Judgment rendered August 10, 2022. Application for rehearing may be filed within the delay allowed by Art. 2166, La. C.C.P.
No. 54,678-CA
COURT OF APPEAL SECOND CIRCUIT STATE OF LOUISIANA
***** HALL PONDEROSA, LLC Plaintiff-Appellant
versus
STATE OF LOUISIANA, Defendant-Appellees THROUGH LOUISIANA STATE LAND OFFICE; JOHN LAVIN, DIRECTOR OF LOUISIANA STATE LAND OFFICE ***** Appealed from the Thirty-Ninth Judicial District Court for the Parish of Red River, Louisiana Trial Court No. 35585
Honorable Dee Hawthorne, Judge (Ad Hoc) Honorable John Robinson, Judge (Ad Hoc)
***** BETHARD & BETHARD, L.L.P. Counsel for Appellant By: Benjamin T. Bethard Matthew S. Kelley
PETTIETTE, ARMAND, DUNKELMAN, WOODLEY, BYRD & CROMWELL, L.L.P. By: Edwin H. Byrd, III
JEFFREY M. LANDRY Counsel for Appellees, Louisiana Attorney General State of Louisiana, through Louisiana State RYAN M. SEIDEMANN Land Office; John Lavin, CHRISTOPHER J. LENTO Director of the Louisiana Assistant Attorneys General State Land Office; and State of Louisiana Mineral and Energy Board DAVIDSON SUMMERS, A.P.L.C. Counsel for Appellee, By: J. Davis Powell Stephens Sisters, L.L.C.
THE PARKS FIRM, L.L.C. Counsel for Appellees, By: Santi A. Parks Elizabeth Fisher Lester Minerals, L.L.C.; and Elizabeth Fisher Lester Land, L.L.C.
NICKELSON LAW P.L.L.C. Counsel for Appellee, By: John C. Nickelson Random Precision, L.L.C.
RANDAZZO, GIGLIO & BAILEY, L.L.C. Counsel for Appellee, By: Joseph Charles Giglio, III Vine Oil & Gas, L.P.
*****
Before MOORE, COX, and MARCOTTE, JJ. COX, J.
This suit arises out of the 39th Judicial District Court, Red River
Parish, Louisiana, ad hoc Judges Dee Hawthorne and John Robinson
presiding. Hall Ponderosa, LLC (“Hall”) brought suit against the State of
Louisiana to be declared the owner of certain land and minerals along the
Red River. The trial court found against Hall, and Hall now appeals. For
the following reasons, we reverse the trial court’s judgment regarding expert
fees and remand for a contradictory hearing to determine the amount of
expert fees. We affirm the trial court in all other respects.
FACTS
Hall owns title to property that was adjacent to the Red River prior to
1945 and located in Sections 13 and 14, Township 12 North, Range 10
West, in Red River Parish, Louisiana. The property in dispute is located
west of the current path of the Red River and east of the former river channel
(referred to as “the Island”) and includes a portion of the former river
channel (referred to as “the Oxbow”).
Hall filed a petition for declaratory relief on April 30, 2012, seeking to
prevent the State from claiming lands located above the ordinary low water
line of the Red River adjacent to and within the disputed property. Through
a series of amended petitions, the following parties were named defendants:
the Louisiana State Mineral and Energy Board (“State”), Stephens Sisters,
LLC (“Stephens Sisters”), Elizabeth Fisher Lester Minerals, LLC (“Lester
Minerals”), Elizabeth Fisher Lester Land, LLC (“Lester Land”), Elizabeth
Claire Lester Bausch, Leu Anne Lester Greco, and Random Precision, LLC.
Hall’s amended petitions sought judgment denying any of the defendants’ claims to the property above the ordinary high water line and any alluvion or
accretion.1
Hall’s predecessor in title was W.A. Hall, who acquired property
known as the Stella Plantation in 1926 (“the 1926 property”). Hall’s
position was (and still is) that in 1945, the Red River made an avulsion cut
north of its property, which caused the Red River to meander away from the
1926 property and create a large deposit of alluvion. W.A. Hall then
acquired additional adjacent property from the Town of Coushatta in 1952
(“the 1952 property”). Hall claimed that the Red River slowly migrated
south adding a significant amount of accretion to the southern portion of
Hall’s property. In 1975, the Red River Waterway Commission (“RRWC”)
obtained a servitude from Hall to cut a dredge across the property in order to
redirect the channel of the Red River. A dam was constructed to divert the
flow of the Red River down the new channel. Hall claims that the old
riverbed (the Oxbow) became nonnavigable and W.A. Hall’s ownership then
extended to the middle of the Oxbow. Because of a series of locks and dams
being constructed, the majority of Hall’s claimed property lies underwater.
Hall claimed that this permanent flooding by the locks and dams did
not change the ownership of the riverbank. It asserted that the State was
claiming property lying above the ordinary low water mark of 102 feet. It
also claimed that it owned the accretion because it belongs to the owner of
the riverbank. Hall sought monetary damages for any mineral royalties or
lease bonuses paid to the State on property owned by Hall.
1 Alluvion and accretion are used interchangeably throughout this opinion, as it was used by the parties. 2 Lester Land and Lester Minerals filed an answer and reconventional
demand denying Hall’s allegations. They claimed that their title included an
undivided interest in part of the property that Hall claimed to own. They
asserted that Dr. Frank Willis’s expert report evidences their title ownership.
They stated that, subject to any acquisitive prescription claim by Stephens
Sisters and the fixing of the State’s property line, their own title and
ownership interest is superior to any other ownership claim.
Stephens Sisters filed an answer, reconventional demand, and
crossclaims alleging that Hall unlawfully entered upon and traversed its
property, resulting in physical damage, mental anguish, and embarrassment.
