Indian Bayou Hunting Club, Inc. v. Taylor

• Decision Date: 07 February 1972
• Docket Number: No. 3695,3695
• Citation: 261 So.2d 669
• Parties: INDIAN BAYOU HUNTING CLUB, INC., Plaintiff-Appellee, v. L. J. TAYLOR et al., Defendants-Appellants.
• Court: Court of Appeal of Louisiana — District of US

Page 669

261 So.2d 669

INDIAN BAYOU HUNTING CLUB, INC., Plaintiff-Appellee, v. L. J. TAYLOR et al., Defendants-Appellants.

No. 3695.

Court of Appeal of Louisiana, Third Circuit.

Feb. 7, 1972.

On Rehearing April 19, 1972.

Rehearing Denied May 16, 1972.

Olivier & Brinkhaus, by Armand J. Brinkhaus, Sunset, for defendants-appellants.

Dubuisson & Dubuisson by James T. Guglielmo, William A. Brinkhaus, Opelousas, Babineaux & Huval by Jack N. Huval, Lafayette, for plaintiff-appellee.

Before SAVOY, MILLER and DOMENGEAUX, JJ.

SAVOY, Judge.

Plaintiff, as lessee of certain real property in St. Landry Parish, Louisiana, brought this suit against defendants alleging they were trespassing on a portion of said property leased without the consent of lessee; that defendants maintained a camp on said property; that although notified to remove said property and desist trespassing on said leased property, defendants have continued to ignore said request. Plaintiff also alleged that it feared defendants would continue to damage said property and requested that the court issue a permanent injunction against defendants enjoining them from trespassing and hunting on said property. Plaintiff also prayed for damages, but that claim has been abandoned and is not before us for decision.

Defendants filed a general denial to plaintiff's petition, and then assuming the position of plaintiffs-in-reconvention, stated that recently they have been boat riding on Lake Fordoche, Bayou Fordoche and Dixie Canal, and that because of certain obstruction placed in said streams, they have been unable to navigate in the above mentioned streams; that defendants have maintained a camp on Lake Fordoche on a four-acre tract adversely and notoriously for a period in excess of thirty years. Plaintiffs-in-reconvention prayed for an injunction enjoining defendant-in-reconvention from interfering with the free use of the above streams, and also from interfering with the use of the camp, and also asked for damages for blocking navigable streams and interfering with their use of the camp site. They also asked for attorney's fees. Defendants further alleged they owned the camp site for a period in excess of thirty years. Defendants filed an exception of no cause of action on the basis that plaintiff's petition did not allege irreparable injury as provided for by LSA-C.C.P. Article 3601, and also prayed for a money judgment.

After a trial on the merits, the trial court granted plaintiff an injunction enjoining defendants from trespassing on land leased to plaintiff, and from using Dixie Canal for navigation purposes. The court also granted judgment in favor of defendants (plaintiffs-in-reconvention) enjoining plaintiff (defendant-in-reconvention) from blocking and interfering with the use of Lake Fordoche and Bayou Fordoche. From this judgment defendants have appealed. Plaintiff has answered the appeal.

The first issue to be determined by this Court is that of the exception of no cause of action filed by defendants.

In plaintiff's petition there is no allegation that it will suffer irreparable injury, and it has asked for a money judgment, in addition to the prayer for an injunction against defendants.

LSA-C.C.P. Article 3601 provides in part:

'An injunction shall issue in cases where irreparable injury, loss, or damage may otherwise result to the applicant, or in other cases specifically provided by law.'

In the case of Greenberg v. De Salvo, 254 La. 1019, 229 So.2d 83, the Supreme Court of this State said:

"Irreparable injury justifying an injunction is that which can not be adequately compensated in damages, or for which damages can not be compensable in money. * * *' Pennington v. Drews, 209 La. 1, 24 So.2d 156, 163. * * *.

'The writ of injunction, being a harsh, drastic, and extraordinary remedy, should issue only where the party seeking same is threatened with irreparable loss or injury without adequate remedy at law. * * *.' (Citations omitted.)

Since plaintiff has not alleged irreparable injury as required by LSA-C.C.P. Article 3601, and has, in fact, prayed for a money judgment, we are of the opinion that the exception of no cause of action should be maintained, and plaintiff's suit dismissed at its costs.

We next consider the reconventional demand. As to the reconventional demand, there are four issues to be determined: (1) whether the Dixie Canal is a navigable stream; (2) whether defendants (plaintiffs-in-reconvention) are entitled to the ownership of the camp site by virtue of thirty years prescription; (3) should defendants be granted damages; and (4) should defendants be allowed attorney's fees.

