93-1393 La.App. 4 Cir. 11/10/94, Vermilion Bay Land Co. v. Phillips Petroleum Co.

• Court: Court of Appeal of Louisiana
• Citation: 93-1393 La.App. 4 Cir. 11/10/94, Vermilion Bay Land Co. v. Phillips Petroleum Co., 646 So.2d 408 (La. App. 1994)
• Decision Date: 10 November 1994
• Parties: 93-1393 La.App. 4 Cir

Page 408

646 So.2d 408

93-1393 La.App. 4 Cir. 11/10/94, 133 Oil & Gas

Rep. 53

VERMILION BAY LAND COMPANY v. PHILLIPS PETROLEUM COMPANY, et al.

No. 93-CA-1393.

Court of Appeal of Louisiana Fourth Circuit.

Nov. 10, 1994.

Writ Denied March 10, 1995.

Lawrence E. Donohoe, Jr., Patrick G. Tracy, Jr., Onebane, Donohoe, Bernard, Torian, Diaz, McNamara & Abell, Lafayette, for Vermilion Bay Land Co.

David N. Schell, Jr., Milling, Benson, Woodward, Hillyer, Pierson & Miller, New Orleans, for Phillips Petroleum Co.

Rebecca W. Comeaux, B.J. Duplantis, Gordon, Arata, McCollam, Stuart & Duplantis, Lafayette, for Louisiana Moran, Inc.

Thomas J. Wyatt, Hargrove, Guyton, Ramey and Barlow, L.L.P., Shreveport, for The Cockrell Defendants and The Heller Defendants.

Before CIACCIO, WARD and ARMSTRONG, JJ.

[93-1393 La.App. 4 Cir. 1] WARD, Judge.

Vermilion Bay Land Company instituted suit against numerous defendants ¹ seeking a judgment that defendants' mineral servitudes and mineral leases of the servitudes on lands owned by Vermilion Bay have terminated. The case was tried before the district judge who made findings of fact and rulings of law which only granted part of the relief Vermilion Bay sought, holding a small portion of the disputed servitudes had expired for non-use. For the most part the trial court rejected Vermilion Bay's claims and upheld the servitudes and the leases. Vermilion Bay has appealed, contesting both the findings of fact and the rulings of law. The defendants have answered seeking modification of that part of the judgment in favor of Vermilion Bay.

Vermilion Bay claims liberative prescription of 10 years non-use has terminated the servitude, and the mineral leases thereof are invalid, or at least they have no [93-1393 La.App. 4 Cir. 2] effect as to Vermilion Bay. The claim of ten years non-use is predicated on Vermilion Bay's belief that the lands in question are non-contiguous to other lands subject to the servitude and which are being "used" [held] by production of or exploration for oil and gas. All parties concede that if the lands are "non-contiguous" within the meaning of Louisiana's Mineral Code, then neither production nor exploration on other tracts will "interrupt" or "suspend" the running of liberative prescription on the non-contiguous tracts, since the mineral servitude would not be "used" within the meaning of the Mineral Code. "Use" of a mineral servitude on one part of a tract does not suspend the running of liberative prescription of that part of the servitude on a non-contiguous tract, even when one servitude covers both tracts. Lee v. Giauque, 154 La. 491, 97 So. 669 (1923).

All of the land at one time belonged to the State of Louisiana, but the State later transferred it to a newly created Buras Levee District to be sold at auction for the purpose of raising funds to build levees and drainage canals. The Levee District sold the land to Ernest Cockrell. Both Vermilion Bay and the owners of the mineral servitude have acquired ownership from common ancestors in title: Ernest Cockrell, the Buras Levee District, and the State of Louisiana, and neither Vermilion Bay nor any of the defendants contests the chain of title of any party, plaintiff or defendants.

The land acquired from the Levee District is more than 52,500 acres of marshlands in Plaquemines Parish, but the disputed lands and servitudes relate to five parcels of the whole separated by water from other lands within the servitude. The five areas of dispute have been described as (1) The Bayou Dulac area, (2) The Lost Bayou area, (3) The Islands, (4) The Robinson Bayou area, and (5) The Bayou Huertes area. The "use" of mineral servitudes and leases on the remainder of the tract is not questioned, the issue is whether that "use" interrupts prescription of the five tracts, a question which depends on whether they are contiguous or non-contiguous.

Vermilion Bay contends that the five parcels are not contiguous because they are separated from the remainder of the tract by the beds of navigable streams and waterways, the bottoms of which are owned by the State. They are still owned by the State, Vermilion claims, because when the State transferred the land to the Buras Levee District [93-1393 La.App. 4 Cir. 3] the State could not transfer the beds of navigable streams. Thus, Vermillion Bay claims, the ownership remained in the State, and neither the Levee District nor any of Vermilion's ancestors in title acquired ownership.

