Bernard v. City of Marksville

154 So. 3d 1246, 14 La.App. 3 Cir. 730, 2014 La. App. LEXIS 2981, 2014 WL 7156618
CourtLouisiana Court of Appeal
DecidedDecember 17, 2014
DocketNo. 14-730
StatusPublished
Cited by1 cases

This text of 154 So. 3d 1246 (Bernard v. City of Marksville) 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
Bernard v. City of Marksville, 154 So. 3d 1246, 14 La.App. 3 Cir. 730, 2014 La. App. LEXIS 2981, 2014 WL 7156618 (La. Ct. App. 2014).

Opinion

COOKS, Judge.

| .FACTS AND PROCEDURAL HISTORY

In 2004, Plaintiff, Glenn Bernard, purchased a tract of property adjacent to his residence from Defendant, the City of Marksville (hereafter the City). The purchased property was also bordered by Laurel Street, which is maintained by the City. At the time of the purchase, a twelve-inch culvert ran underneath Laurel Street and drained onto the purchased property. Plaintiff acknowledged the presence of this culvert constituted an apparent servitude on the property in question. The culvert was used to drain rainwater from City ditches and neighboring property. Plaintiff maintained his property suffered no damages as a result of the twelve-inch culvert.

According to Plaintiff, “[sjometime during the year 2005,” the City replaced the existing twelve-inch culvert with a thirty-inch culvert. According to Plaintiff, this replacement greatly increased the flow and volume of water running onto his property. Due to the influx of additional water, the ground became consistently muddy and soft, preventing Plaintiff from maintaining and enjoying his property under the same conditions existing prior to the installation of the larger culvert. Plaintiff also alleged a ditch formed on his property, from which shrubbery began growing.

On January 27, 2012, Plaintiffs filed a “Petition to Restore Peaceful Possession, for Injunctive Relief Under Ordinary Process, and for Damages” against the City.1 Damages were requested for “property damages” and “mental anguish and anxiety.” Plaintiffs also requested an injunction issue “ordering CITY OF MARKS-VILLE to remove the thirty inch culvert and reroute the water damage to a location away from [Plaintiffs’] property.”

| oOn August 19, 2013, the City filed a peremptory exception of prescription alleging that Plaintiffs’ claims had prescribed because suit was not filed within one year from the operating cause of their injury. The exception was set for a contradictory hearing.

After the hearing on the exception and the submission of briefs, the trial court granted the City’s exception of prescription. The trial court concluded the prescriptive period had run in this matter because Plaintiffs had known of the operating cause of the alleged damages/injuries (the installation of the thirty-inch culvert) for several years prior to suit being filed. The trial court also determined the facts of this case did not present a continuing tort case, reasoning the Plaintiffs were complaining of the ill effects of a single event. Plaintiffs now appeal the judgment of the trial court granting the exception of prescription.

ANALYSIS

Plaintiffs’ petition, which was filed on January 27, 2012, alleges “at the time of the purchase of the property in question, there was located on the property a drainage culvert twelve inches in diameter that [the City] used for the drainage of water.” The petition then alleges “approximately five years ago, [the City] installed a thirty [1248]*1248inch culvert in place of the twelve inch culvert, in violation of Louisiana law ...” The petition contended “[a]s a result of defendant’s actions, [Plaintiffs are] unable to have the free and unfettered use and enjoyment of the property ...” and have suffered damages to their property and persons.

Louisiana law provides the one-year liberative prescriptive period for del-ictual actions begins to run from the day injury or damage is sustained. La.Civ. Code art. 3492. If the damage complained of is to immovable property, prescription begins to run from the day the owner “acquired, or should have acquired, knowledge of the damage.” La.Civ.Code art. 3493. A review of Plaintiffs’ petition reveals it asserts the installation of the thirty inch culvert was |4the operating cause of the alleged injuries and/or damages suffered. The petition, filed on January 27, 2012, asserts this act occurred “approximately five years ago.” Thus, Plaintiffs’ action is prescribed on the face of the pleadings of the petition. Ordinarily, the party urging prescription bears the burden of proof at trial of the exception; however, if the petition is prescribed on its face, the burden shifts to the plaintiff to show the action is not prescribed. Cichirillo v. Avondale Indus., Inc., 04-2894, 04-2918 (La.11/29/05), 917 So.2d 424; Dugas v. Bayou Teche Water Works, 10-1211 (La. App. 3 Cir. 4/6/11), 61 So.3d 826.

Recognizing these legal precepts, Plaintiffs argue on appeal that the tort sued upon is a continuous tort and prescription begins to run only when the wrongful conduct ceases. The City notes the petition did not specifically plead that Plaintiffs were the victims of a continuous tort. However, that issue was discussed at the hearing, with the trial court ultimately concluding no continuous tort existed under the facts of this case. After a review of the record and the applicable jurisprudence, we agree.

The Louisiana Supreme Court in Crump v. Sabine River Authority, 98-2326, pp. 9-10 (La.6/29/99), 737 So.2d 720, 726, discussed the theory of continuing tort:

As previously noted by this Court, the theory of continuing tort has its roots in property damage cases and requires that the operating cause of the injury be a continuous one which results in continuous damages. Bustamento v. Tucker, 607 So.2d 532, 543 n. 8 (La.1992); South Central Bell Telephone Co. v. Texaco, Inc., 418 So.2d 531, 533 (La.1982). Professor Yiannopoulos, in his treatise on Louisiana predial servitudes clarified this requirement as it relates to prescription as follows:
[A] distinction is made between continuous and discontinuous causes of injury and resulting damage. When the operating cause of the injury is ‘not a continuous one of daily occurrence’, there is a multiplicity of causes of action and of corresponding prescriptive periods. Prescription is completed as to each injury, and the action is barred upon the lapse of one year from the date in which the plaintiff acquired, or should |shave acquired, knowledge of the damage.... [This is to be distinguished from the situation where] the ‘operating cause of the injury is a continuous one, giving rise to successive damages from day to day.... ’
A.N. Yiannopoulos, Predial Servitudes, § 63 (1983). (emphasis added).
In this latter case discussed by Professor Yiannopoulos, where the operating cause of injury is a continuous one and gives rise to successive damages, prescription dates from the cessation of the wrongful conduct causing the damage. South Central Bell, 418 So.2d at [1249]*1249583. However, in cases where property has been injured or damaged, and the continuing tort theory is inapplicable, either because the operating cause of the injury is discontinuous or because the damages are not successive, prescription runs from the date that knowledge of such damage was apparent or should have been apparent to the injured party. La.Civ.Code Ann. art. 3493 (West 1994); South Central Bell, 418 So.2d at 532; Dean v. Hercules, Inc., 328 So.2d 69, 73 (La.1976).

In Hogg v. Chevron USA, Inc., 09-2632, p.

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154 So. 3d 1246, 14 La.App. 3 Cir. 730, 2014 La. App. LEXIS 2981, 2014 WL 7156618, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bernard-v-city-of-marksville-lactapp-2014.