Slattery v. Arkansas Natural Gas Co.

• Decision Date: 10 January 1916
• Docket Number: 20666
• Citation: 138 La. 793,70 So. 806
• Court: Louisiana Supreme Court
• Parties: SLATTERY v. ARKANSAS NATURAL GAS CO. et al

70 So. 806

138 La. 793

SLATTERY v. ARKANSAS NATURAL GAS CO. et al

No. 20666

Supreme Court of Louisiana

January 10, 1916

Rehearing Denied February 7, 1916

SYLLABUS

(Syllabus by the Court.)

Where in a jactitation suit plaintiff, relying upon the rule that possession of part of a tract of land with title to the whole is possession of the whole, alleges and endeavors to establish his possession of part of the bed of a navigable lake by exhibiting a patent from the United States to, and showing possession of a fractional half section of land bordering upon such lake, and there is a final judgment from which he takes no appeal, to the effect that his title, under the patent, gives him no rights below high-water mark, such judgment constitutes res judicata as against a subsequent action by the same plaintiff against the same defendant upon the same title for the recovery of the same land; each litigant appearing in the same quality as before.

Where a petitory action for the recovery of land lying beneath navigable water and alleged to have been acquired under a patent from the United States as appurtenant to the land described in the patent is dismissed by a final judgment of a federal Circuit Court of Appeals for want of jurisdiction upon the authority of a ruling of the Supreme Court of the United States to the effect that such claim is too clearly unfounded to raise a federal question within the original jurisdiction of a federal Circuit Court, it is a vain thing to reassert such claim in a state court, as arising under the laws of the United States.

Article 509 of the Civil Code of Louisiana gives to the owner of the soil situated on the edge of the waters of a river or other stream the accretion, called 'alluvion,' which may 'successively and imperceptibly' be added or 'formed' thereto, but the article has no application to conditions arising upon the shore of a body of water found to be neither a river or stream, but a navigable lake.

Article 510 of the Civil Code of Louisiana, relating to 'derelictions' formed by running water retiring imperceptibly from one of its shores and encroaching on the other declares that 'the owner of the land adjoining the shore which is left dry has the right to the dereliction.' The article finds no application in a case where the water of a lake, held not to be running water, has not retired from one shore and encroached upon the other, but has retired from both shores at the same time, by reason of works constructed and money expended by the state.

Slattery & Slattery and Barnett & Keeney, all of Shreveport, for appellant.

W. A. Mabry, Dist. Atty., and Thigpen & Herold, all of Shreveport, for appellees.

Statement of the Case.

OPINION

MONROE, C. J.

Plaintiff, claiming under a patent (issued by the United States in 1840) to the N. fractional 1/2 of section 15, township 19, range 15, containing 239.73 acres, asserts title to a body of reclaimed of reclaimed land of indefinite area, which at one time constituted, in part, the bed of Sodo (or 'Sodor') Lake, in the parish of Caddo. He alleges that the lake at the time of the issuance of the patent was a navigable body of water, though he describes it as a 'navigable running stream,' and his first contention is that the United States owned the land lying beneath it, and that, as the 239.73 acres described in the patent were bounded on the north by the lake shore, the conveyance thereof included the land under the water in front of the described tract 'to the middle thread of the stream,' or (as his second contention) that, if the United States did not own the land under the water, and did not therefore convey it by virtue of its patent, 'it did have all the riparian rights attached to said land by the laws of Louisiana, which included all accretions and relictions attached thereto,' and that those rights were conveyed by the patent and are now vested in him.

