Steve Crooks and Era Lea Crooks v. State of La., Department of Natural Resources

STATE OF LOUISIANA

COURT OF APPEAL, THIRD CIRCUIT

17-750

STEVE CROOKS AND ERA LEA CROOKS

VERSUS

STATE OF LA., DEPARTMENT OF NATURAL RESOURCES

**********

APPEAL FROM THE

NINTH JUDICIAL DISTRICT COURT

PARISH OF RAPIDES, NO. 224,262

HONORABLE JAMES HUGH BODDIE, JR., Ad Hoc

**********

D. KENT SAVOIE

JUDGE

**********

Court composed of John D. Saunders, Marc T. Amy, and D. Kent Savoie, Judges.

AFFIRMED IN PART; VACATED IN PART; AND RENDERED.

Amy, J., dissents and assigns reasons.

Ronald J. Fiorenza

Joseph J. Bailey

Provosty, Sadler, deLaunay, Fiorenza & Sobel

Post Office Box 1791

Alexandria, LA 71309-1791

(318) 445-3631

COUNSEL FOR DEFENDANT/APPELLANT:

State of Louisiana, Department of Natural Resources

Sean T. Porter

General Counsel, Division of Administration

Post Office Box 94095

Baton Rouge, LA 70804-9095

(225) 342-7154

COUNSEL FOR DEFENDANT/APPELLANT:

State of Louisiana, Department of Natural Resources

Michelle M. White

Assistant Attorney General

Post Office Box 94005

Baton Rouge, LA 70804-9005

(225) 326-6000

COUNSEL FOR DEFENDANT/APPELLANT:

State of Louisiana, Department of Natural Resources

Scott Johnson

Steven B. “Beaux” Jones

Harry J. Vorhoff

Ryan M. Seidemann

Assistant Attorneys General

1885 North Third Street

Baton Rouge, LA 70802

(225) 326-6085

COUNSEL FOR DEFENDANT/APPELLANT:

State of Louisiana, Department of Natural Resources

V. Russell Purvis, Jr.

Smith, Taliaferro & Purvis

Post Office Box 298

Jonesville, LA 71343

(318) 339-8526

COUNSEL FOR PLAINTIFFS/APPELLEES:

Steve Crooks

Era Lea Crooks

J. Rock Palermo, III

Veron, Bice, Palermo & Wilson, LLC

Post Office Box 2125

Lake Charles, LA 70602-2125

(337) 310-1600

COUNSEL FOR PLAINTIFFS/APPELLEES:

Steve Crooks

Era Lea Crooks

Christopher J. Piasecki

Davidson, Meaux, Sonnier, McElligott,

Fontenot, Gideon & Edwards

Post Office Box 2908

Lafayette, LA 70502-2908

(337) 237-1660

COUNSEL FOR PLAINTIFFS/APPELLEES:

Steve Crooks

Era Lea Crooks

Yolanda G. Martin

Daniel D. Henry, Jr.

Nicholas T. “Cole” Garrett

Louisiana Department of Wildlife & Fisheries

Post Office Box 98000

Baton Rouge, LA 70898-9000

(225) 765-2369

COUNSEL FOR AMICUS CURIAE:

Louisiana Wildlife and Fisheries Commission

Louisiana Department of Wildlife and Fisheries

Mark A. Begnaud

McCoy, Roberts & Begnaud, LTD.

Post Office Box 1369

Natchitoches, LA 71458

(318) 352-6495

COUNSEL FOR AMICUS CURIAE:

Red River Waterway District

Mark D. Seghers

Seghers & Perez, LLC

2955 Ridgelake Drive, Suite 108

Metairie, LA 70002

(504) 810-5671

COUNSEL FOR AMICUS CURIAE:

Backcountry Hunters & Anglers

SAVOIE, Judge.

The Plaintiffs filed this class action lawsuit, seeking to be declared owners of

certain immovable property and to fix the boundary between their properties and

State-owned property. The Plaintiffs further requested compensation for the inverse

condemnation of the immovable property and repayment of royalties received by the

State for oil, gas, and mineral activities that have taken place on the property. The

trial court rendered judgment in favor of the Plaintiffs, awarding compensation and

attorney’s fees, and the State now appeals. For the following reasons, we affirm in

part, vacate in part and render judgment.

FACTS AND PROCEDURAL HISTORY

In 1962, the United States began constructing various structures 1 in and

around the Catahoula Basin pursuant to a congressionally-authorized navigation

project under the River and Harbor Act of 1960 2 to promote navigation on the

Ouachita and Black Rivers. In association with the project, the State of Louisiana

and the United States signed an “Act of Assurances.” Under the Act of Assurances,

the State agreed to:

a. Furnish free of cost to the United States all lands,

easements, and rights of way, including flowage rights in overflow

areas, and suitable spoil-disposal areas necessary for construction of

the project and for its subsequent maintenance, when and as

required;

....

c. Hold and save the United States free from damages due to

construction and maintenance of the project[.]

1

These structures include the Jonesville Lock and Dam, Archie Weir on Little River, and

the Catahoula Diversion Canal.

2

The Act approved “the construction, repair, and preservation of certain public works on

rivers and harbors for navigation, flood control, and for other purposes.” River and Harbor Act of

1960, Pub. L. No. 86-645, § 101, 74 Stat. 480.

In connection with the project, the Catahoula Lake Water Level Management

Agreement (hereinafter called the Water Level Management Agreement) was also

developed and signed by the United States Army Corps of Engineers; the Bureau of

Sport Fisheries and Wildlife, Fish and Wildlife Service, United States Department

of the Interior; and the Louisiana Wildlife and Fisheries Commission. The agencies

confected the agreement to ensure that proper water level management would protect

the wildlife and public recreational opportunities in the Catahoula Basin, including

an area known as Catahoula Lake. Upon completion of the project in 1972, the

record indicates that the United States Fish and Wildlife Service began managing

water levels in and around the Catahoula Basin in accordance with a seasonal

schedule outlined in the agreement. As intended, these water management activities

increased water levels in the Catahoula Basin and prolonged the natural annual high-

water fluctuations. The record indicates that the United States Fish and Wildlife

Service continues to manage the water levels in the Catahoula Basin to this day.

Further, the record indicates that the State exercises jurisdiction of the Louisiana

Department of Wildlife and Fisheries and has granted mineral leases in the area

known as Catahoula Lake.

On May 4, 2006, Steve Crooks and Era Lea Crooks filed a “Class Action

Petition To Fix Boundary, For Damages And For Declaration Judgment.” They

alleged to be representatives of a class of landowners in the Catahoula Basin whose

property is affected by the increased water levels from the project. The trial court

ultimately certified the Plaintiffs as one class (hereinafter collectively referred to as

“Plaintiffs”). However, the trial court ascertained that the resolution of some

members’ claims would require determining ownership of certain lands.

Accordingly, the trial court subdivided the Plaintiff class into two distinct groups

2

depending upon the locations of their properties. The trial court referred to the

groups as the “Lake Plaintiffs” and the “Swamp Plaintiffs” and summarized their

claims as follows:

The Lake Plaintiffs are seeking to have all lands between the

ordinary low and ordinary high water mark of the Little River within

the area known as Catahoula Lake to be declared owned by the class

in accordance with Louisiana’s laws of riparian ownership. . . . The

Lake Plaintiffs have asserted additional claims seeking[:] a

declaration that their lands have been unlawfully expropriated,

without compensation, due to the significant obstructions to the

natural drainage in and around the Catahoula Basin caused by the

[project]; damages for the unlawful taking of their land because of

this inverse condemnation; and to recover the mineral royalty and

other payments derived from oil, gas, and mineral activities and

productions received by the State of Louisiana from the immovable

property that is the subject of these proceedings.

Separate and independent from the above, the Swamp

Plaintiffs consists [sic] of the owners of “overflow lands” located in

the southwestern portion of the Catahoula Basin. 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. It

is not disputed that these lands are below an elevation of 36 feet

mean sea level, and that their titles originated from patents issued by

the [S]tate. Because of the State’s acknowledgment that these

plaintiffs’ ownership is not disputed,[3] the only remaining issues

with respect to these owners is whether the overflow lands have been

unlawfully expropriated and, if so, the amount of damages necessary

to compensate these plaintiffs for the unlawful taking of their land

without compensation.

3

The parties entered a pre-trial stipulation resolving the Swamp Plaintiffs’ ownership.

Previously, the State acknowledged the Swamp Plaintiffs’ ownership claims in a reconventional

demand filed on December 11, 2013, which stated, in pertinent part:

[T]he State avers that Catahoula Lake is a public thing, as defined by the

Louisiana Civil Code art. 450, and is therefore owned by the State. As to the

Plaintiff Class, the State asserts full ownership of Catahoula Lake up to the

ordinary high-water mark of said body of water. The State further avers that

notwithstanding said claim, the swamp and overflow lands located in Rapides,

Grant, and LaSalle Parishes, which were conveyed to the State of Louisiana by

the United States government under the Swamplands Act of 1849, are not

deemed to be part of or within the boundary of Catahoula Lake, and are not

claimed by the State herein.

3

The Lake Plaintiffs argued that, though referred to as a lake, the area known

as Catahoula Lake actually constitutes the banks of a body of water in the Catahoula

Basin called Little River and thus is owned by the Lake Plaintiffs in accordance with

Louisiana’s laws of riparian ownership.4 They asserted that, prior to construction of

the project and management of the water levels in the Catahoula Basin, Little River

crossed the Catahoula Basin and seasonally overflowed its banks. They argued that,

during overflow periods, Little River expanded across the entire Catahoula Basin

and was mistakenly called Catahoula Lake. Thus, as detailed in the above quote, the

Lake Plaintiffs sought to be declared owners of the area between the ordinary low

water mark and the ordinary high water mark of Little River.5

In response, the State filed a motion for partial summary judgment. In the

motion, the State asserted that the third circuit made a legal determination in Sanders

v. State, Dep’t of Natural Res., 07-821 (La.App. 3 Cir. 12/19/07), 973 So.2d 879,

writ denied, 08-0438 (La. 4/18/08), 978 So.2d 352, that the area known as Catahoula

Lake is, as a matter of law, a navigable lake as defined in the Louisiana Civil Code.

Accordingly, the State asserted that the area known as Catahoula Lake is owned, as

a matter of law, by the State, not the Plaintiffs.6 The trial court granted the State’s

4

See, e.g., La.Civ.Code art. 456, which provides, in pertinent part:

The banks of navigable rivers or streams are private things that are

subject to public use.

The bank of a navigable river or stream is the land lying between the

ordinary low and the ordinary high stage of the water.

5

We note that the parties did not dispute that the State owns the bed of Little River, that is,

the land lying between the ordinary low water mark of the water on the one side and the ordinary

low water mark of the water on the other side.

6

Louisiana Civil Code Article 450 provides, in pertinent part, that “[p]ublic things that

belong to the state are such as . . . the waters and bottoms of natural navigable water bodies[.]”

See also State v. Placid Oil Co., 300 So.2d 154 (La.1973).

4

motion, and the Plaintiffs appealed. On appeal, a panel of this court reversed the

grant of summary judgment, noting that the fundamental question of whether the

area known as Catahoula Lake is a lake or a river was not an adjudicated issue in

Sanders, 973 So.2d 879. Crooks v. State, Dep’t of Natural Res., 11-920 (La.App. 3

Cir. 12/7/11), 81 So.3d 47.

Accordingly, the parties continued to litigate how to classify the area known

as Catahoula Lake. The parties focused on the status of the area as of April 30, 1812,

the year Louisiana entered the Union.7 The Plaintiffs argued that, in 1812, the area

known as Catahoula Lake was merely the seasonal overflow of Little River. In

contrast, the State argued that, in 1812, the area known as Catahoula Lake was a

distinct lake bed that experienced seasonal variations in water level. The State

ultimately filed a reconventional demand, which stated, in pertinent part:

Wherefore, the State, as plaintiff-in-reconvention:

7

In written reasons for judgment, the trial judge noted: “Everyone recognizes that April

30, 1812, the date Louisiana became a state, determines whether the body of water in the Catahoula

Basin should be classified as a river, or a lake.” This focus on the date Louisiana became a state

was based upon the equal footing doctrine. Upon their admission to the Union and in their

sovereign capacity, states acquired title to the beds of navigable waters according to the equal

footing doctrine, which was explained on rehearing by the supreme court in Gulf Oil Corp. v. State

Mineral Bd., 317 So.2d 576, 589 (La.1974):

The right of ownership of navigable water bottoms was vested in the State of

Louisiana upon its admission into the Union in 1812 on an equal footing with

the original thirteen states. See Shively v. Bowlby, 152 U.S. 1, 14 S.Ct. 548,

38 L.Ed. 331 (1894); Johnson v. McIntosh, 21 U.S. (8 Wheat.) 543, 5 L.Ed. 681

(1823); Illinois Central Ry. v. Illinois, 146 U.S. 387, 13 S.Ct. 110, 36 L.Ed.

