Bayou Fleet Partnership v. Saia

745 So. 2d 629, 98 La.App. 5 Cir. 306, 1999 La. App. LEXIS 222, 1999 WL 50192
CourtLouisiana Court of Appeal
DecidedFebruary 5, 1999
DocketNo. 98-CA-306
StatusPublished
Cited by3 cases

This text of 745 So. 2d 629 (Bayou Fleet Partnership v. Saia) 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
Bayou Fleet Partnership v. Saia, 745 So. 2d 629, 98 La.App. 5 Cir. 306, 1999 La. App. LEXIS 222, 1999 WL 50192 (La. Ct. App. 1999).

Opinion

h GRISBAUM, Judge.

Home Place Batture Leasing, Inc., inter-venor-appellant, appeals the trial court’s judgment ordering partition by licitation of a commonly owned tract of land. We reverse and remand.

ISSUE

The ultimate issue is whether the property in question should be partitioned in kind or by licitation.

FACTS AND PROCEDURAL HISTORY

In 1993, the plaintiff, Bayou Fleet Partnership (hereinafter Bayou Fleet), purchased a two-thirds © interest in a certain portion of batture land fronting on the Mississippi River in Hahnville, Louisiana.1 The remaining one-third © of 12the property was owned by the Saia family. On February 12, 1996, Bayou Fleet filed a petition to have the property partitioned by licitation. On May 22, 1996, Home Place Batture Leasing, Inc. (hereinafter Home Place) purchased the Saia family’s one-third © interest in the land for $23,-000.00. On June 11, 1996, Home Place intervened in the suit, praying that the property be partitioned in kind. The Saia family was later dismissed from the suit.

At trial, Mr. Ralph Fontcuberta, Jr., an expert land surveyor, was called by the plaintiff to testify. Mr. Fontcuberta had performed several surveys on the subject [630]*630property over the years. According to the surveys, the subject property consists of 314 feet fronting the river and extending 1485 feet to the levee on the down river side and 1667 feet to the levee on the upriver side. The property immediately down river is owned by Home Place. The property immediately upriver is owned by Giambelluca Land and Development Company, Ltd. Mr. Fontcuberta testified that the entire property is landlocked. To subdivide the property into three lots, Mr. Fontcuberta testified that a line would be drawn perpendicular from the river to the levee, resulting in three lots of approximately 104 feet fronting the river.

Mr. Kevin Lemoine, who was accepted by the court as an expert in real estate appraisal, testified on behalf of the plaintiff. Mr. Lemoine explained that batture land is primarily sold and leased based on the amount of frontage on the river. The subject piece of land is zoned B-l, which allows for barge fleeting, camps, logging, restaurants, and river boat docking. Mr. Lemoine opined that the best use for the subject property is for barge fleeting and that it would lose value if it was partitioned in kind. He testified that the market for batture property is limited and that to divide it into smaller pieces would make it less marketable. On cross-examination, Mr. Lemoine conceded that, because the property is located |3on a curve in the river and the depth of the river in this area is shallow when the water level is low, it is not an ideal site for barge fleeting.

Mr. Robin Duret, the president of Bayou Fleet, testified that his company operates and leases marine equipment, tow boats, and barges on the Mississippi River. Bayou Fleet owns the property immediately upriver from the Giambelluca property. He further testified that if the subject property were sold, he would bid on it so he could acquire 100 percent ownership of the batture to fleet barges on it. He explained that at least 250 feet of property is needed to fleet a typical barge because a typical dry barge is 195 to 200 feet long. He stated that he would not have any use for a divided two-thirds ($) interest in the property because 210 feet would be inadequate to fleet barges. He also explained that the property was previously used as a rock yard and that barges were anchored at the riverfront of the property to off-load the rock. He testified that to use the property as a rock yard, you have to have the ability to tie up barges in front of the property.

Mr. Roland Bernard, a land surveyor, testified for the defendant. He surveyed that property and produced tow drawings on the survey, which were admitted into evidence. One survey depicts the property divided into three equal lots, each 104.67 feet in width. The other survey depicts the property divided into a two-thirds (%) portion, which is contiguous with the property upstream, and a one-third (5é) portion contiguous with the property downstream.

Mr. Neil Clulee testified that he is the owner of Home Place and that Home Place owns the property immediately down river from the subject property. He has obtained a lease for a small shipyard to be built on this down river property. Mr. Clulee has been familiar with the subject property since 1971 and has never known this property to be used for barge fleeting. The Giambelluca property, which is currently not being used for anything, was used for barge fleeting Happroximately ten years ago. Mr. Clulee testified that he wants the court to partition the property in kind and, if he were allotted the one-third Qk) of the property contiguous with the property he owns down river, he could access this one-third ($) through his other property.

Captain C.E. Clayton, the president of the New Orleans and Baton Rouge Steamship Pilots Association, was accepted by the court as an expert in river navigation. As part of his position, he reviews applications for permits for barge fleeting on the Mississippi River and makes a recommendation to the Corps of Engineers as to whether he thinks the permit should be granted. He testified that he has never [631]*631seen an application for a permit to fleet barges from a batture with 314 feet of frontage, except in situations where the applicant is seeking to extend an area already used for barge fleeting. In his opinion, fleeting barges in the subject area would be hazardous because there is a sand bar, which results in shallow water. He would not recommend granting a permit to fleet barges at this site.

The deposition of Mr. Steven Talbot, an expert in marine operations including barge mooring, was introduced into evidence. He inspected the property and evaluated it in relation to using it for barge fleeting. He opined that it is unacceptable for barge fleeting, unless you are a contiguous landowner. The size of the property would not justify the costs of installing the necessary equipment and monitoring the property in accordance with Coast Guard rules and regulations.

The deposition of Captain Norman Ivey, an expert in river barge operations, was also made part of the record. He testified that it would not be economically feasible to use the property for barge fleeting because it measures only 314 feet.

1 .¡The trial judge ordered that the property be partitioned by licitation and sold at public auction by the Sheriff, with costs of these proceedings assessed against the gross proceeds of the sale. The trial judge ordered partition by licitation because he concluded that the best use for this property is barge fleeting and that the possibility of Home Place getting the middle lot existed since the selection process must be random. Thus, he concluded that the property could not be conveniently divided and that division would result in a diminution of the property’s value.

Home Place filed a motion for new trial, which was denied by the trial court because “there is no new evidence to warrant a new trial and that all other arguments made by counsel in the memorandums and before the bench are matters previously tried.... ” Home Place appeals the denial of its motion for new trial.

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Related

Clulee v. Giambelluca
15 So. 3d 214 (Louisiana Court of Appeal, 2009)

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Bluebook (online)
745 So. 2d 629, 98 La.App. 5 Cir. 306, 1999 La. App. LEXIS 222, 1999 WL 50192, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bayou-fleet-partnership-v-saia-lactapp-1999.