Petition — Vaughn v. Vermilion Corp.
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l Supreme Court, U. & ~
FILED
' JUN 28 j978
IN THE |
| miciaer RODAK, JR., CLERK
Supreme Court of the United States
OCTOBER TERM, 1978
No.
77-1819
NORMAN VAUGHN, FREDDIE BROUSSARD
AND LARRY J. BROUSSARD,
Petitioners.
VERSUS
VERMILION CORPORATION,
Respondent.
PETITION FOR WRIT OF CERTIORARI
TO THE SUPREME COURT OF LOUISIANA
Petition by Norman Vaughn, Freddie Rroussard
and Larry J. Broussard
JOHN K. HILL, JR.
MOUTON, ROY, CARMOUCHE,
BIVINS & HILL
P.O. Drawer Z
Lafayette, Louisiana 70502
(318) 233-7430
COUNSEL FOR PETITIONERS
IN OE
I. Reports, Opinions and Judgments of the
REEL EA
Il. Grounds for Invocation of Jurisdiction ......
III. Questions Presented for Review ......... Je
IV. Involved Provisions of Law................
ES
A. Claims, Defenses and Proceedings.......
8. Facts Material to the Consideration
of the Questions Presented ............
Wen PI GRRE UMe ee are t ay suad ce ase.e.
ig I eR ec kc esa essse cs
ik IEEE Sc Dinard ool bo cc htb nee cess
TABLE OF CONTENTS
Appendix:
A
A-2 - Judgment of Trial Court............
Sea e2eee ear e seco ssienars 6 ee
TABLE OF CONTENTS (Continued)
Page
A-3 - Court of Appeal Opinion .........--+--+++: A-7
A-4 - Louisiana Supreme Court Denial
4. rere rr ry se ee ee oe A-18
B (in globo) - Original Petitions of Ver-
milion Corporation in
Ne ae ara nea ee A-20
C (in globo) - Original Answers of
Vaughn, Broussard and
Broussard in State
8 RE a oe Oe eee ere ee A-35
D (in globo) - Original and Supplemen- |
tal Briefs of Appellants
and Appellee in Court
of Appeal, Third Circuit .......... A-47
E - Petitioners’ Affidavit in Opposition
to Motion for Summary Judgment .......... A-109
F - Brief of Petitioners in support of
Petition for Writ of Review to
Supreme Court of Louisiana.............-- A-111
TABLE OF AUTHORITIES
Page
Audubon Society v. White, 302 So.2d 660,
eee en er 13,18
Harmon v. Chicago, 147 U.S. 411, 15 S.Ct.
PG PT Rae OPE ac oreo Wena cc Wale ceawcnsan 13
Martin v. Waddell’s Lessee, 41 U.S. 367, 10
RO ere met er es 13
United States v. Kaiser-Aetna, 408 F.Supp.
Wee, I PUI ome obs ude esebsa-'wn)s cea 14, 16,17
United States v. Moretti, 478 F.2d 418, Sth
eS POS bolle we irae oe hk oak oo ha ok 14
United States v. Republic Steel, 362 U.S. 482,
4 L.Ed.2d 903, 80 S.Ct. 884 [1960] ................. 15
United States v. Sexton Cove Estates, 389
TC TR ND Sic vas ceed weacccaviepeny 17
United States v. Stoeco Homes, 498 F.2d
ee PS ARUN ss Cc Ak wb A a BN wa ew ee cet 14
Vermilion Corporation v. Vaughan, 356 So.2d
551, La. App., 3rd Cir., 1978, writ denied,
uk gt RT 5 APG rT Re SAVER ee ne 2
TABLE OF AUTHORITIES (Continued)
Page
Article 1, Section 8, Clause 3, Constitution of
Gio Thee GMS gs cic dss 3 44 eee ee 4,6,7,13
33 USL. GB... wc ctakeancsekaee eee 4,6, 7,15, 16
28 USL. taSF oo os instead deeeeeeeeeeee Re ey 4
Rule IX, Section 6, “Rules of the Supreme
Court of Loeiiinan” 2... <6 icéscacds 20a 4
<iv-
IN THE
SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1978
NO.
NORMAN VAUGHN, FREDDIE BROUSSARD
AND LARRY J. BROUSSARD,
Petitioners,
VERSUS
VERMILION CORPORATION,
Respondent.
PETITION FOR WRIT OF CERTIORARI
TO THE SUPREME COURT OF LOUISIANA
Petition by Norman Vaughn, Freddie Broussard
and Larry J. Broussard
Petitioners, Norman Vaughn, Freddie Broussard and Larry
Broussard, all major domiciliaries of Pecan Island, Vermilion
Parish, Louisiana, petition the Court for the issuance of a
Writ of Certiorari to the Supreme Court of Louisiana for the
following reasons:
REPORTS, OPINIONS AND JUDGMENTS OF
COURTS BELOW
This case commenced via the Respondent’s filing of the
suits styled ‘Vermilion Corporation vs. Norman Vaughn,”
“Vermilion Corporation vs. Freddie Broussard,” and “Ver-
milion Corporation vs. Larry Broussard,”” Docket Numbers
35948, 36982 and 36983, respectively, of the 15th Judicial
District Court for Vermilion Parish, Louisiana, on November 7,
1975, October 12, 1976, and October 12, 1976, respectively.
The three cases were consolidated by order of the Trial Court.
Vermilion Corporation moved for Summary Judgment in all
cases, which Motions were granted by Judge Allen Babineaux
on June 22, 1977.-4/
These Summary Judgments were appealed to the Court of
Appeal, Third Circuit, State of Louisiana, and the affirmance
by that Court of Judge Babineaux’ decisions is reported at
356 So.2d 551, La. App. 3rd Cir., 1978 (See 4/27/78 Southern
Reporter Advance Sheet). 2/ |
Petitioners applied for Writs of Review to the Supreme Court
of Louisiana to examine the affirmance by the Court of Appeal.
Denial of at the Louisiana Supreme Court is reported at
357 So.2d 558.
1! The “Minute Entry” is Exhibit A-1, and the formal judgment,
Exhibit A-2, of the Appendix.
2/ The Court of Appeal opinion is Appendix Exhibit A-3.
3/ Exhibit A-4 is the Denial of Writs.
Al
Respondent's suits against all Petitioners asked for injunc-
tions against Petitioners’ alleged “‘trespassing” A! in Respon-
dent’s navigable canals, and further asked for damages. The
Trial Court action, and its affirmance by the higher Louisiana
Courts, granted and maintained the injunction.
Respondent, a leaseholding and management arm of Exxon.
claimed that its artificial canals, which are similar to many
other such canals throughout the Louisiana wetlands, are its
private property, and that it has the absolute right to prohibit
public use thereof.
The Louisiana Courts agreed with Respondent, despite the
parties’ agreement that these canals are navigable in fact,
subject to tidal fluctuation, and have openings to the sea. The
canals were built with private funds on privately owned land.
Petitioners supplemented their incomes by shrimping in these canals.
Il.
GROUNDS FOR INVOCATION OF JURISDICTION
(A) The Supreme Court of Louisiana denied Petitioners’
Application for Writs of Review to the Court of Appeal, Third
Circuit, State of Louisiana, on March 27, 1978. The Louisiana
Supreme Court is the highest Court of that state, and its denial
of Petitioners’ application was and is a final judgment as con-
templated by 28 U.S.C. 1257. Under Louisiana Law, no applica-
tion for rehearing may be filed as to a denial of an application
for writ of review to the Louisiana Supreme Court [See Rule
IX, Section 6, “Rules of the Supreme Court of Louisiana,”
adopted August 31, 1974, effective January 1, 1974, Volume 8,
West’s Louisiana Statutes Annotated - Revised Statutes] .
(B) Jurisdiction of this Court to review that Louisiana
Supreme Court decision is conferred by 28 U.S.C. 1257 [3],
as Petitioners here claim rights and privileges under the Consti-
tution and Laws of the United States, primarily Article 1,
Section 8, Clause 3, of the Constitution, and 33 U.S.C. 403.
Il.
QUESTIONS PRESENTED FOR REVIEW
(1) If a private citizen on its privately held real property
and with its private funds creates a system of artificial navigable
waterways, in part via diversion, use and/or destruction of a
pre-existing natural navigable waterway which flowed through
that property, does the artificially developed waterway system,
which is connected to other interstate navigable waters and to
the sea, thereby become part of the “navigable waters of the
United States,” subject to a “navigation servitude” in favor of
all citizens of the United States?
(2) Are channels built on private property and with private
funds, which thereby are made to join with admitted and
pre-existing tidal and other navigable waterways, and which are
themselves navigable in fact and tidal, ‘navigable waters of the
United States,” burdened with a “navigation servitude” in favor
of the public?
IV.
INVOLVED PROVISIONS OF LAW
(1) Article 1, Section 8, Clause 3, Constitution of the
United States:
“The Congress shall have Power To regulate Com-
merce with foreign Nations, and among the several
States... .”
(2) 33 U.S.C. 403, which reads, in part, as follows:
“The creation of any obstructions not affirmatively
authorized by Congress to the navigable capacity of
any of the waters of the United States is prohi-
bited. ...”
V.
STATEMENT OF THE CASE
A. CLAIMS, DEFENSE AND PROCEEDINGS
Vermilion Corporation, Lessee from Exxon Company, U.S.A.,
of a large portion of the Louisiana wetlands in Vermilion Parish
circa the Village of Pecan Island [including lands from the Gulf
Intracoastal Waterway on the North to the Gulf of Mexico on
the South, and from West Chenier Au Tigre Canal on the East
to Rollover Bayou on the West] brought suit in the 15th
Judicial District Court for Vermilion Parish, Louisiana, against
Petitioners, Vaughn, Broussard and Broussard, alleging that
Petitioners had “‘trespassed” on the leasehold via their naviga-
tion on and shrimping in Respondent’s artificial canal system.
This canal system was built by Respondent’s predecessors in
title on the leasehold.
Petitioners answered those suits, pleading that these canals
are “navigable waters of the United States,” subject to a para-
mount right of use for and on behalf of the public. Petitioners
furthermore alleged that resnondent’s mere act of filing suit
against them for “trespass” constituted an attempt by the
Vermilion Corporation to obstruct the “navigable capacity of
the navigable waters of the United States,” all in violation of
Article 1, Section 8, Clause 3, of the Constitution of the United
States and of 33 U.S.C. 403.
Attached hereto are copies of the petitions of Vermilion
Corporation against Petitioners in all three State Trial Court
suits, shown in the Appendix as Exhibit B in globo. Also
attached are copies of the answers of all Petitioners in these
suits (Exhibit C), in which answers the federal constitutional
and statutory defenses were raised.
The case thus presented in the Trial Court a clash between
an alleged right of private dominion and control over waterways
versus a claim by Petitioners as citizens and members of the
public of a right of use of those waterways.
Vermilion Corporation filed a Motion for Summary Judg-
ment in the State Trial Court. In reasons of June 7, 1977, the
Honorable Trial Judge, Allen Babineaux, granted the Summary
Judgment, holding in effect that the canals on the leasehold are
private, privately owned, and subject to private control.
ne
- On“ June .22, 1977, the same date upon which Judge
Babineaux signed the formal judgment in favor of the Ver-
... milioi“Cprporation, petitioners obtained an order of appeal,
-- and their; appeal to the Court of Appeal, Third Circuit, State
of Louisiana, was timely perfected.
The case was briefed and argued in the Court of Appeal and
on February 6, 1978, by Judge Jerome Domengeaux, that
court rendered its decision affirming Judge Babineaux’ granting
of Respondent’s Motion for Summary Judgment in all three
cases. Copies of all briefs of all parties in the Court of Appeal
appear in the Appendix as Exhibit D in globo.
Petitioners applied directly to the Louisiana Supreme Court
for the issuance of writ of certiorari of review seeking reversal
of the judgments of the Trial Court and of the Court of Appeal,
Third Circuit. The Louisiana Supreme Court denied this applica-
tion on March 27, 1978, and this Petition for Certiorari seeks
review of that denial.
B. FACTS MATERIAL TO THE
CONSIDERATION OF THE QUESTIONS PRESENTED
The ancestors in title of the Vermilion Corporation at various
times since 1940 built with private funds on their privately
owned lands in Vermilion Parish, Louisiana, canals which
generally speaking are 60 feet in width by 8 feet in depth.
The canal system formed thereby is entirely unitary in that
no part of it is sealed or separate from any other part. Further-
more, these canals, from their beginnings on or near the South
Side of Pecan Island, Louisiana, flow southerly through the
Louisiana marshlands a few miles into the Gulf of Mexico, and
the canal system otherwise connects with Fresh Water Bayou
Canal and the Gulf Intracoastal Waterway, which are clearly
“navigable waters of the United States,” subject to a navigation
servitude.
The parties agree that this entire artificial canal system,
which is most often referred to by the residents of the area as
the “Humble Canal,” is subject to tidal fluctuation, and is
navigable in fact.
In the Trial Court, Vermilion Corporation, via its Motion
for Summay Judgment, admitted the truth of almost all of
the Petitioners’ factual allegations, which Petitioners believe
supported their claim that the Humble Canal is navigable in
fact, navigable in law, is in interstate commerce, and thus is
part of the “navigable waters of the United States”, not subject
to private dominion and control.
The only factual allegation made by Petitioners which
Vermillion Corporation disputed in the Courts below was that,
in building this artificial canal system, Respondent’s ancestors
in title had used, impaired, and finally destroyed the factual
navigability of certain natural navigable waterways which
formerly existed in the area on and across which the Humble
Canal now flows.
Specifically, at a times in this litigation, Petitioners have
alleged that the old Fresh Water Bayou, on and prior to the
time of the development of the artificial “Humble Canal,”
existed in a natural state, flowed from a point North of Pecan
Island, southerly to the Gulf of Mexico, and was a natural and
actual marine highway of commerce for the citizens of the
Pecan Island area. Indeed, it was the contention of Petitioners
in all Courts below that old Fresh Water Bayou had been used
prior to the development of the artificial ““Humble Canal” to
transport cattle, groceries, human beings and the United States
Mail to and from the Pecan Island area.
Most important, Petitioners alleged and swore to in affidavits
filed in opposition to the Motion for Summary Judgment
in the Trial Court, that those natural navigable waterways
[particular Fresh Water Bayou] became unusable as such only
when the Vermilion Corporation’s ancestors in title built their
artificial navigable waterways in the area.
In short, Petitioners claimed that natural navigable water-
ways, once used as such, were impaired and destroyed by the
artificial creations of a private corporate developer, and it is
this assertion which was and 1s in vehement dispute between
the parties.
All Courts below held in effect that, even assuming all facts
alleged by Petitioners to be true, Petitioners’ claims of rights
and privileges under the Constitution and laws of the United
States are of no moment, as the State of Louisiana views
privately developed canals on private lands to be private proper-
ty, despite their navigability, despite their connection with
other maritime highways of commerce, and despite their
possibly having destroyed via their creation a pre-existing
natural navigable waterway system.
The federal questions in this matter were raised in Articles 3.
15 and 16 of the Petitioners’ answers to the suits in the Trial
Court, and were raised factually in their affidavit filed in
opposition to the Respondent’s Motion for Summary Jud
in the Trial Court. a
; These questions were furthermore maintained and reurged
in all proceedings and courts to which this case was addressed
following the Trial Court’s decision. Copies of the Petitioners’
affidavit and of their brief in support of their Petition for a
Writ of Review to the Supreme Court of Louisiana are attached
as Exhibits E and F.
at.
VI.
ARGUMENT
QUESTION 1
IF A PRIVATE CITIZEN ON ITS PRIVATELY
HELD REAL PROPERTY AND WITH ITS PRI-
VATE FUNDS CREATES A SYSTEM OF ARTIFI-
CIAL NAVIGABLE WATERWAYS, IN PART VIA
DIVERSION, USE AND/OR DESTRUCTION OF A
PRE-EXISTING NATURAL NAVIGABLE WATER-
WAY WHICH FLOWED THROUGH THAT PROPER-
TY, DOES THE ARTIFICIALLY DEVELOPED
WATERWAY SYSTEM, WHICH IS CONNECTED
TO OTHER INTERSTATE WATERS AND TO THE
SEA, THEREBY BECOME PART OF THE “NAVI-
GABLE WATERS OF THE UNITED STATES,”
SUBJECT TO A “NAVIGATION SERVITUDE” IN
FAVOR OF ALL CITIZENS OF THE UNITED
STATES?
The Louisiana wetlands are crossed with many artificial
canals. The private developers of those canals would be shocked
if one were to suggest that these streams are “navigable waters
of the United States,” subject to a public right of navigation.
But it would also be a great shock to the members of the public
who regularly exercise that right of navigation via fishing,
shrimping, and traveling on these canals to be told that these
waters are “private property.”
The reason both groups would be so shocked is that there
simply has not been a lot of thinking by Louisianians devoted
to the resolution of this clash of interests. With some excep-
tions, they have largely co-existed — neither has bothered the
other much of the time, while both have felt virtually all of
4%
the time that either could tell the other where to get off at any
time.
Louisiana’s view of this matter is best seen in Audubon
Society v. White, 202 So.2d 660, La. App. 3rd Cir., 1974,
which stands for a proposition which Petitioners believe cannot
be countenanced under the Constitution and laws of the United
States. Audubon holds that a waterway can be “navigable,”
and presumably may be part of the “navigable waters of the
United States,” but if it was built on private properly with
private funds, is subject to private dominion and control.
