Gravity Drainage District 2 v. Vallee

512 So. 2d 473, 1987 La. App. LEXIS 9733
CourtLouisiana Court of Appeal
DecidedJune 16, 1987
DocketNo. 86-73
StatusPublished
Cited by3 cases

This text of 512 So. 2d 473 (Gravity Drainage District 2 v. Vallee) 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
Gravity Drainage District 2 v. Vallee, 512 So. 2d 473, 1987 La. App. LEXIS 9733 (La. Ct. App. 1987).

Opinion

KING, Judge.

The issue presented by this appeal is whether or not the trial court erred in finding that plaintiff had acquired a servitude over a drainage ditch traversing the defendant’s property.

Gravity Drainage District # 2 of the Parish of Vermilion, Louisiana (hereinafter plaintiff), a public corporation formed in 1942 by the Vermilion Parish Police Jury, filed suit against defendant, Joseph Vallee (hereinafter defendant), seeking a permanent injunction to enjoin defendant from preventing plaintiff from entering onto defendant’s property for the purpose of cleaning and maintaining a drainage ditch crossing defendant’s property. Defendant filed a Peremptory Exception Of No Right Of Action which was overruled after a hearing. The defendant then filed an answer and, after a trial on the merits, judgment was rendered in favor of plaintiff granting a permanent injunction against defendant prohibiting him from stopping plaintiff from entering onto his property for cleaning and maintaining a public drainage ditch across his property “provided the activities on the property are not beyond the normal maintenance of the existing natural servitude of drain” and preventing defendant from in any way blocking or interfering with the cleaning and working on this public drainage ditch. The trial court’s decision was based on its finding of fact that plaintiff had acquired a servitude of drain over the ditch on the defendant’s property. From this decision, defendant timely appeals, assigning as error:

(1) The trial court's finding that the ditch across his property is subject to a natural servitude of drain in favor of the plaintiff;
(2) The trial court’s finding that the plaintiff acquired a conventional servi[475]*475tude over the ditch across his property by thirty year acquisitive prescription;
(3) The trial court’s finding that LSA-R.S. 38:1767, 38:1794 and 38:1804 encompass the right of the plaintiff to take private property from a landowner without just compensation.

For the reasons hereinafter given we affirm the decision of the trial court.

FACTS

Mrs. Marie Louise LeBlanc Vallee inherited property from her father at some time around the year 1945. She later, at some time between 1960 and 1982, donated the property to her son, the defendant, Joseph Vallee. The property (hereinafter sometimes referred to as the defendant’s property) which was inherited by Marie L. Le-Blanc and which is presently owned by the defendant, is described in the trial court judgment as being located in:

“Section 59, Township 12 South, Range 3 East, Vermilion Parish, Louisiana.”

Mrs. Marie Louise LeBlanc Vallee, at the time of trial, lived in North Louisiana and had only been on the defendant’s property occasionally to visit her children. She testified that she only recalls several occasions when she walked on the property and testified at trial that she had never been on the part of the defendant’s property where the drainage ditch was located. Joseph Vallee has never lived on his property. The defendant’s property is partially bordered on the south by Maple Trace Subdivision, an almost completely developed subdivision, and on the southeast comer by a tract of land owned by Donald W. Guidry and Kenneth L. Guidry. The defendant’s property is bordered on the North by a 50 foot reservation for a future road, and is bordered on the East and West by other tracts of land owned by Marie L. LeBlanc.

A rather large coulee or drainage canal, enters the defendant’s property from the east, just north of the southeast comer of the defendant’s property, and crosses through the defendant’s property, curving toward the north, and exits the defendant’s property at its north side approximately midway between its east and west boundaries. This drainage canal (hereinafter referred to as the coulee) carries water which eventually enters into another coulee which ultimately drains into the Vermilion River, which lies to the west of the defendant’s property. Draining into the coulee at the southern end of the defendant’s property are several smaller drainage ditches, one of which is the subject of this litigation. These smaller drainage ditches drain the property south of the defendant’s property. The drainage ditch at issue (hereinafter referred to as the ditch) runs approximately due north and begins south of State Highway 82, which runs east to west several hundred feet south of the defendant’s property, and drains water from ditches in a subdivision located south of Highway 82. From there the ditch goes north under Highway 82 and proceeds north through another subdivision, eventually passing north through the Maple Trace Subdivision, and then enters the defendant’s property from the south, and drains north into the coulee which goes through defendant’s property. The ditch drains surrounding tracts of land which lie both north and south of Highway 82. The ditch serves to drain an estimated total of 26 acres of land. The size of the ditch ranges from 6 feet wide by 3 feet deep at its beginning south of Highway 82 to 10 feet wide by 7 feet deep where the ditch empties into the coulee on defendant’s property. Standing water is found in various pools located along the length of the ditch on the defendant’s property, and plant growth of various kinds and sizes are found along the length of the ditch on the defendant’s property.

The plaintiff filed suit seeking an injunction to prevent defendant from in any way interfering with plaintiff cleaning and maintaining the ditch on the defendant’s property. The plaintiff's petition alleged that the ditch is one which has been in existence for many years and is either a natural drain or one created by a governmental subdivision; that there was a need to improve drainage and prevent flooding that required the plaintiff to clean the ditch; and that plaintiff has attempted to clean the ditch but has been prevented [476]*476from doing so by the defendant. An Exception Of No Right Of Action filed by defendant was heard and overruled.

At a trial on the merits defendant testified that no right-of-way was ever granted by him to any political subdivision and that no one had ever told him that work had been done on his property to clean or maintain the ditch. Dephnix Meaux, the defendant’s brother-in-law, who lived near the defendant’s property and who used the defendant’s property as pasture, stated that he never granted the plaintiff a right-of-way on behalf of defendant, nor had he ever noticed any cleaning of the ditch since moving near the defendant’s property in 1971. He further testified that he was asked by someone (presumably by employees of either the Vermilion Parish Police Jury or the plaintiff) for permission to clean the ditch in approximately 1983 and that he requested that they contact the defendant. He also testified that he personally stopped a dragline operator from dredging the ditch on the defendant’s property at some time after 1971.

The plaintiff called Robley Roy, a parish employee, who testified that he used a machine known as a “gradall” to clean the ditch for its entire length from its beginning south of Highway 82 to where it drains into the coulee on defendant’s property. Mr. Roy testified that he had used the gradall twice, once around 1975 and once again around 1977, and that he either mowed or supervised the mowing of grass along the ditch once a month, weather permitting, from about 1967 until approximately 1979.

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Bluebook (online)
512 So. 2d 473, 1987 La. App. LEXIS 9733, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gravity-drainage-district-2-v-vallee-lactapp-1987.