Home/Louisiana Court of Appeal/Bardwell v. Maniscalco

Bardwell v. Maniscalco

135 So. 2d 84, 1961 La. App. LEXIS 1480
CourtLouisiana Court of Appeal
DecidedNovember 22, 1961
DocketNo. 9611
StatusPublished
Cited by2 cases

This text of 135 So. 2d 84 (Bardwell v. Maniscalco) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bardwell v. Maniscalco, 135 So. 2d 84, 1961 La. App. LEXIS 1480 (La. Ct. App. 1961).

Opinion

BOLIN, Judge.

Plaintiff instituted this suit against defendant, an adjoining property owner, for alleged damages to his property as a result of a dam being constructed by the defendant which partially encroached upon plaintiff’s land. Pursuant to a plea of vagueness, the plaintiff filed a supplemental petition wherein he outlined specific items of damages to his property which totaled the sum of $7500. After a trial on the merits, judgment was rendered in favor of plaintiff for $150, from which he prosecutes this appeal. Defendant has answered the appeal and asks that the demands of the plaintiff be rejected in toto.

In rendering judgment for the plaintiff, the district judge assigned written reasons for his findings in which he briefly but fully outlined the evidence and the issues. In any event, we find little dispute over the facts of the case which we will briefly state. Mr. Bardwell owned three lots with an over-all measurement of approximately 450 feet by 650 feet, and Mr. Maniscalco’s property adjoined same on the west. It appears that the natural drainage of the land in question flows from the west to the east; that a pond had previously existed which was partially located on both properties; that plaintiff’s land was drained by means of terraces running from east to west causing the water from such property to be drained into the pond, and thence to continue its flow to the east. After the defendant purchased his property, he desired to create a lake at the site of the pond by constructing a small dam. It was apparently defendant’s original intention to build a dam with the width at the top of approximately ten feet. There seems to be little dispute that the plaintiff agreed to the construction of a dam of this size and nature. However, prior to the actual construction, the defendant decided to construct a much larger dam which necessitated a portion thereof extending onto plaintiff’s property. The plaintiff also generally consented to the enlarged version of the construction, but with the reservation that same did not encroach upon any land belonging to him. In any event, the construction of the dam proceeded to its ultimate completion which resulted in a slight encroachment upon plaintiff’s land, and also diverted the flow of the natural drain causing the water to back up to some extent upon plaintiff’s property.

During the trial below, the principal defense urged by Mr. Maniscalco was that all of the construction work was done with either the express or implied consent of Mr. Bardwell; that at the very least, he was aware of all of the construction and was actually present and witnessed most of the work; and that he never offered any objection thereto. The defendant further alternatively contended that the plaintiff had not offered any proof as to the specific items of damage alleged in hie pleadings and, therefore, no judgment for any amount could properly be rendered. In this connection, we deem it appropriate to quote Article Two of the Supplemental and Amended Petition which sets forth the items of damages:

[86]*86“That the damages sustained by plaintiff due to the defendant’s actions as alleged in the original petition are as follows:

Free access — add to your briefcase to read the full text and ask questions with AI

Related

White v. Robbins
153 So. 2d 165 (Louisiana Court of Appeal, 1963)
American Employers Insurance Co. v. Schoenfield
144 So. 2d 595 (Louisiana Court of Appeal, 1962)

Cite This Page — Counsel Stack

Bluebook (online)
135 So. 2d 84, 1961 La. App. LEXIS 1480, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bardwell-v-maniscalco-lactapp-1961.