Petitioners believe that there are no private “navigable waters
of the United States” in general, and that the “Humble Canal”
in particular is not subject to private control, for the following
reasons:
Article 1, Section 8, Clause 3 of the Constitution gives to
the United States jurisdiction of the surface of “navigable
waters of the United States.” Martin v. Waddell’s Lessee, 41
U.S. 367, 10 L.Ed. 997 [1842]. See also Harmon v. Chicago,
147 U.S. 411, 15 S.Ct. 306, 37 L.Ed. 216, 1893.
“Navigable waters of the United States’ are not subject to
private dominion and control, and the public has a servitude
of navigation thereon:
“The concept of ‘navigable waters’ grew out of the
‘public common of piscary,’ i.e., the right of the
common people of England to travel upon the waters
and to fish them.
“The term ‘navigability’ has many legally distinct
applications. [1] It may determine title to river and
-13-
lake beds. {2] It has been the touchstone of congres-
sional jurisdiction over waters via the Commerce
Clause. [3] It embodies the navigation servitude, a
modern declaration of the common law right of
access of waters. In addition [4] Admiralty jurisdic-
tion in federal courts flows from the general concept
of navigability.”
United States v. Kaiser-Aetna, 408
F.Supp. 42, 48-49, D.C., Hawaii 1976.
If Vaughn, Broussard and Broussard had been allowed in the
State Trial Court to proceed on the merits, they would have
defended the Vermilion Corporation’s action for trespass via,
inter alis, attempting to prove as a fact the ““navigability”’ of
Fresh Water Bayou and other natural waterways in the Pecan
Island area prior to the development of the Humble Canal
system.
In so proving, Petitoners would have shown that prior to the
development of the artificial canal system, there was a network
of natural “navigable waters of the United States” in the area,
subject to a “navigation servitude” in favor of the public, as
they would have shown that there existed bodies of water
suitable for use for transportation and commerce, which could
have been made even more suitable therefor by reasonable
improvements, which were actually used for both private and
commercial navigable purposes, which were subject to tidal
fluctuation, and which opened to and provided access to the
open sea. See the various criteria for determination of status as
“navigable waters of the United States” in United States v.
Stoeco Homes, 498 F.2d 610, 3rd Cir. 1974 and United States
v. Moretti, 478 F.2d 428, Sth Cir., 1973.
In United States v. Kaiser-Aetna, supra, it was claimed that
Kuapa Pond, prior to artificial development which enlarged it
-14-
and which opened it to the ocean, was part of the “navigable
waters of the United States,” burdened with a “navigation
servitude.” Although the particular factual and legal back-
ground of Hawaiian tidal ponds dictated a result in that case
irrelevant to the instant matter, a particular portion of the
opinion of the Hawaii District Court shows exactly why proof
in Petitioners’ case of pre-existing navigable status of Fresh
Water Bayou, et al, would have dictated ultimately a ruling
against the Vermilion Corporation and in favor of Petitioners
on the core questions of this lawsuit:
“If Kuapa Pond was navigable water of the United
States prior to its development by defendants, such
development would not have destroyed that status,
absent a specific congressiona! abandonment of the
waters, and the marina would unquestionably be
subject to the public’s right of access. See Economy
Light & Power Co. v. United States, 256 U.S. 113,
124, 41 S.Ct. 409, 65 L.Ed. 847, [1921].”
Supra, Page 49.
Furthermore, if via building of an artificial navigable water-
way system in the Pecan Island, Louisiana area the Vermilion
Corporation’s ancestors obstructed or destroyed the “navigable
capacity” of a “highway of commerce,” these oil companies
would have ipso facto violated 33 U.S.C. 403, which states that
no person may pose any “obstruction” to the “navigable |
capacity” of “navigable waters of the United States.” United
States v. Republic Steel, 362 U.S. 482, 4 L.Ed.2d 903, 80 S.Ct.
884 [1960], says that “obstruction” in Section 403 is not
limited to the listing which appears in the statute, but compre-
hends any kind or type of obstruction.
May the law countenance the development of a privately con-
trolled artificial waterway system via the use and destruction
-15-
of a pre-existing and natural public waterway system? Peti-
aoners think not, and believe that the remedy, as United States
v. Kaiser-Aetna shows, for the abridgement of the constitu-
tionally based public right of navigation and for the specific
violation of 33 U.S.C. 403, is to say that the navigation servi-
tude which existed on the natural navigable waterway prior to
the development of the artificial waterway system, but which
was destroyed in fact via that development, is simply transposed
in law to and upon the new artificial canal system.
Judge Allen Babineaux thought it made no difference
whether or not there was in the Pecan Island area prior to 1940
a natural navigable waterway system, which was impaired or
destroyed via the subsequent development of a “private”
waterway system. The Court of Appeal, Third Circuit, and the
Louisiana Supreme Court, agreed. Accordingly, since the
resolution of the factual dispute of the parties on this point
was erroneously held by the Courts below to have made no
difference, a Motion for Summary Judgment was wrongly
granted, its granting was erroneously affirmed, and Petitioners,
as citizens and members of the public, were denied a right of
use of navigable waterways which no state and no oil company
is supposed to be able to take from them.
-16-
QUESTION 2
ARE CHANNELS BUILT ON PRIVATE PROPERTY
AND WITH PRIVATE FUNDS, WHICH THEREBY
ARE MADE TO JOIN WITH ADMITTED AND
PRE-EXISTING TIDAL AND OTHER NAVIGABLE
WATERWAYS, AND WHICH ARE THEMSELVES
NAVIGABLE IN FACT AND TIDAL, “NAVI-
GABLE WATERS OF THE UNITED STATES,”
BURDENED WITH A “NAVIGATION SERVITUDE”
IN FAVOR OF THE PUBLIC?
The parties agree that the sixty foot wide by eight foot deep
artificial canal system developed by Vermilion Corporation’s
ancestors in title is navigable in fact: Crew boats, cargo boats,
fishing boats, drilling barges, and similar vessels have regularly
used these canals since their creation. The primary purpose of
the canals is to further petroleum exploration and production
operations in the area. The canals secondarily are used by
sportsmen and fishermen as fishing grounds and as a means of
ingress to and egress from the Gulf of Mexico and various fresh
waters in the area.
One can launch a boat at the headwaters of this canal system
and navigate South into the Gulf of Mexico, or East into West
Chenier Au Tigre Canal or Fresh Water Bayou Canal, or North
via Schooner Bayou to the Gulf Intracoastal Waterway, and
thus sail from Pecan Island unimpeded to Jacksonville, or
Tierra del Fuego.
It is also undisputed that the waters of this canal system are
brackish. Many of the fish species therein are of salt water
origin. Daily these canals rise and fall perceptibly with the tides.
In United States v. Sexton Cove Estates, 389 F.Supp. 602,
S.D. Fla., 1975, and in United States v. Kaiser-Aetna, supra,
=~
Page 53, one sees unquestioned recognition of the proposition
that, although a canal system be developed with private funds
on private property, if the canals created thereby are navigable
in fact and are subject to tidal fluctuation and otherwise
connect with other “navigable waters of the United States,”
the canals so created themselves become “navigable waters of
the United States,” and thus become burdened with a “naviga-
tion servitude.”
The concept of private dominion from the sky to the center
of the earth for him who owns the land ceases now, as it always
has, when the private owner digs a ditch sufficiently large, and
connects it with other navigable waterways to such an extent,
that enough water flows through that ditch to support com-
merce. The private owner’s property is not thereby expropri-
ated. There simply arises, for purposes of surface use of the
waterways, a servitude in favor of the citizens of the United
States generally to navigate over and fish upon those waters,
and to that limited extent, the private owner who built the
canals cannot control their use.
The Trial Court, in following National Audubon Society v.
White, the Court of Appeal, Third Circuit, in originally render-
ing the opinion therein and in following it in this case, and the
Louisiana Supreme Court, in its denial of writs, committed
error, for, despite the fact that it is undisputed between the
parties to this litigation that the “Humble Canal” system is
navigable in fact and connected to other waterways navigable
in fact and law, all Louisiana Courts held that as a matter of law
it made no difference; that the canals were nevertheless private
property, subject to private dominion and control. Louisiana
thus firmly reiterated in response to this second of Petitioners’
contentions its old idea: No matter how navigable in fact and
law, no matter how obviously connected to interstate commer-
cial waterways, no matter how intimately joined to and associ-
ated with the Gulf of Mexico, the canals built by, primarily,
-18-
the oi! companies which have explored and produced the
Louisiana wetlands remain their private property in all respects.
It is time, Petitioners believe, that Louisiana’s law be made to
yield to the principles which have grown out of the “common
right of piscary” and finally out of the Supreme Law of the
Land: The “navigation servitude” must have the same effect in
Louisiana, and for the oil companies, as it does in other places
and for other persons.
Respecifully submitted,
MOUTON, ROY, CARMOUCHE,
BIVINS & HILL
Nedak HAY pres
JOHN K. HILL, JR.
P.O. DRAWER Z
LAFAYETTE, LOUISIANA 70502
(318) 233-7430
COUNSEL FOR PETITIONERS
-19-
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a copy of the above and foregoing
Petition and Attachments have been duly mailed to counsel for
Respondent, Mr. Charles Sonnier, Attorney at Law, P. O. Box
519, Abbeville, Louisiana 70510.
Lafayette, Louisiana, June _22__, 1978.
RAL, amas
OHN K. HILL, JR.
EXHIBIT A-1
VERMILION CORPORATION
VERSUS
NORMAN VAUGHN
15TH JUDICIAL DISTRICT COURT
DOCKET NUMBER 35948
PARISH OF VERMILION, LOUISIANA
MINUTE ENTRY
The Court is concerned here with a motion for summary
judgment wherein the plaintiff claims there is no material issue
of fact and prays for a permanent injunction prohibiting defen-
dant from trespassing on his lands. The alleged trepasses involve
the use by defendant of certain canals on plaintiff's property.
The defendant opposes the motion essentially by claiming
there is material issue of fact as to whether or not the construc-
tion of the canals on plaintiffs property has “impaired or
interrupted the navigability of an already existing natural
waterway.”
To support their position that the impairment of the navi-
gability of a natural waterway is an issue material to this case,
the defendant cites JIhenny v. Broussard, 135 So. 609, (Sup. Ct.
1931). Although the Court in that case does note that there is
“some authority” for the proposition that the public is entitled
to the use of a new canal which obstructs a navigable waterway,
it ultimately rejects that authority, and denies the defendant
the right to use a privately built canal.
The facts this Court feels are important are that the canals
were constructed with private funds on private property; that
the canals have been maintained privately and the use thereof
has been restricted use with permission only; and, there are
numerous trepass signs indicating the private nature of the
canals involved.
We distinguish D’Albara v. Garcia, 144 So. 2d 911, and
Discon v. Saray, 265 So. 2d 765, as did the Third Circuit in
National Audubon Society v. White, 302 So. 765 660, by
noting that those cases found that the waterways involved were
either part of the public domain or had been dedicated for the
public use. In the case at hand we find the canals are privately
maintained and have not been dedicated for the public use.
We find that the Third Circuit’s statement of the law in
National Audubon Society v. White and the Supreme Courts
decision in JIhenny v. Broussard are controlling; and even taking
the allegations of defendant, that the canals have obstructed
or diverted “navigable waters of the United States’’ we must
conclude that navigable waterway constructed with private
funds on private land is a private thing and not open for public
use.
Therefore, this Court grants the motion for summary judg-
ment, and permenantly enjoins defendant, Norman Vaughn,
from trespassing on any lands or canals located within the
confines of the properties leased by plaintiff.
Cost of these proceedings are to be borne by defendant.
Judgment in accordance with the foregoing to be signed upon
presentation.
Lafayette, Louisiana this__7 day of June, 1977.
/s/ illegible
DISTRICT JUDGE
FILED 6-9 19_77
/s/ Clara F. Frederick
Deputy Clerk of Court
Vermilion Parish, La.
FILED THIS 7
DAY OF ___June 19
77
/s/ Jan Hebert
DY. CLERK OF COURT
EXHIBIT A-2
VERMILION CORPORATION
VERSUS
NORMAN VAUGHN
15TH JUDICIAL DISTRICT COURT
NUMBER: 35,958
VERMILION PARISH, LOUISIANA
—_— ee
VERMILION CORPORATION
VERSUS
LARRY L. BROUSSARD
15TH JUDICIAL DISTRICT COURT
NUMBER: 36,983
VERMILION PARISH, LOUISIANA
VERMILION CORPORATION
VERSUS
FREDDIE BROUSSARD
A4
1STH JUDICIAL DISTRICT COURT
NUMBER: 36,982
VERMILION PARISH, LOUISIANA
JUDGMENT
The Motion For Summary Judgment filed herein by Ver-
milion Corporation came to be heard on May 31, 1977; those
present were:
John K. Hill, Attorney for Defendants
Norman Vaughn, Larry L. Broussard and
Freddie Broussard;
Charles R. Sonnier and John E. Ortego,
Attorneys for Plaintiff Vermilion Corporation.
After reviewing the pleadings, briefs, motions, affidavits,
depositions, stipulations, and hearing the arguments of counsel,
the Court considering that there is no genuine issue as to
material facts, and that Mover is entitled to a Judgment as a
matter of law;
IT IS HEREBY ORDERED, ADJUDGED AND DECREED,
that there be Judgment herein in favor of the Plaintiff, Ver-
milion Corporation, and against the Defendants, Norman
Vaughn, Larry L. Broussard and Freddie Broussard, permanent-
ly prohibiting, restraining and enjoining defendants from
trespassing on any lands or canals located within the confines
of the properties leased by Vermilion Corporation.
IT IS FURTHER ORDERED, ADIUDGEN AND DECREED
that the costs of these proceedings are to be born by the defen-
dants.
Judgment rendered in Lafayette, Louisiana, on the 7th day
of June 1977; read and signed at , Louisiana,
on the _ day of June, 1977.
JUDGE
APPROVED AS TO FORM:
COOPER & SONNIER
BY: /s/ Charles R. Sonnier
CHARLES R. SONNIER
BY: /s/ John E. Ortego
JOHN E. ORTEGO
Attorneys for Plaintiff
Vermilion Corporation
MOUTON, ROY, CARMOUCHE, HAILEY,
BIVENS, & MCNAMARA
BY:
JOHN K. HILL
Attorneys for Defendants,
Norman Vaughn, Larry R. Broussard
and Freddie Broussard
A-6
EXHIBIT A-3
NO. 6258
COURT OF APPEAL, THIRD CIRCUIT
STATE OF LOUISIANA
VERMILION CORPORATION
Plaintiff-Appellee
VERSUS
NORMAN VAUGHN
Defendant-Appellant
Appeal from the 15th Judicial District Court, Parish
of Vermilion, State of Louisiana; Hon. Allen M.
Babineaux, District Judge, Presiding.
Before CULPEPPER, DOMENGEAUX, and WATSON,
Judges
DOMENGEAUX, JUDGE
This suit involves ine right of the public to use man-made
navigable canals on private property constructed and main-
tained with private funds.
This case was consolidated for trial and appeal with Ver-
milion Corporation v. Freddie Broussard, fs ee
No. 6259, (La. App. 3rd Cir. 1978), and Vermilion Corporation
v. Larry J. Broussard, So.2d , No. 6260 (La. App.
3rd Cir. 1978).
The issues are the same in these three cases, and will be
discussed herein, although separate opinions in each case are
being rendered on this day.
Vermilion Corporation, plaintiff-appellee, leases 125,000
acres of land in Vermilion Parish owned by the Exxon Com-
pany. The land is traversed by a system of man-made canals.
The canals are approximately 60 feet wide and 8 feet deep,
are subject to tidal fluctuations, and are navigable in fact. They
were constructed with private funds and have been under the
continuous control, possession, and supervision of Vermilion
Corporation, Exxon Company, and all prior owners since the
1900s.
The canal system enters other naturally navigable waterways
and lies between the Intracc «ial Canal on the north, the Gulf
of Mexico on the south, vest Cheniere Au Tigre Canal on the
east, and Rollover Bayou on the west. The canals are used to
facilitate hunting, trapping, and fishing activities, and are also
used by the Exxon Company for hydrocarbon exploration
and development activities. Vermilion Corporation subleases
portions of the land to hunters, trappers, and fishers. The right
to use the canals is a part of the lease arrangement.
In order to control access to the land and the canals, over
400 “No Trespassing” signs are posted in various locations. In
addition persons have been continuously employed to supervise
activities in the canals and on the land. On numerous occasions
Vermilion Corporation has prohibited persons from entering
and using the property.
The present controversy arose when the defendants-
appellants, Norman Vaughn, Freddie Broussard, and Larry J.
Broussard, continued to enter the property and travel the canals
in order to engage in commercial fishing and shrimping activities
without obtaining plaintiff's permission. These individuals
A-8
disregarded several written warnings issued by plaintiff. Conse-
quently, these suits were filed seeking permanent injunctions
enjoining the three defendants from trespassing on the property
and in the canals and damages. I
After affidavits and a deposition were filed into the record,
the corporation moved for summary judgments, which were
granted by the trial court. Permanent injunctions against
Vaughn and the Broussards were issued. They have perfected
devolutive appeals.
Defendants contend on appeal that the trial court erred in
two respects:
1. In finding that there was no issue of material fact and,
therefore, in granting the motions for summary judgment, and
2. In finding that the canal could be controlled by the
plaintiff and, therefore, in granting the permanent injunctions.
I. SUMMARY JUDGMENTS
Article 966 of the La. Code of Civil Procedure provides:
“The plaintiff or defendant in the principal or
any incidental action, with or without supporting
affidavits, may move for a summary judgment in his
favor for all or part of the relief for which he has
prayed. The plaintiff's motion may be made at any
time after the answer has been filed. The defendant’s
motion may be made at any time.
1 No proof of damages was introduced in the District Court and no
mention of damages is made on appeal. We, therefore, will not discuss the
issue.
A-9
The motion for summary judgment shall be served
at least ten days before the time specified for the
hearing. The adverse party may serve opposing
affidavits prior to the day of the hearing. The judg-
ment sought shall be rendered forthwith if the
pleadings, depositions, answers to interrogatories,
and admissions on file, together with the affidavits,
if any, show that there is no genuine issue as to
material fact, and that mover is entitled to judgment
as a matter of law.”
