Sanders v. Dept. of Natural Resources

• Decision Date: 19 December 2007
• Docket Number: No. CA 07-821.,CA 07-821.
• Parties: Henry SANDERS v. STATE of Louisiana, DEPARTMENT OF NATURAL RESOURCES.
• Court: Court of Appeal of Louisiana — District of US

973 So.2d 879

Henry SANDERS v. STATE of Louisiana, DEPARTMENT OF NATURAL RESOURCES.

No. CA 07-821.

Court of Appeal of Louisiana, Third Circuit.

December 19, 2007.

Rehearing Denied January 30, 2008.

Albin Alexandre Provosty, Provosty, Sadler, deLaunay Alexandria, LA for Defendant/Appellant State of Louisiana, Department of Natural Resources.

William Henry Sanders J. Christopher Peters Attorney at Law Jena, LA for Plaintiff/Appellee Henry Sanders.

Court composed of MICHAEL G. SULLIVAN, GLENN B. GREMILLION, and BILLY HOWARD EZELL, Judges.

EZELL, Judge.

Henry Sanders filed a suit against the State of Louisiana involving land located on Catahoula Lake. Mr. Sanders sought to be recognized as possessor of a certain area of land and also asked that a boundary be established between his land and the land owned by the State, as owner of the bed of Catahoula Lake and/or Little River. Additionally, Mr. Sanders sought an injunction prohibiting the State from "artificially flooding and holding of water or by artificially inducing a rapid rate of regression of back water and overflow water." Finally, Mr. Sanders sought an award of damages against the State, alleging that the State was in bad faith.

The trial court denied Mr. Sanders' last two claims. However, the trial court found that the proper ordinary high water mark of Catahoula Lake in 1812 was 30.1-foot elevation above mean sea level (MSL), as opposed to the 36-foot elevation that the State claimed. The trial court also found that Mr. Sanders was possessor of the lands he claimed. Due to these findings, the trial court limited Mr. Sanders' damages to any amounts of proceeds that the State has received from the granting of mineral leases and/or production of minerals beginning April 7, 1994, from the lands possessed by Mr. Sanders which were between the elevations of 36 feet MSL and 30.1 feet MSL. The State appealed the trial court's determination of the ordinary high water mark of Catahoula Lake.

FACTS

Mr. Sanders filed this suit on April 7, 2004. Mr. Sanders' property is located along the Devil's Creek-Hemphill Creek delta or alluvial fan of Catahoula Lake. In the suit, Mr. Sanders claimed possession of the following lands:

That portion of the West one-half of Section 30, Township 7 North, Range 4 East, lying South of the existing Justiss Oil Company, Inc.—Whitehall Plantation fence and lying West of the bank of Catahoula Lake and U.S. Government Lot No. 1 of Section 25, Township 7 North Range 3 East including all of said lands that are bottom hardwood land, grass lands, sandridges, elm and swamp privet lands, all of which lands are known as riparian lands covered with back water and overflow water during the wet season of the year.

Mr. Sanders alleged that his possession had been disturbed by the State due to a March 2004 report which relied on the Russell-Brown study from 1941-1942 indicating that the ordinary high water mark of Catahoula Lake was located at 36 feet MSL.

Louisiana became a state on April 30, 1812. The United States General Land Office (GLO) surveyed the area around Catahoula Lake between 1813 and 1884. Much of the land bordering and lying outside Catahoula Lake was selected and approved as swampland and transferred to the State by the United States Government under the Swampland Acts of 1849 and 1850. These Acts provided that all swamp and overflowed lands unfit for cultivation shall be granted in fee simple to the State to aid in construction of necessary levees and drains for reclamation of swamp and overflowed lands. The State then transferred these swamplands to levee districts who could use the land or sell it for necessary monies. Mr. Sanders' title is derived from these transfers.

A trial was held for approximately two weeks between July 25, 2006, and August 3, 2006. The trial court issued written reasons for judgment. In determining the ordinary high water mark, the trial court ruled that "from 1800 to the present, Catahoula Lake was and is an intermittent body of water with no traditional `shoreline.' And, because of such fact, traditional methods of determining where the usual high water level is simply not applicable." The trial court further held that "in this present situation the most reasonable result for the normal high water level of the lake should be established at that level where the main distributary, Little River, becomes a tributary due to back flow from the Black River (as well as the Ouachita and Tensas)." Randall Smoak, a professional civil engineer, testified on behalf of Mr. Sanders. He correlated water level activities and the relationship between the Black River and Catahoula Lake utilizing gauge readings taken between 1961 and 1971, prior to the construction of water level control structures in Little. River and Catahoula Lake. The trial court's conclusion as to the ordinary high water level of Catahoula Lake was based on Mr. Smoak's correlation of the gauge readings indicating that 30.1 feet above MSL is the level at which water from the Black River will flow back through the Little River into Catahoula Lake.

