Poole v. Guste

• Citation: 262 So.2d 339,261 La. 1110
• Decision Date: 01 May 1972
• Docket Number: No. 51422,51422
• Parties: Theodora Milloit POOLE and Weldon W. POOLE, Plaintiffs-Appellees-Respondents, v. William J. GUSTE, Jr. and Roy F. GUSTE Defendants-Appellants-Relators.
• Court: Supreme Court of Louisiana

Page 339

262 So.2d 339

261 La. 1110

Theodora Milloit POOLE and Weldon W. POOLE Plaintiffs-Appellees-Respondents, v. William J. GUSTE, Jr. and Roy F. GUSTE Defendants-Appellants-Relators.

No. 51422.

Supreme Court of Louisiana.

May 1, 1972.

Rehearing Denied June 5, 1972.

William McM. King, Covington, for defendants-applicants.

Robert L. Kleinpeter, Baton Rouge, Marian Mysing Livaudais, F. Pierre Livaudais, Covington, for plaintiffs-respondents.

TATE, Justice.

The essential issue concerns the plaintiffs', the Pooles', claim that their estate enjoys a servitude of drain into and through a canal which is on the adjacent property of the defendants, the Gustes.

The Gustes built levees which both previous courts found prevented the flow of the surface water from the Poole property into the canal on the Guste property. Upon finding that the Poole estate was owed a servitude of drain by the Guste estate, the trial court issued a mandatory and prohibitory injunction ordering the defendants Guste to cease obstructing the drainage and to remove their levees in two places. The court also awarded damages. The court of appeal affirmed. 246 So.2d 353 (1971).

We granted certiorari, 258 La. 760, 247 So.2d 861 (1971), primarily because we felt that the case might present significant issues as to the modification, Civil Code Articles 752, 795, of a natural servitude of drain, Civil Code Article 660, and as to the creation of a conventional servitude of drain by either the ten- or the thirty-year acquisitive prescription, Civil Code Articles 765, 3504. Under the present facts and pleadings, however, these issues are not presented by this litigation. The issues remain principally factual and, as we shall note, were correctly resolved by the previous courts.

As the excellent analysis of the evidence by the previous courts shows in more detail, the preponderant evidence proves the following relevant facts:

1. The parties own adjacent tracts of land. ¹ Relevantly to present purposes, the Pooles (plaintiffs) own Section 30, and the Gustes (defendants) own Section 29. The Poole Section 30 is west of the section line boundary, and the Guste Section 29 east of it.

2. In 1916, by agreement of the ancestors in title of the parties, the 'Dendinger Canal' was constructed, approximately 30 feet wide and 6 or 7 feet deep. Pertinently to present purposes, it is situated in the Guste land, just east of the section line between Section 30 (Poole) and Section 29 (Guste). This north-south canal empties at its south end into the Main (or Bedico) Canal. The latter flows east-west and empties into streams which eventually flow into Lake Pontchartrain, which is 1 to 2 miles below the present tracts.

3. Prior to the construction of the Dendinger Canal, the natural drainage of the surface waters on the portion of the Poole tract in Section 30 was southeasterly into and across the Guste property in Section 29. This drainage was of rainwater, other waters draining onto the Poole property from the north, and tidal overflow water. (The latter, at high tide, after the Canal was built, flowed onto the Poole land from the south (through the Dendinger Canal) and from the west (from a natural creek.) When the tide ebbed, the waters then drained southeasterly from the Poole land into the Dendinger Canal. ²) As the trial court noted, a reasonable inference from the evidence is that much of this pre-Canal drainage occurred at a draw or natural drain at a place we designate as the 'bridge site'. (This place of drain is more particularly designated in the trial court judgment.)

4. The Dendinger Canal was constructed in accordance with a written agreement in 1916 by the ancestors in title of both parties. By this agreement, the canal was constructed within Section 29 (Guste) for the purposes of affording the Pooles' predecessor in title (Dendinger) the free use of the canal to transport timber down the canal for a period of (only) ten years, i.e., until 1926. The evidence further shows that this agreement was not renewed and that, in fact, the predecessor owner of the Poole estate ceased using the the canal for timber-floating purposes after 1924. From 1924 on, the sole function of the canal was for drainage purposes (aside from its occasional use for fishing and recreation by members of the public).

5. After the construction of the Dendinger Canal in 1916, the principal change in drainage was that surface waters from the Poole tract flowed into and down the canal instead of Across the surface of the Guste land. The drainage into the Dendinger Canal occurred principally at the place called the 'bridge site' or 'the gap'. ³

(When the Dendinger Canal was dug, the dirt was thrown on the west bank of the canal, forming a 'spoil bank'. When the canal was constructed, a gap was left in this spoil bank; when a road was constructed on top of the spoil bank, a bridge was built at this gap. The gap left a clear avenue of drainage from the Poole property into the Dendinger Canal, the spoil bank preventing southeasterly drainage formerly occurring at other places along the boundary section line.)