1018 (1892); Weber v. Board of State Harbor Commissioners, 85 U.S. (18 Wall.)

57, 21 L.Ed. 798 (1873); Pollard’s Lessee v. Hagan, 44 U.S. (3 How.) 212, 11

L.Ed. 565 (1845). The United States Supreme Court held in Martin v. Waddell,

41 U.S. (16 Pet.) 367, 10 L.Ed. 997 (1842) that after the Revolution, the people

of each state themselves became sovereign, and in that character hold title to all

navigable waters and their beds for their own common use, subject only to the

supremacy of the federal government. This proposition has been restated in the

recent case of Bonelli Cattle Company v. Arizona, 414 U.S. 313, 94 S.Ct. 517,

38 L.Ed.2d 526 (1973). Because of the equal footing doctrine, states

subsequently admitted to the Union likewise acquired the beds of navigable

waters, but only in the capacity of trustee for the interest of the people of the

state.

5

....

2) Prays that after due proceedings be had there be judgment in favor

of plaintiff-in-reconvention, the State of Louisiana, and against

defendants-in-reconvention, the Plaintiff Class, recognizing that

Catahoula Lake is a lake and the State owns the bed and waters

below the ordinary high water mark and dismissing all claims

asserted by the Plaintiff Class/defendants in reconvention at their

cost[.]

As an alternative to its merits argument that the area known as Catahoula Lake

was, as a matter of law, a lake in 1812, the State filed a peremptory exception of no

right of action, which was referred to the merits. The State alleged that the Plaintiffs

do not have a direct right of action against the State for any inverse condemnation

actions for which the United States may be responsible because the Act of

Assurances is not a third-party beneficiary contract (also referred to as a “stipulation

pour autrui” 8 ). Under the exception, the State also argued that “[u]nder long-

standing United States Supreme Court jurisprudence a right of action for just

compensation for a taking by the United States only inures to those persons owning

a parcel at the time it was taken.” The State claimed that because the Plaintiffs had

failed to demonstrate their ownership at the time of the inverse condemnation, which

the State alleged had occurred in 1972 upon completion of the project when the

United States Fish and Wildlife Service began to manage the water levels in the

Catahoula Basin, they lacked a right of action to proceed.

As another alternative to its merits argument that the area known as Catahoula

Lake was, as a matter of law, a lake in 1812, the State also filed a peremptory

8

Louisiana Civil Code Article 1978 recognizes third party beneficiary contracts, providing,

in pertinent part, that “[a] contracting party may stipulate a benefit for a third person called a third

party beneficiary.” See also La.Civ.Code arts. 1979-1982. Though the Louisiana Civil Code does

not employ the phrase, a contract that provides a benefit to a third party is commonly known as a

“stipulation pour autrui.” Joseph v. Hospital Serv. Dist. No. 2 of Parish of St. Mary, 05-2364 (La.

10/15/06), 939 So.2d 1206.

6

exception based on liberative prescription prior to trial. According to the record, the

peremptory exception of liberative prescription was also referred to the merits by

agreement of the parties and the trial court in lieu of a separate hearing. The State

argued that, even if the Lake Plaintiffs were the legal owners of the area known as

Catahoula Lake, both the Lake Plaintiffs’ and the Swamp Plaintiffs’ claims were

prescribed based on 28 U.S.C.A. § 2501.9 Alternatively, the State asserted that the

Plaintiffs’ claims were prescribed based on the prescriptive periods found in either

La.R.S. 13:511110 or the pre-revision version of La.R.S. 9:5624.11

After a bench trial on the merits, the trial court issued written reasons for

judgment and provided the following description of the Catahoula Basin, the area

known as Catahoula Lake, and Little River (alteration in original):

The unique characteristics of Catahoula Lake and indeed the

Basin itself cannot be overemphasized since it is truly a “one of a

kind,” geographic area. The Catahoula Basin is an area of very flat

land located in the parishes of Rapides, Grant, and LaSalle that

forms a platter extending outward from the channel of Little River.

Because of the unusual topography of the basin, the slope of the

river’s bank is extremely gradual. A description of Catahoula Lake

can be found in the “Catahoula Lake Area Report” presented to

9

In pertinent part, 28 U.S.C.A. § 2501 declares that “[e]very claim of which the United

States Court of Federal Claims has jurisdiction shall be barred unless the petition thereon is filed

within six years after such claim first accrues.”

10

Louisiana Revised Statutes 13:5111 is entitled “Appropriation of property by state,

parish, municipality or agencies thereof; attorney, engineering and appraisal fees; prescription.”

In pertinent part, La.R.S. 13:5111 provides that “[a]ctions for compensation for property taken by

the state, a parish, municipality or other political subdivision or any one of their respective agencies

shall prescribe three years from the date of such taking.”

11

Before a revision in 1987 (see 1987 La. Acts No. 339, § 1), La.R.S. 9:5624 stated:

“When private property is damaged for public purposes any and all actions for such damages are

prescribed by the prescription of two years, which shall begin to run when the damages are

sustained.”

After the revision, and in its current form, La.R.S. 9:5624 reads: “When private property

is damaged for public purposes any and all actions for such damages are prescribed by the

prescription of two years, which shall begin to run after the completion and acceptance of the

public works.”

7

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.

Ultimately, the trial court found in favor of the Plaintiffs. First, the trial court

concluded that, in 1812, the area known as Catahoula Lake constituted the banks of

Little River. Therefore, the trial court declared the Lake Plaintiffs to be the owners

of the area known as Catahoula Lake according to Louisiana’s laws of riparian

ownership. In turn, the trial court further held that the Lake Plaintiffs are entitled to

8

the royalties received by the State for oil, gas, and mineral activities that took place

in the area known as Catahoula Lake between May 2003 and the date of trial.12

In deciding the exception of no right of action, the trial court found that the

United States is the party that inversely condemned the Plaintiffs’ lands. The trial

court stated that the Act of Assurances signifies an agreement by which the State

became an indemnifier of the United States, and the trial court further concluded that

the Plaintiffs could bring their inverse condemnation claims directly against the State

because the Plaintiffs are third party beneficiaries of the Act of Assurances, which,

the trial court reasoned, constitutes a stipulation pour autrui. The trial court also

addressed the State’s argument that “a right of action for just compensation for a

taking by the United States only inures to those persons owning a parcel at the time

it was taken.” The trial court acknowledged that only one Plaintiff demonstrated

ownership prior to 1973, which is the year after the project was completed and the

Water Level Management Agreement was implemented. Nonetheless, citing Eagle

Pipe & Supply, Inc. v. Amerada Hess Corp., 10-2267, 10-2272, 10-2275, 10-2279,

12

In written reasons for judgment, the trial court explained: “It is not disputed that the

plaintiffs are only seeking to recover the royalties attributable to these leases during the three years

before suit was filed as well as royalties to the present.” In their First Supplemental and Amending

Class Action Petition, the Lake Plaintiffs stated:

The plaintiff class has made a claim for any royalty payments or

associated payments paid to the defendant three years prior to the filing of this

proceeding and thereafter during the pendency of this proceeding. As provided

under Louisiana law, in the event that in the first part of this bifurcated

proceeding it is determined that the water body located in the Catahoula Basin

is a river or stream rather than a lake, it is respectfully submitted that the

defendant be ordered to make a full accounting of all royalty payments or

associated payments it has received from a three year period prior to the filing

of the proceeding up and until the rendition of such a determination.[]

Though not specifically cited by the Lake Plaintiffs in their First Supplemental and

Amending Class Action Petition, regarding the Lake Plaintiffs’ request, the State pointed out in its

post-trial memorandum to the trial court that La.Civ.Code art. 3494 provides, in pertinent part, that

a liberative prescription of three years applies to “[a]n action to recover underpayments or

overpayments of royalties from the production of minerals.”

9

10-2289 (La. 10/25/11), 79 So.3d 246, the trial court concluded that a subsequent

purchaser can assert a right of action when, as “in the case sub judice, there is

obviously continuing, persistent, and ongoing tortious acts creating a continuing

tort.” Thus, the trial court denied the State’s exception of no right of action.

In deciding the State’s exception of liberative prescription, the trial court

concluded that La.R.S. 9:5624, which provides a two-year prescriptive period to

bring an action when private property is damaged for public purposes, was

inapplicable to the case. The court found compelling the case of Roberson v. Lincoln

Parish Police Jury, 39,418 (La.App. 2 Cir. 3/23/05), 899 So.2d 636, wherein the

second circuit found that injunctive relief for the natural servitude of drain did not

prescribe. Next, the trial court concluded that the three-year prescriptive period

found in La.R.S. 13:5111 was inapplicable. Citing Cooper v. Louisiana Dep’t of

Pub. Works, 03-1074 (La.App. 3 Cir. 3/3/04), 870 So.2d 315, the trial court indicated

that La.R.S. 13:5111 only applies when property is taken by the State and concluded,

based on the facts of this case, that the property in this case was damaged by the

United States.13

13

In written reasons for judgment, the trial court quoted the following passage from Cooper,

870 So.2d 315, 324 (internal footnotes omitted):

The court cannot supply the objection of prescription; a party must plead

it. The party pleading prescription has the burden of proving that the claim had

prescribed. We must strictly construe prescriptive statutes against prescription

and in favor of the obligation that a party seeks to have extinguished. Therefore,

when there are two possible constructions, we should adopt the construction

that favors maintaining, as opposed to barring, an action.

A strict reading of La.R.S. 13:5111 leaves one no choice but to conclude

that the three-year prescriptive period should only apply when it is “the state, a

parish, municipality, or other political subdivision or any one of their respective

agencies” taking the property. Even if we had any doubt whether this language

encompassed takings by the United States, we could not alter our conclusion,

given the mandate that we strictly construe ambiguous prescription statutes

against prescription and in favor of the obligation sought to be extinguished.

10

The trial court eventually concluded that the relevant prescriptive period is the

one-year period for a claim involving damage to immovable property as found in

La.Civ.Code art. 3493 and further found that there is no prescriptive period for the

injunctive relief for the natural servitude of drain.14 However, despite concluding

that the Plaintiffs were aware or should have been aware of the increased inundation

no later than 1973,15 the trial court further determined that the one-year prescriptive

period had not begun to run on the Plaintiffs’ claims in 1973 because the “increased

duration of the flooding of [the Plaintiffs’] lands constitutes continuing tortious

conduct.” The trial court cited Cooper, 870 So.2d 315, and discussed the continuing

tort doctrine, noting: “The continuing tort doctrine recognizes that in some

instances, there is no single wrongful act that ‘causes’ the damage. Instead, there

are continuous or repeated wrongful acts, each of which creates a new harm. Until

those wrongful acts cease, prescription does not run.” Thus, the trial court concluded

that the Plaintiffs’ inverse condemnation claims had not prescribed according to the

continuing tort doctrine, and the trial court held that the Plaintiffs were entitled to an

inverse condemnation award.

The trial court summarized its holdings as follows:

(1) the body of water in the Catahoula Basin in 1812 was a

permanent river that seasonally overflowed and covered its banks;

(2) the riparian owners (“Lake Plaintiffs”) are the legal owners of

these river banks; (3) the state is legally responsible and liable for

the wrongful expropriation (inverse condemnation) of the plaintiffs’

lands because of the significant obstruction of the natural servitude

of drainage; (4) these expropriation damages total $28,745,438.40

14

Louisiana Civil Code Article 3493 provides: “When damage is caused to immovable

property, the one year prescription commences to run from the day the owner of the immovable

acquired, or should have acquired, knowledge of the damage.”

15

In written reasons for judgment, the trial court stated that “the complaining property

owners or their ancestors in title were aware or should have been aware of the increased inundation

of their lands no later than 1973.”

11

(i.e., 22,813.84 acres multiplied by $1,260 per acre) for the riparian

landowners, and $9,550,800 (i.e., 7,580 acres multiplied by $1,260

per acre) for the owners of the overflow lands (“Swamp Plaintiffs”),

all subject to legal interest from the date of judicial demand until

paid; and (5) the riparian landowners are entitled to a total award of

$4,694,309.68 together with legal interest from the date of judicial

demand until paid, which sum represents the oil and gas royalties

attributable to the mineral production from these river banks

between May of 2003 and the date of trial.

Thereafter, the trial court also awarded attorney fees totaling $22,075,843.77. The

trial court held that seventy-five percent (75%) of the total award ($16,556,882.82)

shall qualify and be assessed against the State pursuant to La.R.S. 13:5111(A),16

while twenty-five percent (25%) of the total award ($5,518,960.95) shall qualify and

be assessed against the common fund pursuant to La.Code Civ.P. art. 595. 17

Additionally, the trial court awarded to the Plaintiffs $353,297.34 for the

reimbursement of the Plaintiffs’ expert witness fees; $89,067.45 for the

reimbursement of other miscellaneous costs incurred; and $168,000.00 as a

provisional amount for the administration of the claims process post-trial. The trial

court further awarded $10,000.00 as a class representative incentive award to Mr.