DISCUSSION

On appeal, the State argues that the trial court erred in setting the ordinary high water level at 30.1 feet MSL based upon analyses of gauge data during an eleven-year period that correlated levels on Black River with levels on Catahoula Lake and excluded all levels during the annual high water season. The State asserts that the 36-foot contour, as it existed in 1942 and as surveyed by Heard and Daigre, represents the true ordinary high water level of the lake today and in 1812.

Louisiana courts of appeal apply the manifest error standard of review in civil cases. Hall v. Folger Coffee Co., 03-1734 (La.4/14/04), 874 So.2d 90. Under the manifest error standard, a factual finding cannot be set aside unless the appellate court finds that the trier of fact's determination is manifestly erroneous or clearly wrong. Smith v. Louisiana Dept. of Corrections, 93-1305 (La.2/28/94), 633 So.2d 129, 132. In order to reverse a fact finder's determination of fact, an appellate court must review the record in its entirety and (1) find that a reasonable factual basis does not exist for the finding, and (2) further determine that the record establishes that the fact finder is clearly wrong or manifestly erroneous. Id.

The appellate court must not re-weigh the evidence or substitute its own factual findings because it would have decided the case differently. Id.; Pinsonneault v. Merchants & Farmers Bank & Trust Co., 01-2217 (La.4/3/02), 816 So.2d 270, 278-79. Where there are two permissible views of the evidence, the fact finder's choice between them cannot be manifestly erroneous or clearly wrong, even if the reviewing court would have decided the case differently. Id.

Detraz v. Lee, 05-1263, p. 7 (La.1/17/07), 950 So.2d 557, 561.

There is no dispute that, as to lakes, the State owns the land below the ordinary high-water mark. State v. Placid Oil Co., 300 So.2d 154 (La.1973), cert. denied, 419 U.S. 1110, 95 S.Ct. 784, 42 L.Ed.2d 807 (1975); McCormick Oil & Gas Corp. v. Dow Chem. Co., 489 So.2d 1047 (La.App. 1 Cir.1986). Furthermore, "[t]here is no right to alluvion or dereliction on the shore of the sea or of lakes." La.Civ.Code art. 500.

In determining the meaning of "ordinary high water," as it pertains to a river, the supreme court in DeSambourg v. Board of Commissioners for Grand Prairie Levee District, 621 So.2d 602, 613 (La.1993), cert. denied, 510 U.S. 1093, 114 S.Ct. 925, 127 L.Ed.2d 218 (1994), defined it as "the highest level the river inevitably reaches during annual seasons of high water, which is the highest stage the river can be expected to reach yearly." We find this definition equally applicable to the waters of a lake.

A description of Catahoula Lake can be found in the "Catahoula Lake Area Report" presented to Governor Kennon and the Louisiana Legislature by the Louisiana Department of Public Works in 1954:

The lake bed proper has a length of about 14 miles and an average width of 3 miles covering an area of some 42 square miles or about 27,000 acres. The western Louisiana uplands adjoin the lake bed on the west and northwest. To the south and southeast of the lake bed lies alluvial area. The lowest portion of the lake's bed of any appreciable extent is at elevation 27 feet m.s.l.... The principal tributary to the lake is Little River which enters the lake at its southwest end. It traverses the lake in a relatively wide and shallow channel to the northeast end of the lake, a total distance of about 15 miles. Outflow from the lake is principally through French Fork and Old River which join at Lavaca forming Little River down which the flow is carried to Black River at Jonesville. One other principal outlet or distributary of the lake, which serves mostly for flood flows, is Big Saline Bayou which emerges from the lake near its southwest end meandering southeasterly to join Red River. Other outlets for flood waters are Sandy, Indian, Muddy, Cypress and Big Bayous, all of which lead off in a southeastern direction through either Saline Lake or Larto Lake to Red River.

....

A watershed area of 2,672 square miles contributes to the lake. The area is composed principally of upland hilly timbered area and extends generally northwestward from the lake to Ruston and the vicinity of Arcadia, an airline distance of some 80 miles with an average width of about 33 miles. Little River drains an area of 2,555 square miles above its entry into the lake.

No one disputes the trial court's finding that Catahoula Lake is a lake, and it was stipulated at trial that it was navigable in 1812. The State disagrees with the trial court's finding that the lake is an "intermittent" lake versus a perennial lake which has a consistent water bowl. An intermittent lake is one that disappears seasonally as compared to an ephemeral lake which is one that lasts only a short while because it is...