Discon v. Saray, Inc.

• Decision Date: 29 June 1972
• Docket Number: No. 52068,52068
• Parties: John G. DISCON et al. v. SARAY, INC., et al.
• Court: Louisiana Supreme Court

Page 765

265 So.2d 765

262 La. 997

John G. DISCON et al. v. SARAY, INC., et al.

No. 52068.

Supreme Court of Louisiana.

June 29, 1972.

Dissenting Opinion July 24, 1972.

Rehearing Denied July 31, 1972.

Badeaux, Discon & Cumberland, J. Michael Cumberland, New Orleans, for plaintiffs-applicants.

Harry R. Cabral, Jr., Metairie, J. Stuart Douglas, New Orleans, for defendants-respondents.

McCALEB, Chief Justice.

In this injunctive proceeding the plaintiffs seek to prevent Ray Lamastus ¹ from obstructing passage through Faciane Canal, so as to impede navigation thereon, said canal being located north of and generally parallel to a portion of the north shore of Lake Pontchartrain in St. Tammany Parish. Plaintiffs are the owners of property bordering on the canal who use the canal as a means of ingress and egress for their watercraft in Lake Pontchartrain.

Following a hearing, the trial court, which had previously issued a temporary restraining order, granted a preliminary injunction prohibiting the canal's closure. The judgment was reversed on appeal and remanded, the Court of Appeal stating:

'Inasmuch as there was no stipulation that the trial on the rule for preliminary injunction would also constitute the trial on the merits seeking a permanent injunction as prayed for by plaintiffs, the suit is not dismissed but is remanded to the trial court * * *.' La.App., 255 So.2d 489. We granted certiorari, 260 La. 681, 257 So.2d 148.

Plaintiffs urge that the obstruction of navigable waterways is reprobated by R.S. 14:97 ² and that under this provision, as applied by the Court of Appeal, Fourth Circuit, in D'Albora v. Garcia, La.App., 144 So.2d 911 (1962), cert. den., to another canal bordering Lake Pontchartrain, the action of the defendant is prohibited.

The Court of Appeal found that Faciane Canal is a navigable waterway, and that the defendant owns that part of the waterway running through his property. It held, however, the right of the plaintiffs to use the waterway constituted merely a servitude of passage which, under the provisions of Civil Code Arts. 703 and 777, may be changed to another location by the owner of the servient estate; and that, since the defendant has offered for the use of plaintiffs another, different canal by which they will have navigational access through his property, he has satisfied the provisions of the cited Civil Code articles. For these reasons, it concluded that plaintiffs were without right to maintain their action to prevent defendant from closing Faciane Canal where it goes through his property in order to give him a better utilization of his land.

We understand from the record that Faciane Canal was constructed in the mid-1950's. It was included in a subdivision development known as the North Shore Beach Subdivision. The 168 lots therein (each 100 feet in width) lie along the edge of Lake Pontchartrain. The Canal and a road designated as Carr Drive are shown on the subdivision plat to the rear of the lots and roughly parallel the shore of the lake. The canal and roadway are approximately three and one-half miles long. Access to the lake is available through only one end of the canal, the other end running into the Southern Railway tracks.

The defendant owns the property on both sides of the canal where the canal enters the lake, and desires to fill in the canal at that point for almost 700 feet, in order to have direct access to his property on each side. For convenience we attach hereto that portion of the subdivision plat (a survey conducted by F. C. Gandolfo, Jr., dated September 23, 1954), which shows the area where the canal enters the lake and where defendant proposes to close the canal. The part of the canal between the 'x's' (which we have placed on the plat) is the area where the witnesses at the hearing estimated that the closure was attempted. We entertain no doubt but that the lower courts were correct in their conclusion that the canal is navigable. It is fifty to sixty feet wide, and wider in some areas. Witnesses estimated its depth as being between ten to fifteen feet. Boats up to thirty or thirty-five feet in length regularly use the canal and larger boats have used it from time to time. Principally these boats belong to the owners of the abutting property and are used for pleasure purposes. However, floating pile drivers and barges have also been in the canal in connection with the construction of boat houses and piers. Indeed, it appears to be conceded in defendant's brief that the canal is navigable in fact. However, defense counsel argue that it is not navigable in law because there is no commercial traffic thereon, and that since the abutting property is restricted to residential use there will be no commercial use of the canal.

