Steven v. Jury

• Decision Date: 16 December 2010
• Docket Number: No. 45,705–CA.,45,705–CA.
• Citation: 55 So.3d 840
• Parties: Steven and Melanie PETCHAK, Plaintiffsv.BOSSIER PARISH POLICE JURY, Defendant.
• Court: Court of Appeal of Louisiana — District of US

55 So.3d 840

Steven and Melanie PETCHAK, Plaintiffs

v.BOSSIER PARISH POLICE JURY, Defendant.

No. 45,705–CA.

Court of Appeal of Louisiana, Second Circuit.

Nov. 24, 2010.Rehearing Denied Dec. 16, 2010.

Booth Lockard Politz LeSage, & Odom, L.L.C., Shreveport, LA by Mark W. Odom, for plaintiffs, First Appellants.Cook, Yancey, King & Galloway, Shreveport, LA by Kenneth Mascagni, for defendant, Second Appellants.Before WILLIAMS, STEWART and CARAWAY, JJ.CARAWAY, J.

[2 Cir. 1] This case concerns leaking underground drainage culverts which were constructed partially within a drainage easement shown to encumber the plaintiffs' lot on the 1978 plat of their subdivision. As a result of the water flow, the ground beneath plaintiffs' home has been undermined, causing foundational and structural problems. Arguing that the drainage system falls within the ownership and responsibility of the parish police jury, the plaintiffs sued the police jury to repair the leaking culverts and to pay for the damages to their home. The police jury defended the action asserting that no dedication occurred because at the time of the construction and platting of the subdivision, the drainage culverts were not laid and that the later improper installation of the underground drain was unauthorized. Following trial, the trial court ruled that the police jury was neither aware of the defective drainage system, nor did it exercise control over the system, and [2 Cir. 2] the plaintiffs' claims were dismissed. For the following reasons, we reverse the trial court's ruling and remand for further action.

Facts

Plaintiffs, Steven and Melanie Petchak, own a home located on Lot 363 of Country Place Subdivision, Unit No. 5, as shown on the subdivision plat (the “Plat”) recorded in the Bossier Parish conveyance records. The Plat contains sequentially numbered subdivided lots, with the one exception of Lot 363, which is located to the north of Lot 291 and to the south of Lot 292. The Plat makes reference to several drainage easements, two of which are relevant to our discussion: a 25–foot easement, running north to south and located to the west and rear end of Lots 363 and 291, and a 10–foot easement, connecting with the 25–foot easement and running east to west on the north side of Lot 363. The 10–foot easement straddles the boundary between Lot 363 and Lot 292 and extends 5 feet into each lot.

Unit No. 5 of Country Place was created and subdivided by actions in 1977 and 1978. After the landowner/subdivider developed and improved the property and presented preliminary plans for the subdivision, the Bossier Parish Police Jury (“Police Jury”) enacted a “Resolution” dated December 19, 1977, which provides in pertinent part:

BE IT FURTHER RESOLVED that the Bossier Parish Police Jury does hereby accept into the parish road [2 Cir. 3] system for continuous maintenance the asphalt paved streets and drainage facilities in Country Place Subdivision No. 5.

Following this action, on January 23, 1978, the Plat was recorded in the parish conveyance records. The face of the Plat contains the stipulation that it complies with “ordinance 509 of 1968, Bossier Parish, Louisiana.” Ordinance No. 509 regulates the subdivision of land within Bossier Parish and provides that the owner/subdivider “shall submit a preliminary subdivision plan” to the Police Jury that contains “[a]n adequate drainage plan for the proposed subdivision with special reference to low areas where water may collect.” Additionally, under the subheading “Drainage,” Ordinance No. 509 provides for the following:

(1) A right of way sufficient for the construction and maintenance of necessary drainage channels through the proposed subdivision must be dedicated in perpetuity to the Police Jury. No buildings of any kind may be erected upon the drainage rights of way so dedicated.

(2) The Parish Engineer will determine necessary capacity of the facilities proposed by the subdivider for satisfactory disposition of maximum storm run off flows where leveling operations concern drainage ways.

(3) Parish drainage rights of way, boundaries, center lines, widths and proper engineering descriptions shall be shown on plats of proposed subdivisions.

[2 Cir. 4] Although not specifically enumerated under the section pertaining to drainage, the ordinance also provides that “[a]ll construction work shall be done under the supervision of the parish engineer.”

