drainage operations on, or to acquire a right-of-way over, private property for the sole benefit of an owner of immovable private property must be examined in light of La. Const. art. VII, § 14(A), which provides, in pertinent part, as follows:

Except as otherwise provided in this constitution, the funds, credit, property, or things of value of the state or of any political subdivision shall not be loaned, pledged, or donated to or for any person, association, or corporation, public or private.

Simply stated, gratuitous alienation of public funds violates La. Const. art. VII, § 14(A).
Board of Directors of the Industrial Development Board of the City of Gonzales, Louisiana Inc. v. All Taxpayers, Property Owners, Citizens of the City of Gonzales, 05-2298 (La.
9/6/06), 938 So.2d 1 1 20 (“Cabela’s”). In light of the Louisiana Supreme Court’s ,

interpretation of La. Const. art. VII, § 14(A), an expenditure of public funds is only permissible when the public entity has legal authority to make the expenditure, and when it can also show:

1. A public purpose for the expenditure or transfer that com ports with the governmental purpose the public entity has legal authority to pursue;

2. That the expenditure or transfer, taken as a whole, does not appear to be gratuitous; and

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OPINION 23-0065
Mr. Chad Pitre
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3. That the public entity has a demonstrable, objective, and reasonable expectation of receiving something real and substantial in exchange for the expenditure or transfer of public funds.1

This office has consistently opined that expending public funds for work on private property in the absence of any public benefit violates La. Const. art. VII, § 14(A). In La. Atty. Gen. Op. No. 89-335, we considered whether it was proper for the City of Port Allen to install yard drains on private property to alleviate flooding in certain older residential neighborhoods. We opined that using public funds to complete these drainage operations on private property would be an impermissible donation of public funds. Similarly, in La. Atty. Gen. Op. No. 04-0177, we considered whetherthe Parish of East Baton Rouge could use public funds to clean and maintain a drainage ditch located on private property. There, the drainage ditch was located on private property belonging to a single owner, but the 15 tenants occupying the property would benefit from improved drainage and mosquito control that would ostensibly result from cleaning and maintaining the ditch. We opined that maintaining the ditch would be an impermissible donation of public funds. Id. Conversely, in La. Atty. Gen. Op. No. 12-0233, we considered the appropriateness of a municipality’s cleaning a drainage ditch located on private property. We opined that, because the ditch drained approximately one quarter of the municipality, it appeared that cleaning it would serve a public purpose that would not be a gratuitous expenditure of public funds because the work would benefit the municipality’s taxpayers. Id. The distinction between these two results is whether the public or merely a private citizen is benefitted by the government action.

In your request, you explain that, after conducting a field survey during which he examined the site, St. Landry Parish’s civil engineer opined that cleaning and improving the drainage ditch in question would benefit only the adjacent property owner. The engineer further opined that the drainage ditch is a natural drainage ditch, rather than a man-made one. Because parishes are under no obligation to enhance natural drainage on private property, doing so would be tantamount to a gratuitous donation. Similarly, expending public funds to institute and prosecute civil litigation to acquire a right-of-way over private property to enhance drainage on private property when the Parish’s engineer has opined that only one property owner would benefit from the work would be a gratuitous donation. Such expenditures would not satisfy the first prong of the Cabela’s analysis (i.e., no public purpose would be served), and as such, there is no need to considerthe second and third prongs.

Considering the foregoing, it is the opinion of this office that St. Landry Parish may not use public funds to conduct drainage operations on private property in the scenario described in your opinion request. Additionally, it is the opinion of this office that St. Landry Parish may not use public funds to institute and prosecute civil litigation to acquire a right- of-way over private property for the sole benefit of a private owner of immovable property.

1 See La. Atty. Gen. Op. Nos. 21-0118, 20-0077, 20-0074, 19-0134, 18-0075, 16-0198, and 10-0299.

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OPINION 23-0065
Mr. Chad Pitre
Page 3

We trust this adequately responds to your request. However, if our office can be of further assistance, please do not hesitate to contact us.

With best regards, I am

JEFF LAN DRY
ATTORNEY GENERAL

By:______
CherySibley Mc1ney
Assistant Attorney General

JL/CSM