Petre, Benjamin M.

English

University of Denver

Water Law Review Volume 8 Issue 1 Article 52 9-1-2004 Walker Lands, Inc. v. East Carroll Parish Police Jury, 871 So. 2d 1258 (La. Ct. App. 2004) Benjamin M. Petre Follow this and additional works at: https://digitalcommons.du.edu/wlr Custom Citation Benjamin M. Petre, Court Report, Walker Lands, Inc. v. East Carroll Parish Police Jury, 871 So. 2d 1258 (La. Ct. App. 2004), 8 U. Denv. Water L. Rev. 294 (2004). This Court Report is brought to you for free and open access by the University of Denver Sturm College of Law at Digital Commons @ DU. It has been accepted for inclusion in Water Law Review by an authorized editor of Digital Commons @ DU. For more information, please contact jennifer.cox@du.edu,dig-commons@du.edu. WATER LAWREVIEWdrained across the adjacent lot. The court concluded that based onthis evidence, the trial judge did not err in ruling that Nichol's con-struction project was the cause-in-fact of the damage to the Rizzos'property.In a vicinage action a plaintiff may recover general damages, as wellas damages for mental anguish, discomfort, irritation, anxiety, and lossof use and/or enjoyment of his property. A trial court has great discre-tion in awarding damages and an appellate court may not disturb thataward absent a clear abuse of discretion. The court concluded the re-cord supported the award of actual and inconvenience damages be-cause Mr. Rizzo installed a catch basin on his property and made re-pairs to his water-damaged shed. The court also concluded that theaward of mental anguish was supported by the record because the Riz-zos' backyard become a breeding ground for mosquitoes, the shedflooded and was not usable until a week after the water receded, andthe condition of the property caused tension between the Rizzos. Ac-cordingly, the court affirmed the trial court's liability determinationand damage awards.Cheryl MillerWalker Lands, Inc. v. East Carroll Parish Police Jury, 871 So. 2d 1258(La. Ct. App. 2004) (holding that the lake and drainage ditch wereformed through accretion or alluvion, rather than through chute orneck cut-off; that the lake and drainage ditch were not navigable and,thus, were privately owned; that actions for trespass, rather than per-manent injunction, were the proper vehicle for the landowner to pre-vent his/her property from being exploited for recreational purposes;and that the trial court acted within its discretion in unilaterally con-verting the state's motion for suspensive appeal into a devolutive ap-peal).Walker Lands, Inc. ("Walker Lands") owned property that includedGassoway Lake, a landlocked shallow lake, and a drainage ditch. Gas-soway Lake formed sometime after 1880 when the Mississippi Riverslowly moved eastward, leaving behind dry land and a shallow swale.The shallow swale eventually became Gassoway Lake. Walker Landslater purchased the land that included Gassoway Lake in 1974.Walker Lands filed suit seeking an injunction against the State ofLouisiana ("State") and the public-at-large to stop all public use of Gas-soway Lake and the drainage ditch. Walker Lands also sought a de-claratory judgment regarding its ownership status with respect to Gas-soway Lake and the drainage ditch. The District Court, Parish of EastCarroll, entered a judgment in favor of landowner and against theState. The State appealed the judgment in the Court of Appeal of Lou-isiana, Second Circuit, which affirmed in part, reversed in part, andremanded.Volume 8COURT REPORTSThe court first addressed the State's argument that evidence at trialshowed that Gassoway Lake was a former bed of the Mississippi River,thus the State owned Gassoway Lake. The court noted that the centralissue with respect to the State's argument was the creation of GassowayLake and the effect of the movement of the Mississippi River. In re-solving this issue, the court found that Walker Lands' predecessors-in-title were the riparian landowners of the property that sat on the bankof the Mississippi River when it changed course and began shiftingeastward sometime after 1880. The court further noted that WalkerLands' predecessors-in-title began to acquire, through alluvion, thenew land that existed when the Mississippi River shifted eastward. Be-cause Louisiana law established that any alluvion or dereliction form-ing along the banks of a river belongs to the riparian landowners whoown the land adjacent to the river when the river shifts course, WalkerLands' predecessors-in-title owned both the newly formed dry land andGassoway Lake. Thus, Walker Lands possessed ownership of GassowayLake.The court next addressed the State's argument that the Stateowned Gassoway Lake since the Lake remained navigable and con-nected to the Mississippi River as a channel, and therefore