Crooks. The trial court similarly divided these awards, assessing seventy-five

16

In pertinent part, La.R.S. 13:5111(A) provides:

A court of Louisiana rendering a judgment for the plaintiff, in a proceeding

brought against the state of Louisiana, a parish, or municipality or other political

subdivision or an agency of any of them, for compensation for the taking of

property by the defendant, other than through an expropriation proceeding, shall

determine and award to the plaintiff, as a part of the costs of court, such sum as

will, in the opinion of the court, compensate for reasonable attorney fees

actually incurred because of such proceeding.

17

Louisiana Code of Civil Procedure Article 595(A) provides:

The court may allow the representative parties their reasonable expenses of

litigation, including attorney’s fees, when as a result of the class action a fund

is made available, or a recovery or compromise is had which is beneficial, to

the class.

12

percent (75%) of each total award against the State and twenty-five percent (25%)

against the common fund.

The State appeals, asserting as error that:

1. The district court erred in determining that Catahoula Lake is not

a lake.

a. The district court erred in not finding that, under Louisiana

law, a lake can be seasonally dry and still qualify as a lake.

b. The district court erred in its application of the multi-factor

test established by the Louisiana Supreme Court in State v.

Placid Oil Co., 300 So.2d 154 (La.1974), cert. denied, 419

U.S. 1110 (1975), for determining whether a body of water is

a river or a lake.

2. The district court erred in finding that the Appellees have the right

to assert a takings claim against the State.

a. The district court erred in finding that the “Act of

Assurances” between the United States and the State

constitutes a stipulation pour autrui.

b. The district court erred in finding that Appellees who

purchased their properties after 1973 could assert a taking

claim for actions occurring before 1973.

3. The district court erred in finding that prescription on the

Appellees’ takings claims did not begin to run in 1973 when they

became aware of the permanent flooding of their respective

properties.

a. The district court erred in applying tort doctrine to an

appropriation claim.

b. In the alternative, if the application of tort doctrine is

appropriate, the district court erred in finding that the

increased water level resulting from the construction and

maintenance of the Project is a continuing tort.

4. The district court erred in its measure of damages and attorney’s

fees.

a. The district court erred in awarding damages for the taking

of property belonging to non-class riparian landowners.

13

b. The district court erred in not setting the location of the

ordinary low water mark to accurately determine the size of

the allegedly taken property.

c. The district court committed legal error by valuing the

allegedly taken property at the time the Appellees’ [sic] filed

their petition and not at the time of the alleged taking.

d. The district court erred in employing an unsupportable

methodology for determining reasonable attorney’s fees,

which resulted in an award of over $16.6 million.

On appeal, the State has also filed exceptions of lack of subject matter jurisdiction,

no right of action, nonjoinder, and acquisitive prescription.

DISCUSSION

Exception of Lack of Subject Matter Jurisdiction on Appeal

On appeal, the State has asserted an exception of lack of subject matter

jurisdiction. The State alleges that the trial court’s final judgment lacks the

necessary decretal language to qualify as a final judgment, such that this court never

acquired subject matter jurisdiction over the matter. In particular, the State contends

that the trial court’s judgment fails to name the plaintiffs with particularity, instead

referencing their property locations on maps and referring to them as the “Lake

Plaintiffs” and the “Swamp Plaintiffs.” The State also alleges that the judgment

lacks the necessary decretal language because it does not provide a clear directive as

to the allocation of the monetary awards to the individual parties. Rather, as the

State points out, the judgment generally awards $9,550,800.00 to the Swamp

Plaintiffs and $28,745,438.40 and $4,694,309.68 for the inverse condemnation and

royalties claims, respectively, to the Lake Plaintiffs. Lastly, the State argues that the

judgment lacks the necessary decretal language because it does not describe the

immovable property with particularity.

14

According to La.Code Civ.P. art. 1918, “[a] final judgment shall be identified

as such by appropriate language.” As a panel of this court has explained, “[u]nless

appellate jurisdiction is properly invoked by a valid final judgment, the appellate

court cannot determine the merits of an appeal.” Goal Properties, Inc. v. Prestridge,

14-422, p. 3 (La.App. 3 Cir. 11/5/14), 150 So.3d 610, 613.

The State’s first argument that the final judgment does not contain sufficient

decretal language relates to the description of the Plaintiffs. In the judgment, the

trial court referenced the Plaintiffs as the “Lake Plaintiffs” and the “Swamp

Plaintiffs” and referred to a map attached as part of the judgment, which lists the

Plaintiffs’ names according to the locations of their properties. In Goal Properties,

Inc., 150 So.3d at 613, a panel of this court explained:

In order to constitute a final appealable judgment, the “judgment

must contain decretal language, and it must name the party in favor

of whom the ruling is ordered, the party against whom the ruling is

ordered, and the relief that is granted or denied.” Frank v. City of

Eunice, 13–1118, p. 3 (La.App. 3 Cir. 3/5/14), 134 So.3d 222, 225.

These requirements should be evident without reference to other

documents in the record. Id.

Here, the specific names of the Plaintiffs are included on the map, and the map is a

part of the final judgment. Accordingly, the names of the parties are discernable

without reference to extrinsic documents or pleadings. See Vanderbrook v.

Coachmen Indus., Inc., 01–809 (La.App. 1st Cir. 5/10/02), 818 So.2d 906.

In its next argument, the State alleges that the judgment lacks the necessary

decretal language because it does not provide a clear directive as to the allocation of

the monetary awards to the individual parties. The trial court’s judgment awarded,

on a price per acre basis, $28,745,438.40 and $4,694,309.68 to the Lake Plaintiffs

for the alleged inverse condemnation and mineral interests, respectively, and

$9,550,800.00 to the Swamp Plaintiffs for the alleged inverse condemnation. We

15

find this contains a sufficiently clear directive regarding the allocation of the

monetary awards.

The State’s last argument relates to the description of the property. Louisiana

Code of Civil Procedure Article 1919 provides, in pertinent part: “All final

judgments which affect title to immovable property shall describe the immovable

property affected with particularity.” See also La.Code Civ.P. art. 2089.18 In the

final judgment, the trial court described the land that the trial court concluded is

owned by the Lake Plaintiffs as:

[T]he river banks in the Catahoula Basin consisting of 22,813,84

acres of lands located between the ordinary low water mark of the

Little River and the ordinary high water mark of 36 feet mean sea

level of the Little River, which lands are depicted in light blue and

referred to as the bed and bottom of the so-called “Catahoula Lake”

on the State’s exhibit introduced into evidence and identified as FW

202, a copy of which is attached hereto and made part of this final

judgment.

Further, the trial court described the Swamp Plaintiffs’ property as:

[T]he 7,580 acres of land patented by the State of Louisiana in the

southwestern portion of the Catahoula Basin, which lands are

identified as property listing nos. 29 through 83, and as the lands

owned by W.H. Ward Properties, Inc., on the State’s exhibit

introduced into evidence and identified as FW 202, a copy of which

is attached hereto and made part of this final judgment.

We find this constitutes a sufficient property description for jurisdictional purposes.

Accordingly, the State’s exception of lack of subject matter jurisdiction is denied.

Ownership of the Area Known as Catahoula Lake

As discussed above, the trial court held that, at the time Louisiana entered the

Union in 1812, the area known as Catahoula Lake was a permanent river that

18

Louisiana Code of Civil Procedure Article 2089 states: “All judgments and decrees

which affect title to immovable property shall describe with particularity the immovable property

affected.”

16

seasonally overflowed and covered its banks. From this holding, the trial court next

held that the Lake Plaintiffs are the legal owners of these river banks based on

Louisiana’s laws of riparian ownership. See, e.g., La.Civ.Code art. 456. The State

asserts that the trial court erred in finding that the area known as Catahoula Lake is

not a lake. As alternative arguments, the State has filed an exception of no right of

action and a peremptory exception of acquisitive prescription pursuant to La.Code

Civ.P. art. 927 on appeal prior to submission of the case for decision.

In the exception of no right of action asserted on appeal, the State argues that

even if the Lake Plaintiffs are the owners of the area known as Catahoula Lake, they

do not have the requisite property interest to bring an inverse condemnation claim.

In particular, the State explains that, because this is a federal navigation project that

was constructed and is still maintained by the United States, the United States has a

flowage servitude over the property below the ordinary high water mark by virtue of

the federal navigation servitude. In opposition, the Lake Plaintiffs argue, in part,

that the definition of ordinary high water mark for the federal navigation servitude

is not the same as the definition of ordinary high water mark under Louisiana law.

They further note that there is no evidence in the record to prove the location of the

alleged federal high water mark.

According to La.Code Civ.P. art. 2163, an “appellate court may consider the

peremptory exception filed for the first time in that court, if pleaded prior to a

submission of the case for a decision, and if proof of the ground of the exception

appears of record.” Thus, we preliminarily determine whether proof of the ground

of the State’s exception of no right of action appears in the record. In DeSambourg

v. Bd. of Comm’rs for Grand Prairie Levee Dist., 621 So.2d 602, 612 (La.1993)

17

(footnote omitted), cert. denied, 510 U.S. 1093, 114 S.Ct. 925 (1994), the supreme

court explained:

The laws and jurisprudence of . . . the United States are irrelevant to

the quest for the meaning of ordinary high water in relation to the

levee servitude and the rights of riparian landowners in Louisiana.

State v. Richardson, [140 La. 329,] 72 So. [984,] 987 [(1916)]. . . .

Louisiana is not bound to indiscriminately follow a federal or

common law definition of ordinary high water which has no

connection to our definition of batture, the levee servitude or

riparian landowner rights, as set forth in our Constitution, legislation

and jurisprudence.

Considering the foregoing, we agree with the Lake Plaintiffs that the location of the

ordinary high-water mark under federal law cannot be determined by reference to

the location of the ordinary high-water mark under Louisiana law. See also Parm v.

Shumate, 513 F.3d 135, 143 n.4 (5th Cir. 2007) (noting that “Louisiana has rejected

the federal definition of high water mark and relies, instead, on the ordinary seasonal

flood levels”), cert. denied, 555 U.S. 813, 129 S.Ct. 42 (2008). Because there is no

proof in the record of the location of the alleged federal high water mark, we have

not considered the merits of the State’s exception. See La.Code Civ.P. art. 2163.

We next address the State’s exception of prescription because “[t]he function

of the peremptory exception is to have the plaintiff’s action declared legally

nonexistent, or barred by effect of law, and hence this exception tends to dismiss or

defeat the action.” La.Code Civ.P. art. 923. Preliminarily, we note that the

peremptory exception of prescription in La.Code Civ.P. art. 927(A)(1) includes both

acquisitive and liberative prescription. Montgomery v. Breaux, 297 So.2d 185

(La.1974). The exception of prescription can be filed for the first time in the

appellate court if it is formally pleaded prior to submission of the case for decision.

Willett v. Premier Bank, 97-187 (La.App. 3 Cir. 6/4/97), 696 So.2d 196.

18

We first turn to the parties’ arguments regarding the matter of acquisitive

prescription. The State asserts that even if the trial court was correct in finding that

the area under consideration is not a lake, the Lake Plaintiffs have lost ownership of

the land to the State by virtue of thirty-year acquisitive prescription. The State

contends that the State has corporeally possessed the area known as Catahoula Lake

since the early 1970s when State-owned navigable waters were artificially modified

by the project. Further, the State notes that since at least the mid-nineteenth century,

the State has believed that it owned the land and has acted accordingly by granting

mineral leases and exercising the jurisdiction of the Louisiana Department of

Wildlife and Fisheries over the area.

In opposition to the State’s exception, the Lake Plaintiffs argue that the State

is prohibited by the Louisiana Constitution of 1974 from acquiring private property

through acquisitive prescription. In this regard, the Lake Plaintiffs cite to La.Const.

art. 1, § 4(B), which reads, in pertinent part: “Property shall not be taken or damaged

by the state or its political subdivisions except for public purposes and with just

compensation paid to the owner or into court for his benefit.” The Lake Plaintiffs

also cite to La.Const. art. 6, § 23, which provides that “political subdivisions may

acquire property for any public purpose by purchase, donation, expropriation,

exchange, or otherwise.” The Lake Plaintiffs note that in interpreting the latter

constitutional provision, the courts have held that “otherwise” does not include the

right to acquire property through acquisitive prescription. The State responds that

La.Const. art. 6, § 23, as well as the cases cited by the Lake Plaintiffs, apply only to

political subdivisions of the State, not the State itself. The State contends that there

is no jurisprudential, statutory, or constitutional prohibition on the State’s acquisition

of land by acquisitive prescription.

