The opinion
On Application for Rehearing.
LAND, J.
The land in dispute is a tract situated within a bend of Red river in the parish of Red river.
The state brought a petitory action against the defendants as actual possessors of said premises, who, as alleged in the petition, had entered thereon, and drilled and operated a number of wells, from which they were daily extracting large quantities of oil.
The state in said petition based her claim of ownership on the allegation that said tract in section 24, township 13 N., range 11 E., is “the bed of Red river” and “within the banks of said stream below ordinary high-water mark.”
The state claimed to own all the oil produced and to be produced on said tract of land, and caused the same to be sequestered.
The defendant Richardson in his answer specially denied the alleged Ownership of the state, and averred that he is the true and lawful owner of lands fronting on Red river in said section, and had leased the same for development for oil and gas; said lease embracing the land actually owned by said Richardson, but not including any land owned by the state.
The bend of Red river in which the land in dispute is situated is now called Gusher Bend, but was formerly known as Stallings’ Bend.
Judge J. C. Pugh, prominent lawyer and planter, testified that practically all of Gusher Bend is in cultivation, except a slough, such as is common in alluvial territory.
E. T. Robinson, planter, testified that he had been familiar with Stallings’ Bend, now Gusher Bend, all his life; that at the date of the trial there were some 40 or 50 oil derricks in operation on the land, and a number of roads used for the purpose of hauling materials, machinery, and pipes; that a portion of the land was in cultivation, another portion had been used as a pasture, and there was nothing to prevent the cultivation of the whole, except a few depressions “common on the river.”
The same witness testified that the Gusher Bend land was no lower than his own plantation situated on the opposite side of- the river.
J. O. Marston, planter, who had known the Gusher Bend for about 25 years, testified to the same effect, and that 90 per cent, of the land in that bend could be cultivated, and that sloughs could be prepared for cultivation by filling in and ploughing out and draining.
The district judge, after stating in his opinion the contention of the state as to the slough referred to by the said witnesses, proceeds as follows:
“Only a few parts of this low ground lie below ordinary high waters, and they are not inundated until the river passes beyond the ordinary high-water mark.”
The judge then cites Civil Code, art. 457, reading:
“The banks of a river or stream are understood to be that which contains it in its ordinary state of high water, for the nature of the banks do not change, although for some cause they may be overflowed for a time.”
The judge, after referring to a certain map filed in evidence, showing the present river, and the river as per United States survey of 1830, states that the map “makes it plain that only a small part of the property claimed by the state in this case was ever the bed of the river as it formerly existed,” *353 and the low parts of the “bay” as indicated by pictures of the different wells were original ground as shown by the locations of these wells on said map.
The judge further states that these facts would be sufficient to nonsuit the state, but proceeded to consider the case upon the conflicting levels of elevation reported by different engineers, and, finally, rendered judg ment rejecting the demands of the state, with costs, and recognizing defendant’s ownership of certain described lands in S. % of section 24, township 13 N., range 11 W., Red river parish, lying above 145.24 Cairo datum, on the river front of secretion bank, this including all lfBfHs lying between said contour line and the old original bank.
The state does not contest the ownership of Richardson in section 24, except in so far as such property is not susceptible of private ownership.
The state in her brief claims the ownership of the bed of Red river in Red river parish below ordinary high-water mark, and particularly the land within the banks of Red river below ordinary high-water mark in said section 24.
The land in controversy is between the present banks of Red river, and in 1830 only small portions of the same constituted a part of said stream.
It is obvious that the present bed of Red river cannot be extended by any kind of construction, legal or otherwise, beyond the banks which contain the stream. C. C. art. 457.
After a careful review of the law and jurisprudence applicable to this case, this court, in the opinion handed down by the Chief Justice, reached the conclusion that the doctrine that all lands between the banks of a river below mean high-water mark constitute its bed cannot be reconciled with the positive provisions of the Civil Code, vesting the ownership of river banks in those who 'Possess the adjacent lands, and also vesting in such riparian proprietors the bed of streams, when sufficiently elevated by successive accretions to form batture susceptible of private use.
It is well settled that the definitions of our Civil Code are controlled by the clear intent of the positive enactments. Ellis v. Prevost, 13 La. 237 ; Egerton v. Municipality No. 3, 1 La. Ann. 435 .
The conclusion thus reached, and which we see no good reason to change, disposes of this case as presented in the petition of the state.
The belated contention of the state, that she is entitled to the bed .of the slough, because it formed a part of the bed of the river in 1830, is not presented by the pleadings, except indirectly as a part of the general claim of ownership.
But where a river or stream changes, its course, and opens a new bed, the owners of the soil newly occupied take the former bed of the river. Civil Code, art. 518.
Rehearing refused.