Louisiana Navigation Co., Limited v. Oyster Commission of Louisiana

Decision Date17 January 1910
Docket Number17,594
Citation51 So. 706,125 La. 740
CourtLouisiana Supreme Court
PartiesLOUISIANA NAVIGATION CO., Limited, v. OYSTER COMMISSION OF LOUISIANA et al

Rehearing Denied March 14, 1910.

Appeal from Civil District Court, Parish of Orleans; George H Theard, Judge.

Action by the Louisiana Navigation Company, Limited, against the Oyster Commission of Louisiana and others. Judgment for defendants, and plaintiff appeals. Reversed and remanded.

E. N Pugh and J. C. & Thos. Gilmore, for appellant.

Jno. C Wickliffe, for appellee Oyster Commission of Louisiana.

John Dymond, Jr., for other appellees.

MONROE, J. MONROE, J. PROVOSTY, J., dissents.

OPINION

MONROE, J.

Plaintiff, asserting title to, and possession of, certain lands which form part of the low peninsula of the parish of St. Bernard which projects into the waters constituting Mississippi Sound and the Gulf of Mexico, complains that the Oyster Commission of Louisiana and its (alleged) licensees, the E. C. Joullian Canning Company and Dunbars and Lopez & Dukate Company, have been, and are, slandering said title "and possession," trespassing upon the property, carrying away oysters and shells therefrom, and interfering with it (petitioner) in the development and use of the same, and its petition concludes with the prayer that the parties named be cited, and, further:

"That, the annexed affidavit and bond considered, a preliminary injunction issue, injoining and restraining them, their agents and employes, and all other parties who may be discovered slandering petitioner's possession or title, or trespassing on petitioner's property and the said places known as Creole Gap and Grand Pass, aforesaid, and from interfering with the full enjoyment of the said property by your petitioner and the employment of the said steamboat Carrie, her officers and crew, and petitioner's employes, and from attempting to lease, grant, or license, to others, for fisheries or other purposes, the said places or property, situated within petitioner's survey, as described in petitioner's title. That the said parties defendant may be ordered to account to petitioner for the oysters in the shell taken away from said property, and that petitioners have judgment for the amount shown to be due petitioner by said account. Petitioner further prays that there be judgment * * * against the said defendants, the Oyster Commission of Louisiana and the E. C. Joullian Canning Company in solido for damages, actual and exemplary, for said joint trespass of the said parties, in the sum of $ 6,000, as above set forth, and maintaining and making perpetual the preliminary injunction against said defendants and all others found questioning, impeaching, and slandering petitioner's possession and title or trespassing upon petitioner's said property, as described by petitioner's title and patents and the government surveys, and against all parties in solido for costs and general relief."

The preliminary injunction issued as prayed for, on a bond of $ 2,500, and thereafter the defendants excepted, on the grounds that the petition was too vague and indefinite in its allegations, and that it disclosed no cause of action, and the Oyster Commission further excepted that:

"The suit is an attempt, on the part of plaintiff, to stop and prevent, by the civil process of injunction, the execution and enforcement of the criminal laws of the state * * * which it is the duty of this appearer to enforce."

Defendants then moved that the injunction be set aside, or the amount of the bond increased, and plaintiff moved that the motions so filed be taken as answers, and, both motions having been disposed of adversely to the movers, there was judgment on the exceptions as follows:

"It is ordered that the said exceptions be maintained in so far as to order the plaintiff to amend its petition, within five days, by setting forth more clearly and definitely the description of the property referred to in its petition, and that upon failure to comply with this order * * * plaintiff's suit be dismissed, as in case of nonsuit, at its cost; in other respects the said exceptions are overruled."

