Dean v. Hercules, Inc.

• Citation: 328 So.2d 69
• Decision Date: 23 February 1976
• Docket Number: No. 56644,56644
• Parties: J. Clyde DEAN v. HERCULES, INCORPORATED.
• Court: Supreme Court of Louisiana

Page 69

328 So.2d 69

J. Clyde DEAN v. HERCULES, INCORPORATED.

No. 56644.

Supreme Court of Louisiana.

Feb. 23, 1976.

Paul G. Borron, II, Borron & Delahaye, Plaquemine, for defendant-applicant.

G. William Jarman, Thibaut & Thibaut, John S. Thibaut, Jr., Baton Rouge, for plaintiff-respondent.

DIXON, Justice.

Plaintiff, the owner of a tract of land in Iberville Parish, filed this suit against the owner of an adjoining tract, for damages allegedly suffered as a result of chemical emissions from the defendant's plant which killed or otherwise adversely affected certain trees on his property. In his petition, plaintiff alleges that during the period 1970--1971, the defendant's plant emitted certain chemical substances which destroyed or damaged his trees and orchards. The suit was filed on April 1, 1974. By amended petition, filed on August 21, 1974, the plaintiff asserted a cause of action under article 667 of the Civil Code.

The defendant filed a peremptory exception of prescription of one year, which the trial court upheld. On appeal, the First Circuit reversed, holding that an action for damages under C.C. 667 prescribes in ten years. 314 So.2d 430. We granted writs to resolve the conflict between this case and Gulf Insurance Co. v. Employers Liability Assurance Corp., 170 So.2d 125 (La.App.4th Cir. 1964), which held that the applicable prescriptive period for a suit for damages under article 667 is one year.

The nature of the obligation breached determines the applicable prescriptive period. C.C. 3531. The defendant contends that the obligation breached, if any, arises ex delicto, and therefore prescribes in one year. C.C. 3536. Plaintiff, on the other hand, contends that the obligation breached arises solely by operation of the law, and therefore a ten year prescriptive period is applicable. C.C. 3544.

The law recognizes two kinds of civil obligations, in relation to their origin. C.C. 1760. The first are those created by operation of law; the second are those created by the consent of the parties, called conventional obligations.

C.C. 2292 further subdivides obligations contracted without agreement of the parties into two classes:

'Certain obligations are contracted without any agreement, either on the part of the person bound or of him in whose favor the obligation takes place.

'Some are imposed by the sole authority of the laws, others from an act done by the party obliged, or in his favor.

'The first are such engagements as result from tutorship, curatorship, neighborhood, common property, the acquisition of an inheritance, and other cases of a like nature.

'The obligations, which arise from a fact, personal to him who is bound, or relative to him, result either from quasi contracts, or from offenses and quasi-offenses.'

The first class represents those obligations that result from a status or a relationship; the second represents those that result from some act personal to him who is bound.

C.C. 667 provides:

'Although a proprietor may do with his estate whatever he pleases, still he can not 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.'

This article has been part of our law since the Code of 1808. However, it does not appear in the Code Napoleon. Rather, it appears to have been taken from the text of Domat. Batiza, Sources of 1808 Civil Code, 46 Tul.L.Rev. 4, 69 (1971); Domat, Oeuvres completes de J. Domat, Book 1, Title 12, § 2, No. 8 (ed. Remy 1835).¹

C.C. 667 is the embodiment of the maxim 'sic utere tuo, ut alienum non laedas;' along with articles 668 and 669, it establishes the reciprocal rights and obligations of neighbors. Chaney v. Travelers Insurance Co., 259 La. 1, 249 So.2d 181 (1971). See Yiannopoulos, Civil Responsibility in the Framework of Vicinage: Articles 667--69 and 2315 of the Civil Code, 48 Tul.L.Rev. 195 (1974).

C.C. 488 provides that the right of ownership is exclusive. However, it is not absolute, since it is subject to laws or ordinances. C.C. 491. In effect, C.C. 488 embodies the positive side of the right of ownership (the right by which a thing belongs to some one in particular, to the exclusion of all others), while C.C. 491 embodies the negative side (provided it is not used in any way prohibited by laws or ordinances).

Thus, it is clear that the right of ownership is subject to limitations imposed by law. 2 Aubry et Rau, Droit Civil Francais, § 194 (7th ed. La.State Law Inst. tr. 1966). Articles 667 and 668 reflect such limitations. C.C. 667 imposes a limitation on the positive side of ownership, for it prevents one landowner from making any work on his property which deprives his neighbor of the liberty of enjoying his own. C.C. 668, on the other hand, imposes a limitation on the negative side, for it forces the neighbor to accept those inconveniences that do not amount to damage.