In the present case the parties are in agreement on all relevant
facts.that are genuinely material to this case and upon which a
judgment can be rendered. There is no question that the canals
are navigable and were built and maintained with private funds
on private property. It is not contested that defendants did
engage in fishing and shrimping activities in the canals without
permission.
Defendants contend, however, that there is a fact in dispute
which is genuinely material to this litigation and that summary
judgment was improper. They claim that plaintiff's system of
artificial waterways destroyed the navigability of surrounding
natural waterways. They argue that this is material because, if
true, the court could conclude that the system of artificial
waterways was substituted for the pre-existing natural system
of navigable waterways. If such a conclusion were reached,
the canals would not be private and could not be privately
controlled under state and federal law.
We do not agree. A similar argument was raised in Ilhenny v.
Broussard, 172 La. 895, 135 So. 669 (1931), the facts of which
are almost the same as in the present case. The plaintiff in that
case, E. A. Mcllhenny, constructed a private canal on his
property. The defendant, Broussard, continued to use this
canal without MclIlhenny’s permission. MclIlhenny sought to
A-10
enjoin Broussard from using his private waterway. The conten-
tion was made that the waters from a natural canal were
diverted by the man-made waterway and that therefore the
man-made waterway was substituted for the natural waterway.
The Louisiana Supreme Court rejected the argument stating
that the diversion of water from a natural channel by a private
man-made waterway does not give rise to a right of the public
to use the man-made waterway. > .
Defendants also contend that this litigation is too important
to be disposed of by summary judgment. We fail to see the
validity of this argument. Simply becausethere is no issue of
material fact does not mean that the courts will not give a case
full and complete treatment. Summary judgment merely avoids
a full trial where the need does not exist. The effect of a case
on Louisiana law is not a valid reason for denying a party’s right
to summary judgment.
We therefore find no error on the part of the trial court in
granting summary judgment in favor of plaintiff.
II. THE INJUNCTIONS
Defendants contend that the injunctions should not have
been granted as a matter of state and federal law. They argue
2 See also, National Audubon Society v. | White, 302 So.2d 660 (La.
App. 3rd Cir. 1974), writ denied 305 So.2d 542 (La. 1975) (No error of
law), discussed infra.
that under La.R.S. 14:97 3 and under 33 USCA Sec. 403 4
(§ 10 of the Rivers and Harbors Act) a private individual may
not exert doniinion over a navigable waterway.
With regard to state law, this court discussed the application
of La.R.S. 14:97 to a private canal in National Audubon
Society v. White, 302 So.2d 660 (La. App. 3rd Cir. 1974),
writ denied 305 So.2d 542 (La. 1975), a case which defendants
contend was erroneous and should be overruled.
3 §97. Simple obstruction of a highway of commerce
Simple obstruction of a highway of commerce is the international
or criminally negligent placing of anything or performance of any act on
any railway, railroad, navigable waterway, road, highway, thoroughfare,
or runway or an airport, which will render movement thereon more
difficult.
Whoever commits the crime of simple obstruction of a highway of
commerce shall be fined not more than two hundred dollars, or im-
prisoned for not more than six months, or both.
4 §403. Obstruction of navigable waters generally; wharves; piers, etc.;
excavations and filling in
The creation of any obstruction not affirmatively authorized by
Congress, to the navigable capacity of any of the waters of the United
States is prohibited; and it shall not be lawful to build or commence the
building of any wharf, pier, dolphin, boom, weir, breakwater, bulkhead,
jetty, or other structures in any port, roadstead, haven, harbor, canal,
navigable river, or other water of the United States, outside established
harbor lines, or where no harbor lines have been established, except on
plans recommended by the Chief of Engineers and authorized by the
Secretary of the Army; and it shall not be lawful to excavate or fill, or in
any manner to alter or modify the course, location, condition, or capacity
of, any port, roadstead, haven, harbor, canal, lake, harbor of refuge, or
inclosure within the iimits of any breakv ater, or of the channel of any
navigable water of the United States, unless the work has been recom-
mended by the Chief of Engineers and authorized by the Secretary of the
Army prior to beginning the same.
A-12
The facts of Audubon mirror those in the present contro-
versy. In that case a private canal was constructed in 1912 by
E. A. Mcllhenny on his property in Vermilion Parish. The canal,
which was the same canal involved in /Ihenny v. Broussard,
supra, was navigable and connected with Vermilion Bay. In
1924 a portion of the land, including a part of the canal, was
donated to the National Audubon Society. That organization
used the property to operate the Paul J. Rainey Wildlife Sanctu-
ary. The Audubon Society maintained their portion of the
Mclilhenny canal with its own funds. Access to the canal was
restricted by the Audubon Society as it was restricted prior to
the donation. The defendant in that case, Joseph White, used
the canal without permission for fifty years to haul cattle,
cotton, vegetables, and fruit to the market. In 1971 and 1972
he was notified by the Audubon Society that he could no
longer use the canal. These notices were disregarded and suit for
a permanent injunction to enjoin him from using the canal
followed.
This court granted the injunction and held that a canal built
entirely on private property with private funds for private
purposes is a private thing. White contended that a landowner
was prohibited from obstructing any navigable waterway,
regardless of whether it was constructed with private funds, by
virtue of La. R.S. 14:97, as applied by the Supreme Court in
Discon v. Saray, Inc., 262 La. 997, 265 So.2d 765 (1972), and
the Fourth Circuit in D’Albora v. Garcia, 144 So.2d 911 (La.
App. 4th Cir. 1962).
In Discon, landowners whose property bordered on a navi-
gable canal dedicated for the use of the property owners,
sought to enjoin another landowner from obstructing a portion
of the canal. The Supreme Court concluded that plaintiffs were
entitled to injunctive relief under La. R.S. 14:97. In D’Albora
an injunction was sought to enjoin the owner of land from
restricting passage on a navigable canal running through his
A-13
property. The canal was dug by the State of Louisiana to
obtain dirt for the construction of a highway. The Fourth
Circuit affirmed the action of the trial court in granting the
injunction on the basis of La. R.S. 14:97.
We distinguished Discon and D’Albora in Audubon on the
basis that the canals in those cases were either built with public
funds or involved a dedicated right of way. We held that La.
R.S. 14:97 was inapplicable to a private canal which was not
part of the public domain or was not dedicated to the public
use, stating the following:
“We distinguish the D’Albora and Discon cases
from the instant suit, because in each of those cases
the canal was either a part of the public domain or it
had been dedicated for use by the owners of property
in the subdivision in which the canal was located.
We have concluded that LSA-R.S. 14:97 does not
apply to a privately owned canal, even though it may
be navigable. We agree with the views expressed by
Professor A. N. Yiannopoulos, in discussing the case
of Discon v. Saray, Inc., supra, where he stated:
‘The majority opinion necessarily rests on the
assumption that the canal in question was
burdened with a servitude of public use. Indeed,
it would be inconceivable to apply article 97 of
the Criminal Code to a strictly private waterway.
The majority proceeded on the idea that this
article was applicable because the canal was
navigable, and, therefore, was burdened with a
servitude of public use; in the alternative, that
the canal was burdened with a servitude of
public use by virtue of dedication. No one,
however, should be prepared to accept the
A-14
proposition that all navigable waterways in
Louisiana are subject to public use merely by
virtue of the fact they are navigable. A privately
owned canal, though navigable in fact, may not
be subject to public use, for the same reasons
that a private road, though used by commercial
traffic, may not be subject to public use. Thus,
the disposition of the case would be correct only
if the canal in question had been dedicated to
public use.’ {Emphasis added)”
308 So.2d 660, 667-668.
r, ewe are convinced that the decision of Nacional Audubon
! Séciety v. White was correct and apply it to this case. We hold
that a canal on private property constructed and maintained
with private funds and used for private purposes is a private
canal subject to private control.
With regard to federal law, defendants have cited several
federal cases 5 for the proposition that under 33 USCA Section
403, private individuals cannot control navigable waterways.
We have examined all of the federal cases and found them
completely distinguishable from the present litigation. The
cited cases involved situations where the United States was
»
.
Wo
oe
5 United States v. Republic Steel Corp., 362 U.S. 482 (1960); United
States v. Twin City Power Company, 350 U.S. 222 (1956); United States
v. Willow River Power Company, 324 U.S. 499 (1945); United States v.
Appalachian Electric Power Company, 311 U.S. 377 (1940); United States
v. Sexton Cove Estates, Inc., 389 F.Supp. 602 (S.D.Fla. 1975), affirmed
in part, reversed in part, 526 F. 2d 1293 (5th Cir. 1976); United States v.
Cannon, 363 F. Supp. 1045 (D.Del. 1973); United States v. Pot-Nets, Inc.,
363 F. Supp. 812 (D.Del. 1973); United States v. Underweod, 344 F.
Supp. 486 (M.D.Fla.1972); United States v. 412.715 Acres, 53 F. Supp.
143 (N.D. Calif. 1943).
A-15
either seeking to expropriate private property or seeking to
prevent the impairment of naturally navigable waterways.
In any event, we fail to see how 33 USCA Section 403 would
forbid a landowner from prohibiting the general public from
using his private canal. The statute grants authority to the Chief
of Engineers and the Secretary of the Army to control water-
ways, but it does not grant individuals the unrestricted right to
use a privately owned navigable canal. Our research has revealed
the case of United States v. Kaiser-Aetna, 408 F. Supp.42
(D.Ha.1976), in which the United States attempted to use the
same legislation to force Kaiser-Aetna to open a private marina
in Hawaii to the public. The marina was originally a lagoon,
Kuapa Pond, which was used as a fishing spot by the Hawaiian
natives. The lagoon connected with Maunalua Bay, a navigable
waterway. Under Hawaiian property law there was no question
that the fish pond was private property. Kaiser-Aetna acquired
interests in the pond and surrounding land. It developed a
subdivision and transformed the fish pond into a marina. Use
of the marina was restricted and all commercial vessels were
excluded.
The federal court recognized the regulatory power of the
federal government under its admiralty powers but it refused
to find that the United States could appropriate the waterway
to public use without reasonable compensation. The Court
stated:
“.. . [P] rivate ‘fast’ lands and waters when made
navigable by improvements or which could be made
navigable are subject to Congressional regulation.
Nevertheless while Congress may provide for the
improvement and regulation of navigation, and take
necessary action to prevent interference or obstruc-
tion to navigation, it cannot impose a public naviga-
tion servitude upon such a privately constructed
A-16
waterway without paying a reasonable compensation
for the use thereof.
Here then, since Kaupar Pond has been trans-
formed into navigable waters used in commerce, the
marina has therefore become subject to regulation
by Congress and within admiralty jurisdiction. It does
not follow, however, that the United States can,
without payment, appropriate those waters for public
use and deprive the defendants of their investment
or any return on it.” [Footnote omitted]
408 F. Supp. 42, 54.
If the public has no right of use on a natural waterway made
navigable by private funds under federal law. then a fortiori
it has no right of use on an artificial navigable waterway con-
structed with private funds.
Thus, under state and federal law a canal on private property
constructed and maintained with private funds for private
purposes is a private canal, the use of which can be restricted
by the landowner or his assigns. The injunctions in these cases
in favor of the landowner’s lessee was proper.
For the above reasons we affirm the judgment of the District
Court. All costs are to be assessed against the defendant-
appellant.
AFFIRMED.
A-17
EXHIBIT A4
SUPREME COURT OF LOUISIANA
NEW ORLEANS, 70112
VERMILION CORPORATION March 27, 1978
V.
NORMAN VAUGHN NO. 61,736
In re: Norman Vaughn, Freddie Broussard and Larry J.
Broussard applying for Certiorari, or writ of review, to
the court of Appeal Third Circuit Parish of Vermilion
Writ denied.
Jws
AT JR
DIXON, CALOGERO, J. J. vote to grant the writ.
A-18
A TRUE COPY
Clerk’s Office
Supreme Court of Louisiana
New Orleans
March 27, 1978
/s/ illegible
DEPUTY CLERK
A-19
EXHIBIT B (in globo)
VERMILION CORPORATION
VERSUS
NORMAN VAUGHN
15TH JUDICIAL DISTRICT COURT
NUMBER: __35948
VERMILION PARISH, LOUISIANA
PETITION FOR PERMANENT INJUNCTION
AND DAMAGES
The petition of VERMILION CORPORATION, a corpora-
tion organized under the laws of the State of Delaware and
authorized to do business in the State of Louisiana, with
respect, represents that:
1.
Petitioner is the Lessee of and is in possession of certain lands
in Vermilion Parish, Louisiana, which lands are fully described
in the copy of the lease and amendments attached hereto and
marked Exhibits “‘A”’, ““B”’, and “‘C”’.
rR
Petitioner, pursuant to the terms and provisions of said lease
and amendment, and under the authority therein granted is
entitled to bring this action in the place and stead of the Lessor
named in said lease and amendment, its successors or assigns.
A-20
3.
Norman Vaughn, a resident of Vermilion Parish. Louisiana,
has without permission of your petitioner, trespassed on the
lands of petitioner and more particularly in the private canals
located within said lands, despite the fact that said lands are
properly posted with ‘No Trespassing, Vermilion Corporation”
signs, showing the properties and canals to be subject to the
exclusive possession of petitioner.
4.
All of the canals in question were built and have been main-
tained by either petitioner, its lessor, their predecessors. their
agents, assigns or sublessees.
a.
Said trespass by defendant, Norman Vaughn, was willful and
knowing on his part and occurred on several occasions and more
particularly on or about June 26, 1975, in a canal at a point
approximately one-fourth (1/4) of a mile North of Exxon
Company Well No. 21, located in Section 26, Township 16
South, Range 1 West.
6.
Again, on or about July 18, 1975, defendant, Norman
Vaughn, trespassed at a point approximately one-eighth (1/8)
of a mile East of Exxon Company WEIll No. 46, located in
Section 29, Township 16 South, Range 1 East.
7.
Defendant again trespassed on or about September 14, 1975,
at a point located between two bridges constructed across what
A-21
is known as the Humble Canal, located in Section 31, Township
16 South, Range 2 East.
8.
Defendant again trespassed on or about September 24, 1975,
at a point approximately one-half (1/2) mile East of a cattle
crossing on the Humble Canal located in Section 26, Township
16 South, Range 1 East.
9.
On each of said occasions, defendant, Norman Vaughn, was
issued a warning and notice by Murphy Sellers, the Field
Superintendent and Warden of petitioner in the presence of
petitioner’s employee, Earl Harden. Said Warning being given to
defendant in the form of legal notices, copies of which are
attached hereto and marked Exhibit “‘D’’, for identification.
10.
At the time of each trespass and at other times not herein
specified, defendant has engaged in commercial fishing and/or
shrimping in petitioner’s canals resulting in the harvest of large
catches of shrimp and fish of great value.
11.
Defendant’s actions and defiance of ample warning has
directly and indirectly encouraged others to trespass and engage
in commercial fishing, all to plaintiff's detriment.
12.
Additionally, defendant has caused petitioner to suffer
damages past, present and future, due to the illegal and
A-22
unauthorized fishing in a sum exceeding $ 250,000.00. all of
which will be more accurately determined on the trial hereof.
13.
Despite the warnings given to defendant by the Warden,
Murphy Sellers, the said Norman Vaughn continues io trespass
and fish on the several canals subject to the control and posses-
sion of petitioner causing the damages enumerated.
14.
The defendant thus violated the rights of petitioner by his
act of trespassing and petitioner is entitled to an injunction
enjoining and prohibiting the said Norman Vaughn from tres-
passing on the property and canals within the property in
control and possession of petitioner, pursuant to the above
mentioned leases and for the damages in excess of $250.000.00,
all of which is to be more fully shown at the trial hereof.
WHEREFORE, petitioner prays that the defendant be
duly cited to appear and answer this petition and after due
proceedings had, there be judgment herein in favor of petitioner
Vermilion Corporation, and against the defendant. Norman
Vaughn, decreeing the above acts of defendant to constitute a
trespass of the rights of petitioner and enjoining, restraining and
prohibiting Norman Vaughn from trespassing on any property
and canals within the property of petitioner as described in the
leases mentioned in paragraph 1 above, and further, that said
defendant be assessed with all proven damages and costs of
court.
And for all general and equitable relief, etc.
A-23
COOPER & SONNIER
BY: /s/ Charles R. Sonnier
Attorneys for Petitioner
121 East St. Victor
P.O. Box 519
Abbeville, LA 70510
(318) 893-6766
PLEASE SERVE:
Norman Vaughn
Pecan Island Route, Box 86
Kaplan, Louisiana 70548
FILED ___11/7 19_75
/s} Roy James Hebert
Deputy Clerk of Court
Vermilion Parish, La.
A TRUE COPY
ATTEST:
/s/ Roy James Hebert
Deputy Clerk of Court
Vermilion Parish, La.
A-24
VERMILION CORPORATION
VERSUS
FREDDIE BROUSSARD
15TH JUDICIAL DISTRICT COURT
NUMBER: 36982-E
VERMILION PARISH, LOUISIANA
PETITION FOR PERMANENT INJUNCTION
AND DAMAGES
The petition of VERMILION CORPORATION, corporation
organized under the laws of the State of Delaware and autho-
rized to do business in the State of Louisiana, with respect,
represents that:
l.
Petitioner is the Lessee of and is in possession of certain lands
in Vermilion Parish, Louisiana, which lands are fully described
in the copy of the lease and amendments attached hereto and
marked Exhibits “‘A’’, “B”, and “C”’.
2.
Petitioner, pursuant to the terms and provisions of said lease
and amendment, and under the authority therein granted is
entitled to bring this action in the place and stead of the Lessor
named in said lease and amendment, its successors or assigns.