It added the defenses of acquisitive prescription, its title of record, and any
interest it may have by way of riparian movement, including accretion,
dereliction, avulsion, or alluvial deposits. It asserted that it owned all
accretion and alluvial deposits attached to its titled property. It claimed that
it has possessed the property at issue in excess of the required ten or thirty
years for acquisitive prescription. Stephens Sisters also claimed any land
claimed by the State that was above the ordinary high water mark. Stephens
Sisters requested all damages to which they may be entitled. Ms. Greco,
Random Precision, Lester Minerals, and Lester Land answered individually
and claimed any interest they had by way of right of title, riparian
movement, and acquisitive prescription.
The State filed its answer, reconventional demand, and crossclaims.
The State denied that the Red River meandered away from the 1926 property
and created a large alluvion deposit owned by Hall. It alleged that the Red
River abandoned its bed and opened a new one. It stated that the property
W.A. Hall purchased from the Town of Coushatta was not as large as Hall 3 depicted. The State claimed that the new channel cut via the RRWC
servitude was dredged only over a portion of Hall’s property and not the
large area claimed by Hall. It denied that much of Hall’s property lies
underwater after the dam was constructed.
The State claimed ownership of the land that is part of the beds and
bottoms of the Red River. It therefore asserted that Hall has suffered no
monetary damages for which the State is liable. It also claimed that Hall’s
surveyor improperly extended section lines to fit his conclusions as to the
extent of Hall’s property. The State argued that once the Red River made its
avulsive cut across the peninsula, abandoned its bed, and opened a new bed,
the southern extent of the 1926 property was fixed along the former left
descending bank of the river. Therefore, according to La. C.C. art. 504, the
owner of the land on which the Red River opened its new bed took the
abandoned bed, up to the former left descending bank, which bordered the
1926 property. It claimed that after the 1945 avulsion, the 1926 property
was no longer riparian. It argued that because the Red River moved, the
“stream of the Red River” referred to in the legal description from the Town
of Coushatta to W.A. Hall is actually the former stream of the Red River. It
claimed this interpretation is necessary given the river’s movement and
description of the property as a “strip” of land.
The State requested that it be declared owner of the current and
former bed and bottom of the Red River (as relating to this litigation) and
that Hall’s property be limited to the 1926 property, any alluvion prior to the
1945 avulsion, and the property from the Town of Coushatta limited to the
boundary of the old riverbed. It also requested Hall be taxed with all costs
and it be awarded all relief, including expert fees. 4 Hall and the State agreed that Hall could not assert any acquisitive
prescription claims against the State. Preliminary default judgments were
entered against Ms. Bausch and Ms. Greco, and they did not appear at or
participate in the trial.
The bench trial was held from February 20 through March 3, 2018.
Hall called Thomas Wright, manager of Hall Ponderosa, to testify. Mr.
Wright testified that his grandfather, W.A. Hall, purchased the property that
is now owned by Hall Ponderosa. He testified regarding the title of the
property; hunting on the Island prior to the cutting of the new channel;
visiting the property six to ten times per year growing up; oil and gas leases
signed by Hall on the property in 1990 and 2008; and a servitude agreement
between Hall and RRWC to dredge a channel through the middle of their
property. He stated that after the navigation channel was cut, there was no
agricultural activity on the Island and he was unsure of any hunting activity.
He also testified on cross-examination that from the time the new channel
was cut until around 2008, he accessed the Island once in 1993.
Mr. Wright stated that they had the property surveyed by Michael
Mayeux and that survey was completed in April 2009. He testified that he
met with Mrs. Antionette Stephens McVea, who was part of Stephens
Sisters, to discuss the survey and she did not oppose or disagree with the
survey at that time. Mr. Wright stated that he continued to access the Island
via the Stephens Sisters’ property throughout 2009 with Mrs. McVea’s
permission and posted “No Trespassing” signs on the Island. He stated that
in 2010 or 2011, Mrs. McVea stated he could no longer access the Island
through Stephens Sisters’ property but he continued to access the Island.
5 Hall called its first expert, Michael Mayeux. Mr. Mayeux testified as
an expert in the field of surveying. He testified that when surveying the Hall
property, he reviewed deeds, plats, maps, aerial photos, surveys and reports
regarding the Red River, and previous court cases concerning the movement
of the river. Mr. Mayeux demonstrated the movement of the relevant
portion of the Red River through aerial photos, surveys, and maps. His
testimony revealed that there was some movement of the river prior to 1945,
but it was not significant. However, a photo from 1946 showed the avulsion
that occurred, and in his opinion, that avulsion created alluvion that attached
to the Hall property and continued to grow. Mr. Mayeux testified that he did
not believe two avulsions occurred because his research did not reveal two
channels existed at the same time. He stated this was significant because
when an avulsive act occurs, it reaches across the former channel, so there
are two channels that exist at the same time.
On cross-examination, Mr. Mayeux stated that he drew a unit map for
Petrohawk covering the disputed property. He admitted to using the same
property lines from his survey when he was hired by Hall. Mr. Mayeux also
admitted to some description errors in his report. He testified that if Dr.
Willis is correct that a second avulsion occurred, the results of his survey
would change. He agreed that if the second avulsion occurred, the Town of
Coushatta would not have been able to convey as much property as the
survey shows because the portion of the former riverbed would have been an
indemnification to the landowner of the new riverbed.
Hall’s second expert to testify was Joseph Castille. Dr. Castille was
accepted by the court as an expert geographer. He testified that based on
aerial photos and walking through the area, nothing alerted to a second 6 avulsion. He stated that if there had been a second avulsion, he would
expect to see an island between the two avulsions. Dr. Castille testified that
when he was on the property in 2009, he did not see evidence of anyone
possessing the Island, fences, roads, or deer stands. On cross-examination,
he stated that he was not initially hired to give an opinion regarding the
second avulsion but was later asked his opinion on the subject. He testified
that he relied on Mr. Mayeux’s work. He also admitted that there could
have been a low island between the first avulsion and alleged second
avulsion because the picture he looked at was taken at a time of high water.
