Dardar v. Lafourche Realty Co.

985 F.2d 824, 23 Envtl. L. Rep. (Envtl. Law Inst.) 20, 1993 WL 49072
CourtCourt of Appeals for the Fifth Circuit
DecidedMarch 15, 1993
DocketNo. 91-3522
StatusPublished
Cited by43 cases

This text of 985 F.2d 824 (Dardar v. Lafourche Realty Co.) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fifth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Dardar v. Lafourche Realty Co., 985 F.2d 824, 23 Envtl. L. Rep. (Envtl. Law Inst.) 20, 1993 WL 49072 (5th Cir. 1993).

Opinion

W. EUGENE DAVIS, Circuit Judge:

Plaintiffs, commercial fishermen, sued the Lafourche Realty Co., Inc. seeking the right to use a system of navigable waters controlled by Lafourche Realty through an arrangement of fences, gates, and levees. The State of Louisiana intervened, asserting a right of public use of the waters and claiming title to the water bodies and over twelve thousand acres of land under the waters.

Lafourche Realty, the record owner of the property, counterclaimed, asserting title to all property located within its patents, including the water bottoms. La-fourche Realty contends that the digging of a canal in 1948 and various more recent improvements have artificially created the waterways which remain privately owned. The district court found for Lafourche Realty, rejecting the State’s title claim and, in a separate trial, denying Plaintiffs and the State any access to the water bodies. We affirm in part and vacate and remand in part.

I. LOUISIANA’S CLAIM TO TITLE

We first address the State’s title claim. The disputed property lies in southeast Louisiana in Lafourche Parish, east of Bayou Lafourche, northwest of Caminada Bay, several miles from the Gulf coast. According to joint trial stipulations, Lafourche Realty is the record owner of the land. Originally federal property, the property was selected by and approved to the State of Louisiana under one or more of the Swamp Land Grant Acts of 1849 and 1850, by which the United States conveyed to Louisiana “swamplands subject to overflow.” Act of March 2,1849, ch. 87, 9 Stat. 352 (1849); Act of Sept. 28, 1850, ch. 84, 9 Stat. 519 (1850). Louisiana authorized the State’s alienation of lands “donated by Congress to the State of Louisiana, designated as sea marsh or prairie, subject to tidal overflow.” Act of April 7, 1880, No. 75, § 11, 1880 La.Acts 85. The State conveyed the water bottoms by various transfers to Lafourche Realty’s ancestors-in-title between 1861 and 1901. The State now argues that it nevertheless owns the water bottoms by virtue of its inherent sovereignty.

A. Public Trust Lands and Waters

The State bases its title claim, first, on public trust jurisprudence and the “equal footing” doctrine. On equal footing with [827]*827the original thirteen states, Louisiana, upon attaining statehood, received ownership of all navigable waters within its borders and all tide waters and the lands under them from the United States in public trust. See Phillips Petroleum Co. v. Mississippi, 484 U.S. 469, 479-81, 108 S.Ct. 791, 796-97, 98 L.Ed.2d 877 (1988). Thus, the first element of Louisiana’s claim based on the equal footing doctrine depends upon whether waters that were navigable or subject to the ebb and flow of the tide covered any of the property in the year of Louisiana’s statehood, 1812. The court rejected this claim upon finding that no natural navigable water bodies existed on the property in 1812 and that the land was not then subject to the ebb and flow of the tide. Appellants challenge both the factual finding and the legal standard employed by the district court.

1. No Navigable Waters in 1812

The district court found that in 1812 none of the Lafourche Realty property was under waters that were navigable in fact.2 This Court does not set aside a district court’s factual findings unless they are clearly erroneous. Fed.R.Civ.P. 52(a); Anderson v. City of Bessemer City, 470 U.S. 564, 573, 105 S.Ct. 1504, 1511, 84 L.Ed.2d 518 (1985). “When findings are based on determinations regarding the credibility of witnesses, Rule 52(a) demands even greater deference to the trial court’s findings.” Id. at 575, 105 S.Ct. at 1512. Unless we are left with the definite and firm conviction that a mistake has been committed, we accept the trial court’s findings. Gulf Consol. Servs., Inc. v. Corinth Pipeworks, S.A., 898 F.2d 1071, 1076 (5th Cir.), cert. denied, 498 U.S. 900, 111 S.Ct. 256, 112 L.Ed.2d 214 (1990).

The court’s finding of non-navigability is supported by the testimony of Lafourche Realty’s expert, Sherwood M. Gagliano, Ph.D., and official township surveys from later in the 1800’s that do not depict any navigable water bodies on the property-

The State disparages the township surveys on the basis of its expert witness and nineteenth century maps showing the existence of lakes and streams northwest of Caminada Bay. The State’s expert, Mr. Charles Coates, discredited the absence of water bodies on the township surveys. He explained that those early surveyors did not meander the waters either because of the instability of the terrain or because the interior marsh was not considered saleable. The State also strongly urges reliance upon Captain G.W. Hughes’s 1842 Map of Military Reconnaissance and Survey, allegedly depicting lakes and streams corresponding in location to some of the contested water bodies; this lake complex reappears in later maps until 1870, a couple of years before the official township survey.

The court found, however, that the “complex of three-to-four lakes that some nineteenth-century maps portray ... are fictitious, at least to the extent the maps purport that any such water bodies lay within the Lafourche Realty Property.” This finding was supported by Dr. Gagliano, who concluded that the four shallow lakes linked by a stream appearing on the Hughes map were sketched in “as an afterthought.” The lack of detail on the Hughes map for the lakes shown on the subject property is striking. In contrast, other water bodies on the Hughes map (beyond the boundaries of the Lafourche Realty property) were depicted in minute detail with measured depths and with more [828]*828meticulous renditions of the surrounding topography. See L.R. Ex. 43. Dr. Gagli-ano based his opinion in part on Captain Hughes’s detailed field notes, which were devoid of a description of the four shallow lakes shown on the Hughes map.3 Dr. Gagliano also regarded the series of maps drafted after the Hughes map from 1842 until about 1872 as “copy-cat maps”; they picked up the lakes sketched on the Hughes map, but the configuration of lakes on such maps was “derived from very poor information.” 22 R. 75-76, 81. Dr. Gagli-ano opined that the Lafourche Realty property was historically floating trembling prairie, a category of land. Finally, some evidence suggested that the township surveyors indeed meandered the water bodies in preparing the official surveys, contrary to Mr. Coates’s opinion.

The finding that the disputed land included no navigable water bodies in 1812 is based on substantial evidence. The court’s decision to credit Dr. Gagliano’s opinion and accord little weight to the testimony of Mr. Coates is not clearly erroneous. See Gulf Consol. Servs., 898 F.2d at 1077.

2. Test of Navigability

The State next argues that the district court applied an incorrect legal standard to determine navigability. The State urges that the court ignored the test of Ramsey River Road Property Owners Ass’n, Inc. v.

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Cite This Page — Counsel Stack

Bluebook (online)
985 F.2d 824, 23 Envtl. L. Rep. (Envtl. Law Inst.) 20, 1993 WL 49072, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dardar-v-lafourche-realty-co-ca5-1993.