Cooper v. La. Dept. of Public Works

• Decision Date: 03 March 2004
• Docket Number: No. 03-1074.,03-1074.
• Citation: 870 So.2d 315
• Parties: Travis COOPER, et al. v. LOUISIANA DEPARTMENT OF PUBLIC WORKS.
• Court: Court of Appeal of Louisiana — District of US

870 So.2d 315

Travis COOPER, et al. v. LOUISIANA DEPARTMENT OF PUBLIC WORKS.

No. 03-1074.

Court of Appeal of Louisiana, Third Circuit.

March 3, 2004.

Rehearing Denied May 5, 2004.

V. Russell Purvis, Jr., Smith, Taliaferro, Purvis & Boothe, Jonesville, LA, for Plaintiffs/Appellees, Travis Cooper, et al.

Julie Mobley Lafargue, Abrams & Lafargue, Shreveport, LA, for Defendant/Appellant, State of Louisiana, Department of Transportation and Development (formerly Louisiana Department of Public Works).

Court composed of BILLIE COLOMBARO WOODARD, ELIZABETH A. PICKETT, and ARTHUR J. PLANCHARD,¹ Judges.

WOODARD, Judge.

The State of Louisiana, through the Department of Transportation and Development (DOTD), formerly the Louisiana Department of Public Works, asserts that the trial court should have denied the Plaintiffs' motion for partial summary judgment because the Plaintiffs do not have a right of action against it for the permanent flooding of portions of their lands which the construction of a series of locks and dams, along the Ouachita and Black Rivers, caused. We affirm the trial court's grant of a partial summary judgment to Plaintiffs.

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In 1960, the United States Congress enacted the River and Harbor Act, which authorized the construction of the Jonesville Lock and Dam and the Columbia Lock and Dam. The purpose of this construction project was to promote navigation on the Ouachita and Black Rivers by creating a navigational channel at least nine (9) feet deep and one hundred (100) feet wide at all points along these rivers.

On January 15, 1962, the State of Louisiana, through the DOTD, executed an "Act of Assurances" in conjunction with this construction project, in which it gave assurances to the United States that it would:

A. Furnish free of cost to the United States all lands, easements, and right of way[s], including flowage rights in overflow areas, and suitable spoil-disposal areas necessary for construction of the project and for its subsequent maintenance, when and as required; [and]

....

C. Hold and save the United States free from damages due to construction and maintenance of the project.

In 1972, the United States Corps of Engineers (Corps) completed construction. When the subject locks and dams became operational, a pool formed in the Ouachita River, commonly referred to as the Jonesville Pool, that extended approximately 107 miles upstream to the Columbia Lock and Dam. Since its creation, the Corps has maintained the Jonesville Pool at a minimum elevation of thirty-four (34) feet above mean sea level. Previously, the water level was a minimum elevation of twenty-one and a half (21.5) feet above mean sea level. Rawson Creek flows into the Jonesville Pool. Gastis Creek and Dry Lake are tributaries of Rawson Creek.

On March 28, 1972 and at all times since this date, when the Jonesville Pool's water level rose to an elevation of thirty-four (34) feet, the water level of Rawson Creek, Gastis Creek, Dry Lake, and all the tributaries of the Ouachita and Black Rivers rose to a minimum elevation of thirty-four (34) feet above mean sea level.

On June 14, 1994, nineteen individuals, each of whom owns property along Rawson Creek, Gastis Creek, Dry Lake, Hooter Creek, Big Creek, or Oil Well Creek, filed suit against the DOTD, seeking damages for the permanent flooding of portions of their lands which the construction of these locks and dams along the Black and Ouachita Rivers caused.

Based on their assumption that the Plaintiffs' lands were within the federal navigational servitude granted to the federal government by the commerce clause of the United States Constitution, the DOTD never attempted to acquire this property before it became inundated. It, also, never offered to pay any compensation of any type to Plaintiffs as consideration for the taking or damaging of their lands.

In their petition, the Plaintiffs requested that the trial court grant them the following relief: (1) a declaration that these constructions interfere with their servitude of drainage; (2) an injunction, directing the DOTD to remove or make modifications to these constructions that obstruct natural drainage to permit the natural flow of surface waters from their estates; (3) compensation for the unlawful taking of their lands by means other than expropriation proceedings and for the resulting damage to these lands; and (4) alternatively, if it is determined that they are not entitled to removal or modification of this obstruction, they are due compensation for the loss of their servitude of drainage. They further contend that this continuous inundation of their lands is a continuing tort, entitling them to compensation from the time that these lands initially became inundated in 1972.