Hall’s third and final expert to testify was George Kemp. Dr. Kemp
testified as an expert in geomorphology and hydrology. He stated that he
was retained to look into the nature of the meandering and avulsion changes
in the relevant portion of the Red River “from a physical process standpoint,
sediment transport.” He testified that it was his opinion that there was one
avulsion and then “a lot of downstream adjustment to the avulsion through
rapid meanders.” Dr. Kemp stated that the two channels never existed at the
same time so there could not have been two avulsions. On cross-
examination, he agreed that an avulsion is fast movement and accretion is
slow movement. He stated that what Dr. Willis calls a second avulsion, he
calls a rapid downstream meander adjustment. He highlighted that it was
rapid, but not as quick as an avulsion.
Next to testify on behalf of Hall was Donald “Luke” Pearson, a land
and right of way manager for the RRWC. He stated his job entails leasing
and other legal issues regarding land and real estate. He stated that the 1972
servitude paperwork provided that W.A. Hall owned the Island, 3,083 feet of
river frontage out of 6,375 feet total, and 94.4 acres. He stated there was no 7 mention of any Lester family ownership in his paperwork. Mr. Pearson
testified that the servitude covered the entire Island until a settlement
agreement was reached with Hall in 2014 to release all of the servitude
except a portion of the riverbank for maintenance. On cross-examination, he
admitted that the RRWC servitude reports do not show property lines
between land owners within the same RRWC designated tract. He stated
Hall was included in what the RRWC called “Tract 5” as owning an
undivided interest.
Kenneth Wright testified that he is W.A. Hall’s grandson and an
attorney. He stated that he frequented the property growing up and his
grandfather farmed the property. He stated that since his grandfather died in
1967, he has been to the property every decade. Gregory Hall testified that
he is also the grandson of W.A. Hall. Gregory is a petroleum engineer in
Oklahoma. He testified that he would hunt, shoot guns, and pick peas on the
property. He stated that after the dredging of the current river channel in the
1970s, he still visited the property but primarily on the east bank of the river.
He stated that when he drove on the Red River bridge in Coushatta, he
would look out at the Island and never saw signs of someone else being on
the Island.
The State called Dr. Frank Willis to testify as an expert in civil
engineering, hydrology, land surveying, aerial photogrammetry, and
geoscience. He stated that if there was no second avulsion, the river would
have had to turn at a 40-degree angle, which is not possible given the size of
the Red River. He also testified that the river would have been flowing
through sand and the sand could not have held the river at that angle. Dr.
Willis stated that the Island looks like accretion at first glance, but once you 8 know the process, you know it cannot be accretion. He stated that the Island
is actually alluvion soil and cottonwood and willow trees will grow and take
over in alluvion soil, which is what happened on the Island. He stated that
the trees follow the flow of the river so just follow the tree line to see where
the river once was. Dr. Willis disagreed with Dr. Kemp’s position that there
was rapid meandering. He stated that rapid meandering is usually normal in
these instances of an avulsion further upstream, but here it could not be rapid
meandering because of the sharp turn the river was required to make.
Dr. Willis pointed out problems and flaws he noticed in Mr. Mayeux’s
report, upon which Dr. Castille relied. He stated that Mr. Mayeux and Dr.
Castille did not follow all required land surveyor rules when investigating
the property. On cross-examination, he was asked about the 1950s Hyam
Survey that did not show two avulsions. He stated that he did not agree with
the survey as far as it concerned the second avulsion, but he pointed out
language on the survey suggesting an old riverbed in the area of the second
avulsion.
Stephens Sisters called Mark Tooke to testify as an expert in
professional land and boundary surveying. He stated that he reviewed the
Mayeux and Willis surveys. He testified that his work did not involve the
1945 avulsions but only the Oxbow, which is west of the Island. He stated
that the lowest points of elevation are good indications of the location of the
deepest channels. He stated that after reviewing the reports, he agreed with
Dr. Willis’s survey regarding the Oxbow as the old river channel.
Paul Lambert testified that he is married to Susan Stephens Lambert,
who is part of Stephens Sisters. He testified that he and the family accessed
the Island via adjacent Stephens Sisters’ property since the current 9 navigation channel was cut. He stated that he and others have been involved
in hunting, planting food plots, fishing, building access roads, and riding
three wheelers and four wheelers about eight to ten times per year and
around the holidays. Mr. Lambert testified that he never saw anyone from
the Hall family on the Island. He stated that he went with his sister-in-law,
Mrs. McVea, to meet with Mr. Mayeux. He testified that he never granted
members of the Hall family any access to the Island.
Mrs. Lambert testified regarding the chain of title to the Stephens
Sisters’ property. She stated that her husband, family, and employees have
accessed the Island since the current river channel was dredged. She
testified that she has not seen anyone from the Hall family on the property,
has never granted property access to anyone in the Hall family, and has
never made a boundary agreement with anyone in the Hall family.
Thomas McVea, Sr. testified that he is married to Antionette Stephens
McVea. His testimony was the same as Mr. Lambert’s testimony regarding
the family activity on the Island and access to the Island. Mrs. McVea
testified and corroborated the testimony of her sister and brother-in-law.
She stated that the only permission she gave to the Hall family was
permission to access their property for a survey, but she thought the survey
would be on the east side of the River, not the Island. She testified that on
multiple occasions their gate locks were cut and the fence was pulled away
from the gate; it was later determined and admitted by Hall that Hall was
responsible for the damage. She stated that she personally saw the “No
Trespassing” signs placed by and on behalf of Hall and was upset over the
signs. On cross-examination, she stated that the Island was never
10 specifically listed in any Stephens Sisters’ mineral leases, but the leases
included accretions, sand bars, etc.
John Contois, Jr. testified that he is a member of the Stephens Sisters
family because his mother is Rebecca Stephens Christian. He stated that he
has fished, trapped, and hunted on the Island. He testified that he visits the
property three to four times per year and has never seen anyone from the
Hall family on the property.