A-25
3.
Freddie Broussard, a resident of Vermilion Parish, Louisiana,
has without permission of your petitioner, trespassed on the
lands cf petitioner and more particularly in the private canals
located within said lands, despite the fact that said lands are
properly posted with “No Trespassing, Vermilion Corporation”
signs, showing the properties and canals to be subject to the
exclusive possession of petitioner.
4.
All of the canals in question were built and have been main-
tained by either petitioner, its lessor, their predecessors, their
agents, assigns or sublessees.
5.
Said trespass by defendant, Freddie Broussard, was willful
and knowing on his part and occurred on or about July 18,
1975, in a canal at a point designated as Humble Canal, Loca-
tion No. 13, located in Section 33, Township 16 South, Range
1 East.
6.
On said occasion, defendant, Freddie Broussard, was issued
a warning and notice by Murphy Sellers, the Field Superinten-
dent and Warden of petitioner in the presence of petitioner’s
employee, Earl Harden. Said Warning being given to defendant
in the form of a legal notice, a copy of which is attached hereto
and marked Exhibit “D’’, for identification.
A-26
r -
At the time of said trespass defendant was engaged in com-
mercial fishing and/or shrimping in petitioner’s canals resulting
in the harvest of large catches of shrimp and fish of great value.
8.
Defendant's actions and defiance of ample warning has
directly and indirectly encouraged others to trespass and engage
in commercial fishing, all to plaintiff's detriment.
m
Additionally, defendant has caused petitioner to suffer
damages past, present and future, due to the illegal and
unauthorized fishing in a sum exceeding $250,000.00, all of
which will be more accurately determined on the trial hereof.
i0.
Despite the warnings given to defendant by the Warden.
Murphy Sellers, the said Freddie Broussard continues to trespass
and fish on the several canals subject to the control and posses-
sion of petitioner causing the damages enumerated.
11.
The defendant thus violated the rights of petitioner by his
act of trespassing and petitioner is entitled to an injunction
enjoining and prohibiting the said Freddie Broussard from
trespassing on the property and canals within the property in
control and possession of petitioner, pursuant to the above
mentioned leases and for the damages in excess of $250,000.00.
all of which is to be more fully shown at the trial hereof.
A-27
WHEREFORE, petitioner prays that the defendant be
duly cited to appear and answer this petition and after due
proceedings had, there be judgment herein in favor of petitioner
Vermilion Corporation, and against the defendant, Freddie
Broussard, decreeing the above acts of defendant to constitute
a trespass of the rights of petitioner and enjoining, restraining
and prohibiting Freddie Broussard from trespassing on any
property and canals within the property of petitioner as des-
cribed in the leases mentioned in paragraph 1 above, and
further, that said defendant be assessed with all proven damages
and costs of court.
And for all general and equitable relief, etc.
COOPER & SONNIER
BY: /s/_Charles R. Sonnier
CHARLES R. SONNIER
121 East St. Victor
Post Office Box 51°
Abbeville, Louisiana 70510
PLEASE SERVE:
Freddie Broussard
Pecan Island Route
Kaplan, Louisiana 70548
FILED.__10-12 19 76
/s/:Clara F. Frederick
Deputy Clerk of Court
Vermilion Parish, La.
A-28
A TRUE COPY
ATTEST:
[s/ Clara F. Frederick
Deputy Clerk of Court
Vermilion Parish, La.
A-29
VERMILION CORPORATION
VERSUS
LARRY J. BROUSSARD
15TH JUDICIAL DISTRICT COURT
NUMBER: 36983
VERMILION PARISH, LOUISIANA
PETITION FOR PERMANENT INJUNCTION
AND DAMAGES
The petition of VERMILION CORPORATION, a corpora-
tion organized under the laws of the State of Delaware and
authorized to do business in the State of Louisiana, with
respect, represents that:
Bs
Petitioner is the Lessee of and is in possession of certain lands
in Vermilion Parish, Louisiana, which lands are fully described
in the copy of the lease and amendments attached hereto and
marked Exhibits “A”, “B”, and “C”’.
2.
Petitioner, pursuant to the terms and provisions of said lease
and amendment, and under the authority therein granted is
entitled to bring this action in the place and stead of the Lessor
named in said lease and amendment, its successors or assigns.
’
A-30
a
Larry J. Broussard, a resident of Vermilion Parish, Louisiana,
has without permission of your petitioner, trespassed on the
lands of petitioner and more particularly in the private canals
located within said lands, despite the fact that said lands are
properly posted with “No Trespassing, Vermilion Corporation”
signs, showing the properties and canals to be subject to the
exclusive possession of petitioner.
4.
All of the canals in question were built and have been main-
tained by either petitioner, its lessor, their predecessors, their
agents, assigns or sublessees.
5.
Said trespass by defendant, Larry J. Broussard, was willful
and knowing on his part and occurred on several occasions and
more particularly on or about August 19, 1975, at a point
designated as Location No. 22, located in Section 31, Township
16 South, Range 1 East.
6.
Again, on or about June 2, 1976, defendant, Larry J.
Broussard, trespassed in a canal at a point designated as Well
Location No. 21, located in Section 26, Township 16 South,
Range 1 West.
7
On each of said occasions, defendant, Larry J. Broussard,
was issued a warning and notice by Murphy Sellers, the Field
Superintendent and Warden of petitioner in the presence of
A-31
petitioner’s employee, Earl Harden. Said Warning being given
to defendant in the form of legal notices, copies of which are
attached hereto and marked Exhibit “‘D’’, for identification.
8.
At the time of each trespass and at other times not herein
specified, defendant has engaged in commercial fishing and/or
shrimping in petitioner’s canals resulting in the nesvent of large
catches of shrimp and fish of great value.
9.
Defendant’s actions and defiance of ample warning has
directly and indirectly encouraged others to trespass and engage
in commercial fishing, all to plaintiff's detriment.
10.
Additionally, defendant has caused petitioner to suffer
damages past, present and future, due to the illegal and
unauthorized fishing in a sum exceeding $250,000.00, all of
which will be more accurately determined on the trial hereof.
11.
Despite the warnings given to defendant by the Warden,
Murphy Sellers, the said Larry J. Broussard continues to tres-
pass and fish on the several canals subject to the control and
possession of petitioner causing the damages enumerated.
12.
The defendant thus violated the rights of petitioner by his
act of trespassing and petitioner is entitled to an injunction
enjoining .and prohibiting the said Larry J. Broussard from
A-32
trespassing on the property and canals within the property in
control and possession of petitioner, pursuant to the above
mentioned leases and for the damages in excess of $250,000.00.
all of which is to be more fully shown at the trial hereof.
WHEREFORE, petitioner prays that the defendant be
duly cited to appear and answer this petition and after due
proceedings had, there be judgment herein in favor of petitioner
Vermilion Corporation, and against the defendant, Larry J.
Broussard, decreeing the above acts of defendant to constitute
a trespass of the rights of petitioner and enjoining, restraining
and prohibiting Larry J. Broussard from trespassing on any
property and canals within the property of petitioner as des-
cribed in the leases mentioned in paragraph 1 above, and
and costs of court.
And for all general and equitable relief, etc.
COOPER & SONNIER
BY:
CHARLES R. SONNIER
121 East St. Victor
Post Office Box 519
Abbeville, Louisiana 70510
PLEASE SERVE:
Larry J. Broussard
Pecan Island Route
Kaplan, Louisiana 70548
A-33
A TRUE COPY
ATTEST:
/s/ Gladys R. Gaspard
Deputy Clerk of Court
Vermilion Parish, La.
FILED.__10-12 49 76
/s/ Gladys R. Gaspard
Deputy Clerk of Court
Vermilion Parish, La.
A-34
EXHIBIT C (in globo)
VERMILION CORPORATION
VERSUS
NORMAN VAUGHN
15th JUDICIAL DISTRICT COURT
NUMBER: 35948
PARISH OF VERMILION, LOUISIANA
ANSWER
NOW COMES NORMAN VAUGHN, defendant herein, and
for answer to plaintiff's petition, says that:
1.
Article 1 is denied for lack of sufficient information to
justify a belief therein.
Article 2 is denied.
A
Article 3 is denied as written, Norman Vaughn further
showing that the canals and other waterways referred to in this
Article and at other points in plaintiff's petition are navigable
waters, and navigable waters of the United States, and subject
A-35
to a paramount right of use for and on hase of the public and
citizens of the United States and are not subject to private
ownership or control.
4.
Article 4 is denied for lack of sufficient information to
justify a belief therein.
5.
Article 5 is denied as written.
6.
Article 6 is denied as written.
7.
Article 7 is denied as written.
8.
Article 8 is denied as written.
9.
Article 9 is admitted as to the facts alleged therein.
10.
Article 10 is denied as written.
A-36
11.
Article 11 is denied as written and denied for lack of suffi-
cient information to justify a belief therein.
12.
Article 12 is denied.
13.
Article 13 is denied as written.
14.
Article 14 is denied.
15.
Plaintiff's acts in attempting to restrain use by petitioner of
any canals or waterways mentioned herein, and plaintiff's act
in filing and maintaining this lawsuit, are both prohibited by
the Rivers and Harbors Act, 33 U.S.C. 401, et sequittur. in that
such attempts by plaintiff constitute an obstruction to the
navigable capacity of the navigable waters of the United States
16.
Apart from any such statutory violations, plaintiff's attempt
to restrain or impair or prohébit, via lawsuit or otherwise. the
use by plaintiff or any others of the canals or other bodies of
water mentioned herein is unlawful due to the character of said
waters as navigable waters of the United States not subject to
private ownership or dominion, but instead burdened with a
paramount easement of use in favor of the public. All water-
ways mentioned in this lawsuit are subject to tidal fluctmations
A-37
and/or are navigable in fact based upon their actual and poten-
tial uses as highways of commerce and fisheries.
17.
For the above reasons, plaintiff is without cause or right
of action herein and has failed to state same in its petition.
Plaintiff is also without cause or right of action as to its claim
for damages based upon severance of shrimp and other fishes
from its alleged private waters as, by specific provision of R.S.
56-311 and 312, said shrimp and fishes are not subject to
private ownership, dominion or control.
WHEREFORE, defendant prays that this answer be deemed
good and sufficient and after due delays and proceedings, there
be judgment herein in favor of defendant and against plaintiff,
rejecting plaintiff's demands with prejudice and at its cost.
MOUTON, ROY, CARMOUCHE, HAILEY,
BIVINS & MCNAMARA.
BY: /s/ John K. Hill, Jr.
JOHN K. HILL, JR.
P.O. DRAWER Z
LAFAYETTE, LA 70502
CERTIFICATE
I HEREBY CERTIFY that a copy of the foregoing Answer
has been mailed to counsel for plaintiff herein.
Lafayette, Louisiana, March 17, 1977.
/s/ John K. Hill, Jr.
JOHN K. HILL, JR.
A-38
VERMILION CORPORATION
VERSUS
FREDDIE BROUSSARD
15th JUDICIAL DISTRICT COURT
NUMBER: 36982 -E
VERMILION PARISH, LOUISIANA
ANSWER
NOW COMES FREDDIE BROUSSARD, and for answer to
the petition of Plaintiff herein, says that:
e
Article 1 is denied for lack of sufficient information to
justify a belief therein.
2.
Article 2 is denied for lack of sufficient information to
justify a belief therein.
3.
Article 3 is denied as written.
A-39
4.
Article 4 is denied for lack of sufficient information to
justify a belief therein.
5.
Article 5 is denied as written.
6.
Article 6 is admitted as to the facts alleged therein.
Re
Article 7 is denied as written.
8.
Article 8 is denied as written, denied, and denied for lack of
sufficient information to justify a belief therein.
¢.
Article 9 is denied.
10.
Article 10 is denied as written.
11.
Article 11 is denied.
A40
12.
Plaintiff's acts in attempting to restrain use by petitioner of
any canals or waterways mentioned herein, and plaintiff's act
in filing and maintaining this lawsuit, are both prohibited by
the Rivers and Harbor Act, 33 U.S.C. 401, et sequittur, in that
such attempts by plaintiff constitute an obstruction to the
navigable capacity of the navigable waters of the United States.
13.
Apart from any such statutory violations, plaintiff's attempt
to restrain or impair or prohibit, via lawsuit or otherwise, the
use by plaintiff of any others of the canals or other bodies of
water mentioned herein is unlawful due to the character of said
waters as navigable waters of the United States not subject to
private ownership or dominion, but instead burdened with a
paramount easement of use in favor of the public. All water-
ways mentioned in this lawsuit are subject to tidal fluctuations
and/or are navigable in fact based upon their actual and poten-
tial uses as highways of commerce and fisheries.
14.
For the above reasons, plaintiff is without cause or right
of action herein and has failed to state same in its petition.
Plaintiff is without cause or right of action as to its claim for
damages based upon severance of shrimp and other fishes from
its alleged private waters as, by specific provision of R.S. 56-311
and 312, said shrimp and fishes are not subject to private
ownership, dominion or control.
WHEREFORE, defendant prays that this answer be deemed
good and sufficient and after due delays and proceedings, there
be judgment herein in favor of defendant and against plaintiff.
rejecting plaintiff's demands with prejudice and at its cost.
A-41
MOUTON, ROY, CARMOUCHE, HAILEY,
BIVINS & MCNAMARA
py: /s/ John K. Hill, Jr.
JOHN K. HILL, JR.
P.O. DRAWER Z
LAFAYETTE, LA 70502
A-42
VERMILION CORPORATION
VERSUS
LARRY J. BROUSSARD
15th JUDICIAL DISTRICT COURT
NUMBER: 36983
VERMILION PARISH, LOUISIANA
ANSWER
NOW COMES LARRY J. BROUSSARD, and for answer to
the petition of plaintiff herein, says that:
B.
Article 1 is denied for lack of sufficient information to
justify a belief therein.
2.
Article 2 is denied for lack of sufficient information to
justify a belief therein.
3.
Article 3 is denied as written.
A-43
4.
Article 4 is denied for lack of sufficient information to
justify a belief therein.
$.
Article 5 is denied as written.
6.
Article 6 is denied as written.
7.
Article 7 is admitted as to facts alleged therein.
8.
Article 8 is denied as written.
9.
Article 9 is denied for lack of sufficient information to
justify a belief therein and denied as written.
10.
Article 10 is denied.
11.
Article 11 is denied as written.
12.
Article 12 is denied.
A-44
13.
Plaintiff's acts in attempting to restain use by petitioner of
any canals or waterways mentioned herein, and plaintiff's act
in filing and maintaining this lawsuit, are both prohibited by
the Rivers and Harbors Act, 33 U.S.C. 401, et sequittur, in that
such attempts by plaintiff constitute an obstruction to the
navigable capacity of the navigable waters of the United States.
14.
Apart from any such statutory violations, plamtff’s attempt
to restrain or impair or prohibit, via lawsuit or otherwise, the
use by plaintiff or any others of the canals or other bodies of
water mentioned herein is unlawful due to the character of said
waters as navigable waters of the United States not subject to
private ownership or dominion, but instead burdened with a
paramount easement of use in favor of the public. All water-
ways mentioned in this lawsuit are subject to tidal fluctuations
and/or are navigable in fact based upon their actual and poten-
tion uses as highways of commerce and fisheries.
1S.
For the above reasons, plaintiff is without cause or right
of action herein and has failed to state same in its petition.
Plaintiff is without cause or right of action as to its claim for
damages based upon severance of shrimp and other fishes from
its alleged private waters as, by specific provision of R.S. 56-311
and 312, said shrimp and fishes are not subject to private
ownership, dominion or control.
WHEREFORE, defendant prays that this answer be deemed
good and sufficient and after due delays and proceedings, there
be judgment herein in favor of defendant and against plaintiff,
rejecting plaintiff's demands with prejudice and at its cost.
A-45
MOUTON, ROY, CARMOUCHE, HAILEY,
BIVINS & MCNAMARA
BY: /s/ John K. Hill, Jr.
JOHN K. HILL, JR.
P.O. DRAWER Z
LAFAYETTE, LA 70502
A-46
EXHIBIT D (in globo)
COURT OF APPEAL
THIRD CIRCUIT
STATE OF LOUISIANA
DOCKET NOS. 6258, 6259, 6260
VERMILION CORPORATION
PLAINTIFF-APPELLEE
VERSUS
NORMAN VAUGHN, FREDDIE BROUSSARD
AND LARRY J. BROUSSARD
DEFENDANTS-APPELLANTS
APPEALED FROM THE 15th JUDICIAL DISTRICT
COURT, VERMILION PARISH, LOUISIANA, HON-
ORABLE ALLEN M. BABINEAUX, PRESIDING
JUDGE.
BRIEF ON BEHALF OF DEFENDANTS-
APPELLANTS, NORMAN VAUGHN, LARRY
J. BROUSSARD and FREDDIE BROUSSARD
A-47
MOUTON, ROY, CARMOUCHE, HAILEY,
BIVINS & MCNAMARA
BY: /s/ John K. Hill, Jr.
JOHN K. HILL, JR.
P.O. DRAWER Z
LAFAYETTE, LA 70502
(318) 233-7430)
COUNSEL FOR DEFENDANTS-
APPELLANTS
A-48
{i] (i]
[i] SYLLABUS
l.
Summary Judgment must be used cautiously, is no substitute
for trial, requires the resolving of all doubt concerning dispute
as to issue of material fact in favor of trial on the merits, should
be granted only when the mover is clearly entitled thereto, and
must be denied if there is genuine issue of fact present. although
the Court may feel that the party against whom the motion is
brought has little chance to prevail at trial. LSA-C.C.P. Articles
966 through 969; Laufer v. Touro Infirmary, 324 So.2d 541:
Savoy v. Action Products Co., 324 So.2d 921. writ denied.
