Gaharan v. State Through Dept. of Transp. and Development

• Decision Date: 06 May 1991
• Docket Number: 90-CC-1887,Nos. 90-CC-1911,s. 90-CC-1911
• Citation: 579 So.2d 420
• Parties: Donald P. GAHARAN v. STATE of Louisiana, Through the DEPARTMENT OF TRANSPORTATION AND DEVELOPMENT. Consolidated with Carol W. EUBANKS, et al. v. STATE of Louisiana, Through the DEPARTMENT OF TRANSPORTATION AND DEVELOPMENT. 579 So.2d 420
• Court: Louisiana Supreme Court

Page 420

579 So.2d 420

Donald P. GAHARAN v. STATE of Louisiana, Through the DEPARTMENT OF TRANSPORTATION AND DEVELOPMENT.

Consolidated with

Carol W. EUBANKS, et al. v. STATE of Louisiana, Through the DEPARTMENT OF TRANSPORTATION AND DEVELOPMENT.

Nos. 90-CC-1911, 90-CC-1887.

579 So.2d 420

Supreme Court of Louisiana.

May 6, 1991.

William J. Guste, Jr., Atty. Gen. and David E. Lafargue, Sp. Asst. Atty. Gen., for State of La. Dept. of Transp. and Development, defendant-applicant.

V. Russell Purvis, Smith, Taliaferro, Seibert, Boothe & Purvis, Jonesville, for Caroll W. Eubanks, et ux, Rev. S.R. Brooks, et ux, Doris Alexander, and Lula Richardson, plaintiff-respondent.

Donald Wilson, Gaharan & Wilson, Jena, for Donald P. Gaharan, plaintiff-respondent.

CALOGERO, Chief Justice.

The State's improvements to Louisiana Highway 8 in Catahoula Parish in the year 1978 obstructed natural drainage, which led to three flooding incidents within the nine years following completion of the project. Suits were brought by seven owners of nearby property to enjoin the obstruction to the natural drainage and to secure damages arising from the three floods. The case is yet in a pretrial posture. The merit of the State's exceptions of prescription are at issue.

Originally, the court of appeal simply granted writs, reversed the trial court's denial of the State's exceptions of prescription, and dismissed all of plaintiffs' claims. Then, in response to an application, this Court granted writs, upset the court of appeal judgment and remanded to the court of appeal for briefing, argument and opinion. 558 So.2d 562. The court of appeal thereafter decided that it had earlier erred in only one of two respects. It held that while plaintiffs' claims for damages had indeed prescribed, their claims for injunctive relief had not.

That court of appeal opinion, which is now under review in this Court, found that because prescription does not run against plaintiffs' natural servitude of drain, their claim for a mandatory injunction to remove the obstacles to the drainage had not prescribed. 566 So.2d 1007. It stated, essentially, that R.S. 9:5624 (two year prescription when private property is damaged for public purposes) would not provide the State with immunity from an injunctive relief action which is normally imprescriptible simply because it is a public body rather than a private person. The court further found that plaintiffs' action for damages had prescribed under the same two year prescription of R.S. 9:5624, and that the district court was clearly wrong in finding that prescription had been interrupted by the State's acknowledgement of plaintiffs' claims.

The court of appeal also recognized that should plaintiffs prevail at trial on their claims for injunction, ordering removal of the obstruction (possibly destruction of the improvements to the highway) might prove to be too harsh a remedy. Citing J. Weingarten, Inc. v. Northgate Mall, Inc., 404 So.2d 896 (La.1981) and Dyer & Moody, Inc. v. Dynamic Constructors, 357 So.2d 615 (La.App. 1st Cir.1978), the court of appeal found sufficient precedent in the jurisprudence to permit the district court, should it find that plaintiffs were entitled to an injunction but that such relief would be too burdensome on the State, to fashion an alternative remedy, possibly compensatory damages.

The State's writ application urges that the court of appeal erred in finding that the prescription provisions of La.R.S. 9:5624, while applying to the damage claims, did not apply to plaintiffs' claims for injunctive relief. Plaintiff Gaharan's application, protective in nature, ¹ urges first that the court of appeal was correct in finding that the injunction claims had not prescribed. He contends also, in what is an alternative contention, that the district court was correct and should not have been overturned by the court of appeal when it found that R.S. 9:5624 did not apply to the damage claims, and that additionally all prescriptive periods had been interrupted by the State's acknowledgement of the claims.

