Eubanks v. State, Dept. of Transp. and Development

• Decision Date: 23 June 1993
• Docket Number: No. 92-958,92-958
• Parties: Carol W. EUBANKS, et al., Plaintiffs-Appellees, v. STATE, DOTD, Defendant-Appellant.
• Court: Court of Appeal of Louisiana — District of US

Page 954

620 So.2d 954

Carol W. EUBANKS, et al., Plaintiffs-Appellees, v. STATE, DOTD, Defendant-Appellant.

No. 92-958.

Court of Appeal of Louisiana,

Third Circuit.

June 23, 1993.

Virgil Russell Purvis, Jr., Jonesville, for Carol W. Eubanks, et al.

David Edwin Lafargue, Marksville, for State, DOTD.

Before DOUCET, LABORDE, YELVERTON, THIBODEAUX and SAUNDERS, JJ.

THIBODEAUX, Judge.

This is an appeal of a judgment for compensatory damages in lieu of a mandatory injunction against the State of Louisiana, through the Department of Transportation and Development, in favor of plaintiffs, Carol and Mary Jon Eubanks, Lula Richardson, and Doris Alexander, for the State's interference in plaintiffs' servitude of natural drainage. It was stipulated at trial that improvements made by the State to Louisiana Highway 8 interfered with the servitude of natural drainage benefiting plaintiffs' property and that it was not feasible for the State to remove the improvements or prevent the flooding. As a result, the trial judge fashioned an award for compensatory damages which is the subject of this appeal. For the following reasons, we reverse in part, and affirm in part and render.

FACTS

The facts are mostly undisputed. Louisiana Highway 8 in Catahoula Parish is owned and maintained by the State. In 1975, contracts were entered into by the State to make certain improvements to the highway. The improvements were completed in February of 1978. After the completion of the improvements, nearby Rhinehart Creek overflowed on three different occasions in the course of nine years and flooded plaintiffs' property. It has been stipulated that the improvements interfered with the servitude of natural drainage and caused the flooding. Suit was originally brought by seven owners of affected property seeking damages and an injunction against the State to prevent further intervention with the servitude.

The present case was consolidated with "Gaharan v. State through D.O.T.D." The State filed exceptions of prescription, which were heard by the trial court and addressed, on writs, by this court and the Louisiana Supreme Court in Gaharan v. State through D.O.T.D., 566 So.2d 1007 (La.App. 3d Cir.1990), and Gaharan v. State through D.O.T.D., 579 So.2d 420 (La.1991), respectively. The Supreme Court affirmed our holding that the right to bring an injunction against one who interferes with a natural servitude of drain is not subject to prescription of nonuse. We were likewise in agreement that, should the right to injunction exist, it may prove impractical or unfeasible to enforce and the trial judge may be in a position to fashion a compensatory damage award instead.

The case was remanded to the trial court for disposition of the claims. All parties settled, except those presently before this court. The remaining plaintiffs' claims were tried on December 5, 1991. The parties agreed that injunctive relief was not feasible, requiring the trial judge to fashion compensatory damage awards. He did so, basing it on the damage assessment provisions of LSA-R.S. 13:5111. He utilized the expert testimony of plaintiffs' appraiser, A.B. White, Jr., and set diminution of the value of the properties in question at seventy-five percent. This amounted to an award of $59,700.00 to the Eubanks and $50,000.00 to Alexander and Richardson for the reduction of value of their property. He also made awards for mental anguish of $50,000.00 each to the Eubanks, and $25,000.00 each to Alexander and Richardson. Finally, he awarded attorney's fees equal to one third the amount of recovery, plus interest.

ISSUES

The State raises the following issues:

(1) Whether or not Alexander and Richardson had the right to bring an injunction claim at the time they joined the suit;

(2) Whether or not the trial judge erred in including mental anguish in his damage awards and in assessing attorney's fees;

(3) Whether or not plaintiffs' injunction claim is barred by a conventional servitude of drain acquired by the State by ten year acquisitive prescription; and

(4) Whether or not the trial judge erred in relying on plaintiffs' expert in determining the reduction of value of their property.

Plaintiffs filed an answer and assert these issues:

(1) Whether or not the trial judge erred in not awarding them damages for their physical losses as a result of the floods; and

(2) Whether or not the trial judge erred in finding certain claims had expired.

