Chotin Transportation, Inc. v. Harbor Towing & Fleeting, Inc.

804 So. 2d 78, 0 La.App. 4 Cir. 0803, 2001 La. App. LEXIS 2388, 2001 WL 1329228
CourtLouisiana Court of Appeal
DecidedOctober 3, 2001
DocketNo. 2000-CA-0803
StatusPublished
Cited by3 cases

This text of 804 So. 2d 78 (Chotin Transportation, Inc. v. Harbor Towing & Fleeting, Inc.) 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
Chotin Transportation, Inc. v. Harbor Towing & Fleeting, Inc., 804 So. 2d 78, 0 La.App. 4 Cir. 0803, 2001 La. App. LEXIS 2388, 2001 WL 1329228 (La. Ct. App. 2001).

Opinions

|! LOVE, Judge.

Chotin Transportation, Inc. (Chotin) filed a petition for a preliminary injunction, seeking to enjoin Harbor Towing & Fleeting, Inc. (Harbor) from operating its barge fleeting business on the river bat-ture on the west bank of the Mississippi River at approximately mile 90.5. The District Court denied the injunction finding that Chotin failed to meet its burden of proving irreparable harm and failed to make a prima facie showing that it would succeed at a trial on the merits. For the following reasons, we reverse the judgment of the trial court and grant the injunction.

FACTS

On January 1, 1964, the Board of Commissioners of the Port of New Orleans (Dock Board) granted Chotin a berthing privilege at approximately mile 90.5 on the Mississippi River. The privilege allowed Chotin to pay $2,600 per year to use 1300 linear feet of river frontage as a mooring facility. Chotin renewed the privilege every year since 1964 and paid all rents. There is some dispute over whether Chotin ever actually acquired any rights and if so whether it was a real right.

Chotin claims that it has allowed Harbor to moor its vessels along the river bank subject to Chotin’s berthing privilege. The alleged agreement between Chotin and Harbor was never reduced to writing, and Harbor disputes that any such | ^agreement existed. Harbor claims that it has possessed the property and therefore has a superior right. It is not disputed that Harbor has used the river bank for some time and, therefore, been in physical possession of the disputed property. In fact, since 1964, Chotin has paid Harbor fair market value to moor Chotin’s barges and equipment on the batture.

In November 1998, Chotin’s related company, Capital Marine, sent Harbor a letter requesting that Harbor remove its barges from the river bank subject to Cho-tin’s berthing privilege. Chotin had not exercised any control over the batture or made any improvements or repairs to the batture. Chotin claims that, although it had not exercised control over the batture, it exercised its privileges by permitting others to exercise control over the batture on its behalf. Harbor ignored or refused to comply with Chotin’s request, claiming that it has a superior right of occupancy to the batture. This right was derived from a quitclaim deed executed on April 7, 1999, which purportedly assigned and transferred the right almost thirty years prior. The Dock Board acknowledges that it does not own the batture and therefore it is at issue whether the Dock Board could in fact confer rights upon Chotin.

DISCUSSION

Chotin raises three assignments of error: (1) the district court erred in requiring Chotin to prove irreparable harm; (2) [81]*81the district court erred in finding that Chotin failed to show irreparable harm; and (3) the district court erred in refusing to grant Chotin’s application for preliminary injunction and refusing to order Harbor to vacate the area subject to Chotin’s berthing privilege.

Article' 3668 of the Louisiana Code of Civil Procedure allows injunctive relief for a person who is disturbed in the possession of a real right in immovable 1 ^property of which he claims the ownership, possession, or enjoyment. A preliminary injunction action brought pursuant to Louisiana Code of Civil Procedure Art. 3663 does not require a showing of irreparable injury, loss or damage. Hailey v. Panno, 472 So.2d 97, 99 (La.App. 5 Cir. 1985).

Chotin asserts that, under Louisiana Code of Civil Procedure Art. 3663, it was not required to prove irreparable harm because its berthing privilege is a real right. Harbor alleges that Chotiris berthing privilege is not a real right and that, consequently, Chotin must prove irreparable harm and make a prima facie showing that it would succeed at a trial on the merits. Ormond Country Club v. Dorvin Developments, Inc., 498 So.2d 144, 150 (La.App. 5 Cir.1986).

In Louisiana, legislation is the primary source of law, but Louisiana legislators have yet to expressly state whether a berthing privilege is a real right or a personal right. Revision comments do not form part of the law, but when they are presented together with proposed legislation they illuminate the understanding and intent of the legislators. Wartelle v. Women’s and Children’s Hosp., Inc., 97-0744, p. 9 (La.12/2/97), 704 So.2d, 778, 783. Considering the Civil Code articles and revision comments on real rights and personal servitudes, we find that a berthing privilege is a real right.

Chotiris berthing privilege is a right to use river frontage as a mooring facility; therefore, a berthing privilege is a right of use. A right of use is a personal servitude in favor of a person for a specified use less than full enjoyment. La. Civ.Code Art. 639. Article 476 of the Louisiana Civil Code states that [o]ne may have various rights in things: (l)[o]wnership; (2)[p]er-sonal and predial servitudes; and (3)[s]uch other real rights as the law allows, (emphasis added). The wording of La. Civ.Code Art. 476 implies that personal servitudes, such as rights of use, are Ureal rights. Further, La. Civ.Code Art. 645 defines rights of use as real rights of enjoyment in favor of a person governed by the rules of the Civil Code pertaining to both personal and predial servitudes, (emphasis added).

Other sources also indicate that berthing privileges are real rights, not personal rights. Personal rights have three primary characteristics: (1) they involve relationships between persons; (2) they cannot be asserted against third persons; and (3) they can only be enforced by obtaining a personal judgment against one or more parties to the obligation. Randal J. Robert, Favaloro v. Favaloro: Classification of Rights Associated With Counter-Letters as Real or Personal, 52 La. L.Rev. 479, 482-83 (1991). On the other hand, real rights are rights in things. Id. Real rights are transferred automatically with property, and the holder of the real right has the power to claim the thing even after it has been transferred to a third party. Enforcement of a real right does not impose personal liability on the possessor of the thing but allows the person asserting a real right to exercise the right without obtaining a personal judgment against any party. Id.

[82]*82The rights associated with real mortgages, pledges, and privileges on im-movables meet the characteristics of real rights, not of personal rights. Id. (emphasis added). Therefore, we hold that Cho-tin’s berthing privilege is a real right. Chotin has possessed this real right for more than one year, and Harbor disturbed that possession. Under La. Civ.Code Art. 3663, Chotin is entitled to injunctive relief and need not show irreparable harm to obtain such relief.

Harbor raises two arguments against the injunction: (1) Chotin has no cause of action to dispossess Harbor by a preliminary injunction and (2) the Dock Board could not transfer a real right of use to Chotin because it is not the owner of the batture.

1 BHarbor argues that Chotin’s use of preliminary injunction to evict Harbor is improper. An injunction may be used to prevent but not to correct a wrong; it cannot be used to redress an alleged consummated wrong or undo what has already been done. Verdun v. Scallon Bros. Contractors, Inc., 263 La. 1073, 270 So.2d 512, 513 (1972). Harbor argues that Cho-tin’s application for preliminary injunction does not seek to prevent a wrong but seeks redress for Harbor’s past use of the batture.

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804 So. 2d 78, 0 La.App. 4 Cir. 0803, 2001 La. App. LEXIS 2388, 2001 WL 1329228, Counsel Stack Legal Research, https://law.counselstack.com/opinion/chotin-transportation-inc-v-harbor-towing-fleeting-inc-lactapp-2001.