Fazio, Sidney D.

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Louisiana Law ReviewVolume 18 | Number 4June 1958Property - Rights of Riparian Owners to AlluvionFormed as a Result of the Works of ManSidney D. FazioThis Note is brought to you for free and open access by the Law Reviews and Journals at LSU Law Digital Commons. It has been accepted for inclusionin Louisiana Law Review by an authorized editor of LSU Law Digital Commons. For more information, please contact kreed25@lsu.edu.Repository CitationSidney D. Fazio, Property - Rights of Riparian Owners to Alluvion Formed as a Result of the Works of Man, 18 La. L. Rev. (1958)Available at: https://digitalcommons.law.lsu.edu/lalrev/vol18/iss4/14NOTESthe well did constitute good faith user sufficient to interruptprescription.This decision confirms the prior jurisprudence holding thatgood faith is required in drilling which interrupts prescription,and further holds that good faith can be found even if the avoid-ance of paying excess profits tax is one of the motives for drill-ing the well. The decision also confirms a prior holding that awell begun before but completed after prescription has run canstill be a good faith user if it is drilled to a depth at which itwould be reasonable to expect production. 12Robert F. LeBlancPROPERTY - RIGHTS OF RIPARIAN OWNERS TO ALLUVION FORMEDAS A RESULT OF THE WORKS OF MANThe plaintiff provoked concursus proceedings to determineownership of royalties from oil wells draining reservoirs beneathaccretion on the Mississippi River. The accretion formed on ahorseshoe bend of the river when a cut-off channel was dugacross the open end of the bend. The cut-off took most of theflow, but some water continued to flow around the bend deposit-ing large amounts of silt. The riparian owners claimed theaccretion as alluvion. 1 The state contended that, because theworks of man were the primary cause of the formation, the ac-cretion did not constitute alluvion. The district court held thatthe accretion was alluvion and thus belonged to the riparianowners. On appeal and rehearing, the Supreme Court held, af-firmed. So long as accretion is successive and imperceptible thelaws of alluvion apply, and it makes no difference that the worksof man were the cause. Esso Standard Oil Co. v. Jones, 233 La.915, 98 So.2d 236 (1957).The beds of navigable bodies of water belong to the state,2but Article 509 of the Civil Code of 1870 provides that the landbuilt up successively and imperceptibly by deposits of soil alongthe bank of a river or stream is called alluvion and belongs to12. McMurrey v. Gray, 216 La. 904, 45 So.2d 73 (1949).1. LA. CIVIL CODE art. 509 (1870).2. Id. art. 453; State v. Bozeman, 156 La. 635, 101 So. 4 (1924) ; State v.Capdeville, 146 La. 94, 83 So. 432 (1919) ; State v. Richardson, 140 La. 329, 72So. 984 (1916) ; State v. Bayou Johnson Oyster Co., 130 La. 604, 58 So. 405(1912).19581LOUISIANA LAW REVIEW [Vol. XVIIIthe riparian owners. 3 No mention is made as to whether alluvionmust have resulted ultimately from natural or artificial cause.While the Louisiana courts have dealt extensively with questionsinvolving accretion formed by nature,4 they have examined theproblem of accretion caused by the acts of man in only a fewinstances. Two early cases arose under a statute allowing ripar-ian owners to recover batture5 in excess of that needed by a cityfor public purposes.0 In Heirs of Leonard v. Baton Rouge,7 theSupreme Court held that, since the land in dispute was keptabove water solely by a high embankment built by a railroadwith city authority, this land was not batture formed by accre-tion within the meaning of the statute. In the second case, St.Anna's Asylum v. New Orleans,8 the court found that a largeportion of the land claimed by defendant to be batture hadactually been filled in with dirt brought in by the city to speedup the extension of the landing line and thus could not be con-sidered batture. In another case9 the Supreme Court said indictum that there was no such thing as a right of alluvion onlands reclaimed by artificial process financed with public money,citing as authority the two