329 So.2d 463; Rosen v. Capital City Press, 314 So.2d 511.
A body of water is “‘navigable water of the United States”
if it is presently being used or is suitable for use for transporta-
tion and commerce, or if it has been so used or was suitable
for such use in the past, or if it could be made suitable for such
use in the future by reasonable improvements, the true criterion
of navigability being the capability rather than manner and
extent of use, and lack of commercial traffic being no bar to
the conclusion that the waterway is navigable where personal
and private use of boats demonstrates the availability of the
waterway for the simpler types of commercial traffic: further-
more, the presence of tidal fluctuation in a body of water, and
its opening onto or having access to the open sea, are criteria
for determining whether or not it is “navigable water of the
United States.”” United States v. Cannon, 363 F.Supp. 1045,
District Court, Delaware, 1973; United States uv. Pot-Nets, Inc.,
363 F.Supp. 812, D. C. Delaware, 1973; United States v.
Underwood, 344 F.Supp. 486, Florida, 1972; United States v.
Stoecu Homes, 498 F.2d 610; United States v. Moretti, 478
F.2d 428; and United States v. Lewis, 355 F.Supp. 1132.
A-49
[ij [ii]
[ii] Il.
Under state law a private party may not obstruct Passage of
a highway of commerce, including a navigable waterway.
LSA-R.S. 14:97; Discon v. Saray, 362 La. 997, 265 So.2d 765:
D’Albora v. Barcia, 144 So.2d 911, La.App., 4th Cir. (1962).
IV.
Under federal law, a private party may not pose or place any
obstruction, whether statutorily delineated or not, to the
“navigable capacity” of the navigable water of the United
States. 33 U.S.C. 403, United States v. Republic Steel, 80 S.Ct.
884.
V.
Manmade channels connecting with tidal water become
navigable waters of the United States, notwithstanding that
they are on private property and are developed with private
funds. United States v. Sexton Cove Estates, 389 F.Supp. 602,
affirmed in part, reversed in part, 526 F.2d 1293, D.C. Florida,
1976, and C.A., Sth Cir., 1976; Tatum v. Blackstock, 319 F.2d
397, 5th Cir., 1963.
VI.
“Navigable water of the United States” is not subject to
private dominion or control, and the public has a servitude of
navigation thereon. United States v. Appalachian Elec. Power
Co., 61 S.Ct. 291, 307-308 ( 1940); United States v. Willow
River Power Co., 65 S.Ct. 761, 766-767 (1945); United States
v. Twin City Power Co., 76 S.Ct. 259, 261-262 (1956); United
States v. 421.715 Acres, etc., 53 F.Supp. 143, 148, N.D.-Cal.
(1943).
A-50
[iii] [iii]
[iii] STATEMENT OF THE CASE
Vermilion Corporation, Lessee from Exxon Company of a
large portion of the Louisiana Wetlands in Vermilion Parish
(including lands from the Intracoastal Waterway on the North
to the Gulf of Mexico on the South, and from West Chenier Au
Tigre on the East to Rollover Bayou on the West) brought suit
in Vermilion Parish against appellants Vaughn, Broussard and
Broussard, alleging that appellants had ‘“‘trespassed” on the
plaintiff's leasehold via using plaintiff's canal system developed
by plaintiff and its predecessors in title on the leasehold, and
by fishing and shrimping therein, all without permission of the
appellee.
Defendants answered, pleading in the main that these canals
are “navigable waters of the United States’’, and that, vu’ der
both federal and state law, the public has a paramount easement
of use thereof, and that the canals are thus not subject to
private dominion, ownership or control. The cases, being
virtually identical, were consolidated.
Appellee filed a Motion for Summary Judgment in the Trial
Court, and, in reasons filed on June 7, 1977, the Honorable
Judge Babineaux granted the summary judgment, holding, in
effect, that the canals on the leasehold are private, privately
owned, and subject to private control. Judgment pursuant
thereto was signed on 22 June 1977. Motion and Order for
Appeal was signed on the same date, and this appeal was timely
perfected.
The appeal of Judge Babineaux’ granting of the Vermilion
Corporation’s Motion for Summary Judgment is thus before
Your Honors.
.
4 ~~
ad
A-51
[iv] [iv]
[iv] SPECIFICATIONS OF ERRORS
I.
The trial court erred in finding that there was no genuine
issue of material fact, and in thus granting the Motion for
Summary Judgment.
The Trial Court erred in finding that the Vermilion Corpora-
tion was entitled to recover as a matter of law, insofar as the
Trial Court held that, as a matter of law, the “Humble Canal
System” constituted a system of private waterways, subject
to the private ownership, dominion and control of Exxon and
its Lessee, Vermilion Corporation.
A-52
[v] 7 . [v]
[v] ISSUES
I.
Was there genuine issue of material fact?
li.
Are the Humble Canals navigable in fact, and subject to tidal!
fluctuations?
Are the Humble Canals “navigable waters of the United
States?”
IV.
May a private party exercise ownership, dominion and
control over navigable waters of the United States under either
state or federal law, if those waterways were developed with
private funds and are on private property?
A-53
[1] [1]
[1] ARGUMENT
MAY IT PLEASE THE COURT:
The three consolidated lawsuits which gave rise to this appeal
were brought by the Vermilion Corporation in the 15th Judicial
District Court for Vermilion Parish. Vermilion Corporation is
the Lessee of certain lands in Vermilion Parish which are owned
by Exxon Company, U.S.A. and which lands are delineated in
Exhibits D1, D2 and D3 of the deposition of John Donohue,
Chief Executive Officer of the Vermilion Corporation, which
is a part of the record in this proceedings, and which was
submitted both in support of and in opposition to the Motion
for Summary Judgment filed below.
Generally speaking, these lands run from the Intracoastal
Canal and Schooner Bayou on the North to the Gulf of Mexico
on the South, and from West Chenier Au Tigre Canal on the
East to Rollover Bayou on the West. Pecan Island is more or
less in the center of the leasehold. |
The Vermilion Corporation alleged in its pleadings that the
defendants, by using certain canals dug and developed by the
Vermilion Corporation and its ancestors in title on the lease-
hold, and by fishing and shrimping therein, “‘trespassed” on the
lands of the Lessee. Appellee demanded injunctive relief against
said trespass, and damages for the severance of shrimp by the
appellants from its waterways.
Defendants answered and alleged principally as their defenses
that they, as members of the public, had a paramount servitude
or easement of use over and across these canals, as the canals
are navigable in fact, are subject to tidal fluctuation, and are
thus “navigable waters of the United States,” which are not
subject to private dominion or control regardless of the pur-
pose, by whom, and where they were developed. Furthermore,
A-54
[1] [2]
both federal and state statutes prohibit the obstruction of the
“navigable waters of the United States” and “highways of
commerce.” See 33 U.S.C. 403 and L.S.A.-R.S. 14:97.
[2] The Vermilion Corporation then filed a Motion for
Summary Judgment, admitting the truth and validity of the
majority of plaintiff's factual allegations. | Indeed, the only
significant factual allegation made to date by appellants which
Vermilion Corporation did not admit was that, in the develop-
ment of the private canal system on the leasehold, Vermilion
Corporation’s ancestors in title had in fact impaired and
virtually destroyed the navigability of natural navigable water-
ways [Fresh Water Bayou, for example] which prior to the
development of the canal system had been used by residents
of the Pecan Island area as actual and very vital highways of
commerce. Vermilion Corporation presumably does not deny
that Freah Water Bayou was formerly used as a highway of
commerce; it simply denies that its actions had anything to do
with rendering that Bayou unsuitable for such activity now.
Judge Babineaux, relying primarily on the opinion of this
Court in Audubon Society v. White, 302 So.2d 660, errone-
ously, appellants submit, granted the Motion for Summary
Judgment.
Appellants verily believe that, regardless of Audubon Society
v. White, there was genuine issue of fact which should have
precluded the granting of summary judgment.
Perhaps most important appellants also believe, to put it
bluntly, that Your Honors’ decision in Audubon Society v.
White was and is erroneous, and flies squarely into the face of
*
-
1 See pp. 6-7 for a recitation of the facts as to which the parties agree.
A-55
[2] [3]
the federal law in this area, which is both superior to state law
by virtue of Article 1, Section 8, Clause 3 of the Constitution of
the United States, and also is in wholesale disagreement in its
jurisprudence with the principles set forth by this Court in
Audubon Society v. White.
SUMMARY JUDGMENT - WAS THERE GENUINE ISSUE
OF FACT?
Before examining the substantive and truly important factual
and legal considerations in this matter, one should first examine
whether or not there was in any respect “genuine issue of
material [3] fact’ between the parties which should have
been sufficient to preclude the Trial Court from the granting of
summary judgment.
L.S.A.-C.C.P. Articles 966 through 969, and numerous cases:
Laufer v. Touro Infirmary, 334 So.2d 541, Savoy v. Action
Products Co., 324 So.2d 921, and Rosen v. Capital City Press,
314 So.2d 511, dictate that the remedy of summary judgment
must be used cautiously. It is no substitute for trial. It requires
the resolution of all doubt concerning dispute as to issue of
material fact in favor of trial on the merits. It can be granted
only when the mover is clearly entitled thereto. Despite the
feeling of the Court in any particular case that the party against~
whom a Motion for Summary Judgment is brought has little
chance to prevail at trial,/the motion simply must be denied if
there is nevertheless ‘‘genuine issue of material fact’”ptesent in
the lawsuit.
The Vermilion Corporation, through the deposition of its
Chief Executive Officer, Mr. John Donohue, and: through its
representations to the Trial Court in brief and argument,
admitted the validity of most of the factual allegations made by
A-56
[3] [4]
plaintiffs. But, as is quite evident from Mr. Donohue’s deposi-
tion, particularly when same is compared with the affidavits of
the appellants which were submitted in opposition to the
Motion for Summary Judgment, there was one very large area
of disagreement on the facts between the parties: The defen-
dants claim, and believe they can prove at trial, that, at the time
of and long before Humble et al began to develop canals in the
affected area, there were natural waterways [particularly Fresh
Water Bayou] which coursed from Pecan Island southerly to
the Gulf of Mexico which were used by the denizens of Pecan
Island as highways of commerce in the most literal sense—the
U. S. Mail, cattle, groceries, and other stores were taken from
and brought to Pecan Island by these natural navigable water-
ways. Defendants contend that the navigability of these natural
navigable waterways, particularly Fresh Water Bayou, and
another small body of water near the present DeWitt Canz! and
formerly called “Little Rollover’’ or “Little Fresh Water”
Bayou, were impaired and virtually [4] destroyed at the time
of and as a direct result of the development of the artificial
canals by the then Humble Oil and Refining Company.
Even one of_the cases cited by the Vermilion Corporation
and by Judge Babineaux in support of summary judgment
{Ilhenny v. Broussard, 135 So. 669] indicates that such evi-
dence is an important consideration in a case of this type.
Furthermore, LSA-R.S. 14:97 and 33 U.S.C. 403 may well have
been violated, and may well have continued to be violated,
by the builders of these artificial canals, if, at the very beginning
of the development of the artificial canals, a natural navigable
waterway was impaired or destroyed, and continues to be
impaired or destroyed wholly or substantially as a result of the
development of artificial navigable waterways.
To place this issue in its most salient light, proof by the
defendants that Fresh Water Bayou’s navigability was impaired
or destroyed only by the development of Humble’s, thence
A-57
[4] [5]
Exxon’s, thence Vermilion Corporation’s private canals, would
mean not merely that the plaintiff-appellee had developed
ab initio artificial navigable waterways, which became “navi-
gable waters of the United States,” but actually substituted
artificial navigable waterways for a pre-existing natural system
of navigable waterways. If that were true, certainly under no
circumstances could the mere passage of time bestow upon the
plaintiff's artificial navigable waterways the status of “private
property.”
Judge Babineaux seemed frankly to feel that this strongly
contested factual issue between the parties had nothii ¢ to do
with his decision in this case. Appellants believe it aid as a
matter of federal and state statutory law, and further as a factor
which strongly distinguished ! the present case from Audubon
Society v. White, assuming arguendo for the moment that
Audubon Society v. White was a correct decision on its own
facts.
Furthermore, although the writer and counsel for the
Vermilion Corporation, due to their basically pleasant and
[5] cooperative natures, were able early on to agree substan-
tially as to many of the important facts in this matter, one
should also note as a general proposition that this litigation is
simply too important to be decided based upon one deposition,
an affidavit, two sets of pleadings, and that which counsel for
the parties informally advised the Court as to the nature of the
facts. One speaks in this case of a violation clash between two
very powerful principles: On the one hand, there is the sanctity
of private property; on the other, the equally sacrosanct and
equally ancient principle of the public right of navigation of
marine highways of commerce.
See discussion of this distinguishing factor at p. 10.
A-58
(S] [6]
The Louisiana wetlands are crossed and paraphed with many
artificial canal systems. It would probably come as a great
shock to the developers of some of those canal systems that
they are “navigable waters of the United States” subject to a
public right of navigation. It would also come as a great shock
to the members of the public who exercise that right of naviga-
tion to be told that these canals are “private property.”’ The
reason both sides would be so shocked is that there simply has
not been a lot of thinking and effort devoted in our state to
this clash of interests. With the exception of a few cases, the
interests have siinply coexisted - neither has bothered the other
in many areas, while both probably confidently felt that either
could tell the other at any given time “where to get off.”
The exact configuration and unitariness of the Humble
Canal System involved in this litigation, and certainly the
exact history, geography and hydrography present in the areas
involved in this litigation, might dictate a result different from
that which on the surface would seem to be an identical situa-
tion in another area of our state, but which, upon delving into
all the facts, would br distinguishable. Do not all of us in this
case, judges and counsel ivr the parties, owe to ourselves and
to our judicial institution a full development of all facts thought
to be relevant, so that a definitive decision can be reached?
[6] Stated differently, is not this case simply too important
to be decided via Motion for Summary Judgment?
In summary, there was “genuine issue of material fact”
discernible even at the early stage of development of this case
at which Judge Babineaux considered the Motion for Summary
Judgment. The issue of fact concerning the natural navigable
waterway history of the area, plus the alleged impairment or
destruction thereof via the development by plaintiff's ancestors
of its artificial waterway system, was nough in and of itself to
preclude Judge Babineaux’ granting summary judgment. On a
less technical, but ultimately more important, basis, Appellants
A-59
(6) [7]
also believe that this case generally is simply too big, too
complex, and too important to many persons and interests in
the State of Louisiana to have been decided by the Trial Court
via summary judgment, and on the basis of the small amount
of material which was before the Court at that time.
WAS THE VERMILION CORPORATION ENTITLED TO
RECOVER AS A MATTER OF LAW - MAY A PRIVATE
CANAL, DEVELOPED ON “PRIVATE PROPERTY, WITH
“PRIVATE” FUNDS, BECOME “NAVIGABLE WATER OF
THE UNITED STATES,” THUS TO PRECLUDE PRIVATE
CONTROL AND DOMINION, AND THUS TO GIVE THE
PUBLIC AN EASEMENT OF USE?
The following recitation includes all or virtually all of the
factual background of this litigation on which the parties are
literally in agreement:
As Mr. Donohue’s deposition shows, at various times from
the early 1940s to the present, the Vermilion Corporation and
its ancestors or allied corporations [Louisiana Fur Company,
Humble Oil and Refining Company, and Exxon Company,
U.S.A.], have built canals on the leasehold. The canal system
is unitary; i.e., no part of it is enclosed on both ends of any
particular waterway, and the canal system generally speaking
connects at the four points of the compass with what are
unquestionably navigable waters of the United States, to-wit:
The Gulf of Mexico, Fresh [7] Water Sayou Canal, the
' Intracoastal Waterway, etc. The canal system generally was
built to specifications of channels approximately 60 feet wide
and 8 feet deep - some more, and some less, but the average
width and depth are as aforesaid. The entire unitary canal
system of course was built on private property with private
funds. But, more important, the entire canal system is clearly
A-60
[7] [8]
subject to tidal fluctuation, and is clearly navigable in fact. All
parties agree on these conclusions.
Dredges, drilling barges, work boats, cargo boats, pleasure
boats, pirogues, shrimp and fishing boats, and the proud vessels
used by many members of the South Louisiana bench and bar
during hunting season, now ply, and for many years have
plied, the waters of these canals. As is evident from Mr. John
Donohue’s deposition, there are now and have been for many
years, two commercial marinas at different points on the
Northern headwaters of the canal system—Hazel’s Landing and
Broussard’s Landing have long served Humble and Exxon.
fishermen and hunters, and those who desired simply to have
a place to launch their boats, navigate a few miles and thence
debouch into the Gulf of Mexico.
A body of water is “navigable water of the United States”
it is is presently being used or is suitable for use for transporta-
tion and commerce, or if it has been so used or was suitable
for such use in the past, or if it could be made suitable for such
use in the future by reasonable improvements, the true criterion
of navigability being the capability rather than manner and
extent of use, and lack of commercial traffic being no bar to
the conclusion that the waterway is navigable where personal
and private use of boats demonstrates the availability of the
waterway for the simpler types of commercial traffic; further-
more, the presence of tidal fluctuation in a body of water, and
its opening onto or having access to the open sea, are criteria
for determining whether or not it is “navigable water of the
United States.” United States v. Cannon, 363 F.Supp. 1045.
District Court, Delaware, 19%3; United States v. Pot-Nets, Inc.,
363 F.Supp. 812, D. C. Delaware, 1973; United States v.
Underwood, 344 F.Supp. 486.
A-61
[8] [8]
[8] Thus, Humble Canal System is:
(a) Unitary;
(b) Connects on its North, East and South sides with
obvious navigable waterways [Intracoastal Canal, Fresh Water
Canal, and the Gulf of Mexico] ;
(c) Rises and falls with the tides;
(d) Is “navigable in fact,”’ and
(e) Is thus, by anyone’s definition, “navigable water of the
United States.”
