Carnaggio v. Cambre

84 So. 3d 631, 11 La.App. 5 Cir. 552, 2011 WL 6187157, 2011 La. App. LEXIS 1518
CourtLouisiana Court of Appeal
DecidedDecember 13, 2011
DocketNo. 11-CA-552
StatusPublished
Cited by2 cases

This text of 84 So. 3d 631 (Carnaggio v. Cambre) 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
Carnaggio v. Cambre, 84 So. 3d 631, 11 La.App. 5 Cir. 552, 2011 WL 6187157, 2011 La. App. LEXIS 1518 (La. Ct. App. 2011).

Opinion

FREDERICKA HOMBERG WICKER, Judge.

| ¿The plaintiff/appellant, Mr. Eric Car-naggio, appeals the trial court’s judgment awarding the defendant/appellee, Mrs. Marie Cambre, $20,000 in general damages. The judgment also ordered Eric to improve his property to prevent water from overflowing onto Mrs. Cambre’s property. We find no error in the trial court’s ruling. The judgment is affirmed.

Factual and Procedural Background

Mr. Henry Starlone purchased 82.4 acres of land, the Starlone property, from Colonial Sugars Company on May 31, 1947, in the community of Hester, Louisiana, St. James Parish. He later conveyed a portion of the Starlone property to his daughter, Mrs. Cambre, and her husband on January 9, 1963. Mrs. Cambre constructed her homestead on the property [634]*634that same year. In September of 1963, Mr. Starlone then conveyed a portion of the Starlone property west of Mrs. Cam-bre’s homestead to his other daughter, Mrs. Henrietta Becnel, and her husband. On December 28, 1970, the Becnels conveyed their land to Mr. Camille Carnaggio, Sr., Eric’s grandfather. The Carnaggio property was surrounded on the west, east, and north by the Starlone property (hereinafter referred to as the “Cambre property”)1 with the situs of Mrs. Cam-bre’s homestead on the east of the | oCarnaggio property. The south end of the Carnaggio and Cambre properties faced the Mississippi River along Belmont Road.

A small swell2, located on the west of the Carnaggio property, drained into a ditch located on the northern end of the Cambre property — that swell partially drained the Cambre property as well. Two ditches were situated between the Carnaggio and Cambre properties on the west side of Mrs. Cambre’s homestead. One ditch extended approximately 15 feet into the Carnaggio property. The other ditch ran from the river straight back in a northerly direction.

Around 1972, Eric’s grandfather placed a duplex rental unit on the Carnaggio property. Two septic tanks, located in the rear of the duplex, serviced each unit. The septic tank that serviced the apartment on the left of the duplex flowed from the west to the ditch on northeast of the Cambre property. The septic tank which serviced the apartment on the right drained in a northerly direction, straight back to the same ditch.

Mr. Camille Carnaggio, Jr. inherited his father’s one-half community interest in the Carnaggio property on January 8, 2003. Mr. Carnaggio, Jr. subsequently transferred the property to his son, Eric, through an act of donation on December 16, 2004. The duplex remained on the Carnaggio property until sometime in 2005 when Eric had it removed. After Eric removed the duplex, he began building up the Carnaggio property for the construction of his new home. It was during this time period that the present dispute arose between the Carnaggio and Cambre families.

On April 19, 2010, Eric filed a petition for damages and for injunctive relief against Mrs. Cambre. The petition alleged that he had acquired a servitude of passage to drain his sewerage through Mrs. Cambre’s property through thirty years ^acquisitive prescription. The petition further alleged that Mrs. Cambre caused him damage by blocking the drainage ditches on her property. Mrs. Cam-bre answered the petition and filed a re-conventional demand on May 19, 2010. The reconventional demand alleged that Eric covered the drainage ditches on both sides of his property which disrupted the natural flow of the water and caused her substantial flooding.

Mrs. Cambre moved for summary judgment on August 25, 2010. She alleged that Eric did not have a natural servitude of drain for his sewerage and that he did not acquire a servitude of passage by thirty years acquisitive prescription. The trial court issued its ruling on the summary judgment on October 27, 2010. It determined that Eric did not have a natural drainage servitude for sewerage, sewerage effluent or sewerage discharge onto or over Mrs. Cambre’s property. The court, [635]*635however, denied the motion regarding Mrs. Cambre’s claim that Eric had not acquired a servitude of passage through the use of acquisitive prescription. Neither party sought appellate review of the trial court’s ruling, and the case proceeded to trial.

Mrs. Cambre testified that she has lived on the Cambre property her entire life. She stated that when she built her homestead in 1968, she installed a septic tank system that had a field bed that ran from the north to the east. She stated that the septic tank caved in 2007 and she installed a Modad system on top of it, which also drained in the same place. She stated that the sewerage never drained to the west and that the ditches between her homestead and the Carnaggio property, as well as the ditch on the western side of the Carnaggio property, ran from the river straight back, south to the north, until 1970.

Mrs. Cambre stated that she began to flood when Eric moved the duplex and built up the land to construct his new home. She stated that Eric constructed a |fimetal building over the ditch that extended 15 feet onto his property. The building had three gutters that drained into a pipe that extended 14 inches into her yard. She testified that she repeatedly told Eric about the flooding, but he never took care of it. She then spoke to Eric’s father who had Eric install a small PVC pipe along the fence. Mrs. Cambre stated, however, that due to the size of the pipe and the height of the dirt Eric added, the pipe could not catch all the water and she continued to flood. She then called the parish to complain, and they came out and dug a small trench. Mrs. Cambre stated that her homestead never pooled water before Eric built up the land and constructed his home. She also stated that she did not obstruct the ditches as Eric alleged.

Eric testified that he lived on the Car-naggio property his entire life and that he and his wife moved into the duplex in 2000. He conceded that he constructed a 40 x 75 foot metal building on the property which covered the ditch that extended 15 feet onto his property. He further testified that he added dirt to build up the foundation for his home but stated that he did not build up the entire land. Eric stated that Mrs. Cambre expressed concern about flooding when he added the dirt to his property, but he did not believe she would be affected anymore than she already was. He further added that the water from the gutters on his shed drained into the swell that the parish built until Todd Roussel, Mrs. Cambre’s son-in-law, chopped it up. Eric believed that Mrs. Cambre caused her own flooding when she added dirt along the side of her house and blocked the ditches.

Eric testified that he does not have and has never had a natural drainage problem. He stated that he began experiencing problems with his sewerage when Mrs. Cambre blocked the ditches on the east and west of his property. He stated that before Mrs. Cambre blocked the ditches, the sewerage overflow had continuously drained over thirty years in a northwestern direction through his | ^property to the Cambre property. He added that he did not think he needed to get permission from Mrs. Cambre to drain his sewerage because he had acquired thirty years acquisitive prescription over the northwest section of that property. He further stated that the sewerage never drained to the east.

Mr. Cedric Louque testified that he lived in the west duplex on the Carnaggio property from 1977-1981.

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Bluebook (online)
84 So. 3d 631, 11 La.App. 5 Cir. 552, 2011 WL 6187157, 2011 La. App. LEXIS 1518, Counsel Stack Legal Research, https://law.counselstack.com/opinion/carnaggio-v-cambre-lactapp-2011.