Miami Corporation v. State

• Decision Date: 30 November 1936
• Docket Number: 33712
• Citation: 173 So. 315,186 La. 784
• Court: Louisiana Supreme Court
• Parties: MIAMI CORPORATION v. STATE

173 So. 315

186 La. 784

MIAMI CORPORATION v. STATE

No. 33712

Supreme Court of Louisiana

November 30, 1936

Rehearing Denied March 1, 1937

Appeal from Fourteenth Judicial District Court, Parish of Calcasieu Mark C. Pickrel, Judge.

Action by the Miami Corporation against the State. From a judgment for defendant, plaintiff appeals.

Affirmed.

Milling Godchaux, Saal & Milling, of New Orleans, and Pujo, Bell & Hardin, of Lake Charles, for appellant.

Gaston L. Porterie, Atty. Gen., and S.W. Plauche, Sp. Atty. Gen., for appellee.

Miller, Bloch & Martin, of New Orleans, amici curiae.

HIGGINS Justice. ODOM, J., dissenting.

OPINION

HIGGINS, Justice.

This is an action of boundary by a riparian or littoral owner, claiming through mesne conveyances, particularly one dated November 30, 1917, and a patent issued by the State of Louisiana to one of his predecessors in title dated May 24, 1883, against the State, seeking to be decreed the owner of an eroded area which now forms a part of the bed of Grand Lake in Cameron parish, La.

The defenses are that the State owns the disputed inundated area under either one or both of two distinct rules or principles of law:

1. That the property forms a part of the bottom or bed of a navigable lake, which was such when Louisiana was admitted into the Union in 1812, and is therefore owned by the State by virtue of its inherent rights of sovereignty, and thus insusceptible of private ownership under articles 450 and 453 of the Revised Civil Code found in Book 2, title 1, "Of Things, and of the Different Modifications of Ownership."

2. That the State acquired title to the disputed area under the law of accretion, dereliction, and reliction, as set forth in articles 509 and 510 of the Revised Civil Code, found in book 2, title 2, chapter 3, dealing with "the right of accession to what unites or incorporates itself to the thing," because Grand Lake is a navigable body of running water and was such in 1812, when Louisiana was admitted to statehood.

There was judgment in favor of the State, and plaintiff has appealed.

The district judge has so clearly stated the issues, the facts, and the law pertinent thereto, we quote approvingly, in part from his written opinion:

"Plaintiff the Miami Corporation, alleges that it is the owner of certain lands in Cameron Parish, Louisiana, its title originating in a patent issued by the State of Louisiana to Jabez B. Watkins, said patent being dated May 24, 1883.

"Plaintiff alleges that the said lands were not surveyed at the time of the issuance of the patent, but the boundary is fixed by the shore line of Grand Lake as of date May 24, 1883. This line has been fixed by agreement, and is shown on the plat attached to plaintiff's petition, designated as 'Bank Line 1883 -- Computed.'

"Plaintiff further alleges that the shore line has receded eastward until at present a large part of several of the original sections of land is inundated and permanently covered by the waters of the lake.

"Relying on the rule established in the case of State v. Erwin, 173 La. 507, 138 So. 84, plaintiff prays that the boundary of its property in Sections 3, 4, and 9 of Township 14 South, Range 3 West, be established along the shore line as it was on May 24, 1883, and that plaintiff be decreed the owner of all the area east of the said line, whether inundated or not, and the State be decreed the owner of all the area west of said line whether inundated or not.

"Defendant admits plaintiff's title as alleged, and by agreement fixes the shore line of the Lake, as of date May 24, 1883, as shown on the plat attached to plaintiff's petition marked 'Bank Line 1883 -- Computed.'

"Defendant denies that the receding of the shore is due entirely to erosion, but alleges it is due in part to subsidence and other natural causes. Defendant alleges that, since Grand Lake is a navigable body of water, the bed of the lake is not subject to private ownership, and prays that the boundary of the land in question be fixed at the shore line (or high water line) as of this date, which line was determined by an actual survey made during the month of March, 1933, and which line is shown on the plat attached to plaintiff's petition and designated 'Shore line March 1933.'

"Facts. The record in this case is made up of geological reports, maps, surveys, agreed statements of fact and some oral testimony.

