313 So.2d 877 (La.App. 2 Cir. 1975), 12625, Moreland v. Acadian Mobile Homes Park, Inc.
|Citation:||313 So.2d 877|
|Party Name:||Robert Willis MORELAND et ux., Plaintiffs-Appellees, v. ACADIAN MOBILE HOMES PARK, INC., Defendant-Appellant.|
|Case Date:||June 03, 1975|
|Court:||Court of Appeals of Louisiana|
Rehearing Denied July 1, 1975. Writs Refused Sept. 25, 1975.
Shuey, Smith & Carlton by W. Gene Carlton, Shreveport, for defendant-appellant.
Campbell, Campbell, Marvin & Johnson by John T. Campbell, Minden, for plaintiffs-appellees.
Before PRICE, HALL and DENNIS, JJ.
Robert Willis Moreland and his wife, Linda Marcella Moreland, brought this action against Acadian Mobile Homes Park, Inc., and its successor in ownership, Pittman-Harber, for damages to their property allegedly resulting from the construction and operation of a mobile home park. Plaintiffs also seek injunctive relief to prevent further damage from the activities complained of.
From the trial court judgment awarding plaintiffs damages in the amount of $9,000, defendants have perfected this suspensive appeal. Plaintiffs have answered the appeal, asking for an increase in the amount awarded and for modification of the judgment to include injunctive relief which was denied by the trial court.
The factual background giving rise to this litigation, as shown by the record, is essentially as follows:
Plaintiffs purchased a home in the year 1965 situated on a large rural lot lying adjacent to and south of U.S. Highway 80 and just west of its intersection with State Highway 614, known as the Haughton-Red Point Road in Bossier Parish.
At the time of the purchase a swale or depression ran along and adjacent to the west boundary of this property serving as a natural drain for several hundred acres of land north of Highway 80. Rainfall from this area flowing from north to south and east to west passes through two large culverts underneath Highway 80 which discharges the flow through the drainage swale into a small creek running from east to west at the rear of plaintiffs' lot. To improve the drainage and appearance of their property plaintiffs obtained permission to grade and sod the unimproved swale west of their lot. It was thereafter cared for and mowed by plaintiffs as a part of their yard. On April 21, 1970, the Acadian Mobile Homes Park, Inc., purchased a wooded tract of approximately 40 acres situated north of and adjacent to U.S. Highway 80 several hundred feet east of plaintiff's residence. This tract is a portion of the watershed area which drains through the swale. Immediately after purchase of this property the defendant corporation began to prepare a site for a mobile home park to accommodate approximately 243 mobile homes. At about this same time, on June 11, 1970, plaintiffs acquired the ownership of the strip along their west boundary forming the drainage swale involved herein for the sum of $1,000.
In preparation of the mobile home park site it was necessary that trees and vegetation be removed and extensive grading and leveling performed for installation of streets and other improvements. This caused a washing of loose top soil to occur which ultimately flowed across the drainage swale on plaintiff's property. By this time plaintiffs had developed the swale into a shallow depression with a very gradual slope which was completely sodded and susceptible of being mowed with a tractor. Heavy rainfall caused some overflow onto plaintiff's yard, leaving deposits of sand and other debris which apparently washed from the Acadian construction site.
A sewage disposal system was installed in connection with the park which requires the discharge of a chemically treated effluent. To dispose of the effluent Acadian ran a four-inch plastic line from its treatment plant located on the southwest corner of its property to the ditch along the north side of Highway 80. The effluent thus began discharging through the culverts under the highway and across the natural drain on plaintiffs' property into the creek bed at the rear. This resulted in a continuous flow of effluent through the drain as compared to the intermittent flow of water
prior thereto which occurred only during or immediately following rainfall. This constant flow of liquid has caused the drainage swale to remain wet and boggy and to begin a gradual erosion, resulting in the formation of a gulley with steep sides through the bottom of the swale. Thus the swale can no longer be mowed and landscaped as was done prior to construction of the mobile home park.
The record further shows that defendant, Acadian, sold the mobile home park in question to a partnership styled Pittman-Harber, on April 30, 1973, and that the partnership has continued the operation of the park since this date.
Plaintiffs allege in original and amended pleadings that both of the defendants are liable to them for a loss of value to their residence and for the mental anguish suffered by them as a result of defendants' actions. In their petition initiating this action plaintiffs allege defendants were at fault in causing the conditions complained of by:
Failing to take proper caution before cutting down the trees on their property and allowing sand, debris, sewage and other deposits to flow onto petitioners' property;
Failing to stop the flow of sand, debris, sewage, and other deposits onto petitioners' property;
Failing to erect an adequate sewage disposal plant which would prevent sewage from flowing onto petitioners' property;
Creating un-natural pipe line system which aims sewage, sand, and debris at petitioners' property.
Plaintiffs further contend they will suffer irreparable injury if defendants are allowed to continue their injurious activities and request the issuance of an injunction to prevent the further discharge of debris or effluent on their property.
By answer and through a peremptory exception of no cause of action, defendants deny any liability to plaintiffs, contending they have the lawful right to remove trees and vegetation from their own property and that the construction has been carried on in accord with the rules and regulations of existing regulatory agencies. Defendants further contend no alteration has been made in the natural drain running across...
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