In prerevolutionary France, such limitations on the right of ownership were regarded as personal obligations founded on the quasi-contract of vicinage.² R. Pothier, Traite du contract de societe No. 230, 328 4 Oeuvres de Pothier (ed. Bugnet 1861). However, the codification of the Sic utere doctrine deals with obligations much broader than the obligations arising from a servitude. Yiannopoulos, Civil Responsibility in the Framework of Vicinage: Articles 667--69 and 2315 of the Civil Code, 48 Tul.L.Rev. 195, 203 (1974). 'It is just an historical accident that obligations arising from vicinage have been classified in the Louisiana and French Civil Codes as servitudes arising by operation of law.'³

Nevertheless, an obligation in Louisiana is either: (1) contractual; (2) quasi-contractual; (3) delictual; (4) quasi-delictual; or (5) legal. C.C. 1760, 2292. The obligations imposed by articles 667 and 668 are legal, for C.C. 666 declares:

'The law imposes upon the proprietors various obligations towards one another, independent of all agreements; and those are the obligations which are prescribed in the following articles.'

Therefore, the breach of an obligation imposed by those articles necessarily results in legal responsibility. However, it can be said that the breach of any obligation (be it consensual or nonconsensual) results in legal responsibility if the law provides a sanction for that breach, for, without any sanction, the obligation is merely an imperfect or natural obligation, neither of which can be enforced by any judicial action. C.C. 1757.

After the two basic kinds of civil obligations (consensual and nonconsensual) are established by Title III (article 1760), the Civil Code then treats (1) Of Conventional Obligations (Title IV, articles 1761--2289); (2) Of Quasi Contracts, and Of Offenses and Quasi Offenses (Title V, articles 2292--2324). Therefore, in order to determine the incidents of the breach of a legal obligation, and the applicable prescriptive period in this case, we look to the closest analogous situation provided for in the Code.

An action for damages for a violation of article 667 is most closely associated with an action for damages based on C.C. 2315 et seq. Indeed, it can be said that a violation of article 667 constitutes fault within the meaning of article 2315.⁴ Langlois v. Allied Chemical Corp., 258 La. 1067, 249 So.2d 133 (1971).⁵ In effect, C.C. 667 imposes liability without negligence. Chaney v. Travelers Insurance Co., supra. Therefore, the prescriptive period in an action for damages for a violation of article 667 should be one year.

We are reinforced in this conclusion by the interoperation of C.C. 670 and 2322.⁶ Article 670 is a broad statement of the building owner's duty toward his neighbors and passersby. C.C. 2322 provides that the owner of the building is answerable for the damages occasioned by its ruin. Articles 670 and 2322 are laws upon the same subject matter, and hence are construed with reference to each other. C.C. 17; Anslem v. Travelers Insurance Co., 192 So.2d 599 (La.App.3rd Cir. 1966). It has therefore been held that the prescriptive period for an action for damages brought under C.C. 670 and 2322 is one year. Grigsby v. Morgan & Lindsey, 148 So. 506 (La.App.2d Cir. 1933). Since C.C. 2315 is broad enough to include the obligations imposed by C.C. 667, and because the acts which would violate the obligations imposed by 667 could so easily be said to be an 'act whatever of man that causes damage to another' (see Butler v. Cargill, Inc., 304 So.2d 91 (La.App.1st Cir. 1974), it is entirely logical that the same prescriptive period should apply to both. C.C. 3536, 3537.

Nor can we say that a ten year prescriptive period is applicable because damage to immovable property is involved. See C.C. 3537. C.C. 667 is not limited in its operation to damage to immovable property. Rather, the article specifically provides that the landowner cannot make any work on his estate 'which may be the cause of any damage to him' (his neighbor). Article 667 seems to encompass liability for personal injuries. See Rayborn v. Smiley, 253 So.2d 664 (La.App. 1 Cir. 1971), cert. den. 260 La. 105, 255 So.2d 92 (1971). Furthermore, damage to movable property is compensable under C.C. 667. See Watkins v. Gulf Refining Co., 206 La. 942, 20 So.2d 273 (1944).

Nor will our holding result in the possibility of acquiring any kind of servitude after one year passes without litigation over the breach of the obligation of neighborhood. Servitudes are acquired by ten years prescription. C.C. 765. Moreover, only continuous and apparent servitudes can be acquired by prescription. C.C. 765, 766. Certainly, in cases such as this, involving industrial pollutants, an act of man is required, and, therefore, no servitude can be acquired by the offending landowner by prescription. C.C. 727.

Neither do we express any opinion on the doctrine in the cases involving 'continuing damages.' (In Rhodes v. International Paper Co., 174 La. 49, 139 So. 755 (1932), it was held that, in the...