John Lester, III testified that he has an access agreement with
Stephens Sisters to access the property adjacent to the Island. He testified
that it has been common knowledge since the new channel was dredged that
Stephens Sisters possessed the Island and the Stephens family are the ones
he has seen on the Island. He stated that he had permission from Stephens
Sisters to access the Island and rode horses and ATVs on the Island. He
stated that the only access to the Island by land is on the west side, first
through his property and then through adjacent Stephens Sisters property.
He testified that he did open the Stephens Sisters’ gate for the Hall survey to
be completed but later denied them access.
The parties recalled their experts for rebuttal and submitted post-trial
briefs. On October 6, 2020, the trial court signed its ruling and reasons for
ruling. The trial court highlighted that this is a complex case. The trial court
found the State’s and Stephens Sisters’ arguments, evidence, and experts to
be persuasive. The trial court found the expert testimony to largely resolve
this case. The trial court found that Mr. Mayeux seemed unable to contain
his testimony to his own area of expertise and conflicts of interest were
pointed out, which caused concern. The trial court found it concerning that
Dr. Kemp was willing to change his expert report at the direction of one of 11 the attorneys and did not find his testimony persuasive. The trial court did
not have concerns with Dr. Castille’s testimony but found that it did nothing
to cause the court to question the testimony and opinion of Dr. Willis. The
trial court found that the cumulative effect of Dr. Willis’s multiple areas of
expertise was of greater value than the sum of the discrete areas. It stated
that he spoke frankly and clearly explained his opinions. It found that Dr.
Willis did not hesitate to share or admit to any possible weaknesses in
various positions. The trial court accepted his theories and explanations
because he was drawing upon knowledge from his many areas of expertise.
Regarding the property dispute, the trial court found that the Red
River abandoned its bed in 1945 as a result of two avulsions. Therefore, the
1926 property was no longer riparian and no further growth through
accretion could have occurred. The trial court agreed with the State’s
position that the description of the 1952 property referenced the former
stream of the Red River before the avulsions occurred. Because the 1952
property had not been riparian since 1945, it could not have increased by
accretion.
The trial court also found from the testimony of members of Stephens
Sisters, as well as relatives, and at least one adverse party, it was commonly
known and accepted in the community that Stephens Sisters owned the
Island. The trial court found that Stephens Sisters openly and continuously
possessed the Island as owner and by way of the requisite physical acts of
use, detention, or enjoyment. It stated that Hall began entering the property
without permission after Stephens Sisters’ possession by 30 years
acquisitive prescription had been perfected; therefore, it found Stephens
Sisters had a right to general damages in the amount of $15,000 for trespass. 12 The trial court adopted the opinions of Dr. Willis and Mr. Tooke that
the last remnant channel and low water mark were located on the left
descending bank of the Oxbow, which is below and adjacent to Stephens
Sisters’ land. The trial court found that the State of Louisiana did not own
any land subject to this litigation that is above the ordinary low water line of
the Red River. It found that Lester Land, Lester Minerals, and Random
Precision own any land to which they hold title, less and except the land
adjudicated to Stephens Sisters. All other theories or arguments were either
moot or rejected by the court. Hall was assessed with all costs, but attorney
fees were not awarded. The trial court signed the final judgment on
December 10, 2020.
Hall filed a motion to recuse Judge Hawthorne, which was denied.
Hall then filed a motion for new trial. After rendering final judgment, Judge
Hawthorne relocated and asked to be removed from the case. The State filed
a motion to tax its expert’s fees as costs to Hall. The Supreme Court
appointed Judge John Robinson as ad hoc over the remaining matters. The
trial court then denied Hall’s motion for new trial and granted the State’s
motion to tax costs to Hall in the amount of $46,266.66. Hall now appeals.
DISCUSSION
Accretion or Second Avulsion
Hall argues that the land at issue is accretion and not the result of a
second avulsion. Hall states this Court addressed this avulsion and its effect
on adjacent property in Stephens v. Drake, 134 So. 2d 674 (La. App. 2 Cir.
1962). It asserts that in that case, there was no second avulsion, but an
accretion. It highlights that the Hyams survey, 1950 aerial photograph, and
Louisiana Public Works right-of-way map all support its contention that the 13 property is an avulsion. It argues that the trial court erred in ignoring this
evidence and accepting the opinion of Dr. Willis, who did not produce any
positive evidence that a second avulsion occurred. Hall contends that the
trial court’s finding of a second avulsion should be reversed.
The State argues that this Court should not disturb “such a
complicated analysis” by the trial court. The State notes that its expert, Dr.
Willis, was accepted as an expert in civil engineering, hydrology, land
surveying, aerial photogrammetry, and geoscience. The State highlights Dr.
Willis’s testimony regarding the second avulsion of the Red River. Dr.
Willis used several exhibits to demonstrate how and why the second
avulsion occurred, and his photogrammetric evidence was not refuted by
Hall’s experts. The State argues that the trial court was correct in finding
that Dr. Willis’s conclusion was reasonable.
The central issue involved in this case is the movement of the Red
River in 1945.
Accretion formed successively and imperceptibly on the bank of a
river or stream, whether navigable or not, is called alluvion. The alluvion
belongs to the owner of the bank, who is bound to leave public that portion
of the bank which is required for the public use. La. C.C. art. 499.
Avulsion is not defined in our Civil Code. According to the Romanist
tradition, avulsion is a violent action of the water of a river that detaches an
identifiable part of riparian land and attaches it to other lands on the same or
the opposite bank. 2 La. Civ. L. Treatise, Property § 4:15 (5th ed.). In
Hamel’s Farm, L.L.C. v. Muslow, 43,475 (La. App. 2 Cir. 8/13/2008), 988
So. 2d 882, writ denied, 2008-2431 (La. 1/30/2009), 999 So. 2d 754, an
14 expert defined an avulsion as an “overnight cataclysmic change in the river
course resulting in remnant water and more particularly a change in course.”
When a navigable river or stream abandons its bed and opens a new
one, the owners of the land on which the new bed is located shall take by
way of indemnification the abandoned bed, each in proportion to the
quantity of land that he lost. La. C.C. art. 504.
