Schoeffler v. Drake Hunting Club

• Decision Date: 04 January 2006
• Docket Number: No. 05-499.,05-499.
• Citation: 919 So.2d 822
• Parties: Harold SCHOEFFLER, et al. v. DRAKE HUNTING CLUB, et al.
• Court: Court of Appeal of Louisiana — District of US

919 So.2d 822

Harold SCHOEFFLER, et al. v. DRAKE HUNTING CLUB, et al.

No. 05-499.

Court of Appeal of Louisiana, Third Circuit.

January 4, 2006.

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Steven Gerald Durio, Durio, McGoffin, Stagg & Ackermann, Lafayette, LA, for Plaintiffs/Appellants — Kenneth Vicknair, Harold Schoeffler, Roger L. Boughton, Jody Meche, and Mike Bienvenu.

Gary L. Keyser, Baton Rouge, LA, for Defendant/Appellee — State of Louisiana.

James W. Schwing, Sr., New Iberia, for Defendant/Appellee — Buckskin Hunting Club.

Patrick G. Tracy, Jr., Lafayette, LA, for Defendant/Appellee — Williams, Inc.

Newman Trowbridge, Jr., Lafayette, LA, for Defendants/Appellees — Atchafalaya Crawfish Conservation Association, Black Bayou Crawfishing Club, and JCB Development, Inc.

James Harvey Domengeaux, Domengeaux, Wright, Roy & Edwards, Lafayette, LA, for Defendant/Appellee — Drake Hunting Club.

Juliette Busby Wade, Lafayette, LA, for Plaintiffs/Appellants — Elvis Jeanminette, Jody Meche, Roger L. Boughton, Buddy J. Bayard, Harold Schoeffler, Greg Guirard, Kenneth Vicknair, and Coerte Voorhies.

Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, BILLY HOWARD EZELL, and J. DAVID PAINTER, Judges.

THIBODEAUX, Chief Judge.

This case involves a declaratory judgment and boundary action by five members of the general public who fish, hunt, and navigate in the Atchafalaya Basin against approximately a dozen private landowners and lessees who have posted signs and barriers against trespassing on their property. The plaintiffs contend that they have been prevented from using public areas such as tidal-influenced lands and state-owned navigable waterways of the Atchafalaya Basin by the private landowners. Defendants argue that the land at issue is water-inundated private land not subject to public use. Plaintiffs, claiming public use servitudes, assert conventional boundary articles to survey and fix boundaries at the high water mark along the privately-owned lands. They have added the State as a defendant and seek a mandamus action compelling the State to bring a boundary action against the owners and lessees.

The trial court granted the private owners/lessees' exceptions of no cause and no right of action to survey and fix the boundaries. The trial court granted also the State's exceptions of no cause and no right of action and dismissed the State from all of Plaintiffs' demands. For the following reasons, we affirm.

I. ISSUES

We must decide:

(1) whether non-owner, non-lessee Plaintiffs have a cause and right of action to fix boundaries between the inundated lands in the Atchafalaya Basin and the navigable waters of the State of Louisiana under La.Civ.Code art. 456 and art. 784, et seq. and La.Code Civ.P. art 3691, et seq.;

(2) whether non-owner, non-lessee Plaintiffs have a cause and right of action to bring a writ of mandamus against the State of Louisiana, compelling the State to fix boundaries between its navigable waters and the inundated lands of owners and lessees in the Atchafalaya Basin under La.Civ.Code art. 456 and art. 784, et seq. and La.Code Civ.P. art. 3691, et seq.; and,

(3) whether non-owner, non-lessee Plaintiffs have an action for declaratory judgment against the State of Louisiana declaring that Plaintiffs are entitled to fisheries access and other uses below the ordinary high water mark in the present and former beds of Lake Chetimaches, and that all waters at issue in the Atchafalaya Basin are running waters or bottoms of navigable waterbodies subject to public use including crawfishing and commercial fishing and requiring Defendants to remove impediments to public use.

II. FACTS AND PROCEDURAL HISTORY

Plaintiffs are five individuals who fish, crawfish, hunt, and navigate for other reasons, such as touring and photographing, the waters of the Atchafalaya Basin for commercial and recreational purposes. In this action they are seeking a declaratory judgment and boundary action against approximately a dozen private landowners and lessees in the Atchafalaya Basin. The private owners and lessees include private individuals, heirs, estates, corporations, hunting clubs, crawfishing associations, land and lumber companies. Plaintiffs allege that the owners and lessees have posted "no trespass" signs, constructed gates, installed cables, or patrolled the subject areas and waters impeding Plaintiffs' servitude and right of public access to waters, tidal-influenced beds, and owners' private banks subject to public use. Plaintiffs assert that these areas have been posted and patrolled, often under color of state authority or law, and that civil and criminal trespass prosecutions "have occurred." However, Plaintiffs do not allege that any one of them has been the subject of prosecution for trespass.

