579 So.2d 420 (La. 1991), 90-CC-1911, Gaharan v. State Through Dept. of Transp. and Development

Docket Nº:90-CC-1911, 90-CC-1887.
Citation:579 So.2d 420
Party Name: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.
Case Date:May 06, 1991
Court:Supreme Court of Louisiana
 
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Page 420

579 So.2d 420 (La. 1991)

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.

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.

Page 421

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...

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