19

We consider the Lake Plaintiffs’ argument that La.Const. art. 6, § 23, as well

as the cases interpreting that provision, prevent the State from acquiring property by

acquisitive prescription. In Parish of Jefferson v. Bonnabel Properties, Inc., 620

So.2d 1168, 1171 (La.1993), the supreme court held that “it would be incorrect to

conclude the constitutional framers, by the inclusion of the words ‘or otherwise’ in

Article VI, Sect. 23, intended to allow political subdivisions to acquire full

ownership of property through acquisitive prescription.” See also Roy v. Belt, 03-

1022 (La.App. 3 Cir. 2/18/04), 868 So.2d 209, writ denied, 04-1149 (La. 7/2/04),

877 So.2d 147 (holding that neither a sheriff nor his predecessor in title, the police

jury, can acquire property by acquisitive prescription); and King’s Farm, Inc. v.

Concordia Parish Police Jury, 97-1056 (La.App. 3 Cir. 3/6/98), 709 So.2d 953, writ

denied, 98-1450 (La. 9/18/98), 724 So.2d 748 (holding that a policy jury cannot

acquire property through acquisitive prescription). Based on the foregoing, the cases

cited by the Lake Plaintiffs indicate that a political subdivision of the State cannot

acquire property through acquisitive prescription.

Regarding whether the State itself can acquire property through acquisitive

prescription, we agree with the Lake Plaintiffs and find that we are bound by the

language in Louisiana Constitution Article 1, § 4(B)(1). Applying this language to

the present case, we find that acquisitive prescription is implicitly prohibited by the

State because it is a taking without just compensation. The State’s exception of

acquisitive prescription is denied.19

We now move on to the State’s argument that the trial court erred in finding

that, in 1812, the area known as Catahoula Lake was a permanent river that

19

We note that this result seems fair in light of the fact that acquisitive prescription does

not run against the State. See La.Const. art. 12, § 13.

20

seasonally overflowed and covered its banks. The trial court made the following

factual conclusions on this issue:

A summary of the entirety of the evidence introduced at trial

conclusively established, confirmed and reaffirmed the following

inescapable conclusions, to-wit: (1) that the Little River channel in

1812 completely traversed the entire Catahoula Basin; (2) that Little

River was a permanent, as opposed to a temporary body of water: (3)

that during the wet season, Little River would seasonally overflow its

channel and cover the surrounding low-lands in the Catahoula Basin;

and (4) that annually at other times of the year, these low-lands were

totally dry and clothed in luxuriant vegetation. Therefore, in 1812,

there was only one permanent body of water, Little River, in the

Catahoula Basin whose waters seasonally overflowed its channel and

covered its banks, the extensive adjacent low-lying lands.

The trial court determined that “a temporary water body created when a river

seasonally overflows its channel or a temporary body of water cannot qualify as a

lake.”

In reaching that outcome, the trial court found:

The court was faced with widely divergent views among the

plaintiffs’ and defendant’s experts on the determinative issue in this

case, that is, whether the so-called Catahoula Lake is a river or a lake.

The significance of the historical evidence cannot be overstated for a

proper analysis of that evidence is critical for the proper determination

of the issue at hand. With that in mind, a careful analysis of the expert

testimony offered in this case, together with the entirety of the evidence,

causes the court to arrive at the following conclusions as to certain

experts.

A complete and thorough analysis of the evidence dictates the

court’s conclusion that the testimonies of plaintiffs’ expert witnesses,

Dr. Suhayda and Dr. Flowers, are credible, reliable, based on sound

methodology, and much more persuasive with regard to the ultimate

opinion in this case. For the reasons assigned herein, the court has

credited their testimonies over that of Dr. Willis.

Dr. Joseph Suhayda was tendered and accepted as an expert in hydrology,

including the movement of water and flooding, who spent thirty years as a professor

at Louisiana State University. He testified that the hydraulic characteristics of a

certain body of water determine its classification as a river or lake. Dr. Suhayda

21

further testified that the historical records provide the best evidence about a body of

water’s hydraulic characteristics in 1812. Dr. Suhayda concluded that, based on his

extensive review of the historical records, the area at issue was a river.

Next, Dr. George Flowers testified. He was tendered and accepted as an

expert in the fields of geology, geography, and hydrogeology. Dr. Flowers also

relied on historical records for his opinions and reached the same conclusion.

Specifically, he testified that, based upon the definition of a lake from the Glossary

of Geology, “a lake is a standing body of water.” He stated that Catahoula Lake is

not a permanent body of water “because it drains.” Dr. Flowers also testified that,

after a review of the historical records, “it became clear that early on, extending into

the 20th Century, there was an opinion that was repeated over and over again that the

water body in the Catahoula Basin was indeed a river.”

The State argues that the trial court erred by ignoring the historical

documentation recognizing the water body in the Catahoula Basin as a “lake.” The

Lake Plaintiffs counter that “the overwhelming trial evidence confirmed it would be

bad science to determine the classification of a water body based on its name.”

The trial court relied on Schoeffler v. Drake Hunting Club, 05-499 (La.App.

3 Cir. 4/1/06), 919 So.2d 822. In Schoeffler, members of the general public filed a

declaratory action seeking to fix the boundary between the state-owned bed of a

navigable river and the privately owned banks. The case was dismissed on

exceptions of no cause of action and no right of action. The third circuit affirmed,

finding persons who hunt and fish on land that is inundated by waterways belonging

to the State do not have a right of action to fix boundaries between the State and a

private landowner. The trial court in the present case found that “[t]he Third Circuit

22

correctly observed that a temporary body of water that is seasonally inundated a high

river stages cannot be a real lake, and therefore cannot be public property.”

The trial court refused to apply State v. Placid Oil. Co., 300 So.2d 154

(La.1973). In its’ written reasons, the trial court stated the following:

[I]n this court’s view, Placid Oil, does not nor was it ever intended to

apply to mere temporary bodies of water created when a river

seasonally overflows its channel. In view of extensive and exhaustive

research into Louisiana jurisprudence, the court is convinced that no

such jurisprudence exists holding that a temporary body of water can

legally be classified as a lake. Nor has any party to this litigation come

forward with any such case. Thus, the court is convinced that the

factors in that decision [were] intended to address permanent bodies of

water – not temporary ones.

After a complete review of the record and the trial court’s written reasons for

judgment, we cannot say that the trial court was manifestly erroneous in finding that,

in 1812, the area in contention was “a permanent river that seasonally overflowed

and covered its banks.”

Right to Assert an Inverse Condemnation Claim

A. Stipulation Pour Autrui

The State next argues that the trial court erred in finding that the Plaintiffs

have a right to assert a takings claim against the State. Specifically, the State

contends that the “Act of Assurances” between the United States and the State does

not constitute a stipulation pour autrui. In the present case we are dealing with

inverse condemnation claims.

The action for inverse condemnation provides a procedural remedy to

a property owner seeking compensation for land already taken or

damaged against a governmental or private entity having the powers of

eminent domain where no expropriation has commenced. The action

for inverse condemnation is available in all cases where there has been

a taking or damaging of property where just compensation has not been

paid, without regard to whether the property is corporeal or incorporeal.

23

State Through the Dept. of Transp. and Dev. v. Chambers Investment Co.,

Inc., 595 So2d. 598 (La.1992).

In determining this issue, the trial court relied heavily on this court’s ruling in

Cooper v. Louisiana Department of Public Works, 03-1074 (La.App. 3 Cir. 3/3/04),

870 So.2d 315, finding the facts presented in Cooper to be identical to the facts in

the case at bar. The trial court found the third circuit’s analysis in Cooper to be

“thorough, well-reasoned, and a correct interpretation of the current state of the law.”

In Cooper, landowners brought an action against the Louisiana Department of

Transportation and Development, seeking damages for the permanent flooding of

portions of their land resulting from the construction of locks and dams. Cooper

stems from the same 1960 River and Harbor Act enacted by the United States

Congress that is the basis for the present case. The Act authorized the building of

the Jonesville Lock and Dam and the Columbia Lock and Dam, the purpose of which

was to promote navigation along the affected rivers, the Ouachita and Black Rivers,

by creating a navigational channel at least nine feet deep and one hundred feet wide.

Also at issue in Cooper was the same 1962 “Act of Assurances” executed between

the State of Louisiana and the United States of America. The United States Corps

of Engineers completed the locks and dams project in 1972. Once the locks and

dams became operational, it caused the “Jonesville Pool” to be formed. This pool

extended approximately 107 miles upstream to the Columbia Lock and Dam. This

pool has been maintained at a minimum elevation of thirty-four feet above sea level.

The plaintiffs in Cooper filed a lawsuit seeking damages for the permanent

flooding of portions of their lands which the construction of these locks and dams

along the Black and Ouachita Rivers caused. The DOTD never attempted to acquire

the plaintiffs’ property because it assumed that the lands were within the federal

24

navigational servitude granted to the federal government by the commerce clause of

the United States Constitution. There was also no compensation paid to the plaintiffs

for the taking or damaging of their land.

The “Act of Assurances” in the present case is the same Act at issue in Cooper.

Regarding whether the “Act of Assurances” is a stipulation pour autrui, the Cooper

court found:

A stipulation made in favor of a third party beneficiary (a

stipulation pour autrui) gives a third party the right to demand

performance from the promisor. Our courts have consistently

recognized the beneficiary’s right to demand performance from the

promisor, directly.

Our law favors stipulations made in favor of third persons. The

supreme court in Andrepont v. Acadia Drilling Company[, 231 So.2d

347 (La.1969)] enumerated factors for us to consider when deciding

whether a contract provides a benefit for a third person:

(1) The existence of a legal relationship between the promisee

and the third person involving an obligation owed by the

promisee to the beneficiary which performance of the promise

will discharge;

(2) the existence of a factual relationship between the promisee

and the third person, where (a) there is a possibility of future

liability either personal or real on the part of the promisee to the

beneficiary against which performance of the promisee [sic] will

protect the former; (b) securing an advantage for the third person

may beneficially affect the promisee in a material way; (c) there

are ties of kinship or other circumstances indicating that a benefit

by way of gratuity was intended.

When we apply these factors to the facts of this case, the legal

relationship between the promisee (United States) and the third persons

(Plaintiffs) involves an obligation (to reimburse the Plaintiffs for the

permanent flooding of their land caused by the construction and

maintenance of the locks and dams along the Ouachita and Black

Rivers) owed by the promisee (United States) to the beneficiaries

(Plaintiffs) which performance of the promise (to “[f]urnish free of cost

to the United States all lands, easements, and right of way[s], including

flowage rights in overflow areas, and suitable spoil-disposal areas

necessary for construction of the project and for its subsequent

maintenance, when and as required” and to “[h]old and save the United

25

States free from damages due to construction and maintenance of the

project”) by the promisor (DOTD) would discharge.

In other words, the obligation that the United States imposed as

a condition of the “Act of Assurances” and undertaken by the DOTD

(to provide the United States with all lands and servitudes necessary for

the construction and maintenance of the locks and dams along the

Ouachita and Black Rivers) constitutes a stipulation pour autrui in

favor of the Plaintiffs. The inference is clear that the United States knew

before it constructed these locks and dams that it needed to acquire

multiple pieces of property and servitudes to carry out this massive

construction project. As such, it was interested in having the DOTD

undertake its obligation to compensate the Plaintiffs if construction

resulted in the taking of their lands because, otherwise, the United

States would be responsible for paying their claims for reimbursement.

In addition, the relationship between the United States and the

Plaintiffs was sufficient to support the inference that there was a

possibility that the United States could be liable to the Plaintiffs

sometime in the future, but performance of the DOTD’s promise would

protect the United States. This possibility of future liability (for the

damaging or taking of land caused by the construction of these locks

and dams) stems from the very obligation that the United States wanted

discharged. Therefore, this case fits squarely within the guidelines our

supreme court set for determining when claimants should receive third-

party beneficiary status.

The fact that the parties did not specifically name the Plaintiffs

in the “Act of Assurances” as third party beneficiaries is of no

consequence because our jurisprudence recognizes that parties to a

contract may make a stipulation pour autrui in favor of undetermined

persons. Moreover, the law does not require express acceptance or

consent by third party beneficiaries, nor does it require a particular form

of acceptance or consent. Comment (b) to La.Civ.Code art. 1978 states

that “the beneficiary’s intention to accept the benefit may be made

known in any manner, even implied.” Thus, by simply filing suit, the

Plaintiffs made known their intention to accept the benefit.

Consequently, we find that the Plaintiffs have a right to proceed

directly against the DOTD for the damages arising out of the breach of

its promise to the United States to provide it, free of claims, with all

lands and servitudes necessary for the construction and maintenance of

the locks and dams along the Ouachita and Black Rivers.

Id. at 330-31 (footnotes omitted).

26

We agree with this determination by the Cooper court. We find the Act of

Assurances to be a stipulation pour autrui and that the plaintiffs enjoy a right of

action against the State. We find no error in the trial court’s ruling.

On appeal, the State has asserted an exception of nonjoinder, arguing that,

under the nonjoinder rules found in La.Code Civ.P. art. 641, 20 the United States

Army Corps of Engineers and the United States Fish and Wildlife Service are

necessary parties-defendant. The State contends that their absence at the trial court

renders the judgment an absolute nullity and that they must be joined for a full and

just adjudication of this dispute. Having found that the Act of Assurances is a

stipulation pour autrui and that the Plaintiffs have a direct right of action against the

State for the actions of the United States, the United States is not a necessary party

to this action. The State’s exception of nonjoinder is denied.

