Dyer & Moody, Inc. v. Dynamic Constructors, Inc.

• Decision Date: 20 March 1978
• Docket Number: No. 11874,11874
• Citation: 357 So.2d 615
• Court: Court of Appeal of Louisiana — District of US
• Parties: DYER & MOODY, INC. v. DYNAMIC CONSTRUCTORS, INC.

Page 615

357 So.2d 615

DYER & MOODY, INC. v. DYNAMIC CONSTRUCTORS, INC.

No. 11874.

Court of Appeal of Louisiana, First Circuit.

March 20, 1978.

William C. Bradley, Baker, for plaintiff-appellee Dyer & Moody, Inc.

E. Wade Shows, Baton Rouge, for defendant-appellee Dynamic Constr., Inc. & Title Ins.

Weldon J. Hill, II, and Aubrey McCleary, Baton Rouge, for third party defendant-appellant and third party plaintiff Eastern Development & Investment Corp.

Before BLANCHE, COVINGTON and CHIASSON, JJ.

COVINGTON, Judge.

The facts of this case are not in serious dispute, and can be stated as follows: On November 9, 1965, by act of sale of record on November 10, 1965, in COB 1884, folio 272, of the official records of East Baton Rouge Parish, the plaintiff, Dyer & Moody, Inc. acquired a tract of land fronting 176 feet on Ray Weiland Drive in Bakerfield Subdivision of the City of Baker, East Baton Rouge Parish, Louisiana. Plaintiff, consulting engineers, have constructed an office building on the subject property.

Thereafter, on September 25, 1970, A & B Apartments, Inc., acquired by act of sale of record in COB 2136, folio 297, October 5, 1970, of the official records of said parish, a tract of land (with other lots) designated as Lot N, Bakerfield Subdivision, in the City of Baker, Louisiana. This property, which is presently owned by the defendant, Eastern Development & Investment Corp., lies immediately adjacent to the property of Dyer & Moody, Inc. on the east side of the plaintiff's property.

For a number of years there had existed a natural drain, in the form of a ditch, located on the western portion of the defendant's property, by which surface waters on the lands situated north, west and east of the defendant's property flowed generally in a southerly direction toward Ray Weiland Drive in said subdivision. Then, on or about November 9, 1970, A & B Apartments, Inc., as the owner of said Lot N in said subdivision, commenced the construction of an apartment project on said lot. During the course of the construction of said apartment buildings, the drainage ditch was filled in and the buildings obstructed the natural flow of the surface water, in such a manner as to cause said water to flow around the apartment buildings and drain across the plaintiff's property into Ray Weiland Drive.

Plaintiff, Dyer & Moody, Inc., filed a petition for mandatory and prohibitory injunction and for damages against Dynamic Constructors, Inc. on February 15, 1974, complaining of the obstruction of the natural servitude of drainage. On March 3, 1975, the plaintiff filed a supplemental and amending petition, seeking the same relief, but alleging that Dynamic Constructors, Inc. had sold the subject property to American Equity Investment Trust by act dated May 15, 1974, and recorded May 21, 1974, in COB 2363, page 530, of the official records of said parish, and naming said American Equity as a party defendant. By a second supplemental and amending petition filed on August 6, 1975, the plaintiff alleged that American Equity had sold to Eastern Development & Investment Corp. by act dated March 4, 1975, of record on March 5, 1975, in COB 2410, page 360, of the official records of said parish, the property involved in this lawsuit, and named said Eastern Development as a party defendant.

In due course Eastern Development filed an answer in the nature of a general denial and filed a third-party demand, alleging that the Title Insurance Corporation of Pennsylvania had issued an owner's title insurance policy to Dynamic Constructors, Inc. or its assigns. The third-party petition alleged that the policy insured against loss or damage, and that as successor to Dynamic the third party petitioner, Eastern Development, was protected in the event Dyer & Moody recovered judgment against Eastern Development.

Then, exceptions of prescription were filed by defendants, Eastern Development & Investment Corporation, Dynamic Constructors, Inc., American Equity Investment Trust and The Title Insurance Corporation of Pennsylvania, based on the grounds that the cause of action, having accrued more than one year prior to the commencement of the action, had prescribed by the elapse of one year. The lower court maintained the exceptions of prescription "insofar as the same may apply to plaintiff's action for damages," but overruled the same insofar as it pertained to the petition for injunction.

Subsequently, motions for summary judgment were filed on behalf of Dynamic Constructors, Inc., American Equity Investment Trust and The Title Insurance Corporation of Pennsylvania. Considering that Dynamic and American Equity were no longer owners of the property involved in the lawsuit, the lower court granted summary judgment in their favor and dismissed them as defendants. The lower court also granted the motion for summary judgment in favor of Title Insurance, based on the owner's title insurance policy.

The matter was tried on the merits, at the conclusion of which the trial judge, with oral reasons dictated in the record, rendered judgment in favor of the plaintiff, Dyer & Moody, Inc., and against the defendant, Eastern Development & Investment Corp., in the amount of $19,203.00, which sum of money being awarded as compensatory damages in lieu of the mandatory injunction to which the plaintiff was entitled, but which was considered to be a "too harsh and impractical" remedy under the particular facts and circumstances. The amount of damages awarded by the lower court was the amount that he determined would be "the cost of providing a facility that would be adequate to accomplish what the natural drain used to accomplish on the adjoining property, on the property of the apartments, including the feasibility of putting part of it" on the plaintiff's property.

This matter is on appeal from the judgment rendered in favor of the plaintiff signed on July 6, 1977, and also on appeal from the summary judgment in favor of the third-party defendant, signed on June 28, 1977.

Appellant has urged four specifications of error to this Court:

1. The trial court erred in overruling the exception of prescription insofar as it pertained to the petition for injunctive relief.

2. The trial court erred in awarding the plaintiff the sum of $19,203.00 as compensatory damages in lieu of a mandatory injunction.

3. The trial court erred in ruling that the plaintiff was not estopped from asserting "its claim of a natural servitude of drain."

4. The trial court erred in granting the third party defendant's motion for summary judgment.

Specification of Error No. 1

There is no merit in appellant's assertion that plaintiff's action for injunctive relief had prescribed. Pursuant to LSA-C.C. Art. 660:

"It is a servitude due by the estate situated below to receive the waters which run naturally from the estate situated above, provided the industry of man has not been used to create that servitude.

"The proprietor below is not at liberty to raise any dam, or to make any other work, to prevent this running of the water.

"The proprietor above can do nothing whereby the natural servitude due by the estate below may be rendered more burdensome."

We hold that Article 660 provides for a natural servitude, and that the applicable prescriptive article is LSA-C.C. Art. 795, which provides:

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