"From the record the Court finds the following facts: Grand Lake and the Mermentau River are navigable, and were navigable in 1812. Grand Lake is a body of water in Cameron Parish, Louisiana, approximately ten miles long from North to South, and from three to nine miles wide from east to west. The Mermentau River, flowing generally in a north to south direction, flows into the north end of the lake and out of the south end. The south end of the lake, by river, is 27 miles from the Gulf of Mexico. The waters of the Lake are fresh to brackish, and are affected to some extent by the tides. The Mermentau River meanders through and across alternate areas of high ridges or cheniers and low marshy land, widening generally in the marsh areas and being confined within a comparatively narrow channel through the higher, harder areas.

"Where the river widens in the Marshy areas, it is in each instance locally called a lake, and the river is made up of a chain of lakes, connected by a narrow channel.

"The name 'lake' is applied to various wide places in the river, some of which are widened to so little extent that the widening is scarcely perceptible. Such wide places in the river are: Lake Arthur, considerably above, and Little Mud Lake, considerably below Grand Lake, both of which are shown in scale on the plats introduced in evidence. Grand Lake is the largest of these so-called lakes in the entire chain.

"The evidence further conclusively shows that there is a current running through Grand Lake with sufficient force to carry the sediment brought into the north end of the lake by the river out the south end, and it is also of sufficient force to remove the earth as it is eroded from the banks, so that the depth of the lake is practically the same near the receding shore as it is in the middle of the lake. (See testimony of Howe & Russell.)

"The recession of the shore is caused by a combination of natural forces and conditions. The area involved in this suit is the southeast side of the lake, at a point where the force of the waves, due to the prevailing winds, is probably the greatest. The current or currents in the lake must also be a considerable factor, as there are no flats or shoals formed in front of the receding area. All material eroded is carried out of the Lake, through the river and into the Gulf of Mexico. Another natural force which has to do with the recession of the banks is subsidence. The entire area of Cameron Parish is subsiding. The percentage of erosion or recession due to the waves, current, or subsidence is not and can not be determined by the court, they work jointly to accomplish the result.

"Of the three natural forces which cause the encroachment in this case, it is agreed by the parties that the waves and currents are factors. There is a contest on the question of subsidence.

"Plaintiff's expert plausibly contends that the entire area is being gradually built up, while defendants' experts, representing the opposite school of geological thought, just as plausibly maintain that there is a constant subsidence of the entire area.

"After a study of the reports and the testimony of the experts, which contain their theories, findings of fact and conclusions, this Court is of the opinion that subsidence of the area is irrefutably established.

"To the court's lay mind in geological matters, the discovery of logs at depths ofhundreds of feet below the present surface of the earth, as shown by the report of Howe and Russell, at pages 1 and 3; the evidence of drowned rivers, as shown by Howe and Russell at pages 6 and 8, and drowned trees as explained by Russell at pages 38 to 42 of the transcript of evidence; and the present position of the Indian Mounds as to water level, particularly Allegator Mound which is located in the immediate vicinity of the area involved in this suit, as shown in the report of Dr. Kniffen at pages 54 and 55 of the transcript of evidence, prove conclusively that the area is gradually subsiding and has been subsiding for thousands of years. The rate of subsidence is estimated at approximately 12 inches a century.

"The law. Counsel on both sides have materially assisted the court by reviewing the case in oral argument and by filing able and exhaustive briefs.

"Article 509 of the Civil Code treats of alluvion along navigable streams or rivers, and defines alluvion as 'accretions, which are formed successively and imperceptibly.' Article 510 of the Civil Code treats of alluvion and dereliction and provides that the owner of the shore which is encroached upon by running water cannot claim the land he has lost. This article uses the term 'running water' instead of river or stream.

"Article 453 of the Civil Code lists as public things the beds of navigable rivers, as long as they are covered by water. Article 457 of the Civil Code defines the banks of a river or stream as that which contains it in its ordinary stage of high-water, temporary overflow not changing it.

"From the facts, and the above articles of the Civil Code, if the bank encroached upon in this case were located on the Mermentau River instead of the Lake, all parties agree the articles of the Code would clearly apply.

"The articles quoted in reality make the riparian owner a party to an aleatory contract, in which the State as the owner of the bed of the...