The trial court made findings of fact as to navigability both as to the 1812 date and the date of severance of State ownership. The trial court's findings of fact as to navigability were based on over 100 exhibits and the testimony of both experts and lay persons. There is no question as to the qualifications of the experts, all were outstanding scholars in their fields. When the trial court, or any fact finder for that matter, makes a considered choice between witnesses and evidence, the scope of appellate review of those findings is extremely limited, particularly when the choice is between expert testimony. Stobart v. State of Louisiana through DODT, 617 So.2d 880 (1993). Within that limited scope of review this court cannot say the trial court's findings of fact as to navigability are manifestly erroneous.

The State cannot alienate the beds of navigable waterways. The issue has been decided in Gulf Oil Corporation v. State Mineral Board, 317 So.2d 576 (La.1975) wherein the Supreme Court conclusively decided that the beds of navigable waters belonging to the State cannot be alienated by the State, and any patent or purported transfer is null. This however, does not resolve this dispute because the issue remains as to whether the prohibition against alienation refers only to beds of waterways that were navigable in 1812 when Louisiana became a State, or to beds of navigable waters at the time of severance from the State.

Vermilion contends the crucial period is the date of severance, while the defendants contends that the date of admission to the Union is the crucial date, arguing that alienation is prohibited only when the waterway was navigable in 1812 and also navigable at the time of alienation.

In four of the five disputed tracts described above, the trial court made findings of fact that resolve the dispute. The trial court found the waterways were not navigable either in 1812 or at the time of severance, as to tract 2, The Lost Bayou area; or as to tract 5, The Bayou Huertes area. Thus, the tracts were contiguous; use of part [93-1393 La.App. 4 Cir. 4] maintained the whole of the servitude. The trial court found that the waterways were navigable in 1812 and at the time of severance as to tract 3, The Islands, meaning they are non-contiguous, and that the servitude has expired. As to tract 4, The Robinson area, the trial court found that although a waterway was navigable, it did not completely sever the tract, and use by production of part was sufficient to interrupt prescription as to the whole.

Vermilion Bay has abandoned the appeal as to the disputed area described as tract 2, The Lost Bayou area; tract 3, The Islands; and tract 4, The Robinson Bayou area. Although defendants have also appealed, their appeal goes to adverse findings of fact which we have previously indicated were not manifestly erroneous, and which we affirm, rejecting defendants' appeal. For the same reasons we reject Vermilion Bay's appeal as to tract 5, The Bayou Huertes area.

In the Bayou Dulac area, however, the trial court made findings that raise the issue of what date is crucial, 1812 or the date of severance; because the trial court found Vermilion had not proven navigability in 1812, but found that Vermilion had proven that Bayou Dulac was a navigable waterway at the date of severance. Reasons for Judgment, p. 9 Nonetheless, the trial court ruled that ownership of the bed of Bayou Dulac was transferred by the State to the Levee District and ultimately to Vermilion Bay, ruling that the question of whether the waterway was navigable in 1812 was determinative of whether the State of Louisiana retained possession when it transferred ownership of the surrounding land. Since the trial court found Bayou Dulac was not navigable in 1812, it also found that the State could alienate its bed, and that it did so when it transferred the land by its patent. As a consequence of that finding the trial court held there was contiguity between the area north of Bayou Dulac and the area south of it, and use of any portion would maintain the servitude over the whole.

Vermilion argues that the crucial date for determining navigability and consequently whether the State had the authority to dispose of beds of certain waterways is not 1812, as the trial court found, but rather the date of severance of the property from the State, in this instance 1914, when the State transferred the lands to the Buras Levee District. Thus, Vermilion argues, the State did not transfer ownership of the bed of Bayou Dulac, title remained in the State, making the parts separated by Bayou Dulac non-[93-1393 La.App. 4 Cir. 5] to that part of the servitude that is held by production. Thus, use of the northern part of the servitude does not interrupt prescription as to the southern part.

As far as this court can tell, the issue has not been decided, and those cases relied upon by the trial court and the defendants do not consider whether the State can transfer ownership of the beds of waterways navigable at the time of severance, although each turned on a finding that the stream was navigable in 1812. On the other hand, Gulf Oil Corp., supra, strongly indicates the State can never transfer the beds of waterways that are navigable at the time of severance, citing unusually strong policy reasons and historical prohibitions. The same policy reasons which would prohibit the alienation of ownership of beds of waterways that are navigable both in 1812 and...