The determination of whether the river movement was an avulsion or
accretion is a finding of fact. To reverse a fact-finder’s determination under
the manifest error standard, an appellate court must engage in a two part-
inquiry: (1) the court must find from the record that a reasonable factual
basis does not exist for the finding of the trier of fact, and (2) the court must
further determine that the record establishes a finding that is clearly wrong.
Beals v. New Fellowship Missionary Baptist Church of Delhi, Inc., 51,868
(La. App. 2 Cir. 2/28/2018), 246 So. 3d 701. When there are two
permissible views of the evidence, the trial court’s choice between them
cannot be manifestly erroneous or clearly wrong. Stobart v. State through
DOTD, 617 So. 2d 880 (La. 1993); Hamel’s Farm, L.L.C. v. Muslow, supra.
The rule that questions of credibility are for the trier of fact extends to
the evaluation of expert testimony, unless the reasons stated by the expert
are patently unsound. Lewis on Behalf of Lewis v. Cornerstone Hosp. of
Bossier City, LLC, 53,056 (La. App. 2 Cir. 9/25/2019), 280 So. 3d 1262.
The effect and weight to be given to expert testimony depends on the
underlying facts and rests within the broad discretion of the trial court. After
weighing and evaluating expert and lay testimony in a bench trial, the trial
court may accept or reject the opinion expressed by any expert. Scott v.
15 State Farm Fire & Cas. Co., 47,490 (La. App. 2 Cir. 9/26/2012), 106 So. 3d
607.
Hall called the following three expert witnesses regarding the river’s
movement: Mr. Mayeux, Dr. Kemp, and Dr. Castille. The State called one
expert, Dr. Willis. The trial court stated in written reasons that in large part,
the resolution of the case relied upon the testimony of experts. It is evident
from the transcript and written reasons that the trial court paid close
attention to the experts’ testimonies and exhibits. The trial court relied
heavily on Dr. Willis’s testimony regarding the second avulsion. Faced with
differing expert opinions, the trial court gave well-reasoned explanations for
its preference toward the testimony of Dr. Willis, namely his wide range of
expertise.
Dr. Willis has an extensive educational background and was accepted
as an expert in five areas. In contrast, Hall’s three experts testified in a
combined four areas of expertise. The trial court noted the following
regarding Hall’s experts: Mr. Mayeux’s conflicts of interest were cause for
caution and he did not have the advantage of possessing multiple areas of
expertise; Dr. Kemp’s testimony was not persuasive and there was cause for
concern regarding his willingness to change his expert report at the direction
of one of the attorneys; and, Dr. Castille’s testimony did nothing to cause the
court to question the testimony and opinion of Dr. Willis. Regarding Dr.
Willis, the trial court stated:
The Court finds that the cumulative value of Dr. Willis’s multiple areas of expertise is greater than the sum of the discrete areas; thus, a synergistic effect is achieved, which is of great value to the Court. Dr. Willis testified frankly and was able to explain clearly his testimony and opinions. He did not hesitate to share or admit any possible weaknesses he felt existed in the data or various positions. The Court accepts his 16 theories and explanations, as it was clear that he was drawing upon knowledge from his many areas of expertise. Dr. Willis testified that two avulsions occurred; he marked the first
one in blue and the second in red on State’s exhibit 9, a portion of which is
scaled down and shown below:
Dr. Willis testified that prior to 1945, the Red River made a hairpin
bend, which was probably as tight as it could have turned considering the
soil in the area. He stated that during the flood of 1945, the river jumped the
left descending bank, made an avulsive cut across the peninsula, and
“roared” across the peninsula in its new riverbed. He testified that because
of the momentum going through the first new cut, the river would not have
been able to turn after the first avulsion and stay in its existing bank. He
stated that although rapid meandering could occur after the first avulsion, the
river was “past the point of no return.” Dr. Willis testified that if the second
avulsion had not occurred, the river would have had to make a sudden turn
to the northeast to remain in the river bed. He stated that the only way it
17 could have done that is if it hit rock or some type of formation, but there is
no formation there. He therefore concluded that the second avulsion
occurred south of the first avulsion.
The issue of a second avulsion and its effects were not an issue in
Stephens v. Drake, supra. The property in Stephens v. Drake, supra, did not
involve the same property that is disputed in the instant case, although it did
involve nearby property and the 1945 Red River flood. In that case, the
court found that when the Red River changed its course, Stephens did not
lose title to the peninsula by reason of its separation from their adjacent
property. When the river cut a new channel through Stephens’ property,
they gained title to the old river bed. The court also found that “the evidence
fails to disclose the existence of any accretion or alluvion attached to
defendant’s property[.]”
The effect of Stephens v. Drake, supra, on this case is to reinforce the
undisputed fact that an avulsion occurred in 1945 when the Red River
changed its course. It also reinforces La. C.C. art. 504, which provides that
when a river abandons its bed and opens a new one, the owners of the land
on which the new bed is located shall take by way of indemnification the
abandoned bed.
After reviewing the evidence in its entirety, we find that the trial
court’s conclusion was a reasonable one. The trial court clearly found Dr.
Willis to be more persuasive due to his superior credentials and ability to
articulate and explain the complex river movement. The trial court did not
commit manifest error, nor was it clearly wrong in accepting the testimony
of Dr. Willis, rejecting the testimony of Hall’s experts, and determining a
second avulsion occurred. This assignment of error lacks merit. 18 Acquisitive Prescription
Hall’s second, third, and fourth assignments of error involve
possession and acquisitive prescription. Because possession is essential to a
claim of acquisitive prescription, we will discuss these assignments of error
together.
Hall argues the trial court erred in failing to find that it acquired title
to the property by way of 10- or 30-year acquisitive prescription and
precariously possessed the entire property through the RRWC servitude.