The Natural Gas Company, cited as the party in possession, disclaimed title, and referred plaintiff to the board of commissioners of the Caddo levee district as the owner of the land, which board, after filing an exception of res judicata, which was overruled, and an exception of 'no cause of action,' answered, setting up a title derived by it, as a state agency, from the state of Louisiana. It appears from the evidence that in 1903 plaintiff, with others (co-owners), brought suit in the district court for the parish of Caddo setting up title to the fractional half section described in the patent here relied on (which was issued to William Terrell), and further alleging as follows:

'That said fractional section at the time it was surveyed and when entered was bounded on the north by a navigable running stream called Sodo Lake, which entry, under the laws of the United States, included the land under water in front of said fractional section, and said fractional section and said land could not afterwards be granted to other parties, to the injury of those holding under the original patentee. They aver that said stream, while it continues to be a running stream, is not navigable, owing to the deepening of its channel and the large quantities of land [which] have been uncovered by the recession of the waters. They further aver that, by reason of their rights under said patent, their riparian ownership, and the laws of the United States, they are the owners and in possession of all accretions and derelictions attached to the said fractional section [italics by the court], lying between its east and west boundaries, extending northwardly until it reaches the middle of said stream, amounting to 200 acres, more or less, and that said land is worth more than $ 2,000. Petitioners allege that the board of commissioners of the Caddo levee district are slandering their title to said accretion and dereliction, claiming the same as owners. * * *

'The premises considered, plaintiffs pray that said board * * * be duly cited to answer hereto, and that, after all legal delays, they have judgment ordering said board * * * to desist from further slandering plaintiffs' title to said accretion and dereliction and for $ 1,000 damages, * * * and for all costs.'

The defendant board filed an exception of 'no cause of action,' and a further exception that plaintiffs had no standing in court, for the reason that they had no actual possession of the land claimed, which exceptions were referred to the merits. Defendant, reserving the benefit thereof, then answered, setting up its title from the state of Louisiana, and further alleging (quoting the answer in part) and praying as follows:

'Defendant admits that Sodo Lake was a navigable lake at the date mentioned in plaintiffs' petition. * * * Defendant specially denies that plaintiffs are now, or were at the date of the institution of this suit, in possession of the land sued for, or that said possession, if it existed (which is denied), is, or was, sufficient to maintain this suit. Wherefore defendant prays that plaintiffs' demands be rejected, and in the event that said plaintiffs be decreed to have the possession required by law to institute this suit, then defendant prays that it be decreed the legal owner of said lands and placed in possession of the same.'

The case was heard upon its merits, and, having been submitted for decision, the learned trial judge handed down an opinion, in which he states the question to be decided in the following language, to wit:

'Plaintiffs' only contention of ownership and possession is by virtue of their riparian rights. If they are the owners of N. fractional 1/2 of section 15, which is not denied, and, by virtue of said ownership, are entitled, under the law, to this land, as riparian owners, then this land by virtue thereof is part of, and accessory to, the N. fractional 1/2 of section 15, and the ownership and possession of this land is, we think, a sufficient possession to entitle plaintiffs to bring this suit. If plaintiffs are not riparian owners, and said land has not thereby become part of, and an accession to, N. fractional 1/2 of section 15, then they show no cause of action or right to bring this suit. The sole and pivotal question then is: Are plaintiffs the owners of said land by virtue of riparian right under the law?'

In other words, the court held that, plaintiffs having brought an action in jactitation, it was necessary for them to show possession in themselves of the land to which the suit related; that they asserted no other possession of that land than such as might have resulted from its inclusion in, as part of, the tract described in their title; that they relied on the rule that possession of part of a tract of land, with title to the whole, carries with it possession of the whole and that therefore, unless they could show that in acquiring the tract described in the patent to Terrell they had also acquired title to land under the navigable water in front of the tract so described, they had no standing to prosecute the suit. In the determination of that question the court considered the contention of the plaintiffs that, as they were purchasers from the United States, their rights were governed by the common law, but, considering also the jurisprudence of the United States Supreme Court, held that contention to be without merit, and, in effect, that it is settled by the jurisprudence mentioned that grants by the United States of land bordering on navigable waters within the limits of a state now existing or hereafter to be created convey, of their own force, no title or right below high-water mark, and do not impair the title and dominion of such state, but that the beds and shores of navigable waters, both above and below the ebb and flow of the tide, belong to each state...