Yet, Appellants, as citizens and members of the public, were
told by the Trial Court that they cannot use those waterways
without the permission of their “private owner.” An analysis of
the reasons for the decision of the Court below will, Appellants
submit, show how and why the Trial Court erred it its apprecia-
tion of the law. )
Judge Babineaux relied upon this very Court’s decision in
Audubon Society v. White, 302 So.2d 660, and also to a certain
extent upon /lhenny v. Broussard, 135 So.2d 609, and went on
to say:
“To support their position that the impairment of
the navigability of a natural water is an issue material
to this case, the defendant cites [Jhenny v. Broussard,
135 So. 609 (Sup. Ct. 1931). Although the Court in
that case does note that there is ‘some authority’ for
the proposition that the public is entitled to the use
of a new canal which obstructs a navigable waterway,
it ultimately rejects that authority, and denies the
defendant the right to use a privately built canal.
A-62
[8]
“The facts this Court feels are important are that the
canals were constructed with private funds on private
property; that the canals have been maintained
privately and the use thereof has been restricted use
with permission only; and, there are numerous
trespass signs indicating the private nature of the
canals involved.
[9] “We distinguish D’Albara v. Garcia, 144 So.2d
911, and Discon v. Saray, 265 So.2d 765. as did the
Third Circuit in National Audubon Society.v. White,
302 So. 765 660, by noting that those cases found
that the waterways involved were either part-of the
public domain or had been dedicated for the public
use. In the case at hand we find the canals are pri-
vately maintained and have not been dedicated for
the public use.
“We find that the Third Circuit’s statement of the
law in National Audubon Society v. White and the
Supreme Court’s decision in /lhenny v. Broussard
are controlling; and even taking the allegations of
defendant, that the canals have obstructed or diverted
‘navigable waters of the United States’ we must
conclude that navigable waterway constructed with
private funds on private land is a private thing and
not open for public use.”’ (Emphasis and underscoring
theirs)
[9]
With apologies to Judges Hood, Culpepper and Miller,
A-63
Appellants believe that Audubon Society v. White is simply an
erroneous decision in all respects, as it stands for a proposition
which Appellants believe cannot be countenanced under the
Constitution and laws of the United States. Audubon seems to
say that a waterway can be “navigable,” and presumably can
be “navigable waters of the United States,” but if developed on
[9] [10]
private property with private funds, is nevertheless subject to
private dominion and control. Perhaps the writer is simply
unaware of the law applicable to this matter, but, again with
apologies to the Audubon Judges, the writer believes that they
created in Audubon Society v. White an anomalous legal status
via the attempted marriage of two mutually exclusive legal
principles: There is no private “navigable water of the United
States” as the writer appreciates the law; private dominion and
control simply cannot be married to the public right of use of
“navigable water of the United States.”
A reading of Audubon shows, Appellants believe, that the
real issues which should have been litigated by the parties in
the Trial Court and which should have been dealt with by the
Appellate Court were not addressed. Audubon was tried as if it
were a .oad dedication case. No one raised apparently the many
issues of federal law applicable to waterways which do not
apply [10] to questions and cases involving dedications of
roads, and of normal rights of way over land.
Furthermore, Your Honors will note that, at Page 662 of
the Audubon opinion, the Court said:
“The canal has been . . . widened since it was original-
ly built, and it is now from 88-110 feet wide, and
9 to 11 feet deep. It is navigable and has been navi-
gable since it was first built in 1912. There were no
navigable waters on the land affected by the canal
before that waterway was constructed.” Ibid. [Em-
phasis supplied] .
One should remember; that in this case, the one large factual
issue in dispute between the parties concerns the pre-existence
of natural navigable waterways on the Vermilion Corporation’s
leasehold and the impairment or destruction thereof via the
building of the artificial canal system. Presumably, this Court
A-64
{10} (11)
felt that the absence of such an issue, or of such proof. in the
Audubon case was important. Presumably, also. if Appellants
are able to prove at a trial on the merits of the instant case that
the artificial canal system presently in question was bor itself
only via destruction of a natural system of navigable waterways,
_the result, even under the authority of the Audubon case - even
if it is correct - might well be different. Appellants will leave
that distinguishing factor to Your Honors own consideration,
for Appellants desire to concentrate on that which they really
believe to be wrong with the Audubon case, and right about
their position in the instant litigation.
The fact that the Humble Canal system involved in this
case was developed on private property with private funds is,
Appellants believe, of no moment, for the law both of the State
of Louisiana and of the United States shows that. even though
manmade channels and canals be constructed on private
property with private funds, if they then or thereby become
navigable, and otherwise connect with clearly navigable bodies
of water, they become “navigable waters of the United States.”
and, pursuant to provisions of the United States Constitution,
U. S. and [11] Louisiana jurisprudence, and statutory
authority, they become public highways of commerce. not
subject to private dominion or control and instead open to
public use.
The United States has paramount control over navigable
waters under the Commerce Clause of the Constitution of the
United States (Article 1, Section 8, Clause 3). The dispositive
effect of this principle upon this case is discussed infra, but,
before doing so, the Court should be aware of the following
principles:
(a) Under state law, a private party may not obstruct
passage on a “highway of commerce” (R.S. 14:97);
A-65
[11] [12]
(b) Under federal law, a private party may not pose or
place any obstruction (whether statutorily delineated or not)
to the “navigable capacity” of the navigable waters of the
United States (33 U.S.C. 403, and United States v. Republic
Steel, 80 S.Ct. 884).
(c) Fishes and shrimp are not subject to private ownership
or control (R.S. 56:311-312);
(4) Most important, the federal law, as is indicated in the
Sexton_case, and the state law, as was indicated by our Supreme
Court in Discon v. Saray, | stand clearly for the proposition
that, although a canal be developed with private funds on
private property, if tnese canals be navigable in fact or subject
to tidal fluctuation, and otherwise connect with that which is
undisputed navigable water of the United States, ‘‘these canals
themselves become navigable waters of the United States.”
United States v. Sexton Cove Estates, 389 F.Supp. 602,
affirmed in part, reversed in part, 526 F.2d 1293, D.C.Florida,
1976, and C.A. Sth Cir. 197 .
In Discon v. Saray, the Court discussed the facts and some of
the law applicable to this matter in the following language:
[12] “Plaintiffs urge that the obstruction of navi-
gable waterways is reprobated by R.S. 14:97 2/ and
1 See also the older D’Albora v. Garcia, 144 So.2d 911
2/ “Simple obstruction of a highway of commerce is the inten-
tional or criminally negligent placing of anything or perfor-
mance of any act on any railway, railroad, naviable waterway,
road, highway, thoroughfare, or runway of an airport, which
will render movement thereon more difficult.
“Whoever commits the crime of simple obstruction of a high-
way of commerce shall be fined not more than two hundred
dollars, or imprisoned for not more than six months, or both.
A-66
[12]
that under this provision, as applied by the Court of
Appeal, Fourth Circuit, in D’Albara v. Garcia. La.
App., 144 So.2d 911 (1962), cert. den.. to another
canal bordering Lake Pontchartrain, the action of
the defendant is prohibited.
“The Court of Appeal found that Faciane Canal is a
navigable waterway, and that the defendant owns
that part of the waterway running through his proper-
ty. It held, however, the right of the plaintiffs to use
the waterway constituted merely a servitude of
passage which, under the provisions of Civil Code
Arts. 703 and 777, may be changed to another
location by the owner of the servient estate: and that,
since the defendant has offered for the use of plain-
tiffs another, different canal by which they will have
navigational access through his property. he has
satisfied the provisions of the cited Civil Code articles.
For these reasons, it concluded that plaintiffs were
without right to maintain their action to prevent
defendant from closing Faciane Canal where it goes
through his property in order to give him a better
utilization of his land.
“We understand from the record that Faciane Canal
was constructed in the mid-1950’s. lt was included
in a subdivision development known as the North
Shore Beach Subdivision. The 168 lots therein
(each 100 feet in width) lie along the edge of Lake
Pontchartrain. The Canal and a road designated as
Carr Drive are shown on the subdivision plat to the
rear of the lots and roughly parallel to the shore of
the lake. The Canal and roadway are approximately
three and one-half miles long. Access to the lake is
available through only one end of the canal, the
other erid running into the Southern Railway tracks.
A-67
[12]
[12]
“The defendant owns the property on both sides of
the canal where the canal enters the lake, and desires
to fill in the canal at that point for almost 700 feet,
in order to have [13] direct access to his property
on each side. For convenience we attach hereto that
portion of the subdivision plat (a survey conducted
by F.C. Gandolfo, Jr., dated September 23, 1954),
which shows the area where the canal enters the lake
and where defendant proposed to close the canal. The
part of the canal between the ‘x’s’ (which we have
placed on the plat) is the area where the witnesses at
the hearing estimated that the closure was attempted.
“We entertain no doubt but that the lower courts
were correct in their conclusion that the canal is
navigable. It is fifty to sixty feet wide, and wider in
some areas. Witnesses estimated its depth as being
between ten to fifteen feet. Boats up to thirty or
thirty-five feet in length regularly use the canal
and larger boats have used it from time to time.
Principally these boats belong to the owners of the
abutting property and are used for pleasure purposes.
However, floating pile drivers and barges have also
been in the canal in connection with the construction
of boat houses and piers. Indeed, it appears to be
conceded in defendant’s brief that the canal is navi-
gable in fact. However, defense counsel argue that it
is not navigable in law because there is no commercial
traffic thereon, and that since the abutting property
is restricted to residential use there will be no com-
mercial use of the canal.
“We find that the record does not bear out this
contention. As shown, the canal has been used by
commercial floating pile-drivers and barges. And that
part of the canal abutting the defendant’s property,
A-68
{43}
Me os
[13]
which is commercially zoned, has been used commer-
cially as a rented dock for crew boats used in oil
operations. (The first six lots which are owned by
defendant are zoned for commercial purposes.)
“In any event we think that the court in D’Albora v.
Garcia, supra, correctly stated that:
* *** the capability of use by the public for purposes
of transportation and commerce affords the true
criterion of navigability rather than the extent and
manner of use. Economy Light & Power Co. v.
United States, 256 U.S. 113, 122, 1 S.Ct. 409.
412, 65 L.Ed 847; United States v. The Montello.
Etc., 20 Wall. 430, 22 L.Ed. 391. Nor, as was pointed
out in United States v. Appalachian Electric Power
Co., 311 U.S. 377, 61 S.Ct. 291, 85 L.Ed. 243. does
the lack of commercial traffic preclude a conclusion
of navigability where personal or private use by boats
demonstrates the navigability of the stream for a type
of commercial navigation. * * *
‘It was particularly pointed out in the United States
v. Appalachian Electric Power Co. case, supra. that
the condition of exploration and settlement of an
area explained the infrequency or limited nature of
[14]
such use of waters as highways of commerce, and.
that the lack of commercial traffic does not preclude
the [14] conclusion that a body of water is navi-
gable where personal or private use demonstrates the
capability of the stream for a type of commercial
navigation; the question of the availability of the
body for navigation is controlling rather than the
extent of commerce conducted thereon. A similar
observation was made by the Louisiana Supreme
Court in State v. Jefferson Island Salt Mining Co..
supra.’
A-69
[14]
‘Inasmuch as we have found that the canal is navi-
gable on the basis of other evidence, we do not deem
it necessary that it be determined whether it is
subject to tidal e-b and flow (which concededly is
one indicia of navigability). But because of defense
counsel’s heavy reliance on this factor as distin-
guishing this case from D’Albora, we have examined
the record to find whether it sustains their assertion
that, unlike the canal in D’Albora, the Faciane Canal
is not affected by a regular ebb and flow of the
astronomical tides (as distinghished from the wind
tides). The meteorologist who testified for defendant
on this point did not testify that the Faciane Canal,
as distinguished from Lake Pontchartrain, is not so
affected, he testified that none of Lake Pontchartrain
is subject to an atmospheric or astronomical tide.
He did state, however, that if tide is considered as an
ebb ard flow that then there was an ebb and flow in
the lake. He haye no testimony in this regard applying
specifically to the canal. On the other hand, witnesses
who have spent considerable time on the canal
testified that there is a daily ebb and flow in the canal
of eight to ten inches. In other words, the canal is
affected by an ebb and flow in the same manner as
is the lake and in the same fashion as the canal
involved in D’Albora.
“Hence, because the canal is navigable, there can be
no question but that it is subject to the provision of
R.S. 14:97.
“Manifestly, the complete blockage of the canal by
defendant where it passes his property not only
renders ‘movement thereon more difficult,’ (R.S.
14:97), it renders movement thereon impossible.”
{Emphasis theirs] . 265 So.2d 765, 767-770.
A-70
[14]
Bue
[14]
[15]
In United States v. Sexton Cove #states, supra, the following
language may be found:
“In the case at) bar, the defendants’ canals denoted
as numbers one (1) through five (5) are tidal and are
connected to Blackwater Sound, a navigable water of
the United States. The five unopened canals also have
tidal fluctuations. Thus, these canals affect the
nearby navigable waters; i.e. waters of Blackwater
Sound are diverted into the canal systems with the
tidal fluctuations and (anoxic, polluted) waters from
the canal system are returned to Blackwater Sound;
any of these alter or modify the course, location,
condition or capacity of Blackwater Sound as a
matter of law:
[15] Any excavation or filling operation must
necessarily ‘alter’ or ‘modify’ the body of water
which is its subject. United States v. Benton and
Company, Inc., 345 F.Supp. 1101, 1102 (M.D. of
Fla. 1972). (Emphasis added).
“The Fifth Circuit in Tatum v. Blackstock, supra,
also holds clearly that man-made channels connecting
with tidal waters become navigable waters of the
United States notwithstanding that they are on
private property. The Court stated:
‘** . . . At the point where plaintiff's property and
other property in the subdivision join this low tidal
flat, a man made channel has been dug running from
the channel of Taylor Bayou on the west in an
easterly direction ane forming the south and east
boundaries of the tidal flat, connecting with Taylor
Lake. Thus the area is now completely surrounded by
navigable water and in effect what was a peninsula is
A-71
[15] [15]
now rendered an island by the cutting of the man
made channel, and the channel is navigable water of
the United States. Tatum v. Blackstock, Id., 319 F.2d
at 398.” (Emphasis theirs).
United States v. Sexton Cove Estates,
389 F.Supp. 602, page 607.
That which is “na /igable water of the United States,” under
the authority of a legion of federal cases, is not subject to
private dominion or control, as the public has a paramount
right of use therein. United States v. Appalachian Elec. Power
Co., 61 S.Ct. 291, 307-308 (1940); United States v. Willow
River Power Co., 65 S.Ct. 761,766-767 (1945); United States v.
Twin City Power Co., 76 S.Ct. 259, 261-262 (1956); United
States v. 421.715 Acres, etc., 53 F.Supp. 143, 148, N.D.-Cal.
(1943). In United States v. 412.715 Acres, supra, it was said
succinctly
“It is well established that title to the banks and bed
of a navigable stream are subject to the navigation
servitude. The nature of the servitude is defined by
cases cited in the Government’s brief: ‘The public
right of navigation’. Lewis Blue Point Oyster Cultiva-
tion Co. v. Briggs, 229 U.S. 82, 33 S.Ct.679, 57 L.Ed.
1083; Scranton v. Wheeler, 179 U.S.141, 21 S.Ct. 48,
45 L.Ed.126; United States v. Chandler-Dunbar
Water Power Co., 229 U.S. 53, 33 S.Ct.667, 57 L.Ed.
1063. The shores and lands lying under navigable
waters are held to be subject to a trust for the public
uses of navigation and fishery. Being subject to-this
trust, they were publici juris; in other words, they
were held for the use of the people at large. Stockton,
Atty. Gen. of New Jersey, v. Baltimore & N.Y.R. Co.,
C.C., 32 F.9. A waterway was designated the ‘greatest
public utility’ in Hawkins Point Light-House Case,
A-72
[15] [16]
C.C., 39 F.77,88. [16] The court in that case also
said that ‘The bed of a navigable river remains subject
to an easement of navigation.’ In controlling, im-
proving and regulating the navigability of waters the
Government traditionally acts for the benefit of the
navigating public. Unquestionably, it may deepen
channels, widen streams, erect and make similar
improvements, without compensating the owners of
land subject to the navigation servitude.”
The writer frankly finds it very difficult to see how, Tatum,
Sexton Cove Estates, and the immediately foregoing quotation
can simply be ignored by the courts of our state. All of us know
that commerce, navigation, and the admiralty are in the end
peculiarly the province of the United States. and not of the
states. That is no new or revolutionary principle. Furthermore,
33 U.S.C. 403, which prohibits “obstruction to the navigable
capacity” of navigable waters of the United States, and the line
of jurisprudence reflected in Tatum and Sexton Cove Estates
are also not new or revolutionary.
We hope that this Court will agree with and recognize the
error which we feel was made by this Court in Audubon and
perpetuated by Judge Babineaux: The concept of ‘‘dedication
to public use”’ is a creature of state law as applied to landslide
roads. The federal, and, in the main, our state jurisprudence,
simply cannot and does not speak of waterways in the same
frame of reference. D’Albora v. Garcia, 144 So.2d 911 and
Discon v. Saray, supra, certainly mention “dedication to public
use,”’ whether it be by subdivision plat or otherwise, but they
also prominently mention the much more and truly important
legal principles which were involved in both of those cases and
which should have been involved in Audubon: Once one proves
navigability in fact and navigability in law, that ends the inquiry
with regard to waterways; one does not have to, and should not
be required to, go beyond that point and prove some sort of
“dedication.”