qualified aspublic water under the law. In making this argument, the Statepointed out that the Mississippi River frequently floods Gassoway Lakeand the lands between the lake and the river. Similarly, the State ar-gued that under Louisiana law, the State owns all bodies of waterwithin its territory when the state joined the Union in 1812. Finally,the State argued that Gassoway Lake and the drainage ditch are navi-gable bodies of water and the State owns all navigable bodies of water.The court rejected all of these arguments. First, the court notedthat privately owned land does not become part of a navigable body ofwater when a nearby navigable body of water overflows its normal bedand temporarily covers the property. The flooding of the MississippiRiver was therefore irrelevant. Next, because Gassoway Lake did notform until the late 1800s, when the Mississippi River shifted eastward, itdid not exist in 1812. Further, the court noted that a body of water isnavigable if it, as the body of water normally sits, is capable of use for acommercial purpose over which trade and travel takes place in the cus-tomary modes of trade and travel. The court held that recreational useof a body of water was not enough to establish commercial use of thebody of water. Thus, the court held that Gassoway Lake was a non-navigable body of water that a private entity owned. In short, GassowayLake and the drainage ditch were private property; the State did notpossess ownership.The court next addressed the trial court's issuance of a permanentinjunction. While the State argued that the judgment was overly broadbecause it enjoined use of the Mississippi River, the court held that thepermanent injunction failed on other grounds. Specifically, the courtIssue IWATER LAWREVIEWnoted that Walker Lands and the State were the only parties involvedin the lawsuit at trial and no other persons or private entities were in-volved. Further, the court found no direct evidence in the record ofany direct violation by State officials or State departments attemptingto invade Walker Lands' property. Consequently, no justiciable con-troversy between Walker Lands and the State or the public-at-large ex-isted. Thus, the trial court improperly issued a permanent injunctionagainst both the State's use of the property and the public's-at-largeuse of the property; accordingly, the court reversed the permanentinjunction. In doing so, the court noted trespass actions are theproper vehicle for the landowner to use in order to prevent the exploi-tation of his/her property for recreational purposes.Finally, the state argued that the trial judge erred by unilaterallyconverting its motion for a suspensive appeal into a devolutive appeal.Specifically, the trial judge marked out the word suspensive and wrotein devolutive on the draft order the State submitted. The court con-cluded that under the Louisiana Code of Civil Procedure, the trialjudge retained discretion to convert the motion.In conclusion, the court affirmed the trial court's ruling thatWalker Lands owned Gassoway Lake and the surrounding lands; re-versed the trial court's grant of a permanent injunction; and remandedthe matter to the trial court for the calculation of trial court costs, as-sessed equally against the parties.Benjamin M. PetreMAINES.D. Warren Co. v. Maine Dep't of Envtl. Prot., No. AP-03-70, 2004 Me.Super. LEIS 115 (Me. Super. Ct. May 4, 2004) (holding that licenserenewal for hydroelectric dams required certification subject to waterquality certification pursuant to the Clean Water Act).S.D. Warren Company ("Warren") owned and operated the Dun-dee, Gambo, Little Falls, Mallison Falls, and Saccarappa hydroelectricgenerating dam projects ("Projects") on the Presumpscot River. TheProjects provided electricity to Warren's paper mill. When the Pro-jects' operating licenses lapsed, Warren filed for renewal. Along withhis application for continued operations, he also requested certifica-tion. In April 2003 the Department of Environmental Protection("DEP") approved the applications and granted certification subject toseveral conditions. Warren appealed the order to the Maine Board ofEnvironmental Protection ("BEP"). The BEP subsequently denied hisappeal.On appeal to the Superior Court of Maine, Warren contended theBEP erred by requiring the Projects to pass water quality certificationunder the Clean Water Act ("CWA"). The CWA requires any applica-tion for a federal permit or license for an activity that may result in aVolume 8

Walker Lands, Inc. v. East Carroll Parish Police Jury, 871 So. 2d 1258 (La. Ct. App. 2004)

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Walker Lands, Inc. v. East Carroll Parish Police Jury, 871 So. 2d 1258 (La. Ct. App. 2004)

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