B. The Issue of Prescription

The State assigns as error that the trial court erred in finding that prescription

began to run on the Plaintiffs’ takings claims when they became aware of the

permanent flooding on their respective properties. The State argues that the trial

court should not have applied tort doctrine to an appropriation claim. In the

20

Louisiana Code of Civil Procedure Article 641 provides:

A person shall be joined as a party in the action when either:

(1) In his absence complete relief cannot be accorded among those

already parties.

(2) He claims an interest relating to the subject matter of the action and

is so situated that the adjudication of the action in his absence may either:

(a) As a practical matter, impair or impede his ability to protect that

interest.

(b) Leave any of the persons already parties subject to a substantial risk

of incurring multiple or inconsistent obligations.

27

alternative, the State contends that, if the application of tort doctrine is appropriate,

the trial court erred in finding the basis for these claims constitutes a continuing tort.

As previously discussed, the trial court found the Cooper case directly on

point and controlling. The State made the same argument in Cooper as it does in the

present case, which is that the prescriptive period for takings found in La.R.S.

13:5111 applied to the plaintiffs’ claims. “Specifically, it contend[ed] that the taking

of property, by flooding or otherwise without proper exercise of eminent domain, is

not a tort; rather, it is an appropriation by a governmental entity, subject to the three-

year prescriptive period found in La.R.S. 13:5111.” Cooper at 323. La.R.S. 13:5111

(emphasis added) provides, in pertinent part:

A. A court of Louisiana rendering a judgment for the plaintiff, in a

proceeding brought against the state of Louisiana, a parish, or

municipality or other political subdivision or an agency of any of them,

for compensation for the taking of property by the defendant, other than

through an expropriation proceeding, shall determine and award to the

plaintiff, as a part of the costs of court, such sum as will, in the opinion

of the court, compensate for reasonable attorney fees actually incurred

because of such proceeding. Any settlement of such claim, not reduced

to judgment, shall include such reasonable attorney, engineering, and

appraisal fees as are actually incurred because of such proceeding.

Actions for compensation for property taken by the state, a parish,

municipality, or other political subdivision or any one of their

respective agencies shall prescribe three years from the date of such

taking.

The Cooper court explained that prescriptive statutes must be strictly construed

against prescription. Cooper, 870 So.2d 315. They found:

A strict reading of La.R.S. 13:5111 leaves one no choice but to

conclude that the three-year prescriptive period should only apply when

it is “the state, a parish, municipality, or other political subdivision or

any one of their respective agencies” taking the property. Even if we

had any doubt whether this language encompassed takings by the

United States, we could not alter our conclusion, given the mandate that

we strictly construe ambiguous prescription statutes against

prescription and in favor of the obligation sought to be extinguished

28

In Cooper, the court found that the record clearly showed that the United

States acted under its own accord in the exercise of its power to improve navigable

rivers.

Consequently, the only entity that caused the flooding of Plaintiffs’

lands is the United States. The project was solely under the direction

and control of the United States and title to the lands acquired, whether

by purchase or condemnation, vested in the United States. It, also, paid

all constructions costs of the canal, locks and dams. Moreover, the

supervision, operation and maintenance of the finished project are and

have always been the sole responsibility of the United States.

Because the United States took the property, rather than the State, the Cooper

court found La.R.S. 13:5111 inapplicable. As such, they found that the general one-

year prescriptive period for delictual actions governed the plaintiffs’ claims. In the

present case, the United States constructed the various structures in and around the

Catahoula Basin to promote navigation on the Ouachita and Black rivers. At the

completion of the project, the record indicates that the United States Fish and

Wildlife Service began managing water levels in and around the Catahoula Basin.

The record further indicates that the United States Fish and Wildlife Service

continues to manage the water levels to this day. We agree with this court’s decision

in Cooper that La.R.S. 13:5111 does not apply because the United States damaged

the land. We further find that the application of tort doctrine is appropriate. We

must now determine whether the theory of continuing tort should be applied.

“When damage is caused to immovable property, the one year prescription

commences to run from the day the owner of the immovable acquired, or should

have acquired, knowledge of the damage.” La.Civ.Code art. 3493. However, under

the continuing tort theory, when the cause of the injuries is continuous and leads to

successive damages, prescription begins to run once the wrongful conduct ceases.

Cooper, 870 So.2d 315. In Cooper, the court found that each interference with the

29

servitudes of drainage constituted a separate, continuous tort. The Estate of Patout

v. City of New Iberia, 97-1097 (La.App. 3 Cir. 3/6/98), 708 So.2d 526, writ granted,

98-961 (La. 7/2/98), 721 So.2d 897, was found to be analogous, wherein “the courts

held that debris and other objects placed on another’s property constituted a

continuing trespass (or a continuing tort) and, accordingly, prescription did not run

until the trespass was abated.” Cooper at 323. The Cooper court found that

“[l]ikewise, prescription will not run. . . .until the flooding of Plaintiffs’ lands is

abated.” Id.

The trial court in the present case opined that:

[T]he courts have looked to the alleged injury-producing conduct of the

tortfeasors to determine whether that conduct was perpetuated through

overt, persistent, and ongoing acts. Where the wrongful conduct was

completed, but the plaintiff continued to experience injury in the

absence of any further activity by the tortfeasor, no continuing tort was

found. However in the instant case, the constant interference with their

natural servitudes of drain by the defendant, causing the increased

duration of the flooding of their lands constitutes continuing tortious

conduct.

In addition to finding that each interference with the servitude of drainage

constituted a continuing tort, the trial court also noted the case of Roberson v.

Lincoln Parish Police Jury, 899 So.2d 636. In that case, the second circuit found

that the plaintiffs’ claim for injunctive relief had not prescribed, explaining:

In Gaharan v. State Department of Transportation and

Development, 579 So.2d 420 (La.1991), the state constructed a bridge

over a creek, raising the roadbed of the highway by two and a half feet.

Construction was completed in 1978 and the property flooded in 1982,

1983, and 1987. The plaintiff filed suit seeking damages and injunctive

relief in 1988. The appellate court found that the claim for damages was

prescribed under La. R.S. 9:5624. However, it also found that the claim

for injunction for interference with drainage was not subject to

prescription.

The supreme court affirmed the holding that the claim for

injunctive relief had not prescribed. The court held that under La. C.C.

art. 758, prescription does not run against natural servitudes. Therefore

30

an action for injunctive relief to enforce a natural servitude does not

prescribe. Gaharan v. State Department of Transportation and

Development, supra. In Gaharan, the supreme court went on [to] state

that, to the extent that Nuckolls v. Louisiana State Highway

Department, 337 So.2d 313 (La.App. 2d Cir.1976), holds that actions

for injunction against public bodies are prescribed under La. R.S.

9:5624, the case is overruled.

For the reasons stated above, we find that prescription has not run on Plaintiffs’

claims for compensation and injunctive relief.

C. Subsequent Purchaser Doctrine

The State next argues that the Plaintiffs cannot assert a claim for the inverse

condemnation or appropriation of their property unless they owned the property at

the time of the taking. The date used by the State for the taking is 1973, when the

Water Management Agreement was enforced. The State contends that any Plaintiffs

who purchased their property after 1973 cannot assert a claim. Only one Plaintiff

acquired their property prior to 1973. “The subsequent purchaser rule is a

jurisprudential rule which provides that a property owner ‘has no right or actual

interest in recovering from a third party for damage which was inflicted on the

property before his purchase, in the absence of an assignment or subrogation of the

rights belonging to the owner of the property when the damages was inflicted.’”

Grace Ranch, LLC v. BP America Production Company, 17-1144, p. 4-5 (La.App.

3 Cir. 7/18/18), 252 So.3d 546, 550-51 (citing Eagle Pipe & Supply, Inc. v. Amerada

Hess Corp., 10-2268, 10-2272, 10-2275, 10-2289, p.8 (La. 10/25/11), 79 so.3d 246,

256-57). The State argues that the holding in Eagle Pipe precludes the Plaintiff’s

from asserting a claim for damages to their property. This court in Grace Ranch

summarized the decision in Eagle Pipe as such:

Eagle Pipe involved a suit by landowners against oil and gas

production companies for damages arising from pre-purchase

contamination of the property pursuant to various surface leases. The

31

supreme court reviewed Louisiana jurisprudence along with Louisiana

statutory law regarding property rights and obligations as they apply to

subsequent purchasers of property. The supreme court concluded that

damage to property constitutes damage to a property owner’s right of

enjoyment in the property, which is a right of ownership and,

consequently, a real right in the property. The supreme court noted that

as a result, the tortfeasor becomes obligated to the owner of the property

whereby the owner is granted a right to demand performance from the

tortfeasor by seeking payment of damages. The supreme court further

concluded that the right to sue is personal and only enforceable by the

property owner against the tortfeasor. Thus, a subsequent owner of the

property has no right to sue the tortfeasor for the previously inflicted

damage absent an assignment or subrogation of the prior owner’s

personal right to sue for that damage.

Grace Ranch, LLC, 252 So.3d at 551 (citations omitted).

The State contends that the Plaintiffs, as subsequent purchasers of the

property, have no right of action to sue the State. The trial court, however, found

that Eagle Pipe did not apply. In Eagle Pipe, the supreme court explained:

The subsequent purchaser rule is a jurisprudential rule which holds that

an owner of property has no right or actual interest in recovering from

a third party for damage which was inflicted on the property before his

purchase, in the absence of an assignment or subrogation of the rights

belonging to the owner of the property when the damage was inflicted.

Id. at 256-57.

The trial court in the present case found that Eagle Pipe did not apply because

this case involves a continuing tort, distinguishing it from the facts in Eagle Pipe.

The Eagle Pipe court discussed the development of the subsequent purchaser rule at

length. The rule has its origins in a case from 1851, Clark v. J.L. Warner Co. et al.,

6 La.Ann. 408 (1851). The supreme court in that case held that “‘as to damages

actually suffered before the purchase,’ general tort principles would require that each

preceding owner would have a right to recover for the damages which occurred while

he or she owned the premises.” Eagle Pipe at 263 (quoting Clark at 409). The

supreme court ultimately found that the plaintiff Clark did not have a right of to

32

assert a claim for damages which occurred prior to his ownership of the property.

Following Clark and its’ progeny, the Eagle Pipe court determined that “[i]nsofar as

Eagle Pipe claims a right to sue based on the damage to the property which occurred

before its ownership, we hold the plaintiff has no right of action to assert as a matter

of law.” Id. at 279.

The plaintiff in Eagle Pipe did argue that the damage to its’ property was

continuing, however, the court found that the allegations found in the petition did

not constitute a continuing tort. Specifically, it noted that the allegations were “not

perpetuated through overt, persistent, and ongoing acts.” Id. at 280. This is clearly

distinguishable from our findings in the case at bar.

We agree with the trial court that Eagle Pipe is distinguishable from this

case and does not apply. The damages claimed by the Plaintiffs were not only

sustained prior to their purchase, rather the wrongful conduct and subsequent

damages have continued to occur during the Plaintiffs’ ownership of the property at

issue. As such, the Plaintiffs in this matter have a right of action to assert a claim

against the State. The State’s Exception of No Right of Action is denied.

Damages and Attorney’s Fees

We now turn our attention to damages and attorney’s fees. The trial court

ordered damages to the Lake Plaintiffs in the amount of $28,745,438.40, together

with legal interest from the date of judicial demand, May 4, 2006, until paid. The

trial court further ordered damages in the amount of $4,694,309.68, together with

legal interest from the date of judicial demand to the Lake Plaintiffs for oil and gas

royalties attributable to the mineral production from the river banks between May

2003 and the date of trial. The Swamp Plaintiffs’ were awarded $9,550,800.00,

together with legal interest from the date of judicial demand.

33

Regarding attorney’s fees and expert fees, the trial court ruled:

IT IS FURTHER ORDERED, ADJUDGED, and DECREED

that (i) the Motion for Fees and Costs is GRANTED on the issue of

attorney’s fees; (ii) the Plaintiffs are awarded attorney’s fees in the full

sum of TWENTY-TWO MILLION SEVENTY FIVE THOUSAND

EIGHT HUNDRED AND FORTY THREE DOLLARS AND 82/100

($22,075,843.82); (iii) pursuant to LA. R.S. 13:5111, there be judgment

herein in favor of the Plaintiffs, and against the State, for seventy-five

percent of that amount, or $16,556,882.87, together with legal interest

from the date of judgment until paid, for distribution to class counsel;

and (iv) pursuant to article 595 of the Louisiana Code of Civil

Procedure, the remaining twenty-five percent of that amount, or

$5,518,960.95, shall be assessed against the common fund for the class

for distribution of class counsel.