Hall states that it is uncontroverted that it acquired a portion of the property
in 1926, the remaining property in 1952, and possessed all of the property
until the Army Corps of Engineers dredged through the land to create a new
channel in 1973. It argues that by referencing the property as an Island that
they never accessed, the trial court erred in failing to consider the servitude.
Hall asserts that the servitude did not legally divide the property into
two separate tracts, but it is one tract with a river running through it;
therefore, according to La. CC art. 3426, by possessing a portion of the
property, it possesses all of it. It also asserts that the RRWC has acted as a
precarious possessor on its behalf. It states that it has paid property taxes
and granted mineral leases on the property. For these reasons, it requests the
trial court be reversed on the issues of acquisitive prescription and
precarious possession.
Hall argues the trial court erred in finding that the Stephens Sisters
perfected its claim of 30-year acquisitive prescription. It highlights that the
trial court made no mention of the nature of the possession it found to be
adequate. It asserts that Stephens Sisters could not have possessed the
property for 30 years because it was founded in 2006. It argues that 19 Stephens Sisters cannot tack on a predecessor’s right to possession because
it did not obtain the property through universal title, but through particular
title which does not include a reference to the land at issue.
Stephens Sisters addresses Hall’s 30-year acquisitive prescription
argument only to state that if Hall could prevail in this argument, it does not
impair or otherwise affect the trial court’s determination that the Stephens
family later established ownership through acquisitive prescription. It
argues that a close look at the record reveals that any activity by the Hall
family was limited to title land, rather than the additional land sought in this
lawsuit, i.e. the Island and Oxbow.
Stephens Sisters addresses Hall’s argument regarding its time in
existence and ability to tack possession. It asserts that possession of lands
beyond an owner’s title for 30 years within visible bounds may be
transferred between possessors. It claims that the title and description of
their property, which is adjacent to the disputed property, includes all
accretions, batture, and sand bars attached to and forming part of those
lands. It argues that the trial testimony evidences that the Stephens family,
including the Stephens Sisters’ members, have had activity on the Island
since the time of their father’s ownership.
The party asserting acquisitive prescription bears the burden of
proving all the facts that are essential to support it, including possession for
the requisite years. EOG Res., Inc. v. Hopkins, 48,577 (La. App. 2 Cir.
11/27/2013), 131 So. 3d 72, writs denied, 2013-2861, 2013-3015 (La.
3/14/2014), 134 So. 3d 1196. Whether a party has possessed the disputed
property for 30 years without interruption is a factual issue that will not be
reversed on appeal absent manifest error or a showing of an abuse of 20 discretion. Beals v. New Fellowship Missionary Baptist Church of Delhi,
Inc., supra.
To acquire possession, one must intend to possess as owner and must
take corporeal possession of the thing. La. C.C. art. 3424. Corporeal
possession is the exercise of physical acts of use, detention, or enjoyment
over a thing. La. C.C. art. 3425. One who possesses a part of an immovable
by virtue of a title is deemed to have constructive possession within the
limits of his title. In the absence of title, one has possession only of the area
he actually possesses. La. C.C. art. 3426. Actual possession must be either
inch by inch possession (pedis possessio) or possession within enclosures.
According to well-settled Louisiana jurisprudence, an enclosure is any
natural or artificial boundary. La. C.C. art. 3426, comment (d). The party
who does not hold title to the disputed tract has the burden of proving actual
possession within enclosures sufficient to establish the limits of possession
with certainty, by either natural or artificial marks, giving notice to the world
of the extent of possession exercised. Brunson v. Hemler, 43,347 (La. App.
2 Cir. 8/13/2008), 989 So. 2d 246, writ denied, 2008-2297 (La. 12/12/2008),
996 So. 2d 1119.
Acquisitive prescription is a mode of acquiring ownership or other
real rights by possession for a period of time. La. C.C. art. 3446. The
requisites for the acquisitive prescription of ten years are: possession of ten
years, good faith, just title, and a thing susceptible of acquisition by
prescription. La. C.C. art. 3475. Ownership and other real rights in
immovables may be acquired by the prescription of thirty years without the
need of just title or possession in good faith. La. C.C. art. 3486. For
21 purposes of acquisitive prescription without title, possession extends only to
that which has been actually possessed. La. C.C. art. 3487.
Under La. C.C. art. 794, one may utilize tacking to prescribe beyond
title on adjacent property to the extent of visible boundaries, but under the
general prescriptive articles, La. C.C. arts. 3441 and 3442, tacking may be
utilized to prescribe only to the extent of title. Loutre Land & Timber Co. v.
Roberts, 2010-2327 (La. 5/10/2011), 63 So. 3d 120.
We note that the Island property has water for visible boundaries and
is adjacent to other property owned by Stephens Sisters. As discussed in
detail in Loutre Land & Timber Co. v. Roberts, supra, La. C.C. art. 794
allows Stephens Sisters to tack their possession to that of their ancestors in
title under these circumstances.
In determining possession, the trial court stated that the pertinent time
period was from 1976 to 2010. The trial court did not outline the acts of
possession by the Stephens family but stated there was convincing testimony
from members of Stephens Sisters, friends, relatives, employees, and at least
one adverse party. The trial court found that Stephens Sisters openly and
continuously possessed the Island as owner and by way of the requisite
physical acts of use, detention, or enjoyment in accordance with the nature
of the property. We find no manifest error in this conclusion.
Mr. Lester, manager of Random Precision and an adverse claimant,
testified that he accessed the Island with permission from Stephens Sisters.
He stated that it is common knowledge in the community that Stephens
Sisters owned the Island and the only people he saw on the Island were from
the Stephens family. Mr. and Mrs. Lambert and Mr. and Mrs. McVea had
similar testimony that their family, friends, and employees accessed the 22 Island via their adjacent property. They testified that they used the property
for recreation, hunting, and fishing. Testimony also revealed that they built
access roads and planted food plots.
Thomas Wright testified that after the navigational channel was cut,
the Hall family did not plant on the Island and he was unsure of any hunting
on the Island. He stated that he did walk the Island around 1993. Kenneth
Wright testified that he had been on the property every decade since the
1960s. Gregory Hall testified that since the channel was dredged, he has
visited the property, but primarily on the East bank.