We find that the record does not bear out this contention. As shown, the canal has been used by commercial floating pile-drivers and barges. And that part of the canal abutting the defendant's property, which is commercially zoned, has been used commercially as a rented dock for crew boats used in oil operations. (The first six lots which are owned by defendant are zoned for commercial purposes.)

In any event we think that the court in D'Albora v. Garcia, supra, correctly stated that:

'* * * the capability of use by the public for purposes of transportation and commerce affords the true criterion of navigability rather than the extent and manner of use. Economy Light & Power Co. v. United States, 256 U.S. 113, 122, 123, 41 S.Ct. 409, 412, 65 L.Ed. 847; United States v. The Montello, Etc., 20 Wall. 430, 22 L.Ed. 391. Nor, as was pointed out in United States v. Appalachian Electric Power Co., 311 U.S. 377, 61 S.Ct. 291, 85 L.Ed. 243, does the lack of commercial traffic preclude a conclusion of navigability where personal or private use by boats demonstrates the navigability of the stream for a type of commercial navigation. * * *

'It was particularly pointed out in the United States v. Appalachian Electric Power Co. case, supra, that the conditions of exploration and settlement of an area explained the infrequency or limited nature of such use of waters as highways of commerce, and that the lack of commercial traffic does not preclude the conclusion that a body of water is navigable where personal or private use demonstrates the capability of the stream for a type of commercial navigation; the question of the availability of the body for navigation is controlling rather than the extent of commerce conducted thereon. A similar observation was made by the Louisiana Supreme Court in State v. Jefferson Island Salt Mining Co., supra.'

Inasmuch as we have found that the canal is navigable on the basis of other evidence, we do not deem it necessary that it be determined whether it is subject to tidal ebb and flow (which concededly is one indicia of navigability). But because of defense counsel's heavy reliance on this factor as distinguishing this case from D'Albora, we have examined the record to find whether it sustains their assertion that, unlike the canal in D'Albora, the Faciane Canal is not affected by a regular ebb and flow of the astronomical tides (as distinguished from the wind tides). The meteorologist who testified for defendant on this point did not testify that the Faciane Canal, as distinguished from Lake Pontchartrain, is not so affected, he testified that None of Lake Pontchartrain is subject to an atmospheric or astronomical tide. He did state, however, that if tide is considered as an ebb and flow that then there was an ebb and flow in the lake. He gave no testimony in this regard applying specifically to the canal. On the other hand, witnesses who have spent considerable time on the canal ³ testified that there is a daily ebb and flow in the canal of eight to ten inches. In other words, the canal Is affected by an ebb and flow in the same manner as is the lake and in the same fashion as the canal involved in D'Albora.

Hence, because the canal is navigable, there can be no question but that it is subject to the provisions of R.S. 14:97.

Manifestly, the complete blockage of the canal by defendant where it passes his property not only renders 'movement thereon more difficult,' (R.S. 14:97) it renders movement thereon impossible.

Defense counsel counter with the argument that there is available to plaintiffs for access to Lake Pontchartrain in their boats another alternate route--a man-made canal to the north of Faciane Canal. It also traverses defendant's property. But R.S. 14:97 does not permit a violation of its terms when there is an available alternate route. Surely, as to roadways, one might not obstruct their use, simply because another road across his property is available. And there is nothing contained in the language of the statute which would permit a differentiation between roadways and navigable waterways.

Moreover, in the instant case, the record abundantly establishes that the canal passageway for watercraft is not merely a servitude but is a dedicated right-of-way for such use. Exhibit 1, the plat of the subdivision heretofore referred to and part of which is here reproduced, shows lot 1 through lot 168 with the canal and Carr Drive just to the rear of the lots. It was filed in the office of the District Court clerk, May 13, 1955. The deeds under which each of the plaintiffs acquired their titles recite that the property purchased is a specified lot in the North Shore Beach Subdivision as shown by the Gandolfo Survey and that the 'Building and Ownership Restrictions, of North Shore Beach Subdivision, which apply to the above described property, are a part of the consideration between the parties hereto and have been placed on record in the office of the Clerk of Court for St. Tammany Parish, Louisiana. A copy attached hereto.' The Building and Ownership Restrictions attached to the deed recite that the subdivision is 'composed of Lots of ground (Lots 1 thru 168) together with a...