IT IS FURTHER ORDERED, ADJUDGED, and DECREED

that (i) the Motion for Fees and Costs is GRANTED on the issue of

expert witness fees; (ii) the Plaintiffs are awarded expert witness fees

in the full sum of THREE HUNDRED FIFTY THREE THOUSAND

TWO HUNDRED AND NINETY SEVEN DOLLARS AND 34/100

($353,297.34); (iii) there be judgment herein in favor of the Plaintiffs,

and against the State, for seventy-five percent of that amount excluding

Dr. Page’s fee, or $262,202.53, pursuant to La. R.S. 13:5111; (iv) the

remaining twenty-five percent of that amount, or $91,094.81, shall be

assessed against the common fund for the class pursuant to article 595

of the Louisiana Code of Civil Procedure, and (v) legal interest shall

run o n the foregoing award from the date of judgment until paid.

IT IS FURTHER ORDERED, ADJUDGED, and DECREED

that (i) the Motion for Fees and Costs is GRANTED on the issue of

miscellaneous costs; (ii) the Plaintiffs are awarded miscellaneous costs

in the full sum of EIGHTY NINE THOUSAND SIXTY SEVEN

DOLLARS AND 45/100 ($89,067.45); (iii) there be judgment herein

in favor of the Plaintiffs, and against the State, for seventy-five percent

of that amount, or $66,800.59, pursuant to La. R.S. 13:5111; (iv) the

remaining twenty-five percent of that amount, or $22,266.86, shall be

assessed against the common fund for the class pursuant to article 595

of the Louisiana Code of Civil Procedure; and (v) legal interest shall

run on the forgoing award from the date of judgment until paid.

IT IS FURTHER ORDERED, ADJUDGED, and DECREED

that (i) the Motion for Fees and Costs is GRANTED on the issue of

provision costs for the administration of the claims process; (ii) the

Plaintiffs are awarded a provisional amount for the administration of

the claims process post-trial in the full sum of ONE HUNDRED SIXTY

EIGHT THOUSAND DOLLARS AND 00/100 ($168,000.00); (iii)

there be judgment herein in favor of the Plaintiffs, and against the State,

for seventy-five percent of that amount, or $126,000.00, pursuant to La.

34

R.S. 13:5111; (iv) the remaining twenty-five percent of that amount, or

$42,000.00, shall be assessed against the common fund for the class

pursuant to article 595 of the Louisiana Code of Civil Procedure; and

(v) legal interest shall run on the foregoing award from the date of

judgment until paid.

IT IS FURTHER ORDERED, ADJUDGED, and DECREED

that (i) the Motion for Fees and Costs is GRANTED with respect to Mr.

Steve Crooks’ request for an incentive award as class representative;

(ii) Mr. Steve Crooks is awarded an incentive award for serving as a

class representative in this case in the full sum of TEN THOUSAND

DOLLARS AND 00/100 ($10,000.00); (iii) there be judgment herein

in favor of Mr. Steve Crooks, and against the State, for seventy-five

percent of that amount, or $7,500.00, pursuant to La. R.S. 13:5111; (iv)

the remaining twenty-five percent of that amount, or $2,500.00 shall be

assessed against the common fund for the class pursuant to article 595

of the Louisiana Code of Civil Procedure; and (v) legal interest shall

run on the foregoing award from the date of judgment until paid.

The State argues that the trial court erred in concluding that the plaintiffs’

claims had not prescribed under La.R.S. 13:5111, while awarding attorney’s fees

under the same statute. Louisiana Revised Statutes 13:5111(A) provides, in

pertinent part:

A court of Louisiana rendering a judgment for the plaintiff, in a

proceeding brought against the state of Louisiana, a parish, or

municipality or other political subdivision or an agency of any of them,

for compensation for the taking of property by the defendant, other than

through an expropriation proceeding, shall determine and award to the

plaintiff, as a part of the costs of court, such sum as will, in the opinion

of the court, compensate for reasonable attorney fees actually incurred

because of such proceeding. Any settlement of such claim, not reduced

to judgment, shall include such reasonable attorney, engineering, and

appraisal fees as are actually incurred because of such proceeding.

Actions for compensation for property taken by the state, a parish,

municipality, or other political subdivision or any one of their

respective agencies shall prescribe three years from the date of such

taking.

The plain language of the statute requires an award of attorney’s fees only

when a court is “rendering a judgment for the plaintiff . . . for compensation for the

taking of property by the” State. We previously determined that the taking of

Plaintiffs’ land was committed by the United States and, as a result, La.R.S. 13:5111

35

does not apply to this case. Thus, the Plaintiffs are not entitled to attorney’s fees

under La.R.S. 13:5111 because we are not “rendering a judgment for the plaintiff . .

. for compensation for the taking of property by the” State.

The trial court held that the remaining twenty-five percent (25%) of the total

attorney’s fee award ($5,518,960.95) shall qualify and be assessed against the

common fund pursuant to La.Code Civ.P. art. 595. Louisiana Code of Civil

Procedure Article 595 provides, in pertinent part: “The court may allow the

representative parties their reasonable expenses of litigation, including attorney’s

fees, when as a result of the class action a fund is made available, or a recovery or

compromise is had which is beneficial, to the class.” Having found that the Plaintiffs

are entitled to recover damages and pursuant to La.Code Civ.P. art. 595, we amend

the trial court’s judgment and assess 100% of the attorney’s fees ordered, in the

amount of $22,075,843.80, against the common fund.

For the same reasons, the trial court’s judgment with respect to the incentive

awarded to Steve Crooks as class representative and the provisional amount for the

administration of the claims process post-trial is amended. Steve Crooks’s incentive

award in the amount of $10,000.00 is amended, with the award to be assessed 100%

against the common fund. The award totaling $168,000.00 for the provisional

amount for the administration of the claims process post-trial is amended to be

assessed 100% against the common fund.

We further amend the trial court’s judgment regarding the assessment of

expert witness fees and miscellaneous costs. La.Code Civ.P. art. 1920 states that

“costs shall be paid by the party cast” and “the court may render judgment of costs .

. . against any party, as it may consider equitable.” Therefore, we amend the

judgment, ordering the expert witness fees in the amount of $353,297.34 to be

36

assessed against the State. The trial court’s judgment regarding miscellaneous costs

is also amended, ordering those costs in the amount of $89,067.45 to be assessed

against the State.

The State also takes issue with the damages awarded by the trial court. The

State first contends that the trial court awarded damages to persons not in the

litigation. However, in Written Reasons dated May 16, 2016, the trial court set an

amount of money which the State was to deposit into the registry of the court. The

trial court went on to state that “[a]ny funds remaining after the plaintiff class

members have properly submitted proof of claims.” We find no merit to the State’s

contention.

Next, the State argues that the trial court should have set the boundary of the

river bed in order to determine the size of the property taken. The State also contends

that the trial court erred in using the 2014 value of the land instead of the 2006 value,

which is the date this case was filed. At trial, Mr. Michael Mayeaux was qualified

as an expert in the field of land surveying. He testified that there are approximately

22,813.84 acres in the Catahoula Basin below the GLO meander line, which

comprised the total acreage of riparian lands owned by the Lake Plaintiffs. His

testimony further established that there are approximately 7,580 acres of land in the

Catahoula Basin below an elevation of 35 feet mean sea level. This figure constitutes

the total acreage included in the overflow lands owned by the Swamp Plaintiffs. The

State did not challenge Mr. Mayeux’s testimony, and his opinion was

uncontroverted.

Mr. Michael Copes was also qualified as an expert in the field of real estate

appraisals. Mr. Copes determined that the appropriate value for the servitude of

drain to be $1,260 per acre. As stated in the trial court’s Written Reasons, Mr. Copes

37

testified that he chose to value the property rights as of 2014 “because there would

be no material difference between using the 2006 values being paid in the area for

Wetland Resources Program servitudes and adjusting those for inflation between

2006 and 2014, as opposed to simply using the 2014 values for the same servitudes

and making no adjustment for inflation.” We find no abuse of discretion in the

court’s determination of an award of damages.

DECREE

For the foregoing reasons, the judgment of the trial court is affirmed in part,

vacated in part, and rendered. The trial court’s judgment awarding attorney’s fees,

costs, and fees under La.R.S. 13:5111 is vacated. It is hereby ordered that an award

of attorney’s fees in the amount of $22,075,843.80 be assessed against the common

fund, pursuant to La.Code Civ.P. art. 595. It is hereby ordered that an award of

expert witness fees in the amount of $353,297.34 be rendered against the State. It is

hereby ordered that an award of miscellaneous costs in the amount of $89,067.45 be

rendered against the State. It is hereby ordered that a provisional amount for the

administration of the claims process post-trial in the amount of $168,000.00 be

assessed against the common fund, pursuant to La.Code Civ.P. art. 595. It is hereby

ordered that Steve Crooks receive an incentive award as class representative in the

amount of $10,000.00, assessed against the common fund, pursuant to La.Code

Civ.P. art. 595. The trial court’s judgment is affirmed in all other respects. The

State’s exceptions of lack of subject matter jurisdiction, no right of action,

nonjoinder, and acquisitive prescription filed on appeal are Denied.

AFFIRMED IN PART; VACATED IN PART; AND RENDERED.

38

NUMBER 17-750

COURT OF APPEAL, THIRD CIRCUIT

STATE OF LOUISIANA

STEVE CROOKS AND ERA LEA CROOKS

VERSUS

STATE OF LOUISIANA, DEPARTMENT OF NATURAL RESOURCES

AMY, J., dissenting.

In my opinion, even in light of the parties’ stipulation regarding the Swamp

Plaintiffs’ ownership and if one accepts that the trial court was not manifestly

erroneous in its conclusion regarding the classification of the area known as

Catahoula Lake and the Lake Plaintiffs’ ownership, prescriptive rules dictate a

reversal in this matter. Chiefly, I find that the Plaintiffs’ claims for compensation

for inverse condemnation are barred by liberative prescription. Further, I believe

that the Lake Plaintiffs lost any claim to ownership of the land by virtue of thirty-

year acquisitive prescription.

In written reasons for judgment, the trial court provided an excerpt from a

1936 publication by the Department of Conservation, Louisiana Geological

Society, which is titled “Geology of Catahoula and Concordia Parishes,” and

quoted it as follows:

At times of high water considerable areas are inundated

by “backwater” not caused by overflow of levees. A

considerable area of southern Concordia and Catahoula

Parishes is so inundated every year. When the

Mississippi or the Red is high, water is backed up the

Black, Ouachita, Tensas, and Little Rivers, and flows

backward through bayou openings into the adjoining

lowlands. Catahoula Lake, normally dry, becomes a

lake, and thousands of acres are covered from 1 to

several feet deep. As the river stages are lowered, this

water drains through bayous back into the rivers, and

land is again available for pasturing of cattle and hogs.

Very little of this black land is cultivated, except along

the margins where late crops are sometimes harvested.

Prior to this lawsuit, the record indicates that the area known as Catahoula

Lake was treated as if it were a lake, and thus, as State-owned land. Additionally,

in Sanders v. State, Dep’t of Natural Res., 07-821, p. 1 (La.App. 3 Cir. 12/19/07),

973 So.2d 879, 879, writ denied, 08-0438 (La. 4/18/08), 978 So.2d 352, a

landowner “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.” In

its discussion, a panel of this court stated: “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. . . . [T]he proper determination of the State’s ownership is the ordinary high

water mark.” Id. at 882. Nonetheless, as mentioned above, even if one now

accepts that the trial court was not manifestly erroneous in its conclusion regarding

the classification of the area known as Catahoula Lake and the Lake Plaintiffs’

ownership of the land, prescriptive rules require a reversal in this matter.

Initially, I find that La.R.S. 13:5111 bars the Plaintiffs’ claims for

compensation. Here, the Plaintiffs seek compensation for the increased water on

their property that has resulted from the project. As this court explained in

Hawthorne v. La. Dep’t of Pub. Works, 540 So.2d 1261, 1262 (La.App. 3 Cir.),

writ denied, 544 So.2d 406 (La.1989), “[t]he taking of property, by flooding or

otherwise, without proper exercise of eminent domain, . . . is considered an

appropriation.” See also Cooper v. La. Dep’t of Pub. Works, 540 So.2d 1265

(La.App. 3 Cir. 1989) (hereinafter “Cooper I”). Concerning appropriations,

La.R.S. 13:5111 provides, in pertinent part: “Actions for compensation for

property taken by the state, a parish, municipality, or other political subdivision or

any one of their respective agencies shall prescribe three years from the date of

such taking.” Under La.R.S. 13:5111, prescription begins to run when the claimant

is aware of those facts which give rise to a cause of action. Hawthorne, 540 So.2d

1261. Based on the record in this case, the Plaintiffs or their ancestors in title were

2

aware or should have been aware of the increased inundation of their lands no later

than 1973 when the water level failed to seasonally subside as it had done in the

past. I note that La.R.S. 13:5111 was not passed until 1975. See 1975 La. Acts

No. 434, § 1. Regardless, because the Plaintiffs did not file their petition until May

4, 2006, which was more than thirty years after the passage of La.R.S. 13:5111,

their claims for compensation had prescribed by the time they filed their petition.

