# Petition — Vaughn v. Vermilion Corp. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_0011%3A01 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1979 - **Citation:** 444 U.S. 206 ## Text 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... . 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