A-73
i, TL ere
[16] [17]
It makes not a whit of difference that Mr. Donohue and
others have put up “No Trespassing” signs, and have not “dedi-
cated” their canals to public use. The fact that Vermilion
[17] Corporation and its ancestors in title built navigable
canals, and tied those canals into other clearly navigable bodies
of water made those canals from the day of their completion
“navigable water of the United States,” and neither the Ver-
milion Corporetion nor anyone else, save the government of
the United States by its laws, can tell a member of the public
that he or she may not navigate those canals.
We hope that this Court will not only reverse the judgment
of the Trial Court, but will indicate clearly and strongly in this
opinion the applicable legal principles which must govern this
matter, and we further hope that the Court will agree with the
undersigned that those principles are as set forth in 33 U.S.C.
403, LSA-R.S. 14:97, Discon v. Saray, D’Albora v. Garcia, and,
most important, United States v. Sexton Cove Estates and
Tatum v. Blackstock.
Respectfully submitted,
MOUTON, ROY, CARMOUCHE, HAILEY,
BIVINS & MCNAMARA
BY: /s/ John Hill
JOHN K. HILL, JR.
P.O. DRAWER Z
LAFAYETTE, LA 70502
COUNSEL FOR DEFENDANTS-
APPELLANTS
A-74
{17] [17]
CERTIFICATE
I HEREBY CERTIFY that a copy of the above and foregoing
Memorandum has been duly mailed to counsel for Plaintiff-
Appellee, Mr. Charles R. Sonnier, P.O. Box 519, Abbeville,
Louisiana 70510.
Lafayette, Louisiana, August 8, 1977.
/s/ John Hill
JOHN K. HILL, JR.
A-75
COURT OF APPEAL CHARLES R. SONNIER
JOHN E. ORTEGO
THIRD CIRCUIT COOPER & SONNIER
121 East St. Vistor Street
STATE OF LOUISIANA Post Office Box 519
Abbeville, Louisiana 70510
(318) 893-6766
DOCKET NOS. 6258, 6259, 6260 COUNSEL FOR PLAINTIFF-APPELLEE
VERMILION CORPORATION
PLAINTIFF-APPELLEE
VERSUS
NORMAN VAUGHN, FREDDIE BROUSSARD
AND LARRY J. BROUSSARD
DEFENDANTS-APPELLANTS
APPEALED FROM THE 15TH JUDICIAL DIS-
TRICT COURT, VERMILION PARISH, LOUISI-
ANA, HONORABLE ALLEN M. BABINEAUX,
PRESIDING JUDGE.
BRIEF ON BEHALF OF PLAINTIFF-
APPELLEE VERMILION CORPORATION.
A-76 | A-77
SYLLABUS
I.
The plaintiff may move for a summary judgment in his
favor for all or part of the relief for which he has prayed, with
supporting affidavits, at any time after the answer has been
filed. The judgment sought shall be rendered forthwith if the
pleadings, deposition, answers to interrogatories, and admissions
on file, together with the affidavits show that there is no
genuine issue as to material fact and that mover is entitled to a
judgment as a matter of law. L.S.A.-C.C.P. Article 966-969.
A canal built entirely on private property, with private funds
and for private purposes, is a private thing, for the same reasons
that a road built on private property for private purposes is a
privately owned road, regardless of whether or not the canal is
navigable, and despite the fact that there may be a natural tide
in the canals. The owners therefore have the right to regulate
and control the use of the canals, including the right to prohibit
defendants from using it. National Audubon Society v. White,
302 So.2d 660, 3rd Cir., 1974. Ilhenny v. Broussard, 135 So.
669, Sup. Ct., 1931. Harvey v. Potter. 19 La. Ann. 264, Sup.
Ct., 1867.
A-78
[1] (1]
[1] STATEMENTS OF FACTS
Appellee is the lessee of and is in possession and control of
certain lands in Vermilion Parish, Louisiana, described in
Exhibits “‘A”’, “B”’, and “C” attached to the original petition
which is filed in the record. (Maps showing the property are
attached to the deposition of John Donohue, which is also part
of the record of these proceedings.) There are numerous canals
on the property which are usec as the primary means of trans-
portation from one point to ancther within appellee's leasehold.
They are also used by sub-lessees and other persons with written
permits from appellee.
These canals were constructed by the present owner and its
ancestors in title, exclusively with private funds. Since the
canals were built, their use has been continuously supervised
and controlled by appellee, and by appellee's lessor and its
ancestors in title. There are numerous “No Trespassing”’ signs
posted alongside the canals throughout the entire leasehold.
Appellee has subleased almost all of the property to duck
hunters, commercial fishermen, trappers, and others, through
written leases and hunting permits. The right to use the canals
is granted with the sublease.
The appellants have on repeated occasions and after due
warnings from appellee and its employees, engaged in commer-
cial fishing and/or shrimping activities on the canals within
appellee’s lease, without permission of appellee. (See the
affidavit of Warden Murphy Sellers which is filed in the record.)
Appellants do not contest the fact that they were in the loca-
tions as alleged in the original petition. However, appellants do
contest appellee’s right to prohibit them from engaging in
commercial fishing and/or shrimping, or otherwise using said
canals within appellee’s leasehold.
A-79
[1] [2]
Appellants admit that the canals are wholly upon private
property, and were constructed exclusively with private funds.
It is not contested that appellee has maintained control of the
use [2] of those canals continuously for many years, has
maintained a multitude of “No Trespassing”’ signs posted along
the canals throughout appellee’s leasehold, and has granted
permits to many hunters, fishermen, and other sportsmen to
use the canals.
Appellants are correct in stating that many proud vessels
used by members of the Louisiana Bench and Bar during
hunting season have “plied” the waters of these canals, however
they failed to mention that no plying was done without a
permit from appellee. When what is known as the Freshwater
Bayou was widened and improved, the U. S. Corps of Engineers
secured a servitude from appellee and from the owners of the
property.
On the other hand, appellee admits readily that the canals
are capable of being navigated for certain uses, and are subject
to the tides to some degree. Therefore, as aileged in the motion
for summary judgment, there are no real material questions of
fact presented in these law suits. Rather the issue is whether or
not appellee has the legal right to continue to control the canals
within its lease.
These three consolidated suits were filed by appellee, Ver-
milion Corporation, requesting injunctions to restrain and
prohibit defendants, Norman Vaughn, Freddie Broussard, and
Larry J. Broussard from trespassing on any and all property
and/or private canals under lease to appellee.
Appellants first removed the three suits to Federal Court,
but they were remanded to the Fifteenth Judicial District,
Parish of Vermilion after the Federal Court failed to find that
the suits presented a Federal question. The defendants then
A-80
[2] [3]
filed a separate suit in Federal Court against appellee requesting
an injunction which would stay the State Court proceedings.
Those suits have been dismissed voluntarily by appellants.
Appellee filed a motion for summary judgment on the
request for an injunction against the three defendants, together
with affidavits of Murphy Sellers, a Vermilion Corporation
Warden, and John Donohue, an officer of the corporation.
Mr. Donohue’s [3] deposition was also included. The trial
court found that there were no genuine issues of material fact,
and rendered summary judgment granting appellee the injunc-
tion requested.
A-81
[4] [4]
[4] ARGUMENTS AND LAW
MAY IT PLEASE THE COURT:
Appellants listed in their specification of errors two principal
contentions, which are the main issues to be decided on this
appeal. Appellants first claim that the trial court erred in
finding that there was no genuine issue of material fact.
Secondly, appellants argue that the trial court erred in finding
that appellee’s canal system constitutes a system of private
waterways, subject to private ownership, doiminion and control.
Appellee and appellants are in general agreement as to the
facts that are genuinely material to this case and upon which a
judgment can be rendered. It is clear then that the canals in
question were built exclusively on private property and with
private funds. Appellee has been in control and has continuous-
ly supervised the canals since they were built. The canals are
navigable and are subject to the tides to some degree. It is also
not contested that the appellants did in fact engage in commer-
cial fishing and/or shrimping activities in said canals without
permission. Appellee contends that these are all the material
facts which the trial court needed to render its judgment.
Even appellants in their brief admit that the facts are not
disputed. Appellants stated in page two of their brief that the
only significant allegation made by appellants which is not
fully agreed to is appellants’ claim that the initial construction
of the canals over thirty years ago impaired previously existing
natural waterways. The court should note that this “factual
allegation” was not specifically pleaded as an affirmative
defense in the answers filed by appellants.
Appellee has maintained the position in the trial court, and
continues to maintain the position that even if this allegation
were proven, it is not material to the outcome of this lawsuit,
A-82
iis tans 2 BAe
[4] [5]
and therefore the trial court was correct in making its decision.
[5] Appellants in their brief did not cite any authority
supporting their claim that if previously existing natural water-
ways were affected, the owner of private canals loses his owner-
ship or control. Thus, none of the law cited in brief indicates
that the allegation is material or that it would affect the out-
come of this lawsuit.
Appellants state that the Supreme Court opinion in JIhenny
v. Broussard, 135 So., 669 indicates that such evidence is an
important consideration in a case of this type. Appellees re-
spectfully disagree. The Jlhenny case also involves the right of
private property owners to the ownership and control of navi-
gable canals built with their own private funds. In that case the
Supreme Court of Louisiana ruled that although the Congress
of the United States may have plenary power over navigable
waters of the nation, privately built canals are still subject to
private ownership and control. The defendant in the JIhenny
case made much ado about its allegation that the privately built
canal diverted water from natural channels. The Court. in its
opinion stated:
“On this testimony we are unable to say that defen-
dant has shown, by a preponderance of the testi-
mony, either that the natural channel is no longer
navigable or that (if no longer navigable) this condi-
tion is due solely to the waters being diverted by the
canal.
“But be that as it may we do not think this gives
defendant the right to use the plaintiff's private
canal.” (Emphasis added. )
The court made it clear that even if the allegation were true, it
does not affect the canal owners right to own and control his
A-83
[S] [6]
private canal, and thus the allegation was not material to the
legal issues presented in that lawsuit. The Supreme Court
concluded:
“On the whole, therefore, we are of the opinion that
defendant has not the right to use plaintiffs canal
under any circumstances . . .” (Emphasis added.)
[6] Appellee therefore contends that even if this allegation
were true, (and it was clearly admitted in appellants’ brief that
this was the only factual allegation not agreed to), it is still not
material to the issues involved in this lawsuit. The Third Circuit
discussed the Jlhenny case in its decision in National Audubon
Society v. White, 302 So.2d 660, 1974 when it stated:
“In that case E. A. Mcllhenny, plaintiff's ancestor in
title, sued defendant, Broussard to enjoin him from
using that canal. The principal defense urged by the
defendant was that the Mcllhenny canal diverted so
much water from the natural channel that the latter
was no longer navigable, and that defendant thus had
a right to use plaintiff's canal (even though a private
one) because of having been deprived of the use of
the natural channel. The court held that regardless of
whether the MclIlhenny canal diverted waters from
another channel, as contended by defendant, defen-
dant nevertheless did not have the right to use plain-
tiff’s private canal.’’ (Emphasis added.)
Judge Babineaux correctly read and interpreted the above
cited cases, and was correct in his decision that the only factual
allegation which has not been agreed to was not material to his
decision in this case. It would have been senseless to require
the time and expense of a full trial on the merits merely to
determine the truth of one factual allegation that was not
material to the lawsuit.
[6] [7]
Appellants’ final argument in support of their specification
of error number one, is that this litigation is “too important”
to be decided upon on summary judgment. This claim is obvi-
ously without merit. Appellants cited no authority which states
that “important” decisions can’t be made through summary
judgment, nor have appellants outlined a system for measuring
the relative importance of different cases.
The very purpose of a trial is to bring the facts before the
court. Our Code of Civil Procedure recognizes that there are
many instances when the parties are in agreement as to the
material facts, but simply disagree as to what law should be
applied to these facts. In those cases there is no necessity to go
through the time and expense involved in a full trial simply to
bring out facts which are not disputed or immaterial.
[7] Appellee will be the first to admit that this is a case of
importance, however the trial court was also fully aware of that
fact since this point was repeatedly emphasized in the argu-
ments of the adle and diligent counsel for appellants. The mere
fact that the material facts have been agreed to rather than
extracted through the trial ~rocess does not mean that the
trial court can’t give careful consideration <o what appellants
described as a “Violent clash” between two principals - the
sanctity of private property on the one hand and the public
right of navigation of marine highways of commerce on the
other hand.
The trial court was fully aware of the importance of its
decision. It had all the material facts before it which were
needed to make a decision, and had exhaustive briefs from each
counsel concerning the issues. The court also had ample time
to make its own independent research. Therefore the trial court
had all the tools which it needed to carefully weigh these two
important principals and to carefully consider the facts and
the law involved and make its decision correctly.
A-85
[7] [8]
In summary no case is “too important” for summary judg-
ment when the material facts are not disputed. On the contrary,
the trial court should be in an even better position to render
“important” decisions through summary judgment, since it does
not have to spend time making decisions on complicated issues
of fact or weighing conflicting testimony, but can center its
attention on the principals of law involved. The court’s state-
ments in the JIhenny and Audubon decisions make it clear that
the only contested fact in this case is not material to the issue
that needs to be decided. Therefore, this lawsuit was in the
correct posture for summary judgment.
Appellants’ second specification of error is their claim that
the trial court erred in finding that the canals in question are
private and subject to private ownership and control. Although
appellants argued in its brief that there has not been alot of
thinking in this area, the idea of private canals is not by far a
[8] new one in Louisiana. Many years ago the Louisiana
Supreme Court decided the same issue in the case of Harvey v.
Potter, 19 La. Ann. 264 (1867). The issue in that case was as
follows:
“Has the proprietor of a tract of land the right to
excavate, entirely within his own boundaries, and
exclusively at his own expense, a canal for the pur-
poses of navigation, and to require payment for its
use by all who choose to avail themselves its facili-
ties.”
The court went on to conclude that:
“It is not easy to perceive how, in such a case, the
public becomes seized of the right to the gratuitous
use of advantages afforded by individual labor and
enterprise. The right of expropriation, it is true,
belongs to the public, and the land and the canal so
Bin
8] [9]
constructed upon it might, under constitutiona! and
legal provisions, become public property, and be
appropriated to public use .. .
“Private property shall not be taken for public uses,
without ample renumeration first made to the owner.
This is a fundamental principle. So it would seem
clearly to follow that private property can not be
used by the public without compensation for that
use. Suppose the plaintiffs, in this case should refuse
to permit the defendant to use their canal, would an
action of damages lie against the owner? If not, it
must appear that the defendant is not entitled to
require the use of the canal free of charge as he would
have to require the free use of a navigable stream, or
a public road.”
The Supreme Court back in 1867 distinguished between what
is commonly termed a navigable stream, and a privately con-
structed and privately owned navigable canal. At that time the
court stated that the only method by which the public would
have the right to use the canals is through expropriation, and
in that instance the owner of the property would have to be
compensated for the value of what was taken.
This may be the answer to the defendants’ arguments that
the canal is a navigable water of the United States, and subject
to the power of Congress. Millions of dollars were spent in the
construction of the canals in question. Perhaps Congress may
have power over all navigable waters, whether public or private,
but the Fifth Amendment to the U. S. Constitution clearly
provides, [9] and it is a fundamental law of our State and
Nation that private property can not be taken without just
compensation. There has been no expropriation or appropria-
tion by the Federal or State Government of these canals for
public use. Congress has not chosen to exercise its power to
A-87
(9 ™"
expropriate the canals for public use, and they are still subject
to State law, which recognizes the private ownership of the
canals.
Again, in the case of IJlhenny v. Broussard, supra, the
Supreme Court recognized a land owner’s right to construct,
to own and to control a private canal on his property. That
lawsuit was similar to the one at hand in the sense that it was
an action by a property owner to enjoin a defendant from using
a certain navigable canal belonging to the plaintiff. The court
was of the opinion that the defendant did not have the right
to use the plaintiff's canal under any circumstances.
The question of private ownerships of navigable canals was
recently presented to the Third Circuit Court of Appeal in the
case of National Audubon Society v. White, supra. That suit
was another action for an injunction prohibiting the defendant
from using a private navigable canal. The facts of that case are
remarkably similar to those we are dealing with herein.
The evidence in the Audubon case indicated that the canal
in question was constructed on private property and with
private funds. The canal was navigable and used for various
purposes by a multitude of persons since it was first built. There
was evidence presented that it had been used for navigation
by mail carriers, oil companies, cattlemen, sportsmen, hotel
patrons, etc. for a period of at least fifty years, and was used
often by the defendants. The owners of that canal had wardens
who maintained supervision over the canal and prevented any
persons from using the canal without permission. The evidence
show that there were a number of signs along the canal route
indicating its private nature. The canal owners had issued
grazing permits and other written agreements for persons to
use the canals. Even the Army Corps of Engineers had at one
time obtained a permit to use the canals.
A-88
[10] yi [10]
{10} The court found that the canal in question was not a
public canal, subject to public-use, that no right-of-way was
ever expropriated by any public body for canal purposes and
there had been no formal, tacit or implied dedication of the
canal for public use.
Contrary to appellants contentions, the Court of Appeal did
not simply treat this case as a “road dedication” case. The court
carefully considered defendants’ argument that navigable waters
are owned by the public and are for public use. At page 665 of
the decision the court stated:
“In our Civil Code, things are classified as being
either ‘common or public’. L.S.A.-C.C. Art. 449.
Running water, the sea and its shores are said to be
common things. L.S.A.-C.C. Art. 450. Navigable
rivers, highways and the beds of rivers, as long as they
are covered with water are classified as being public
things. L.S.A.-C.C. Art. 453. We do not consider the
Mclthenny canal to be either a common or public
thing. The canal was constructed with private funds
on private property. It can not be said that the
ownership of the canal ‘belongs to nobody in particu-
lar’, as provided in L.S.A.-C.C. Art. 450, or that title
to the canal became ‘vested in a whole nation’ simply
because it contained running water or because it was
dug deep enough to become navigable.
