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Discon v. Saray, Inc.

265 So. 2d 765, 262 La. 997
Supreme Court of Louisiana·Decided July 24, 1972·No. 52068·Published·Cited by 27 cases

Opinions

McCALEB, Chief Justice.

In this injunctive proceeding the plaintiffs seek to prevent Ray Lamastus 1 from obstructing passage through Faciane Canal, so as to impede navigation thereon, said canal being located north of and generally parallel to a portion of the north shore of Lake Pontchartrain in St. Tammany Parish. Plaintiffs are the owners of property bordering on the canal who use the canal as a means of ingress and egress for their watercraft in Lake Pontchartrain.

Following a hearing, the trial court, which had previously issued a temporary restraining order, granted a preliminary injunction prohibiting the canal’s closure. The judgment was reversed on appeal and remanded, the Court of Appeal stating:

“Inasmuch as there was no stipulation that the trial on the rule for preliminary injunction would also constitute the trial on the merits seeking a permanent injunction as prayed for by plaintiffs, the suit is not dismissed but is remanded to the trial court * * La.App., 255 So.2d 489. We granted certiorari, 260 La. 681, 257 So.2d 148.

Plaintiffs urge that the obstruction of navigable waterways is reprobated by R.S. 14:972 and that under this provision, as applied by the Court of Appeal, Fourth Circuit, in D’Albora v. Garcia, La.App., 144 So.2d 911 (1962), cert. den., to another canal bordering Lake Pontchartrain, the action of the defendant is prohibited.

The Court of Appeal found that Faciane Canal is a navigable waterway, and that [1003]*1003the defendant owns that part of the waterway running through his property. It held, however, the right of the plaintiffs to use the waterway constituted merely a servitude of passage which, under the provisions of Civil Code Arts. 703 and 777, may be changed to another location by the owner of the servient estate; and that, since the defendant has offered for the use of plaintiffs another, different canal by which they will have navigational access through his property, he has satisfied the provisions of the cited Civil Code articles. For these reasons, it concluded that plaintiffs were without right to maintain their action to prevent defendant from closing Faciane Canal where it goes through his property in order to give him a better utilization of his land.

We understand from the record that Faciane Canal was constructed in the mid-1950’s. It was included in a subdivision development known as the North Shore Beach Subdivision. The 168 lots therein (each 100 feet in width) lie along the edge of Lake Pontchartrain. The Canal and a road designated as Carr Drive are shown on the subdivision plat to the rear of the lots and roughly parallel the shore of the lake. The canal and roadway are approximately three and one-half miles long. Access to the lake is available through only one end of the canal, the other end running into the Southern Railway tracks.

The defendant owns the property on both sides of the canal where the canal enters the lake, and desires to fill in the canal at that point for almost 700 feet, in order to have direct access to his property on each side. For convenience we attach hereto that portion of the subdivision plat (a survey conducted by F. C. Gandolfo, Jr., dated September 23, 1954), which shows the area where the canal enters the lake and where defendant proposes to close the canal. The part of the canal between the “x’s” (which we have placed on the plat) is the area where the witnesses at the hearing estimated that the closure was attempted.

[See following illustration]

[1005]

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Discon v. Saray, Inc., 265 So. 2d 765, 262 La. 997 (La. 1972).

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