See Hawthorne, 540 So.2d 1261 (holding that the landowner’s claim for

compensation for a taking that occurred in 1972 was prescribed under La.R.S.

13:5111 because the landowner did not file suit until 1981). See also Cooper I,

540 So.2d 1265.

In asserting that their claims for compensation are not barred by liberative

prescription, particularly La.R.S. 13:5111, the Plaintiffs base their argument, in

part, upon the case of Cooper v. La. Dep’t of Pub. Works, 03-1074 (La.App. 3 Cir.

3/3/04), 870 So.2d 315 (hereinafter “Cooper II”). In that case, landowners filed

suit against the Louisiana Department of Public Works seeking compensation for

the permanent flooding of portions of their land resulting from the same project at

issue in the case at hand. The court characterized the landowners’ claims as being

based upon “the permanent flooding of portions of their lands which the

impingement of their servitude of drainage caused” and determined that “any

interference with a servitude is a violation of [Louisiana Civil Code] Article 667

which gives rise to a delictual action that prescribes in one year.” Id. at 321, 322.

Though the parties stipulated that the landowners were aware of the inundation

beginning in 1972 and suit was not filed until 1994, the panel concluded that the

landowners’ claims had not prescribed according to the continuing tort doctrine,

stating:

[I]f the operating cause of injury is tortious and continually gives rise

to successive damages, prescription begins to run from the cessation

of the particular wrongful conduct causing the damage. “A continuing

3

tort is occasioned by unlawful acts, not the continuation of the ill

effects of an original, wrongful act.”

In this matter, because each instance of damage (each

interference with the servitudes of drainage) constitutes a tort under

Article 667 and given Plaintiffs’ belief that, both, the damage and

interference are continuous, Plaintiffs assert that each of these torts

qualifies as a continuing tort. We agree.

....

[P]rescription will not run in this case until the flooding of Plaintiffs’

lands is abated. Therefore, we find, through application of the

continuing tort theory, that prescription has not, yet, begun to run on

their claims for compensation.

Id. at 322-23 (footnotes omitted). The court further reasoned that La.R.S. 13:5111

was inapplicable because the United States, not the State of Louisiana, had

appropriated the landowners’ property.

Although I recognize that the case concerns similar claims and the same

project at issue herein, I find the analysis in Cooper II, 870 So.2d 315, ultimately

unhelpful in the present matter. In my opinion, the Cooper II majority erred in

applying tort doctrine to an appropriation claim and in finding that the United

States, not the State, was the entity responsible for appropriating the landowners’

property. In applying the continuing tort doctrine, the Cooper II majority broke

from longstanding precedent in which this court has held that “[t]he taking of

property, by flooding or otherwise, without proper exercise of eminent domain, is

not a tort but is considered an appropriation.” Hawthorne, 540 So.2d at 1262

(emphasis added) (citing Bernard v. State, Dep’t of Pub. Works, 127 So.2d 774

(La.App. 3 Cir. 1961); Boothe v. Dep’t of Pub. Works, 370 So.2d 1282 (La.App. 3

Cir.), writ denied, 374 So.2d 661 (La.1979)). See also Cooper I, 540 So.2d 1265.

I also note that in Hawthorne, 540 So.2d 1261, and in Cooper I, 540 So.2d 1265,

the claims for compensation, which a panel of this court concluded had prescribed

under La.R.S. 13:5111, were based on the same project at issue in Cooper II and in

the present case.

4

Further, I disagree with the reasoning in Cooper II, 870 So.2d 315, that, if an

appropriation occurred, the United States, not the State, is the entity responsible for

the appropriation of the Plaintiffs’ land. For example, in Succession of Rovira v.

Bd. of Comm’rs of Port of New Orleans, 418 So.2d 1382 (La.App. 4 Cir.), writ

denied, 423 So.2d 1147 (La.1982), the State agreed to furnish, free of cost to the

United States, all lands, easements, rights-of-way, and spoil disposal areas for the

construction of the Mississippi River Gulf Outlet (MRGO) and delegated this task

to a local entity, the Dock Board. A portion of the plaintiffs’ private property was

occupied and used for the channel of the MRGO, but there had been neither

expropriation proceedings nor compensation paid to the plaintiffs. Id. The

plaintiffs sued the Dock Board, and, in concluding that the United States was not

an indispensable party, the fourth circuit stated, in pertinent part:

It is clear from the documents ordering and empowering the

Dock Board to acquire the rights-of-way that the Dock Board is the

public body that was the “taker” of the land used in construction. The

instant suit is a claim for compensation for the lands taken. The

dispute is between plaintiffs and the Dock Board as “taker”. It is of

no moment that the United States, as ultimate recipient of the lands

taken, constructed the waterway and now operates it. It is the Dock

Board, not the United States, that must respond to the claim asserted

by plaintiffs.

....

In our case, plaintiffs’ claim is not for property damage

occasioned by construction, but for compensation for the “taking” of

the property.

Id. at 1386-87. Likewise, in this case, if one acknowledges the parties’ stipulation

regarding the Swamp Plaintiffs’ ownership and accepts that the trial court was not

manifestly erroneous in its conclusion concerning the Lake Plaintiffs’ ownership,

then the Plaintiffs’ property was taken without expropriation proceedings or

compensation paid to them. As the case is framed, the Plaintiffs seek

compensation for the taking of their property, not for damage occasioned by

5

construction of the project, so the dispute is between the Plaintiffs and the State as

the “taker” of the land used for the project.

Thus, I conclude that the Plaintiffs’ claims for compensation in this case

should be governed by the prescriptive period in La.R.S. 13:5111 and properly

resolved by reference to Hawthorne, 540 So.2d 1261; Cooper I, 540 So.2d 1265;

and Succession of Rovira, 418 So.2d 1382. In my opinion, the analysis in Cooper

II, 870 So.2d 315, should not be further applied by this court. I find that

application of the continuing tort doctrine in this situation, as opposed to La.R.S.

13:5111, contravenes the rule that “is well settled under Louisiana law that when

conflicting statutes are applicable, the one more specifically directed to the matter

applies.” Avenal v. State, 03-3521, p. 33 (La. 10/19/04), 886 So.2d 1085, 1108

n.29 (citing Estate of Patout v. City of New Iberia, 98-0961 (La. 7/7/99), 738 So.2d

544), cert. denied, 544 U.S. 1049, 125 S.Ct. 2305 (5/23/05).

Having concluded in my analysis that the Plaintiffs’ claims for

compensation have prescribed according to La.R.S. 13:5111, the issue of the Lake

Plaintiffs’ ownership of the area known as Catahoula Lake remains. On appeal,

the State filed an exception of prescription, asserting ownership by thirty-year

acquisitive prescription. The Lake Plaintiffs rely on La.Const. art. 1, § 4(B), and

La.Const. art. 6, § 23 and cases interpreting it, in opposition.

I first address the Lake Plaintiffs’ argument regarding La.Const. art. 6, § 23.

Louisiana Constitution Article 6, § 23, which is titled “Acquisition of Property,”

provides: “Subject to and not inconsistent with this constitution and subject to

restrictions provided by general law, political subdivisions may acquire property

for any public purpose by purchase, donation, expropriation, exchange, or

otherwise.” (Emphasis added). As emphasized, I note that the plain language of

the article indicates that it applies to political subdivisions of the State, not the

State itself.

6

Further, in interpreting La.Const. art. 6, § 23, the supreme court has stated:

First, construing Section 23’s “or otherwise” language as

granting political subdivisions the authority to acquire property

through acquisitive prescription would render La. Const. Art. VI, Sect.

24 superfluous.1 This is so because Section 23 broadly authorizes a

political subdivision to acquire “property” through the enumerated

means, “or otherwise.” The jurisprudence of this state has long

recognized the term “property” includes recognized dismemberments

of ownership rights in a thing as well as full ownership of the thing.

See, Columbia Gulf Transmission Co. v. Hoyt, 252 La. 921, 215 So.2d

114, 120 (1968). A servitude is one of these recognized

dismemberments of ownership rights. See, Humble Pipe Line Co. v.

Wm. T. Burton Industries, Inc., 253 La. 166, 217 So.2d 188, 192

(1968) (“An easement is, however, property or an interest in land.”)

(Quoting 25 Am.Jur.2d Easements and Licenses, § 2, p. 417-18).

Thus, Section 23 authorizes a political subdivision to acquire, through

any of the listed methods, not only full ownership rights, but also

servitudes. Accepting the Parish’s contention, that Section 23’s “or

otherwise” language includes authorization for governmental

subdivisions to acquire through acquisitive prescription, we would

necessarily be led to the conclusion that Section 23 authorizes

political subdivisions to acquire servitudes through acquisitive

prescription. It is readily apparent that this was not the intent of

Section 23, however, because Section 24 is directed solely to granting

governmental subdivisions the limited authority to acquire servitudes

through acquisitive prescription. Thus, interpreting Section 23 as

granting political subdivisions the authority to acquire through

acquisitive prescription would render Section 24 nugatory, a result

incongruous with the rules of interpretation of our constitution. See,

e.g., State ex rel. Guste v. Bd. of Commissioners of the Orleans Levee

Dist., 456 So.2d 605 (La.1984).

Second, in addition to the absurd consequence which would

result from the Parish’s proposed interpretation of Article VI, Sect.

23, we further note that Section 24 is dedicated entirely to a

governmental subdivision’s authority to acquire by prescription. The

constitutional framers’ dedication of an entire section to the matter of

acquisitive prescription reflects the importance which they believed it

deserved. It would be inconsistent with the framers’ unreserved

treatment of this matter with respect to servitudes, to conclude the

framers’ simple inclusion of the omnibus words “or otherwise” in

Article VI, Sect. 23 were intended to authorize a political

subdivision’s acquisition of full ownership of immovable property

through acquisitive prescription.

Finally, Article VI, Sect. 24’s express recognition that

acquisitive prescription should run in favor of political subdivisions

with respect to servitudes reflects the constitutional framers’

consideration of the possibility of a political subdivision obtaining

1

Louisiana Constitution Article 6, § 24 provides: “The public, represented by local

governmental subdivisions, may acquire servitudes of way by prescription in the manner

prescribed by law.”

7

property through acquisitive prescription. Despite their consideration

of this possibility, the framers refrained from granting political

subdivisions this right with respect to acquisition of full ownership of

property. We can only conclude that this was a deliberate omission on

the part of the framers.

....

Based on the foregoing, we believe it would be incorrect to

conclude the constitutional framers, by the inclusion of the words “or

otherwise” in Article VI, Sect. 23, intended to allow political

subdivisions to acquire full ownership of property through acquisitive

prescription.

Parish of Jefferson v. Bonnabel Props., Inc., 620 So.2d 1168, 1170-71 (La.1993)

(footnote omitted). See also Roy v. Belt, 03-1022 (La.App. 3 Cir. 2/18/04), 868

So.2d 209, writ denied, 04-1149 (La. 7/2/04), 877 So.2d 147; and King’s Farm,

Inc. v. Concordia Parish Police Jury, 97-1056 (La.App. 3 Cir. 3/6/98), 709 So.2d

953, writ denied, 98-1450 (La. 9/18/98), 724 So.2d 748. Though these cases do

not provide an express legislative or constitutional pronouncement regarding a

political subdivision’s ability or inability to acquire land by acquisitive

prescription, the Lake Plaintiffs have correctly pointed out that the courts have held

that political subdivisions cannot acquire land in that manner under the “or

otherwise” language of La.Const. art. 6, § 23.

However, even though, in the above referenced cases, courts have held that

political subdivisions of the State cannot acquire land by acquisitive prescription

under La.Const. art. 6, § 23, in my opinion the question remains whether the State

itself may acquire property by acquisitive prescription. In Lincoln Parish Sch. Bd.

v. Ruston Coll., 162 So.2d 419, 426 (La.App. 2 Cir.), writ denied, 246 La. 355, 164

So.2d 354 (La.1964), the second circuit explained:

The words ‘mere possessor,’ as embodied in LSA-C.C. Art. 3458,[2]

embrace the State and include all natural and artificial persons, such as

2

Prior to an amendment (see 1982 La. Acts No. 187, § 1), La.Civ.Code art. 3458

provided: “The prescription by which the ownership of property is acquired, is a right by which

a mere possessor acquires the ownership of a thing which he possesses by the continuance of his

possession during the time fixed by law.”

8

individuals, corporations, bodies, corporate, and all other legal entities.

No restriction or prohibition is directed against either. The

constitutional provision relative to prescription as applies to the State

prohibits the running of prescription against the State.

LSA-Constitution, Art. 19, s 16.[3] There is no prohibition in

the organic law prohibiting the running of prescription in favor of the

State or in favor of political corporations.

If public bodies or political corporations were prohibited from

acquiring by prescription, such defects as may exist in a title to

property acquired by purchase or donation could never be cured by

possession of any nature, extent, and duration whatsoever. Such a

conclusion would be contrary to sound reason and logic . . .