The trial court has great discretion in evaluating witness credibility. It
is in the best position to judge the tone and demeanor of the witnesses. The
trial court found that since the channel was dredged, the Stephens Sisters’
possession was essentially unchallenged. The trial court stated that Thomas
Wright’s testimony was effectively impeached because he first stated he had
not been on the Island since the navigational channel was cut, but stated on
cross-examination that he changed his mind and had been on the Island in
1993.
The testimony at trial supports the trial court’s conclusion that
Stephens Sisters had uninterrupted possession of the Island since 1976. The
trial court was in the best position to judge the credibility of the witnesses.
We do not find error in the trial court’s ruling on acquisitive prescription.
These assignments of error lack merit.
Boundaries within the Oxbow
Hall argues the trial court erred in locating the boundary between its
property and the State’s property in the Oxbow. It claims that its survey
particularly describes the boundary, as required by law. Hall asserts that the 23 State was allowed to introduce “admittedly bad data” that was misleading
and set the boundary further east than its survey. Hall argues that had the
State’s expert extended data further to the west, it would have picked up the
correct remnant channel and placed the boundary in the proper place.
Stephens Sisters argues that the trial record supports the ruling and
judgment regarding the last remnant channel and boundaries within the
Oxbow. It asserts that even if Hall’s expert is credible on the issue, it is
competing testimony with its expert and the State’s expert. It points out that
the trial court relied on the likeminded testimony of the Defendants’ experts.
The State argues that Mr. Mayeux placed the boundary line of Hall’s
supposed property too far west and the line actually lies to the east of where
Mr. Mayeux placed it. The State asserts that Dr. Willis credibly
demonstrated at trial that Mr. Mayeux’s accretion theory was incorrect. It
argues that this Court should not disturb such a complicated analysis by the
trial court.
As stated above in the avulsion discussion, the trial court was faced
with competing expert views regarding the river channels and movement.
This testimony was essential to the determination of the last channel, and
therefore, the boundary within the Oxbow. These factual findings and
weighing of expert opinions are subject to the manifest error standard of
review, which is discussed in detail above.
Hall’s expert, Mr. Mayeux, placed the last remnant channel further to
the west than Dr. Willis opined its location. Stephens Sisters retained Mr.
Tooke as their expert for the limited purpose of comparing Mr. Mayeux’s
and Dr. Willis’s opinions. Mr. Tooke compared the two opinions to aerial
24 photographs and determined that he substantially agreed with Dr. Willis’s
survey and location of the last remnant channel.
The trial court carefully considered the testimony and reports of these
three experts. The trial court heard from three experts on this issue and two
of the three agreed. The trial court found Dr. Willis to be more convincing,
adopted his opinion, and attached his survey as part of its ruling. This is a
finding of fact and choice between two differing opinions, in which the trial
court has vast discretion. As stated above, the trial court gave more
credence to Dr. Willis’s testimony because of his vast credentials and ability
to explain and demonstrate the movement of the river. We cannot say this
was manifest error. As such, this assignment of error lacks merit.
Expert Fees
Hall argues the trial court erred in awarding the State $46,266.66 in
expert witness fees because the State did not have their witness available for
cross-examination about his fees and the bulk of its use of the expert was to
pursue a claim that it had “no business pursuing.”
The State asserts that the trial court properly awarded its expert
witness fees and this Court should not overturn that action. It argues that
based on the factors to determine whether expert fees should be awarded, the
trial court was correct in awarding fees. The State reiterates the complexity
of this case and the necessity of expert testimony to resolve the case.
La. R.S. 13:3666 provides the following, in pertinent part:
B. The court shall determine the amount of the fees of said expert witnesses which are to be taxed as costs to be paid by the party cast in judgment either:
(1) From the testimony of the expert relative to his time rendered and the cost of his services adduced upon the trial of
25 the cause, outside the presence of the jury, the court shall determine the amount thereof and include same.
(2) By rule to show cause brought by the party in whose favor a judgment is rendered against the party cast in judgment for the purpose of determining the amount of the expert fees to be paid by the party cast in judgment, which rule upon being made absolute by the trial court shall form a part of the final judgment in the cause.
If the order applied for by written motion is one to which the mover is
not clearly entitled, or which requires supporting proof, the motion shall be
served on and tried contradictorily with the adverse party. The rule to show
cause is a contradictory motion. La. C.C.P. art. 963. If the rule seeks to
value the total time employed by the expert, for example, time gathering
facts necessary for his testimony, time spent away from regular duties while
waiting to testify, or if the party seeks a fee outside of that normally charged
by similar experts in that field, then the plaintiff in rule must prove by
competent evidence, what service and expertise the expert rendered in
addition to that observed by the trial court. Wampold v. Fisher, 2001-0808
(La. App. 1 Cir. 6/26/2002), 837 So. 2d 638. It has been the law for almost a
century that the assertion of an attorney and the bill of an expert do not
support an award for the total time of an expert. The expert must testify at
the trial of the rule and be subject to cross-examination, unless there is some
stipulation between the parties. Wampold v. Fisher, supra, citing, Northwest
Ins. Co. v. Borg-Warner Corp., 501 So. 2d 1063 (La. App. 2 Cir. 1987).
Final judgment in this case was signed in December 2020 by Judge
Hawthorne, in which all costs were assessed to Hall. The State filed its
motion to tax its expert fees as costs to Hall on January 26, 2021. Judge
Robinson, who was appointed ad hoc after Judge Hawthorne’s retirement,
held a hearing on the State’s motion to tax expert fees. Dr. Willis was not 26 present at the hearing for examination regarding his invoices and fees.
Because the State seeks to have Hall cast with Dr. Willis’s total bill and not
limited to the time spent before the trial court, the jurisprudence of this State
requires Dr. Willis to testify at the rule hearing and be subject to cross-
examination. Therefore, we reverse the amount of the expert fee and
remand to the trial court for a contradictory hearing on the amount of the
expert fee.