The principal reason we granted writs in this case was to decide whether a claim for injunction has prescribed, and if it has not, and plaintiffs ultimately prove their entitlement to injunctive relief, whether a court determined disposition might permissibly include compensatory damages in lieu of removal of the obstruction. Responsive to a concededly protective writ by the plaintiff Gaharan in this case, ² we granted his writ to examine a fall back position, which is that in the event he should lose on the continued viability of his injunction action (the first issue noted above), we should examine his alternative contention--that the prescription provisions of R.S. 9:5624 do not apply to plaintiffs' damage claims (and that in all events, there was an interrupting acknowledgement by the State).

FACTS

The following facts have been stipulated. The State of Louisiana owns and maintains La. Highway 8 in Catahoula Parish. In 1977, the State began an improvement project on the highway which involved constructing a bridge over Rhinehart Creek. The roadbed of the highway was raised by approximately two and a half feet. The construction was completed in 1978. This construction interfered with the natural drainage in the area, which led to the flooding of the plaintiffs' adjacent properties on three occasions: December 26, 1982; May, 1983; and November, 1987.

Plaintiffs filed lawsuits seeking damages and injunctive relief. The latter was in order to effect a discontinuance of the obstruction of the natural drainage. Plaintiff Gaharan filed suit on December 23, 1985, three days shy of the third anniversary of the first flood. All other plaintiffs, except Mrs. Richardson, filed their suits on February 22, 1988. Mrs. Richardson filed on January 9, 1989. The DOTD filed exceptions of prescription in all of the lawsuits, claiming that the matters had prescribed under the two year prescriptive period of La.R.S. 9:5624.

CLAIMS FOR INJUNCTIVE RELIEF

A natural servitude of drain is owed by an estate situated below to receive the surface waters that naturally flow from an estate above. La.C.C. art. 655. The owner of the servient estate may not do anything to prevent the flow of the water. La.C.C. art. 656. It has been stipulated that the State in this case has obstructed the natural drainage in the area.

Plaintiffs, as owners of the dominant estates, are therefore entitled to injunctive relief requiring the State, as owner of the servient estate, to remove the obstacles which interfere with the natural drainage. Poole v. Guste, 261 La. 1110, 262 So.2d 339 (1972); Summerville v. Missouri Pacific Railroad Co., 509 So.2d 639 (La.App. 3d Cir.1987); Dyer & Moody, Inc. v. Dynamic Constructors, 357 So.2d 615 (La.App. 1st Cir.1978); Boxill v. Metrailer, 358 So.2d 986 (La.App. 1st Cir.1978).

The prescription of nonuse does not run against natural servitudes. La.C.C. art. 758. Therefore, an action for injunctive relief to enforce a natural servitude does not prescribe. Dyer & Moody, Inc. v. Dynamic Constructors, supra. Furthermore, R.S. 9:5624 is no impediment to bringing such an injunction action, because that statute concerns prescription of any and all actions for damages when private property is damaged for public purposes.

La.R.S. 9:5624 provided (prior to its 1987 amendment):

When private property is damaged for public purposes any and all actions for such damages are prescribed by the prescription of two years, which shall begin to run when the damages are sustained.

The conclusion in Nuckolls v. Louisiana State Highway Department, 337 So.2d 313 (La.App. 2d Cir.1976), relied on by the State in its argument that the injunction actions have prescribed in this case, is not persuasive. Injunctive relief may indeed be a harsher remedy than monetary damages, as the Nuckolls court stated. Nonetheless, it is a distinctively different form of relief. To the extent that Nuckolls holds that actions for injunction against public bodies as in this type of case are prescribed under R.S. 9:5624 (contrary to the court of appeal here, which opined that there is no reason why a public body as owner of a servient estate should enjoy any more protections from injunctive relief for the violation of drainage rights than a private party), we expressly disapprove. That holding in Nuckolls is therefore overruled.

The actions for injunction in these cases have not prescribed. That brings us to the court of appeal's assertion in its opinion that when implementation of a right to a mandatory injunction would be too harsh, an alternative remedy within the permissible latitude of existing law can be fashioned. While that juncture in ...