State v. Richardson

• Decision Date: 06 October 1916
• Docket Number: 21880
• Citation: 72 So. 984,140 La. 329
• Court: Louisiana Supreme Court
• Parties: STATE v. RICHARDSON et al

72 So. 984

140 La. 329

STATE v. RICHARDSON et al

No. 21880

Supreme Court of Louisiana

October 6, 1916

On Application for Rehearing, November 24, 1916.

R. G Pleasant, Atty. Gen., and Harry Gamble, Asst. Atty. Gen (Leland H. Moss, of Lake Charles, and G. A. Gondran, of New Orleans, of counsel), for the State.

A. V Coco, Atty. Gen., for the State on application for rehearing.

Thigpen & Herold, of Shreveport, for appellees.

Statement of the Case.

OPINION

MONROE, C. J.

The case here presented for decision is stated by the counsel respectively, as follows: 'This suit was brought by the state of Louisiana against J. S. Richardson and Benedum & Trees in the form of a petitory action, the state alleging that it is the true and lawful owner of all the property within the banks of Red river, below ordinary high-water mark, in section 24, township 13 north, range 11 west. * * *

'It is alleged that Benedum & Trees, as lessees of Richardson, have been drilling wells below ordinary high-water mark in said section, * * * and have been extracting therefrom large quantities of oil which belonged, and belongs, to the state of Louisiana. The suit was brought for the purpose of determining the limits of the state's ownership in the bed of Red river at the point indicated, and to recover, from those who had extracted it, the oil produced from the state's property.

'Defendants answered, admitting the title of the state to the bed of Red river; denying that they had trespassed on any portion of the state's property; denying that they had ever claimed any part of the river bed; and praying that the boundary of their property and that of the state might be judicially determined.'

It was made of record in the course of the trial that:

'The state does not contest the ownership of J. S. Richardson in section 24, in so far as such property is susceptible of private ownership.'

It appears that the state, through the Attorney General, requested the state board of engineers --

'to establish what, in the opinion of the * * * board, * * * constituted a full bank, full stage; in other words, to establish what, in the opinion of the state board of engineers, would be synonymous with the expression 'the ordinary stage of high water.'

And that, in complying with that request, the state board, through the chief state engineer, adopted the view and gave the directions as follows (quoting the language of the chief state engineer), to wit:

'We recognized that it was somewhat of a difficult question, and it would have to be reduced to units of length, as far as the banks of the river were concerned; that not every foot of the bank of the river could be taken into consideration, but the length should be reduced to a convenient unit; and they adopted one mile, constituted for examination and consideration, and my instructions to Mr. Bell [the engineer who was employed by the Board to superintend the work] were to run levels and determine that elevation in that unit where the river ceased to contain itself. Whatever that elevation was where the river ceased to contain itself and overflow the contiguous country, that condition was controlled within that unit, then the next was taken, and the mile was then determined and applied, and so on down the river. The unit system was established as a matter of convenience. It was impossible to determine every foot of the length of Red river, and, the slope of the river being so gradual, the difference within that mile could easily be checked off with the difference in the elevation within that limit or unit.'

Mr. Bell's statement of the manner in which he executed the instructions so given to him is as follows:

'Well, levels were first run along this bank -- the original bank of the river -- and then they were plotted, and the lowest elevation was taken as the unit to determine at what elevation the water will flow over the bank within that limit and overflow the land near it. We used this to establish the bank full stage.'

The view of the state, then, is that the 'bank full stage' (meaning the stage at which the river ceases to contain itself within its banks) and the 'ordinary stage of high water' are equivalents, and that all land lying below that level constitutes the bed of the river and is the property of the state.