Property Description
Hall argues the trial court erred in granting a final judgment that does
not comply with Louisiana’s requirements to particularly describe the
immovable property and boundaries between landowners. Hall asserts that
third parties will be unable to determine the boundary lines between the
properties because the judgment description is too broad. Hall requests a
new trial be granted on this basis.
Stephens Sisters argues that the trial court’s ruling and judgment are
explicit regarding the extent of the property and references boundaries of the
property. It asserts that even if the judgment’s description could be
considered incomplete, it does not have to serve to nullify the judgment. It
argues that at most, this Court should remand to reform the judgment as to
the description in order to give full effect to the ruling.
All final judgments which affect title to immovable property shall
describe the immovable property affected with particularity. La. C. C. P. art.
1919. The purpose of this article is “to insure that the public in general, and
title examiners, successful litigants, officials charged with executions of
judgments and surveyors in particular, can accurately deal with the
immovable property.” Clark v. Fazekas, 2019-1386 (La. App. 1 Cir. 27 5/11/2020), 303 So. 3d 1066. The judgment must include the legal
description of a property, with reference to landmarks such as roads,
benchmarks, or other monuments which can be located, or a survey
commencing at some established point. Id.
The final judgment in this case includes the description of the 1926
property and the 1952 property. The judgment includes a reference to
plaintiff’s trial exhibit 1, which is a survey that is also filed in Red River
Parish Conveyance Book 327, Page 5. A picture of this survey is also
included on the judgment to show which property is described as the Island
and which property is described as the Oxbow. The trial court describes the
property at issue as:
[T]he area west of the navigational channel (the current path of the Red River) and east of the former Red River channel (the “Island”) and a good portion of the former Red River channel west of the Island. The former Red River channel was referred to at trial as the “Oxbow.”
Finally, the judgment includes a reference to and incorporates
plaintiff’s trial exhibit 48 regarding the last remnant channel of the Red
River in the Oxbow. The trial court states in the judgment that the center
line of the channel is shown by the yellow line marked with points 126-128
and the low water line of the left descending bank is shown by the blue line
marked with points 100-125. The trial court further ruled that the State
owned no property above the low water line.
The survey, which is plaintiff’s trial exhibit 48 and attached to the
judgment as exhibit A, includes a point of beginning and coordinates of each
point on the yellow and blue lines referenced by the trial court. It also states
the sections, township, and range of the property depicted.
28 Our jurisprudence requires that the judgment include a legal
description or survey. The case before us contains a legal description of the
1926 property and the 1952 property; a survey of the last remnant channel,
which is a property line within the disputed property; and a picture and
description of the Island. We find this legal description to be compliant with
La. C. C. P. art. 1919. The public, litigants, and title examiners can read this
judgment and the attached survey and accurately deal with the immovable
property. This assignment of error lacks merit.
Damages for Trespass
Hall argues the Trial Court erred in assessing damages against it for
trespass. It asserts that the reasons for ruling make no reference to where the
dollar amount came from or how it was calculated. Hall claims that without
any basis for actual damages, the award of $15,000 appears to be nothing
more than punitive.
Stephens Sisters highlights that Hall does not seek to reverse the trial
court’s finding of trespass, only to reverse the damages award. It argues that
one wronged by trespass is entitled to recover general damages, including
damages for mental anguish, and the trial court is afforded much discretion.
Stephens Sisters assert that Hall’s actions in cutting its chains and locks
were a clear act of trespass and subject to damages. It argues that it is clear
from the record that the damages award was fully supported by evidence.
Trespass is defined as an unlawful physical invasion of the property or
possession of another person. Davis v. Culpepper, 34,736 (La. App. 2 Cir.
7/11/2001), 794 So. 2d 68, writ denied, 2001-2573 (La. 12/14/2001), 804
So. 2d 646; Sullivan v. Wallace, 33,387 (La. App. 2 Cir. 8/23/2000), 766 So.
2d 654, writ denied, 2000-2647 (La. 11/17/2000), 774 So. 2d 978. A person 29 damaged by trespass is entitled to full indemnification. Where there is a
legal right to recovery, but the damages cannot be assessed exactly, the court
has reasonable discretion to assess the value based on all of the facts and
circumstances of the case. Davis v. Culpepper, supra. Damages for
dispossession of one’s property are regarded as an award of compensatory
damages for violation of a recognized property right and are not confined to
proof of actual pecuniary loss. Id. One wronged by trespass is entitled to
recover general damages, including damages for mental anguish. Williams
v. City of Baton Rouge, 1998-1981, 1998-2024 (La. 4/13/1999), 731 So. 2d
240; Davis v. Culpepper, supra.
The trier of fact is given much discretion in the assessment of
damages. Upon appellate review, damage awards will be disturbed only
when there has been a clear abuse of that discretion. La. C.C. art. 2324.1;
Williams v. City of Baton Rouge, supra.
The trial court awarded general damages in the amount of $15,000 to
Stephens Sisters for the trespass of Hall on its property. Hall does not
dispute the trespass, only the amount of damages. The trial court is given
much discretion in the assessment of damages. Stephens Sisters suffered
damaged fences and gates as well as mental anguish because of the acts of
trespass. Mrs. McVea testified to the damages as well as her own mental
and emotional anguish caused by the actual trespass, physical damages, and
placement of “No Trespassing” signs. The trial court was in the best
position to determine damage awards after listening to the testimony of the
witnesses. We find the trial court did not abuse its discretion in assessing
damages in the amount of $15,000.
30 CONCLUSION
For the reasons stated above, we reverse the trial court’s judgment
setting the State’s expert fees and remand for further proceedings regarding
the amount of the State’s expert fees. We affirm the remainder of the trial
court’s judgment. Costs assessed with this appeal are cast on Hall.
AFFIRMED IN PART; REVERSED IN PART; AND
REMANDED.