Thereafter, plaintiff filed a supplemental petition, annexing and making part thereof certain patents and other muniments of title, as in compliance with the order that it should set forth more clearly and definitely the description of the property referred to in its petition, and defendants, thereupon, renewed the exception of "no cause of action," which was sustained by a judgment which rejects plaintiff's demand and dismisses its suit, and from which plaintiff prosecutes this appeal. The petitions are rather long and we shall, therefore, and in order to determine whether they disclose a cause of action, copy only those parts which purport to describe the property trespassed upon -- stating, as well as we can, the substance of the other allegations:

In the original petition, it is alleged:

"That petitioner * * * is the owner and in possession of certain lands, in the parish of St. Bernard, * * * on the coast line, bounded on the north by the waters described as the Mississippi Sound, or Grand Pass of the Gulf of Mexico, all acquired by petitioner by mesne conveyance from the state of Louisiana; that the said lands are submerged and swamp and overflowed lands and embrace the places known as Creole Gap, in Sec. 32, T. 10 S., R. 20 E., and Secs. 4 and 5, T. 11 S., R. 20 E., of the official plat of survey of said lands in the United States and state land offices, and other water bottoms, in the limits of petitioner's survey, extending across, at the extreme western end of petitioner's land, to the western section lines of sections 6 and 7, embracing the place, or small pass, known as Grand Pass, in the said sections 6 and 7, in T. 11 S., R. 20 E., as distinguished from Grand Pass of the Gulf of Mexico, aforesaid; the said land extending southerly or southwesterly to a place designated as Drum Pass, and comprising about 6,809 acres."

The petition then goes on to state that the lands in question were donated by the United States to the state, accepted by the state, and sold to petitioner's author as swamp and overflowed lands; "that petitioner has been in possession, as owner and by title, for more than 30 years, through the author of its title, and, for more than 10 years, by just title"; that it has gone to great expense in developing the property, and has operated a steamboat, known as the "Carrie," in that connection; that the Oyster Commission of Louisiana, and its licensees the E. C. Joullian Canning Company and the Dunbars and Lopez & Dukate Company, and other parties unknown, have slandered its title, and have combined to take physical possession of the property; that boats owned by the said parties, or in which they are interested, have taken oysters therefrom, and owe an accounting therefor; that the Dunbars and Lopez & Dukate Company applied for a lease of said property; that the Oyster Commission, by threats of arrest and imprisonment and criminal prosecution, under color of Act 52 of 1904 and Act 178 of 1906, attempt to intimidate petitioner from pursuing the business for which it was organized; that its ownership of the property was notorious, and that it placed signs thereon giving further notice to that effect; that the Oyster Commission, its president, agents, or employes, on or about November 27, 1908, entered upon said property and cut down and carried away said signs, and ordered its licensee the Joullian Company and other parties to continue fishing and carrying off petitioner's property, and that said company so continues; that said acts constitute a joint trespass by said parties, for which they are liable in solido, and which prevents the peaceful occupation, by petitioner, of said land; that said lands are valuable for fisheries or reclamation; that petitioner has paid all taxes thereon; and that the use thereof is worth more than $ 25,000; that said lands and petitioner's business are not subject to the license taxes, restrictions, penalties, prohibitions, forfeitures, etc., imposed by the said acts of 1904 and 1906; that petitioner has been damaged by the acts of the defendants in the sum of $ 5,000, and is entitled to $ 1,000 by way of exemplary damages, and that said acts will be continued unless prohibited by injunction; that the provisions of the acts of 1904 and 1906 do not conflict with petitioner's rights; but, should it be so considered, then that they contravene section 10, art. 1, of the Constitution of the United States, as also certain provisions of the state Constitution (which are specified). Wherefore, petitioner prays, etc. (as heretofore set forth). The supplemental petition alleges:

"That in obedience to the order of the court, * * * plaintiff files herewith a description of the property of petitioner, as originally derived by its authors from the state of Louisiana and conveyed to, or acquired by mesne conveyance by, petitioner, and comprising the northeast extremity, or end, of the peninsula of St. Bernard, as outlined and defined in the 'Boundary Case,' between the states of Louisiana and Mississippi, * * * establishing the boundary between the two states; that the said part of said peninsula is also known as 'Isle a Pitre,' or the 'Louisiana Coast Line,' the said decision showing the 'thalweg,' or boundary, to run between the said Isle a Pitre and Cat Island. Petitioner shows that its possession embraces the whole of the territory known as the 'Isle a Pitre,' and the lands described in the annexed transfer, made part hereof; that the said sections and fractional sections of land, or upland, and land under water, therein set forth, adjoin and form one piece, or block, of swamp and...

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