“We believe that a canal built entirely on private
Property, with private funds and for private purposes
is a private thing, for the same reason that a road
built on private property for private purposes is a
privately owned road. See Vol. 2, Yianopoulos,
Louisiana Civil Law Treatise, Sec. 31.5.”
A-89
[10] [11]
There is no error in comparing private canals to private roads.
Highways, like navigable rivers (streams) are classified as “public
things’’, but it is well known and supported in our jurisprudence
that there can be private roads subject to private ownership
and control. If appellee’s land were not primarily marsh land
but suitable for road building, there is no doubt that appellee
could have built, maintained and controlled the use of a private
road system on its leasehold. The courts have likewise recog-
nized that property owners can build, own and control navi-
gable canals on private property. The canals are the most
practical means of transportation in the marsh areas, and they
are merely substitutes for private roads.
[11] The court in Audubon cited the Supreme Court
decision of Harvey v. Potter, supra and Ilhenny v. Broussard,
supra. The court concluded that the “plaintiffs have the right
to regulate and control the use of that canal, including the right
to prohibit the defendants from using it’. The court also
concluded that L.S.A.-R.S. 14:97 does not apply to a private
canal, and distinguished the cases of D’Albora v. Garcia, 144
So.2d 911 (La. App. 4th Cir., 1962); and Discon v. Saray, Inc.,
262 La. 997, 265 So.2d 765 (1972), which appellants relied on
in their brief. Writs to the Supreme Court were applied for in
Audubon, but denied, the court stating at 305 So.2d 542,
“on the facts found by the Court of Appeal, there is no error
of law in the judgment below”’.
Appellants base their arguments on two Louisiana cases,
Discon v. Saray, supra and D’Albora v. Garcia, supra. As men-
tioned above, these cases were dealt with in the Audubon case,
and we'll not go into them any further. Appellants also cite a
number of federal cases and base their main afgument on their
contention that these canals are ‘navigable waters of the United
States”, and thus private control over them is precluded.
A-90
[11] [12]
After a careful review of all of the federal cases cited by the
appellants in their brief, it is obvious that none of those cases
are on all fours with the case at hand, nor do they address the
same issues. None of these federal cases dealt with the right
to control private canals constructed wholly within private
property and with private funds, and being continuously
controlled by the owner or lessee thereof. Most of the cases
dealt with the issue of whether or not parties were required to
get permits from the Corps of Engineers to construct certain
facilities or to engage in certain activities.
Appellants also cite 33 U.S.C.A. 403 which is a Federal
Statute stating that a party cannot place an obstruction to the
navigable capacity of a navigable water of the United States,
without getting a Corps of Engineers permit. All of the cases
under this statute deal with dredging, dumping trash in water-
ways, [12] or actual construction of buildings, warves, piers,
bridges, etc. on waterways which are used by the public. These
type of constructions affect the navigable capacity of the
publicly used waterway. In the case at hand first of all, the
waterway is not one which has been appropriated to the public
use. Secondly appellees are not attempting to alter the capacity
of the stream. Their capacity has been the same since they were
built. Finally this statute can be compared to R.S. 14:97 which
the Audubon court held did not apply to private canals.
Appellants directed much attention in their brief to convince
the court that the canals in question are navigable, however
this matter has already been agreed to. Appellant then cites
many federal cases which they contend hold that since the
Streams are navigable they can not be subject to private control.
One of the main cases relied on by appellants is United States
v. Sexton Cove Estates, 389 Fed. Supp. 602, 526 Fed. 2d 1293,
which is a Florida case. The question in that case was whether
a permit was required from the Corps of Engineers in order to
A-91
[12] [13]
dredge canals. However the Sexton case is distinguishable from
the case at hand, since in that case the canals in question were
obviously dedicated for public use. They were built in connec-
tion with the development of a seventy-three acre mobile home
subdivision, and the canals were shown on a plat which were
prepared and filed in the public records in connection with the
subdivision. The right to own and control the canals was not
even presented to the court, the only question being whether
or not a permit was required to dredge the canals.
Likewise, the case of Tatum v. Blackstock, 319 Fed. 2d
397, cited by appellants is another case dealing with Corps of
Engineers jurisdiction. The question presented was not whether
or not a private land owner could control activity on canals
which he constructed with his own funds. Rather the issue
dealt with whether or not a person was required to get a permit
to do construction work which required building up water
bottoms (a tidal [13] flat) and possibly affecting other
navigable waterways. There was a “man-made channel” dis-
cussed in the decision, but the court did not state whether or
not the channel was constructed with private funds and wholly
within private property. It was alleged that the construction
complained of affected the water levels in the “man-made
channel” and other natural navigable waters around the tidal
flat in question. The court did not make a decision, since it
felt that any complaint was within the jurisdiction of the Corps
of Engineers.
Thus the Tatum case does not address the issues presented
in this case, and should not even be considered. In page 15 of
their brief, appellants stated that the Tatum case stands for the
proposition that man-made channels connecting with tidal
waters become navigable waters of the United States notwith-
standing that they are on private property. No where in the
Tatum decision is it indicated that the lands were constructed
on private property, or that they were constructed with private
A-92
[13] [14]
' funds. Simply because they were man-made does not indicate
those conclusions. In addition, the specific issue of private
ownership and control of privately built canals was not
addressed.
Also on page 15 of their brief, appellants cite a “legion of
federal cases” which supposedly states that navigable waters
are not subject to private dominion and control, and the public
has a paramount right of use therein. Let us examine what
proposition these cases really stand for.
The first case in the legion is United States v. Applachian
Electric Power Company, 61 Sup. Ct. 291 (1940). The issue
in that case was whether or not the Federal Power Commission
could require a license for the construction of a dam across
the New River which ran through Virginia and West Virginia.
It is obvious from reading that decision that the New River was
a natural navigable waterway, and was not privately controlled,
constructed and owned. The only holding in that case was that
the Federal Government had dominion over the water power
of the flow of a navigable stream.
[14] The next case in the legion cited was United States v.
Willow River Power Company, 65 Sup. Ct. 761. This was an
eminent domain case in which the government was expropri-
ating private property. In that case the government had raised
the water level in a natural stream, and by raising the water
level three feet it reduced the power capacity of a privately
owned electric plant situated on the stream. The question
presented was whether or not raising the water level and thus
reducing the power capacity of the electric plant constituted
“taking” property so that the owner of the electric plant could
be compensated for its loss. Obviously, that case has no applica-
tion to the case at hand.
A-93
[14] [15]
The case of United States v. Twin City Power Company, 76
Sup. Ct. 259 was also cited by appellants in its brief. This is
another expropriation suit, and did not deal with a man-made
stream. In this case the government appropriated property
which abutted a natural navigable waterway. The riparian
owners claimed that the fact that the land abutted a navigable
stream, which was suitable for placing an electric plant thereon,
should be taken into consideration in determining the value of
the land taken. Therefore the question presented to the court
was how to value the land taken and whether or not the value
of the water flow in the stream should be considered. Again,
it is obvious that that case is not applicable to the one at hand
since the facts and issues were entirely different.
However the court in United States v. Twin City did cite
another case entitled United States v. Chandler-Dunbar, 33
Sup. Ct. 667, which stated that the ownership of a private
stream wholly upon the lands of an individual was possible
under federal law.
The last case cited by appellants in its brief was that of
United States v. 421.75 acres, etc.. 53 Fed. Supp. 143, which
is a 1943 California case. This is another expropriation case
which has no application to the case at hand. The question
there was whether or not the United States Navy had to pay
the defendant for [15] water bottoms taken for use as a
Navy fueling yard. It is important to note that the property
involved was not a privately built waterway. The court in that
case held that the property could not be expropriated unless
the Navy compensated the owners of the water bottom for
the property taken.
In summary, this writer frankly finds it easy to see how the
Tatum, Sexton Cove Estates, and the other cases cites can
simply be ignored by the courts of our state. They do not deal
with the issues that are presented in this lawsuit, where on the
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[15] [13]
contrary, there are Louisiana cases which are squarely on all
fours with the case now before this court, and which must
control. The only way the public can gain access to the free use
of these canals is if they were expropriated by a governmental
body, and appellees were compensated for the enormous
amount of money spent in dredging and developing these
canals. Therefore appellant prays that this court will continue
to follow principals enunciated in the Harvey v. Potter.
Mcllhenny v. Broussard, and National Audubon Society v.
White cases in recognizing rights of private citizens to construct
navigable canals on their private property, and control the use
thereof.
RESPECTFULLY SUBMITTED,
COOPER & SONNIER
BY: /s/ Charles R. Sonnier
CHARLES R. SONNIER
BY: /s/ John E. Ortego
JOHN E. ORTEGO
*CERTIFICATE OF SERVICE*
I certify that I have served a copy
of the foregoing pleading on all
counsel of record herein by mailing a
copy to said counsel this day.
Abbeville, La., 9/12. 19 77 _.
/s/ John E. Ortego , Attorney
Cooper & Sonnier
121 East St. Victor
Abbeville, La. 70510
A-95
COURT OF APPEAL | MOUTON, ROY, CARMOUCHE, BIVINS
THIRD CIRCUIT & HILL
STATE OF LOUISIANA 4 BY: /s/ John Hill
JOHN K. HILL, JR.
P.O. DRAWER Z
; : 9, 6260
DOCKET NOS. 6258, 6259, 62 LAFAYETTE, LA 70502
(318) 233-7430
COUNSEL FOR DEFENDANTS-
VERMILION CORPORATION APPELLANTS
PLAINTIFF-APPELLEE
VERSUS
NORMAN VAUGHN, FREDDIE BROUSSARD
AND LARRY J. BROUSSARD
DEFENDANTS-APPELLANTS
APPEAL FROM THE 15th JUDICIAL DISTRICT
COURT, VERMILION PARISH, LOUISIANA, HON-
ORABLE ALLEN M. BABINEAUX, PRESIDING
JUDGE.
SUPPLEMENTAL BRIEF ON BEHALF OF
APPELLANTS, NORMAN VAUGHN, LARRY
J. AND FREDDIE BROUSSARD
A-96 ; A-97
as a
[1] [1]
[1] MAY IT PLEASE THE COURT:
Judge Domengeaux during oral argument discussed briefly
United States v. Kaiser-Aetna, 408 F.Supp. 42, D.Hawaii, 1976.
Although a review of the subsequent jurisprudence reveals
that United States v. Kaiser Aetna has not been cited, ap-
provingly or otherwise, in federal cases, and also reveals no
‘appellate action with regard thereto, the case is nevertheless
interesting and instructive.
In Kaiser Aetna, the United States asked for a declaratory
judgment and injunction to have Kuapa Pond [The Hawaii Kai
Marina] declared “navigable waters of the United States” and
to have a “navigation servitude” imposed thereon.
The Pond and Marina are situated wholly on property pri-
vately owned by the Bishop Estate, and leased to Kaiser Aetna.
The government contended that:
(a) The Pond was navigable in its natural state; or
(b) Was made so by subsequent development.
KUAPA VS. PECAN ISLAND - THE NATURAL STATE
The Pond in its natural. state was navigable only by shallow
draft canoes. It was adjacent to the Pacific Ocean, but separated
therefrom by a barrier beach. Some of the Pond’s water was
from the sea, and the remainder from mountain run-off. It was
affected by tidal action in its natural state.
However, in its natural state boat travel from the Pond to
the ocean was not possible, even in shallow draft canoes, due
to the existence of the barrier beach and stone wall reinforce-
ments.
A-98
[1] (2]
The Pond in its natural state was always considered private
by the people and government of Hawaii. Prior to Hawaiian
statehood and, indeed, prior to Hawaii becoming a territory of
the United States, the various fish ponds adjacent to, but
apparently separated from, the surrounding oceans were a part
of the Hawaiian feudal system, totally controlled by a tribal
chief who allowed sub-chiefs or subjects to fish or not to fish
at his will.
[2] In 1848, the Hawaiian King gave the Pond property and
fast land surrounding same to the Bishop Estate’s ancestors in
title.
Until 1961, the Kuapa area had been used solely and only as
a fish pond, governed by the foregoing custom and practices.
Another stark factual-legal difference between the Kuapa
Pond matter and the instant one is revealed by the Court's
discussion at Page 51 of the opinion. The fish pond customs of
old Hawaii were peculiarly local in history and culture. They
were “unique’’ and were even specifically exempted from public
access to their waters via Hawaiian legislation:
“The Organic Act of 1900, following annexation,
repealed all prior laws conferring private rights in
Seawater fisheries (subject to vested rights) but
specifically exempted fishponds from its scope. A
similar provision appears in the Hawaii Constitution,
article X, §3. Opinions since annexation and state-
hood confirm the private nature of fishponds in
Hawaii.” (Emphasis theirs)
Therefore, it is readily apparent that there were significant
factual, legal and customary differences between the Kuapa
Pond area in its natural state, and the Fresh Water-Rollover
Bayou areas South of Pecan Island in their natural state:
A-99
(2] [3]
(A) Kuapa Pond was in its natural state essentially separated
from the ocean, certainly in the sense that boat traffic could
not navigate from the Pond to the ocean. It was not open to
the sea.
In the instant case, the facts which are readily apparent from
a simple study of the official Louisiana map, from the matters
on which the parties are in agreement in this case, and also from
that which the appellants hope to prove should Your Honors
reverse the trial court’s decision, are that the area South of
Pecan Island from Fresh Water Bayou to Rollover Bayou was,
via at least those waterways, and perhaps others, in its natural
state, open to the Gulf. Indeed, Fresh Water Bayou, as is
evident from official Louisiana maps, but, more important,
as appellants shall seek to prove at trial, was one of the principal
highways of commerce of [3] the denizens of Pecan Island
for many years. Fresh Water Bayou coursed from the Gulf to
Pecan Island and beyond, and appellants believe they will be
able to prove that same was used by the residents of Pecan
Island to transport cattle, mail, groceries and people to and
from the Island. Thus, in their natural states, the Hawaiian pond
was hermetic and not open to the sea. The area and waterways
South of Pecan Island in their natural state were open to the
sea and were highways of commerce.
(B) Unlike Kuapa Pond, there is no evidence that the water-
ways, particularly Fresh Water Bayou and perhaps others, in
the Pecan Island area were ever considered private in their
natural state either by the people who lived there, or by the
government and laws of the State of Louisiana. The Hawaiian
Court went to prominent length to show that Kuapa Pond was
considered quite private by both people and government.
Indeed, Hawaii's history and culture, in which the customs
of usage of the Pond developed, were feudal, and thus had
virtually nothing in common with the Louisiana experience,
at least post-1803.
A-100
—
[3] [4]
(C) Finally, there to the writer’s knowledge are simply no
counterparts in Louisiana legal history to the specific constitu-
tioaal and statutory provisions in Hawaii, dating back to at
least 1900, to the effect that the Hawaiian fish ponds were to
be considered private property. This is truly a great difference
between the area involved in the Kaiser Aetna case and the area
involved in this case, when both are considered in their natural
States.
HAWAII KAI VS. PECAN ISLAND - AS IMPROVED
The Hawaiian Court then discussed the facts of the develop-
ment of the Kuapa Pond into Hawaii Kai Marina post-1961:
In 1961, the Kaiser Aetna interests leased from the Bishop
Estate the Pond, and applied to the Corps of Engineers for
permits to dredge and channelize. The Corps at that time
advised Kaiser Aetna that no permits were needed.
Kaiser Aetna thereafter dredged, and after development of
the area and opening same via channel to the ocean, allowed
[4] owners of subdivision lots in the area an easement to
operate their boats on the Pond, and in the channel to the sea.
A 25-passenger sightseeing boat was operated by Kaiser Aetna
in the area, presumably as an enticement to potential sub-
division lot buyers. This passenger boat was then taken over
by the merchants’ association of the subdivision area, but
apparently at all times operated only in the Pond waters, and
not in the open sea.
These facts of the subsequent development are substantially
different from those of the development in the Pecan Island
area by the Vermilion Corporation’s ancestors in title:
There is no apparent history of the Corps of Engineers’
having gone on record at any time indicating that permits were
not needed in the Pecan Island area prior to the development of
A-101
(4) -
canals. Furthermore, after the development of the Humble
Canals, which are generally speaking 60 feet in width by 8 feet
in depth, commercial and navigational use has not been limited
to sightseeing by land owners in the area. In the Pecan Island
area, barges, dredges, shrimp boats and various other kinds of
fishing boats, not only owned or working in the interest of the
Vermilion Corporation, but others, have regularly used these
canals.
THE LAW
The Hawaii Court’s discussion of the law is instructive.
First, at Page 48 of the opinion, one sees that the concept of
“navigable waters” grew out of the “common right of piscary
[fishing]"’ of the English common law. This was the right
simply to travel on common waters, and to fish them.
Also on Page 48, one should note the Court’s brief discussion
of the Commerce Clause — Article 1, Section 8, Clause 2.
Jurisdiction of the surface of navigable waters of the United
States passed to the government of the United States upon
ratification of the Constitution.
A crucial legal difference between the instant matter and
United States v. Kaiser Aetna is evident from the following
quote from the Hawaiian case:
[5] “Jurisdiction over the surface of navigable
waters lying wholly within a single state, and not
connecting with other waters to form a navigable
highway of interstate commerce, remained with the
situs state.”
In the instant case, the ‘navigable waters” in question in the
Pecan island area, in both their natural state — prior to the
A-102
—
{S] [5]
“Humble Canal” development - and in their artificially
developed state thereafter - unquestionably connected “with
other waters to form a navigable highway of interstate com-
merce.”
Accordingly, and as appellants have urged all along, this
matter is not to be decided by state law, but by federal law, as
this is a matter of federal jurisdiction, and
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