As heretofore observed, prescription cannot run against the

State. Nevertheless, in the absence of any express provision in the

Constitution and Statutes authorizing the State to avail itself of the

benefits of prescription acquirendi causa, it has been firmly

recognized that such prescription does run in favor of the State. In

Housing Authority of New Orleans v. Banks, 224 La. 172, 69 So.2d 5,

8, the court stated:

‘The self evident truth is that the sovereign can prescribe

against, but prescription cannot run against the State.

Article XIX, s 16, La.Const. of 1921.’

A similar terse statement is made in Ward et al. v. South Coast

Corporation et al., 198 La. 433, 3 So.2d 689, 692:

‘Prescription runs in favor of the state. Quaker Realty

Co., Ltd., v. Purcell, 134 La. 1022, 64 So. 894; Norgress

v. E. B. & S. P. Schwing, 128 La. 1040, 1043, 55 So.

667.’

While the cases quoted relate to tax sales and proceedings, no

distinction is observed in the principle of acquiring by prescription.

Lincoln Parish Sch. Bd., 162 So.2d 419, was decided based on the Louisiana

Constitution of 1921. At the time the case was decided, La.Const. art. 1, § 2

(1921) provided: “No person shall be deprived of life, liberty or property, except

by due process of law. Except as otherwise provided in this Constitution, private

property shall not be taken or damaged except for public purposes and after just

and adequate compensation is paid.” Here, the Lake Plaintiffs have alleged that

3

Louisiana Constitution of 1921 Article 19, § 16 provided: “Prescription shall not run

against the State in any civil matter, unless otherwise provided in this Constitution or expressly

by law.” An identical provision is found in the Louisiana Constitution of 1974. See La.Const.

art. 12, § 13.

9

the State is prohibited by the Louisiana Constitution of 1974 from acquiring

private property through acquisitive prescription, specifically La.Const. art. 1, § 4,

which provides, in pertinent part:

(A) Every person has the right to acquire, own, control, use,

enjoy, protect, and dispose of private property. This right is subject to

reasonable statutory restrictions and the reasonable exercise of the

police power.

(B)(1) Property shall not be taken or damaged by the state or its

political subdivisions except for public purposes and with just

compensation paid to the owner or into court for his benefit. Except as

specifically authorized by Article VI, Section 21 of this Constitution

property shall not be taken or damaged by the state or its political

subdivisions: (a) for predominant use by any private person or entity;

or (b) for transfer of ownership to any private person or entity.

In my view, the language of La.Const. art. 1, § 4 (“Property shall not be

taken or damaged by the state or its political subdivisions except for public

purposes and with just compensation paid to the owner or into court for his

benefit.”) is substantially similar to that of La.Const. art. 1, §2 (1921) (“Except as

otherwise provided in this Constitution, private property shall not be taken or

damaged except for public purposes and after just and adequate compensation is

paid.”). Although Lincoln Parish Sch. Bd., 162 So.2d 419, was decided under

La.Const. art. 1, §2 (1921), the reasoning of that case seems applicable to

La.Const. art. 1, § 4. In fact, after the enactment of the Louisiana Constitution of

1974, the supreme court cited with approval to Lincoln Parish Sch. Bd. when

observing “that unlike a private litigant, the state may derive title or ownership not

simply by acquisition from a previous owner and/or by prescription but, as well, in

other ways, not the least of which is the ownership of lands at the state’s

inception.” Todd v. State, Dep’t of Natural Res., 456 So.2d 1340, 1352 (La.1983)

(emphasis added) (footnote omitted), amended by 474 So.2d 430 (La.1985).

Louisiana Civil Code Article 1 provides: “The sources of law are legislation

and custom.” In my opinion, legislation and custom favor the State being able to

10

acquire property by acquisitive prescription. I note that acquisitive prescription is

the general rule of law, and the Lake Plaintiffs have not pointed to an express

provision in the Louisiana Constitution, statutes, or caselaw excepting the State

from the ability to derive ownership by acquisitive prescription. Though La.Const.

art. 1, § 4(A) provides “[e]very person has the right to acquire, own, control, use,

enjoy, protect, and dispose of private property[,]” the article also states that “[t]his

right is subject to reasonable statutory restrictions[,]” and I believe that the general

rule of law of acquisitive prescription is such a restriction. Moreover, I note that

the laws of the State provide safeguards to protect an individual’s right to property.

As discussed above, La.R.S. 13:5111 provides a three year prescriptive period for a

landowner to bring a claim for compensation for the taking of property by the

State. Additionally, a landowner can bring an action to assert ownership for a

period of thirty years before the State can obtain ownership of the property by

virtue of acquisitive prescription.

I also find the State has proven the elements of thirty-year acquisitive

prescription concerning the area known as Catahoula Lake. According to

La.Civ.Code art. 3446, “[a]cquisitive prescription is a mode of acquiring

ownership or other real rights by possession for a period of time.” In order “[t]o

acquire possession, one must intend to possess as owner and must take corporeal

possession of the thing.” La.Civ.Code art. 3424. Louisiana Civil Code Article

3486 states that “[o]wnership and other real rights in immovables may be acquired

by the prescription of thirty years without the need of just title or possession in

good faith.” The party pleading acquisitive prescription bears the burden of

proving the facts that are essential to support it by a preponderance of the evidence.

Delacroix Corp. v. Perez, 98-2447 (La.App. 4 Cir. 11/8/00), 794 So.2d 862, writ

denied, 00-3245 (La. 1/26/01), 782 So.2d 635; Crowell Land & Mineral Corp. v.

Funderburk, 96-1123 (La.App. 3 Cir. 3/5/97), 692 So.2d 535. In particular, the

11

party must plead acquisitive prescription concerning a thing that is susceptible of

acquisition by prescription. See Chauvin v. Shell Oil Co., 16-609 (La.App. 5 Cir.

10/25/17), 231 So.3d 903, writ denied, 17-1985 (La. 1/29/18), 233 So.3d 607. The

party must also prove “continuous, uninterrupted, peaceable, public, and

unequivocal” corporeal possession for thirty years. La.Civ.Code art. 3476. See

also Mistric v. Kurtz, 610 So.2d 226 (La.App. 3 Cir. 1992), writ denied, 612 So.2d

102 (La.1993). I consider each of the requirements in turn.

According to La.Civ.Code art. 456, “[t]he banks of navigable rivers or

streams are private things that are subject to public use.” Further, La.Civ.Code art.

3485 provides that “[a]ll private things are susceptible of prescription unless

prescription is excluded by legislation.” Thus, if one accepts that the trial court

was not manifestly erroneous in its conclusion that the area known as Catahoula

Lake constitutes the river banks of Little River, La.Civ.Code arts. 456 and 3485

indicate that the area known as Catahoula Lake is a private thing susceptible of

prescription. Moreover, the Lake Plaintiffs have not cited legislation that excludes

the area known as Catahoula Lake from prescription. Therefore, accepting the trial

court’s factual findings and that framing of the applicable codal law, the area

known as Catahoula Lake is a private thing susceptible of acquisition by

prescription.

For purposes of determining acquisitive prescription, possession can be

established by precarious possession, which is “[t]he exercise of possession over a

thing with the permission of or on behalf of the owner or possessor[.]”

La.Civ.Code art. 3437. See also Chauvin, 231 So.3d 903. For example, in

Chauvin, the fifth circuit concluded that Shell Oil’s possession of the property in

question had been exercised by the precarious possession of entities to whom Shell

Oil had granted servitudes over the property for a period of more than thirty years.

Similarly, in the present case, the State granted permission to the United States

12

Fish and Wildlife Service to manage the water levels in the area known as

Catahoula Lake in the Catahoula Lake Water Level Management Agreement. The

record indicates that the United States Fish and Wildlife Service began seasonally

inundating and dewatering the area in 1972 according to the guidelines in the

Water Level Management Agreement and continues to do so to the present day.

Thus, the State’s possession of the property has been exercised in this manner

through the precarious possession of the United States Fish and Wildlife Service

since 1972. As of the date the Lake Plaintiffs filed their lawsuit, May 4, 2006, the

State had certainly been in possession of the property for more than thirty years.

Regarding whether possession is continuous or discontinuous, La.Civ.Code

art. 3436 provides that possession is “discontinuous when it is not exercised at

regular intervals[.]” The record indicates that possession has been continuous in

this case because, as discussed above, each year since 1972, the United States Fish

and Wildlife Service has managed the water levels of the area known as Catahoula

Lake based on the Water Level Management Agreement. Concerning whether

possession has been uninterrupted or interrupted, the supreme court explained in

Liner v. La. Land & Exploration Co., 319 So.2d 766, 780 (La.1975), that

“[p]ossession is interrupted when possession is lost.” Louisiana Civil Code Article

3433 further explains that “[p]ossession is lost when the possessor manifests his

intention to abandon it or when he is evicted by another by force or usurpation.”

Here, the record indicates that the State’s possession has been uninterrupted as

there is no evidence indicating that the State manifested an intention to abandon

the area or that the State was evicted from the area during the thirty-year period

beginning in 1972.

Further, the record indicates that the State’s possession has been peaceable,

there is no evidence to suggest otherwise, and the State’s possession has also been

public having been made conspicuous with the presence of more water on the lands

13

in question for longer periods of time. See La.Civ.Code art. 3436. Concerning

whether possession is unequivocal or equivocal, La.Civ.Code art. 3436 states that

possession is “equivocal when there is ambiguity as to the intent of the possessor

to own the thing.” Here, the clarity of the State’s intent to own the property is

evidenced by the State granting access to the United States to raise and lower the

level of State-owned waters over the property, as well as by granting mineral

leases and exercising jurisdiction of the Louisiana Department of Wildlife and

Fisheries over the subject property.

Louisiana Civil Code Article 3425 guides the determination of whether the

State’s possession has been corporeal by defining corporeal possession as “the

exercise of physical acts of use, detention, or enjoyment over a thing.” The

corporeal possession must include such external signs of possession as to indicate

that the possessor holds control and dominion over the property. Downs v.

McNeal, 193 So.2d 843 (La.App. 3 Cir. 1967). According to Liner, 319 So.2d 766,

the degree of corporeal possession required in a particular case depends upon the

nature of the land and the use to which it is put; thus, whether activities constitute

corporeal possession is a question of fact governed by the circumstances of the

case. The jurisprudence further holds that when a party claims by corporeal

possession alone and without title, he must show an adverse possession within

enclosures. Norton v. Addie, 337 So.2d 432 (La.1976). In Chevron U.S.A. Inc. v.

Landry, 558 So.2d 242, 244 (La.1990) (quoting Hill v. Richey, 221 La. 402, 421,

59 So.2d 434, 440 (1952)), the supreme court explained the meaning of enclosures

as follows:

“What the court means by ‘enclosures’, as that term is

used in the numerous cases found in the jurisprudence, is

that the land actually, physically, and corporeally

possessed by one as owner must be established with

certainty, whether by natural or by artificial marks; that

is, that they must be sufficient to give definite notice to

the public and all the world of the character and extent of

14

the possession, to identify fully the property possessed,

and to fix with certainty the boundaries or limits

thereof....”

See also Ricko Constr., Inc. v. Dubois, 10-1062 (La.App. 3 Cir. 2/9/11), 57 So.3d

564.

Turning again to the facts of the case, the record indicates that the disputed

property is within a tract of wetland. Based on the nature of the property involved,

the inundation and dewatering of the area known as Catahoula Lake is sufficient to

constitute corporeal possession over the property. See La.Civ.Code art. 3425. See,

e.g., O’Brien v. Alcus Lands P’ship Trust, 577 So.2d 1094 (La.App. 1 Cir. 1991).

Regarding whether the State’s possession has been within enclosures, the record

indicates that the project and the water management activities hold water on the

subject property between the ordinary low stage of Little River up to the thirty-six

(36) feet mean sea level contour. Thus, the State has satisfied the requirement of

establishing corporeal possession within enclosures up to and including the thirty-

six feet (36) mean sea level contour. See Ricko Constr., Inc., 57 So.3d 564.

Accordingly, the State has established the requirements of acquiring property by

thirty-year acquisitive prescription.

In sum, I conclude that the Plaintiffs’ claims for compensation for the

appropriation of their property have prescribed under La.R.S. 13:5111. Further, in

my opinion, the State has demonstrated ownership of the area known as Catahoula

Lake by virtue of thirty-year acquisitive prescription. I find that the record

warrants reversing the judgment of the trial court; sustaining the State’s exceptions

of liberative and acquisitive prescription; dismissing the Plaintiffs’ demands for

compensation and related relief, as well as dismissing the Lake Plaintiffs’ demands

for recognition of ownership; rendering judgment on the State’s reconventional

demand by recognizing the State’s ownership of the area known as Catahoula

Lake; and remanding with instructions to set the boundary between the Lake

15

Plaintiffs’ land and the State’s land at the thirty-six (36) feet mean sea level

contour. For these reasons, I respectfully dissent.

16