Defendants contend that the land in dispute, being alluvion, formed upon land of which the defendant Richardson is unquestionably the owner, has become susceptible of private ownership, and is therefore owned by him, even were it below the level of the ordinary stage of high water (which they deny is the case); that the 'bank full' stage is an extreme, and not an 'ordinary,' stage of high water, and hence that the theory upon which the state and the engineers have proceeded is erroneous; and that the board, in attempting to determine the level at which the river ceases to contain itself, has theoretically established a higher level than is warranted by the facts. The learned counsel have also, this to say in their brief, to wit:

'Under the petition and under the stipulation' -- the word 'stipulation' being applied to the admission that 'the state does not contest the ownership of J. S. Richardson in section 24, in so far as such property is susceptible of private ownership' -- the state is definitely cut off from any claim or assertion of title to any land or to the banks of the river (declared by article 455, C. C., to be in private ownership), or to anything lying above the ordinary stage of high water, and the sole issue, as held by the district judge, is the delimitation of that which is owned by the state as a sovereign -- namely, the bed of Red river.'

In order to facilitate the expression of our views upon the questions at issue, and the better to enable the parties in interest to understand those which relate to the facts, the subjoined rough sketch has been prepared (see page 984), and, though no attempt at accuracy has been made in its preparation, it may serve the purpose indicated, with the following explanation, to wit:

The area designated 'Peninsula,' down to the line 'P1,' represents the natural, left, descending, bank of the river, is high and dry land, covered with hardwood trees, such as oak, pecan, and hackberry, has long been in cultivation, and is not here in dispute. At some time in the past, the 'Peninsula,' then, no doubt, merely part of a larger body of land, with a different configuration, was included in what was known as 'Stallings' Bend Plantation'; but (probably at a later period) the river occupied as its bed the areas or part of the areas designated 'Bay' and 'Hook of the Peninsula,' and still later the destroying power of the river became so directed against the land at the lower and outer side of its bend, and its constructive operations to the upper and inner side, that it began depositing its sediment against the lower end of the Peninsula and thereby added the 'Hook,' beginning at P1 and extending around the bend and northeastwardly until it is said to lose itself in broken sand bars about the upper line of section 19. In that process deposits were also made in the area between the Hook and the Peninsula, but in less degree than upon the Hook, and in less degree in the area lying in section 24 than in that lying in section 25. That portion of the Bay which lies in section 24 is, in general, lower than the banks indicated by the lines P and P2 (save, perhaps, part of P2, extending into section 24), and, for the accommodation of those who are engaged in drilling and operating oil wells, bridges have been constructed between the two points mentioned, which stand 10 feet or more above the mean level of the intervening surface, and the floors of the derricks used in drilling the wells are equally elevated. Beyond that, it is shown that the ground (save, perhaps, in the ridges to which we will refer) is soggy, covered with a semiaquatic growth of willows, cottonwoods, and cockle burrs, and in its present condition wholly unfit for cultivation. It is said that, years ago, a portion of it was cultivated, and that cattle were pastured there; but our understanding of the testimony upon which that statement is based (that of Messrs. Robinson and B. W. Marston, Jr.) is that it refers to land owned by defendant on the Peninsula. It is shown that the area in question is broken by ridges, the elevations of which or most of which, are below the level of the contour as established by the state engineers -- the oil wells having, apparently, been drilled as a rule upon the higher ridges; and there are witnesses who testify (and we find their testimony entirely credible) that, by drainage, plowing across the ridges, and thus leveling the land, and raising and 'turning in' cow peas, it could be brought to a condition about equal, for purposes of cultivation, to a considerable proportion of the cultivated land in the parish.

Opinion.

The major premise of defendants' first proposition is found in the admission that:

'The state does not contest the ownership of J. S. Richardson in the section 24, in so far as such property is susceptible of private ownership.'

The minor premise is the assumed demonstration that every well on section 24 is located on land susceptible of private ownership. And the conclusion is that the ownership in J. S. Richardson of the land here claimed is beyond contest.

Plaintiff's demand is not however, confined to the sites of oil wells, but relates to a body of land, said to constitute the bed of the river, of which those sites are but parts. If all the land claimed has been demonstrated to be susceptible of private ownership, defendants' conclusion is sustained, and plaintiff's demand must be rejected.

It can...