cases mentioned above. Therefore,until the decision in the instant case, the only cases dealing withthe question of whether the laws of alluvion apply to accretionformed as a result of the acts of man consisted of two casesconcerning land which was not alluvion at all and one statementof dictum erroneously citing those two cases.103. "The accretions formed successively and imperceptibly to any soil situatedon the shore of a river or other stream, are called alluvion."The alluvion belongs to the owner of the soil situated on the edge of thewater, whether it be a river or stream, and whether the same be navigable or not,who is bound to leave public that portion of the bank which is required by lawfor the public use." LA. CIVIL CODE art. 509 (1870).4. For a review of the Louisiana jurisprudence on this subject see the opinionin California Co. v. Price, 225 La. 706, 74 So.2d 1 (1954).5. The term batture is used to mean alluvion. Producers Oil Co. v. Hanszen,132 La. 691, 61 So. 754 (1913). Cf. Morgan v. Livingstone, 6 Mart.(O.S.) 19(La. 1819).6. LA. R.S. 9:1102 (1870) : "Whenever the riparian owner of any property inincorporated towns or cities is entitled to the right of accretion, and more batturehas been formed in front of his land than is necessary for public use, which thecorporation withholds from him, he shall have the right to institute action againstthe corporation for so much of the batture as may not be necessary for publicuse. . . . [I]t shall decree that the owner is entitled to the property, and shallcompel the corporation to permit him to enjoy the use and the ownership of suchportion of it."7. 39 La. Ann. 275, 4 So. 241 (1887).8. 104 La. 392, 29 So. 117 (1900).9. Bruning v. New Orleans, 165 La. 511, 526, 115 So. 733, 738 (1928).10. The cases of Bank of Coushatta v. Yarborough, 139 La. 510, 71 So. 784(1916) ; Slattery v. Arkansas Natural Gas Co., 138 La. 793, 70 So. 806 (1916) ;McDade v. Bossier Levee Board, 109 La. 625, 33 So. 628 (1902) are often cited1958] NOTESThe holding in the instant case is based on a literal inter-pretation of Article 509. The text of the article makes no refer-ence to the cause producing the alluvion, but describes only themanner in which it is to be formed. The court thus reasonedthat to require that the cause be a natural one would add to thearticle a new restrictive condition without authority of law. Thisrationale is supported by the French commentators Laurent andDallozII and conforms to the historical practice of construingArticle 509 literally.12 The court also indicated a test to be usedin determining when in fact the formation was successive andimperceptible. 13 Accretion is to be considered formed successive-ly and imperceptibly if witnesses are unable to observe the proc-ess while it is actually going on, even though they may have ob-served from time to time that land was being built up. Applyingthis test to the facts of the instant case, the court found that,although the formation occurred over relatively few years,'14 wit-nesses standing on the bank could not have actually seen theformation taking place. The land was therefore alluvion withinthe meaning of Article 509.Any other result would have created a rule almost impos-sible to apply. The Mississippi and Atchafalaya Rivers as wellas all other major rivers in Louisiana are held in check by arti-ficial banks or levees. Accretion formed along these rivers canlogically be traced directly to the works of man. To hold thatfor authority on this problem. But these cases all dealt with lakes which dried upbecause of the removal of the log jam on the Red River. Since they were lakes,the laws of alluvion did not apply, nor were any deposits formed since the lakeswere simply drying up.11. 