The Plaintiffs' Third Amended and Restated Petition added the State of Louisiana as a defendant and requested a mandamus action to compel the State to "represent the public interest" and bring an action to fix the boundaries against the landowners and lessors. The boundary action is brought pursuant to La.Civ.Code art. 784, et seq., and La.Code Civ.P. art. 3691, et seq. However, the boundary sought to be fixed is a high water boundary, delineating the land below the high water mark as subject to public use pursuant to La.Civ.Code art. 456, which states that the banks of state-owned navigable rivers and streams are private things subject to public use. However, the Third Amended and Restated Petition omitted the boundary action against the private Defendants, and the trial court allowed Plaintiffs to amend, decreeing that all exceptions previously filed would apply.

The Fourth Amended and Restated Petition, now at issue, seeks a declaratory judgment declaring that the waters and areas at issue are all running waters or bottoms of navigable waterbodies subject to the rise and fall and influence of the tides and are, therefore, public things subject to public use. It further seeks a declaration that Plaintiffs are entitled to fishing access and other uses below the ordinary high water in the present and former beds of Lake Chetimaches. The Plaintiffs describe Lake Chetimaches generally as the Atchafalaya Basin, including six named lakes and associated tributary and distributary waters. Plaintiffs further request an order requiring private Defendants to remove the "no trespass" signs and impediments to public access.

Defendant owners and lessees assert that the Basin contains over two million acres, some 595,000 of which are within a floodway more than 130 miles long, that it contains public land, state-owned fee land, wildlife-managed areas, a wildlife refuge, and vast amounts of overflowed land under private ownership emanating from Federal Swamp Land Grants of 1849 and 1850. They maintain that more than 85,000 acres of privately-owned land are affected by Plaintiffs' claims and cite an impressive number of cases illustrating the complexities involved in Plaintiffs' allegations. Defendants state that public use servitudes on the banks of navigable rivers are only for a navigational purpose and do not include the right to hunt or fish without permission of the riparian owner; and the mere fact that privately-owned land or waterways are flooded or navigable does not render them public. They cite numerous cases for these propositions including State v. Barras, 615 So.2d 285 (La.1993), Walker Lands, Inc. v. East Carroll Parish Police Jury and the State of Louisiana, 38,376 (La.App. 2 Cir. 4/14/04), 871 So.2d 1258, writ denied, 04-1421 (La.6/3/05), 903 So.2d 442, and Buckskin Hunting Club v. Bayard, 03-1428 (La.App. 3 Cir. 3/03/04), 868 So.2d 266, where the plaintiff was one of the defendants herein. Defendants further point out the difficulties and applicability of drawing high water boundaries on inundated land that has no "banks," and specifically argue that Plaintiffs are not the proper parties to bring a boundary action.

The State asserts that the Atchafalaya Basin has never been legally defined as one large body of water, and that Lake Chetimaches, as it was known to Indian inhabitants 1,000 years ago, became identifiable rivers and uplands by 1812, such that a public claim to the beds or bottoms of that "lake" are overreaching. The State further asserts that Plaintiffs are actually seeking access for all purposes to inundated private lands that they have no possessory or proprietary right to access, that they have not stated a justiciable controversy, and that the State has no duty to sue its own citizens on Plaintiffs' behalf.

The issues presently before the court are the exceptions to the boundary action against the landowners and lessees, the mandamus action to compel the State to bring the boundary action, and the declaratory judgment action against the State. We note that Plaintiffs' appeal focuses on the boundary action against the landowners and lessees and the mandamus action against the State and does not specifically brief the declaratory action against the State. However, the declaratory action remains, and the State has been dismissed from "all demands." The State argues that it was properly dismissed from the mandamus action and the declaratory action. We will address the boundary action against the landowners and lessees, the mandamus action against the State, and the declaratory action as it pertains to the State.

III.

LAW AND DISCUSSION

Standard of Review

In reviewing a trial court's ruling sustaining an exception of no cause of action, we conduct a de novo review because the exception raises a question of law and the trial court's decision is based only on the sufficiency of the petition. La.Code Civ.P. art. 927; Indus. Companies, Inc. v. Durbin, 02-0665 (La.1/28/03), 837 So.2d 1207. The determination of whether a plaintiff has a right of action is a question of law; accordingly, an appellate court also conducts a de novo review of the granting of an exception...