On December 15, 1998, Plaintiffs filed an "Amending and Supplemental Petition," converting their action to a class action. By stipulation of the parties, the issues of liability and quantum were bifurcated.

On December 19, 2001, the class, which Plaintiffs represent, moved for a partial summary judgment, seeking a judgment on liability. They alleged that the DOTD's liability for their property loss arose out of its agreement to acquire all lands, servitudes, and right of ways "necessary for construction of the project and for its subsequent maintenance, when and as required."

On December 12, 2002, the trial court rendered judgment, granting the Plaintiffs a partial summary judgment on liability. Specifically, it found that the DOTD had become the insurer of the United States under the "Act of Assurances" executed to facilitate this construction project and, as such, according to the provisions of the Louisiana Direct Action Statute,² the DOTD is liable for the damage to Plaintiffs' lands.

The DOTD appeals, complaining that the trial court erred: (1) when it held that the Plaintiffs' claims had not prescribed; (2) in ruling that it interfered with the Plaintiffs' servitudes of drainage and that such interference constitutes a continuous tort that prevents the prescription of Plaintiffs' claims; (3) in finding that it failed to meet its burden of proving the limits of the federal navigational servitude; (4) in holding that the "Act of Assurances" gives Plaintiffs a right of action against it; and (5) in finding that the DOTD previously stipulated to liability for similar claims and for concluding that these alleged stipulations are binding in this litigation and, in the alternative, in not finding that an issue of material fact exists regarding these stipulations.

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STANDARD OF REVIEW

We review summary judgments de novo.³ Thus, we ask the same questions the trial court previously asked in determining whether summary judgment is appropriate.⁴ This inquiry seeks to determine whether any genuine issues of material fact exist and whether the movant is entitled to judgment as a matter of law.⁵ Once the movant has made a prima facie showing that suggests we should grant the motion for summary judgment, the burden of production shifts to the nonmoving party to present evidence, demonstrating the existence of issues of material fact which preclude the granting of a summary judgment.⁶

PRESCRIPTION

The Plaintiffs brought this action against the DOTD to recover damages and injunctive relief for the permanent flooding of portions of their lands which the impingement of their servitude of drainage caused. However, the DOTD asserts that their claims have prescribed.

Louisiana Civil Code Article 667 provides, in part:

Although a proprietor may do with his estate whatever he pleases, still he cannot make any work on it, which may deprive his neighbor of the liberty of enjoying his own, or which may be the cause of any damage to him. However, if the work he makes on his estate deprives his neighbor of enjoyment or causes damage to him, he is answerable for damages only upon a showing that he knew or, in the exercise of reasonable care, should have known that his works would cause damage, that the damage could have been prevented by the exercise of reasonable care, and that he failed to exercise such reasonable care.

"An action for damages for a violation of [La.Civ.Code art.] 667 is most closely associated with an action for damages based on [La.Civ.Code art.] 2315 et seq."⁷ As such, a violation of Article 667 constitutes fault within the meaning of Article 2315.⁸ Accordingly, our supreme court in Dean v. Hercules⁹ held that any interference with a servitude is a violation of Article 667 which gives rise to a delictual action that prescribes in one year.¹⁰

Louisiana Civil Code Article 3493 provides:

When damage is caused to immovable property, the one year prescription commences to run from the day the owner of the immovable acquired, or should have acquired, knowledge of the damage.

In the instant case, the parties have stipulated that the Plaintiffs were aware of the inundation of their lands since 1972. Therefore, normally, their delictual action against the DOTD would have prescribed one year later.

Continuing Tort Theory

Nonetheless, the Plaintiffs assert that their compensation claims have not prescribed under the continuing tort theory since the cause of their injuries is continuous and leads to successive damages; thus, prescription will not begin to run until the wrongful conduct (the inundation of their lands) ceases. The DOTD retorts that these injuries were not of a continuous nature because the tortious conduct ceased in 1972 when the Corps completed construction.

To apply the continuing tort theory, the operating cause of the injury must be a continuous one that results in continuous damages.¹¹ Frank L. Maraist and Thomas C. Galligan, Jr., in their treatise on Louisiana tort law, clarified this requirement:

Ordinarily, the tortfeasor's act that causes damage is short-lived though the damage it causes may continue. In some cases, multiple, distinct acts by the tortfeasor cause separate and distinct damages; in

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