38 DALLOZ, REPERTOIRE DE LEGISLATION, DE DOCTRINE ET DR JURISPRU-DENCE, PROPERIETE, 280, 289 (1885) ; 6 LAURENT, PRINCIPES DE DROIT CIVILFRANVAIS 365, § 283 (2d ed. 1876).12. See Sapp v. Frazier, 51 La. Ann. 1718, 20 So. 378 (1899) ; Zeller v.Southern Yacht Club, 34 La. Ann. 837 (1882). It should be noted here that Ar-ticle 509 does not mention lakes, but uses the phrase "river or other stream."Louisiana courts have interpreted this to mean the laws of alluvion do not applyto lakes. Doiron v. O'Bryan, 218 La. 1069, 51 So.2d 628 (1951) ; State v. Aucoin,206 La. 787, 20 So.2d 136 (1944); Amerada Petroleum Corp. v. State MineralBoard, 203 La. 473, 14 So.2d 61 (1943) ; Slattery v. Arkansas Natural Gas Co.,138 La. 793, 70 So. 806 (1916); Zeller v. Southern Yacht Club, 34 La. Ann.837, 839 (1882) (dictum).13. The court here was apparently relying on the case of County of St. Clairv. Lovingston, 90 U.S. (23 Wall.) 46, 68 (1874), in which the court said: "Thetest as to what is gradual and imperceptible in the sense of the rule is, that thoughthe witnesses may see from time to time that progress has been made, they couldnot perceive it while the process was going on. Whether it is the effect of naturalor artificial causes makes no difference. The result as to the ownership in eitherdase is the same."14. Prior to the digging of the cut-off there was no alluvion being formed. Thecut-off was dug in 1933 and the land in dispute was formed, according to theevidence of the riparian owners, by 1942.LOUISIANA LAW REVIEWaccretion so formed does not belong to the riparian ownerswould remove hundreds of acres from private use and owner-ship to lie idle until the state should see fit to make some useof them. The criterion announced by the court in the instantcase provides a fair, workable guide for future litigation on thissubject.15Sidney D. FazioPROPERTY - THIRTY-YEAR PRESCRIPTION IN BOUNDARY ACTIONIn accordance with an informal survey defendant's author intitle erected a fence in 1904 between his land and that now be-longing to the plaintiff. Upon discovering that this fence en-croached on his land, plaintiff brought suit under Article 823which provides for judicial determination of boundaries in cer-tain situations. Defendant contended that the fence line shouldbe recognized as the boundary under the provisions of Article852 relative to thirty year boundary prescription.' After re-versing the trial court on original hearing, the court of appealreversed itself on rehearing and affirmed judgment for theplaintiff, holding that under Article 852 mutual consent wasnecessary to establish a boundary. 2 The Supreme Court grantedwrits and held, on rehearing, reversed for defendant. Uninter-rupted possession of land for thirty years beyond title and up toa visible separation is sufficient under Article 852 to establish aboundary at the line of the visible separation. Mutual consent tosuch a boundary is not necessary. Sessum v. Hemperley, 233 La.444, 96 So.2d 832 (1957).At French law 3 any possessor may have his ideal ruralbounds judicially determined at any time, provided there hasbeen no written agreement between the parties fixing a bound-15. This case is also noted in 32 TUL. L. REV. 319 (1958).1. "Whether the titles, exhibited by the parties, whose lands are to be limited,consist of primitive concessions or other acts by which property may be trans-ferred, if it be proved that the person whose title is of the latest date, or thoseunder whom he holds, have enjoyed, in good or bad faith, uninterrupted posses-sion during thirty years, of any quantity of land beyond that mentioned in histitle, he will be permitted to retain it, and his neighbor, though he have a moreancient title, will only have a right to the excess; for if one can not prescribeagainst his own title, he can prescribe beyond his title or for more than it callsfor, provided it be by thirty years possession."2. Sessum v. Hemperley, 83 So.2d 546 (La. App. 1955).3. 1 ENCYCLOPtDiE DALLOZ, DROIT CIVIL, "Bornage" nos 4047 (1951) ; 2CODE CIVIL ANNOTA art. 646, p. 81, n. 100 (1935). See also AUBRY ET RAU,COURS DE DROIT CIVIL FRANCAIS, "Dus homage," § 199 (6th ed. 1935) ; 3 PLANIOLET RIIPERT, TRAITt PRATIQUE DE DROIT CIVIL FRANQAIS 43142 (2d ed. 1952).[Vol. XVIII

Property - Rights of Riparian Owners to Alluvion Formed as a Result of the Works of Man

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Property - Rights of Riparian Owners to Alluvion Formed as a Result of the Works of Man

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