DISCUSSION

A. Right of Action

This issue raises the question of whether or not Alexander and Richardson had a right of action when they filed their injunction claims. A peremptory exception of no right of action was not filed at either the trial or appellate court level. The question of their right of action comes to us solely by way of the State's brief. We are authorized to take notice of an exception of no right of action on our own motion should we recognize its applicability. Teachers' Retirement System of Louisiana v. Louisiana State Employees' Retirement System, 456 So.2d 594 (La.1984); Homer Nat. Bank v. Tri-District Development Corp., 534 So.2d 154 (La.App. 3d Cir.1988), writ denied, 536 So.2d 1236 (La.1988). We hereby exercise this authority.

The State argues that Alexander and Richardson had no right to enjoin it from interfering with the natural servitude of drain because they did not own the affected property at the time they joined the suit. Alexander filed suit in February of 1988 and Richardson in January of 1989. However, by their own admission, they sold their flood-prone property in 1987.

The natural servitude of drain is a predial servitude arising from the natural situation of the estates whereby the estate below is bound to receive naturally flowing surface waters from the estate above. LSA-C.C. arts. 654, 655. The lower estate is the "servient estate" as it is accepting the "charge" of the water to the benefit of the higher, or "dominant," estate. LSA-C.C. arts. 646, 647. Upon transfer of ownership, the predial servitude passes with the dominant estate, as they cannot be sold separately, and continues as a charge on the servient estate. LSA-C.C. art. 650. Comment (c) to LSA-C.C. art. 650 explains further:

* * * * * *

(c) Changes in the ownership of the two estates are immaterial. The person who happens to be the owner of the servient estate is bound to suffer the exercise of the right of servitude by the person who happens to be the owner of the dominant estate. This follows from the nature of predial servitudes as real rights which give rise to real obligations.

* * * * * *

Prior to selling their property, Alexander and Richardson were owners of a dominant estate that benefited from a servitude of natural drainage received by property owned by the State. As dominant estate owners, they held the right to enjoin the State from interfering in the enjoyment of the servitude. By transferring ownership in the sale, the dominant estate and the attached predial servitude became the property of the new owners. Alexander and Richardson no longer held a right to enjoin the State from interfering with it because they no longer held rights to the servitude. The damage award was made because mandatory injunction was not feasible. With no right to the injunction, they likewise had no right to the damage award. Consequently, we reverse the trial judge's award of compensatory damages in favor of Alexander and Richardson.

Reversal of the judgment as to Alexander and Richardson makes it necessary for us to consider the remaining issues only as they affect the judgment in favor of the Eubanks.

B. Appropriation, Mental Anguish and Attorney's Fees

This assignment arises because the trial judge stated in his reasons for judgment that:

The effect of this court's ruling is to appropriate a servitude prevention of drain across the plaintiff's [sic] property. Accordingly, this court will follow LSA 13:5111 in determining damages.

The State argues that the trial judge ignored this court's ruling in Gaharan, supra, where we specifically ruled that "a taking" as contemplated by LSA-R.S. 13:5111 had not occurred.

When the reasons of the trial judge are read as a whole, we do not think the trial judge intended to apply the law of the statute directly. Rather, it is our view that he intended only to use it as a guideline to fashion the necessary damage award. We stated in Gaharan that the flooding in the present case does not rise to the level of a permanent deprivation of property, but presently we see nothing illogical in the trial judge's use of the statute's remedy provisions for guidance. That, in and of itself, is not error.

We do, however, find error in his award of attorney's fees under the statute. It is well settled jurisprudence that attorney's fees awards are available only when authorized by statute or contract. Taylor v. Dowden, 563 So.2d 1294 (La.App. 3d Cir.1990), writ denied, 568 So.2d 1057 (La.1990); Blackie's Rental Tool & Supply Co., Inc. v. Vanway, 563 So.2d 350 (La.App. 3d Cir.1990). While we find nothing to prohibit the trial judge from using R.S. 13:5111 as a guideline in fashioning the damage award, in accord with our ruling in Gaharan, the substance of the statute is not applicable to the present case and cannot empower the trial judge to award attorney's fees. Lacking authority from some other acceptable source, we must reverse the trial judge's award of attorney's fees.

The State also asserts it was error for the trial judge to include mental anguish in the damage award. It argues that mental anguish is a damage included in those we previously ruled prescribed, barring plaintiffs' recovery. This argument ignores the plain language of our ruling in Gaharan at page 1010:

The fact that the circumstances may ultimately result in effectively withholding from the DOTD the enjoyment of the benefits of the accrual of prescription of the damage claims, is irrelevant.

Mental anguish is considered an actual or...