The record reveals that Dixie Canal was built by a private corporation for its individual use. Counsel for defendants contends that the canal is navigable and subject to use by the public.

In D'Albora v. Garcia, 144 So.2d 911 (La.App. 4 Cir. 1962) (cert. den.) the court went into a detailed discussion as to when a stream is navigable. In its opinion, the court said:

'A test of the navigability of water bottoms is that those which are navigable in fact must be regarded as navigable in law, and they are navigable in fact when they are so used or are susceptible to such use, or are shown to be capable of commercial use. * * *.' (Citations omitted.)

Applying the test mentioned above to the facts of the instant case, we conclude that Dixie Canal is a navigable stream.

The next issue is that of the ownership by defendants of the campsite. LSA-C.C. Articles 3499--3505 deal with acquisitive prescription of thirty years for immovable property.

LSA-C.C. Article 3500 states:

'The possession on which this prescription is founded must be continuous and uninterrupted during all the time; it must be public and unequivocal, and under the title of owner.'

LSA-C.C. Article 3503 states:

'How favorable soever prescription may be, it shall be restricted within just limits. Thus, in the prescription of thirty years, which is acquired without title, it extends only to that which has been actually possessed by the person pleading it.'

Defendants have not proven that they have complied with the provisions of either article of the Civil Code cited above. We conclude that the trial court properly rejected their ownership to the camp site. Counsel for defendants argues that they are entitled to maintain the camp as their answer has alleged sufficient facts to claim possession of said property under the Code of Civil Procedure dealing with possessory action. We are of the opinion that the pleadings are not broad enough to cover the possessory action. However, admitting for purposes of argument that the pleadings would be broad enough for this purpose, there is no showing that defendants have possessed said property without interruption for a period in excess of one year of the disturbance as provided for by LSA-C.C.P. Art. 3658.

Defendants pray for damages for obstruction of the public streams and for preventing them from using the camp site. Defendants, having failed to prove thirty years acquisitive prescription as provided by the articles of our Civil Code enumerated herein, cannot recover damages for plaintiff preventing them from entering the camp site. Defendants sued for damages because of plaintiff's obstruction of the stream in controversy. There is not sufficient evidence in the record to justify an award for damages on this item.

LSA-C.C.P. Article 3608 provides:

'The court may allow damages for the wrongful issuance of a temporary restraining order or preliminary injunction on a motion to dissolve or on a reconventional demand. Attorney's fees for the services rendered in connection with the dissolution of a restraining order or preliminary injunction may be included as an element of damages whether the restraining order or preliminary injunction is dissolved on motion or after trial on the merits.'

Since permanent injunctions are not covered by the above article, the claim for attorney's fees is hereby rejected.

For the reasons assigned the judgment of the district court is reversed in the following respects:

(1) by decreeing Dixie Canal to be a navigable stream; and

(2) sustaining the exception of no cause of action and dismissing plaintiff's suit.

In all other respects the judgment of the district court is affirmed. Costs in both courts to be paid one-half by plaintiff and one-half by defendants.

Reversed in part, affirmed in part and rendered.

DOMENGEAUX, Judge (concurring).

I concur in the result herein but differ from the reasons advanced for dismissing plaintiff's suit. Although plaintiff coupled its injunction suit with a claim for a money judgment, the latter claim was abandoned before trial. This action amounts to plaintiff electing to proceed solely with the injunction suit, a procedure which is permissible under the jurisprudence. Thalheim v. City of Gretna, 17 La.App. 657, 136 So. 184; People of the Living God v. Chantilly, La.App., 211 So.2d 445. Therefore the trial court was correct in allowing the case to proceed to trial on the injunction.

Of greater import in the majority opinion is the dismissal of plaintiff's suit for injunction because irreparable injury was not Alleged as required by LSA-C.C.P. Art. 3601. It is my opinion that under the latter article it is not necessary to Allege irreparable injury so long as the petition alleges Facts which show that the injury would be irreparable. O'Beirne v. Police Jury of Red River Parish, 153 La. 357, 95 So. 862; Williams v. Douglass, 21 La.Ann. 468.

In this case I conclude that plaintiff's petition did not allege facts which show irreparable injury, and it should be dismissed for that reason, and not for the reasons stated in the majority opinion.

ON REHEARING

MILLER, Judge.

We granted this rehearing to consider the contentions that we erred 1) in maintaining the exception of no cause of action, 2) in holding that the Dixie Pipe Line is a navigable stream, and 3) in...