Additionally, at the same time as the filing of the Plat, a document titled “Protective Covenants, Country Place Subdivision Unit No. Five (5)” was filed by the owner/subdivider which stipulates as follows under the heading “Easements”:

Easements for the installation and maintenance of utilities and/or drainage facilities are reserved as shown on the recorded plat.

The residence on Lot 363 was constructed sometime between 1983 and 1985. The Petchaks purchased the home in April of 1994. At the time of this suit, the configuration of structures and drainage facilities on Lot 363 and Lot 271 are shown by the following survey which was presented into evidence:

Image 1 (5.03" X 4.25") Available for Offline Print

[2 Cir. 5] It is clear and uncontested that the residential dwelling is situated just outside of the 10–foot easement straddling the north boundary of Lot 363.

In 1995, plaintiffs noticed the development of a sinkhole in their backyard, originating at the north base of their home's foundation. Concerned about the problem, the Petchaks contacted the previous owner of their house, Theresa Kruse, who revealed that she experienced a similar problem while living in the residence. In 1992, Kruse observed a sinkhole in the backyard, located adjacent to the back patio. She called the Police Jury, who responded by filling in the sinkhole on two different occasions, first with standard dirt and later with concrete. Kruse experienced no further problems, but was told to be on the lookout for additional sinkholes. Kruse recommended that the Petchaks contact the Police Jury to correct the problem.

The Petchaks subsequently notified the Police Jury, which apparently responded sometime in 1995 by filling the location in with dirt. Ten years later, in 2005, the Petchaks began to notice problems with their home, including broken windows, sticking doors, damaged flooring, walls and woodwork and other structural problems concentrated along the northern end of their house. Additionally, the presence of a second sinkhole appeared [2 Cir. 6] within close proximity, approximately 1 to 1–1/2 feet, to the previously filled sinkhole. The Petchaks then retained the services of Sammie Craft, a civil engineer, who inspected the home on July 29, 2005. Craft recognized that an underground conduit or drainage culvert was pulling soil into the drain system and causing settlement. He recommended that the Petchaks first fix the underground culvert system before attempting to repair their home's foundation.

The Petchaks once again informed the Police Jury of the situation and in January of 2006 they met with Butch Ford, the parish engineer, to discuss possible solutions. Ford offered to fix the culverts, but only in the event that the Petchaks sign a release for any past and future damages associated with the problem. The Petchaks refused to sign the waiver.

Thereafter, on July 12, 2006, the Petchaks filed this suit asserting that the Police Jury was liable for damages caused to their home as a result of the defective drainage system. The petition alleged that the Police Jury maintained custody and control over the culvert system by virtue of its rights obtained by the subdivision's dedication to the public of all streets and drainage. Plaintiffs prayed for the repair of both the drainage system and their home. The Police Jury answered, denying responsibility for the drain and pleading the provisions of La. R.S. 9:2800 as the measure of any claim [2 Cir. 7] for negligence. By way of reconvention, the Police Jury complained that the plaintiffs' conduct of maintaining structures and performing work over or near the drainage system caused damage to the culverts and made any effort to maintain or repair the system impossible or substantially more burdensome. The Police Jury thus claimed that it was entitled to “recover from original petitioners the cost and expense of steps necessary to maintain the system and to change the drainage system, including but not limited to the cost and expense of plugging, laying, and/or moving the drainage pipe or system.” The prayer provided that:

[T]here be judgment in favor of the BOSSIER PARISH POLICE JURY and against STEVE PETCHAK and MELANIE PETCHAK, awarding the BOSSIER PARISH POLICE JURY the cost of repair and movement of the drainage system, at plaintiff's cost.

The Police Jury additionally filed an exception of prescription asserting La. R.S. 9:5624.

Prior to the filing of suit, the exact location of the subterranean culvert system as depicted on the above survey was undetermined. Through an underground survey procedure, it was discovered that 18–inch reinforced concrete culverts originate from a storm drain located on the adjacent Lot 291 and run in a northerly direction through the 25–foot drainage easement onto Lot 363. The drain then cuts across a portion of the northwest rear [2 Cir. 8] corner of the Petchaks' lot, outside of the servitude, before entering the 10–foot easement running east along the northern edge of plaintiffs' lot adjacent to the residence. The pipe then crosses a portion of the Petchaks' front yard, again outside the servitude, before entering the public storm drain underlying Glendale Lane.

The camera used in the underground survey also revealed that the pipe was not constructed in accordance with good engineering practices, as several 45 degree turns in the concrete culverts were identified. According to expert witnesses, any time there is a change in direction in a concrete culvert system, a separate junction box is...