The opinion
REVISED
United States Court of Appeals,
Fifth Circuit.
No. 95-31057.
BAYOU FLEET PARTNERSHIP, Plaintiff-Appellant/Cross-Appellee,
v.
DRAVO BASIC MATERIALS COMPANY INCORPORATED, Defendant-
Appellee/Cross-Appellant,
Dravo Corporation, Defendant-Appellee/Cross-Appellant.
DRAVO BASIC MATERIALS COMPANY, INC., Plaintiff-Appellee/Cross-
Appellant,
v.
BAYOU FLEET, INCORPORATED, Defendant,
and/or
Bayou Fleet Partnership, Defendant-Appellant/Cross-Appellee.
March 5, 1997.
Appeal from the United States District Court for the Eastern
District of Louisiana.
Before POLITZ, Chief Judge, and EMILIO M. GARZA and STEWART,
Circuit Judges.
POLITZ, Chief Judge:
Bayou Fleet Partnership, plaintiff, and Dravo Basic Materials
Company, Inc. and Dravo Corporation, defendants, both appeal a
judgment against Dravo Basic for $25,000 in damages caused by
Dravo's unauthorized removal of limestone working bases from Bayou
Fleet's property. We conclude that under controlling provisions of
the Louisiana Civil Code the limestone working bases were a
component part of the immovable property belonging to Bayou Fleet.
1
For the reasons assigned, we reverse and render judgment in favor
of Bayou Fleet.
Background
From 1989 to 1993, pursuant to an oral lease, Dravo operated
an aggregate yard in Hahnville, Louisiana on a tract of Mississippi
River batture property owned by Neal Clulee. Dravo established the
aggregate yard to store, stockpile, and sell limestone extracted
from quarries in Illinois and Kentucky and transported down the
Mississippi River to the yard.
Dravo established three stockpiles of limestone on the Clulee
property, each of which was placed on a foundation made from
hardened limestone commonly called a "working base." The working
bases were formed by putting a fabric liner on the batture and
placing large quantities of loose, saleable, limestone thereon
until the weight compressed the batture and the limestone became
compacted. Once formed, tons of loose limestone could be stored on
the working bases.
On August 13, 1992, the Sheriff of St. Charles Parish seized
the Clulee property and on January 27, 1993 sold it at a sheriff's
sale. Bayou Fleet1 acquired ownership and intended to continue to
lease to Dravo or some other aggregate yard operator. Bayou Fleet
and Dravo could not reach a lease agreement and Dravo determined to
vacate the premises but did not do so until the weekend of March 6-
1
Louisiana Materials Co., Inc. actually purchased the property
at the sheriff's sale, but under a prior agreement with Bayou Fleet
it promptly transferred the property.
2
8, 1993.2
On March 6, 1993 Dravo began to remove the limestone from the
property, utilizing a Cat 225 Excavator, a backhoe, a bulldozer,
front end loaders, and dump trucks. Over the weekend Dravo removed
all of the loose stockpiles of limestone as well as the three
working bases. In all, Dravo removed approximately 26,000 tons of
limestone.3 On March 9, 1993 Bayou Fleet learned that Dravo had
removed the stockpiles and the working bases.4
Dravo filed a declaratory judgment action in state court
seeking to be declared the owner of the limestone removed from the
property. Bayou Fleet then filed this action for damages and
removed Dravo's state court action to federal court. The two
actions were consolidated and tried to the bench. The district
court found that Dravo was entitled to remove a majority of the
limestone in the working bases. Dravo was held liable, however,
for the excavation of the portion of the working bases that had
2
The parties dispute whether Dravo had Bayou Fleet's
permission to remain on the property from the time of the sheriff's
sale until the weekend of March 6, 1993. Robin Durant, a partner
of Bayou Fleet, contacted Richard Koen, an employee of a company
controlled by Dravo, during the last week of February 1993 to ask
why Dravo had not vacated the property. In addition, Durant sent
the president of Dravo two separate faxes, dated March 2, 1993 and
March 8, 1993, requesting confirmation that all of Dravo's
materials had been removed. The faxes went unanswered.
3
There is no evidence in the record how many tons of limestone
removed by Dravo constituted loose, saleable limestone from the
stockpiles and how many tons constituted hardened, compacted
limestone from the working bases.
4
Fritz John Miller, Jr., an employee of Bayou Fleet,
discovered the damage on March 9, 1993 and reported it to Bayou
Fleet, describing the property as "look[ing] like a bomb had been
dropped [on it]."
3
become a component part of the property. The court stated that
Dravo's surreptitious removal of the limestone was "unusual and
unbusinesslike," and it held Dravo liable for $25,000 in damages
caused by its trespass on Bayou Fleet's property. Both Bayou Fleet
and Dravo timely appealed.
Analysis
The sole issue presented by this appeal is whether Dravo had
the right to remove the limestone working bases and the loose
stockpiles of limestone from Bayou Fleet's property. The
resolution of this issue turns on the classification of the
limestone as either movable or immovable under Louisiana property
law. Findings of fact are upheld unless clearly erroneous.5 The
classification of the limestone is a matter of law which we review
de novo.6
The Civil Code classifies things as either movable or
immovable.7 An immovable is defined as a tract of land with its
component parts.8 Article 463 of the Civil Code provides that
component parts of a tract of land include, among other things,
other constructions that are permanently attached to the ground.
The Civil Code does not, however, specifically define what
qualifies as an "other construction" under Article 463; that
5
James v. Hyatt Corp., 981 F.2d 810 (5th Cir.1993).
6
Equibank v. United States Internal Revenue Service, 749 F.2d
1176 (5th Cir.1985).
7
La. Civ.Code art. 448.