6. In 1965, the defendants (who had purchased the property in 1959) constructed a 7 high, north-south levee along the section line between Sections 29 and 30 (i.e., between the Poole property and the Dendinger Canal). This levee used the old spoil bank as a base; but, in constructing the levee, the Gustes filled in the gap at the bridge site through which water had formerly drained from the Poole land, thus completely blocking off the latter's property from the Dendinger Canal. (Actually, in building the levee, the Gustes constructed it partially on Poole property.)

The Dendinger Canal remained, but the Gustes now use it as part of their internal drainage system for the improvement of their tract for use in intensive agricultural cultivation. A levee was also constructed across the south end of the Dendinger Canal, closing it off where it had formerly emptied into the Main (Bedico) Canal. ⁴ (The Gustes did so in order to prevent the tidal flow of water from that canal into their property. A new interior canal was dug was just inside of and parallel to this south levee to facilitate the internal drainage of this improved tract.)

Under the well-supported findings of fact by the trial and intermediate courts, these courts correctly found that the estate of the plaintiffs Poole enjoys a servitude of drain onto the estate of the defendants Guste and through it (via the Dendinger Canal) to the Main (or Bedico) Canal to the south of both properties. The servitude due by the Guste estate to the Poole estate is in part a natural servitude of drain, Civil Code Article 660, and in part a 'conventional' servitude of drain acquired by acquisitive prescription, ⁵ Civil Code Articles 709 and 765 Or 3504.

A Natural servitude of drain is due by a servient (or 'below') estate to receive the waters which run naturally from a dominant (or 'above') estate, Civil Code Article 600. ⁶ A Conventional servitude of drain (the right 'of passing water Collected in pipes or canals through the estate of one's neighbor', Article 714) may be created by contract, Article 709, or, being continuous ⁷ and apparent, ⁸ may be acquired by prescription. ⁹

In the present case, the Poole estate is owed a conventional servitude of drain onto the Guste estate at the bridge site and through the Dendinger Canal on the Guste property. This results from drainage into the canal at this point, and the canal's use for this purpose without title, for a period well in excess of thirty years before the construction, in 1965, of the Guste levees which obstructed the Poole drainage into and through the Guste estate. This servitude was, at the least, acquired by the thirty-years' acquisitive prescription provided by Article 3504 (quoted in Footnote 9).

In so holding, we expressly do Not determine:

(1) Whether the period of thirty years' prescriptive use necessary for acquisition under Article 3504 commenced in 1916, when the canal was first used for drainage purposes (although expressly created for timber-floating purposes Only), ¹⁰ or instead in 1926, when the contractual right of the Poole estate to use the canal (i.e., for timber-floating purposes) terminated; ¹¹

(2) Whether the conventional servitude acquired by prescription might, also, have been acquired under Article 765 by the ten-years' simple unopposed and uninterrupted use following termination of the timber-floating servitude in 1926, see Levet v. Lapeyrollerie, 39 La.Ann. 210, 1 So. 672 (1887) and decisions cited in Footnote 9, or whether, since use was without title, thirty years' acquisitive use under Article 3504 was required, ¹² Comment, Acquisitive Prescription of Servitudes, 15 La.L.Rev. 777 (1955); ¹³ (3) To what extent the servitude of drain from the Poole property onto the Guste estate at the bridge site is a natural servitude of drain under Article 660 (being the use of a natural drain--which, at least before the Dendinger Canal spoil bank, was not created by the industry of man--) through which surface waters were passed onto the Guste estate, not increased in volume (although some waters were perhaps diverted into drainage at that point rather than at others nearby), Nicholson v. Holloway Planting Co., 255 La. 1, 229 So.2d 679 (1969), Broussard v. Cormier, 154 La. 877, 98 So. 403 (1923); and to what extent, if any, such more burdensome use of the natural servitude of drain exceeded or was contrary to it, Articles 660, 790, Planiol, Civil Law Treatise, Volume 1, Section 2903 (Louisiana State Law Institute Translation, 1959), so as to alter it or substitute for it a conventional servitude created by acquisitive prescription, Articles 765, 790, Johnson v. Wills, 220 So.2d 134 (La.App.3d Cir. 1969), certiorari denied 254 La. 132, 222 So.2d 883 (1969), noted 30 La.L.Rev. 192--93 (1969).

We should at this point note that we find no...