8
La. Civ.Code art. 462.
4
determination is left to the judiciary giving due consideration to
prevailing societal notions.9 Louisiana courts have found "other
constructions" to include a cistern, corn mill, gas tank, barbed
wire fence, outdoor advertising sign, and a railroad track.10 We
now conclude that the limestone working bases at issue herein can
and properly should be classified under Article 463 as other
constructions permanently attached to the ground.
In determining whether an object is an "other construction"
within the meaning of Article 463, Louisiana courts generally rely
on three criteria: the size of the structure, the degree of its
integration or attachment to the soil, and its permanency.11 If
there is a failure of any of these criteria, an object will not be
deemed to be an immovable.12
9
Bailey v. Kruithoff, 280 So.2d 262 (La.App.1973); Benoit v.
Acadia Fuel & Oil Distributors, Inc., 315 So.2d 842 (La.App.), writ
refused, 320 So.2d 550 (1975).
10
See Polhman v. De Bouchel, 32 La. Ann. 1158 (1880); Bigler
v. Brashear, 11 Rob. 484 (1845); Monroe Auto & Supply Co. v. Cole,
6 La.App. 337 (La.App.1927); Bailey; Industrial Outdoor Displays
v. Reuter, 162 So.2d 160 (La.App.), writ refused, 164 So.2d 352
(1964); American Creosote Co. v. Springer, 241 So.2d 510 (1970).
11
Bailey; Benoit; Telerent Leasing Corp. v. R & P Motels,
Inc., 343 So.2d 267 (La.App.1977). Although these cases were
decided prior to the 1978 revision of the Louisiana Civil Code,
they remain relevant to the determination of what qualifies as an
other construction under Article 463, a matter not addressed by the
revision. A.N. Yiannopoulous, Property, Louisiana Civil Law
Treatise, § 141, p. 311 (1991).
12
See, e.g., McNamara v. Electrode Corp., 418 So.2d 652
(La.App.), writ denied, 420 So.2d 986 (1982) (holding that anodes
that were small in size and could be removed in 15 minutes were
movable because they lacked the required size and degree of
permanency); Telerent Leasing Corp. (holding that an alarm system,
a public address system, and a background music system which were
5
The limestone working bases were massive in size. The volume
of the limestone excavated by Dravo was 26,628.98 cubic yards and
approximately 46,721.5 cubic yards of dirt would be required for
fill to restore the land to its prior condition. The working bases
were capable of supporting the weight of tons of loose limestone,
dump trucks, tractor-trailers, and other heavy equipment used in
the operation of the aggregate yard.
The limestone working bases were attached firmly to the
property. The weight of the limestone working bases compressed the
batture property and, having done so, actually formed the surface
level of the property. To remove the working bases Dravo had to
dig them out of the ground, using heavy equipment, including a Cat
225 Excavator, to break loose the compacted limestone.
Finally, the limestone working bases achieved the necessary
degree of permanency, having been placed on the Clulee property in
1989 and continuing thereon undisturbed until Dravo's action. In
its regular course of business Dravo did not remove any of the
limestone from the working bases; only loose limestone from the
stockpiles on top of the working bases was sold to customers.
We conclude that the size, degree of attachment, and
permanence of the limestone working bases, all combine to establish
beyond peradventure that the limestone working bases of the
aggregate yard were other constructions permanently attached to the
ground within the intendment of Article 463. The loose stockpiles
easily removed were all movable because they lacked the necessary
degree of permanency).
6
of limestone were not; nor do they qualify as an immovable under
any other applicable provision of the Civil Code. Although the
stockpiles were massive in size, they were neither attached to the
ground nor permanent.
The classification of the working bases as other
constructions does not, however, end our inquiry. The ownership of
the working bases must be determined by reference to Civil Code
articles concerning accession in relation to immovables.13 Other
constructions, such as the limestone working bases, may belong to
a person other than the owner of the ground to which they are
attached. They are presumed, however, to belong to the owner of
the ground unless separate ownership is evidenced properly by a
recorded document. Absent such a public recordation, an other
construction is considered to be a component part of the land and
is transferred with it.14
Dravo was the original owner of the materials composing the
working bases, but it recorded no evidence of its ownership. It
could have protected its interest in the limestone working bases by
recording its lease with Clulee.15 This was not done and Bayou
Fleet acquired the immovable property free and clear of any claim
Dravo may have had to the land or any constructions thereon.16
Ownership of the working bases transferred to the purchaser at
13
La. Civ.Code arts. 490-506.
14
See La. Civ.Code art 491; Yiannopoulos, § 141, p. 312.
15
American Creosote.
16
La. Civ.Code art. 498.
7
the sheriff's sale.17 Dravo had no right to remove the working
bases and is thus liable for their reasonable replacement cost.18
Uncontroverted expert testimony in the record establishes that it
would cost $263,222.22 to restore the property to its former
condition. We therefore REVERSE the judgment of the district court
and RENDER judgment in favor of Bayou Fleet and against Dravo Basic
Materials Company, Inc. and Dravo Corporation in that amount. We
defer to the district court on the matter of interest and return
this matter for entry of an appropriate judgment.
Appellant-cross-appellee's motion to strike cross appellants'
reply brief is DENIED. Appellee-cross-appellant's motion to file
supplemental briefs is DENIED.
17
See n. 1; Central Oil & Supply Corp. v. Wilson Oil Co., 511
So.2d 19 (La.App.1987), writ denied, 535 So.2d 747 (1989) (holding
that a purchaser at a sheriff's sale became the owner of equipment
that had become incorporated into immovable property).
18
Bailey (holding that lessee who removed a fence which had
become a component part of the land was liable to purchaser of land
for the reasonable replacement cost of the fence).
8