Miley v. Consolidated Gravity Drainage Dist. No. 1

642 So. 2d 693, 93 La.App. 1 Cir. 1321, 1994 La. App. LEXIS 2533, 1994 WL 541951
CourtLouisiana Court of Appeal
DecidedSeptember 12, 1994
Docket93 CA 1321
StatusPublished
Cited by20 cases

This text of 642 So. 2d 693 (Miley v. Consolidated Gravity Drainage Dist. No. 1) 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
Miley v. Consolidated Gravity Drainage Dist. No. 1, 642 So. 2d 693, 93 La.App. 1 Cir. 1321, 1994 La. App. LEXIS 2533, 1994 WL 541951 (La. Ct. App. 1994).

Opinion

642 So.2d 693 (1994)

Fred B. MILEY, et al.
v.
CONSOLIDATED GRAVITY DRAINAGE DISTRICT NO. 1, et al.

No. 93 CA 1321.

Court of Appeal of Louisiana, First Circuit.

September 12, 1994.

*694 Thomas J. Hogan, Jr., Hammond, for plaintiffs-appellants Fred B. and Jean Miley.

Dickie Patterson and Reginald J. McIntyre, Hammond, for defendant-appellee Consol. Gravity Drainage Dist. No. 1.

Glen Scott Love, Baton Rouge, for defendant-appellee Louisiana Ins. Guar. Ass'n.

Michael Hart, Baton Rouge and Michael Fontenot, Lafayette, for defendant Mt. Hawley Ins. Co.

Henri Wolbrette, III, New Orleans, Robert Picou, Houma, Patrick Berrigan, Slidell, Leonard L. Levenson, James J. Durio, and David Cressy, New Orleans, for defendant Affolter Contracting Co.

James B. Frederick, Jr., Baton Rouge, for defendant Louisiana Dept. of Transp. and Development.

Before CRAIN, LeBLANC, FOIL, PITCHER and PARRO, JJ.

PITCHER, Judge.

This is an action seeking recovery for damages to immovable property and for personal injuries caused by improvements made to a drainage canal. Plaintiffs appealed adverse *695 judgments of the trial court maintaining peremptory exceptions pleading the objection of prescription filed by defendants. We affirm in part, reverse in part, and remand.

FACTS

The pleadings and depositions in the record disclose the following facts. Plaintiffs, Fred and Jean Miley (the Mileys), owned property adjacent to the W-1 Main Canal, which is also known as the Yellow Water River Diversion Canal (the Yellow Canal), in Tickfaw, Louisiana. The Mileys had an upholstery shop, a small house and a mobile home on the property. Mr. Miley operated the upholstery business and the Mileys leased out the other two structures.

Defendant, Consolidated Gravity Drainage District No. 1 for the Parish of Tangipahoa (the District), is a board or commission of Tangipahoa Parish, a political subdivision of the State of Louisiana. The District, which operated and maintained the Yellow Canal, voted to engage in a public works project involving the canal. The main portion of this public works project was the clearing, deepening, and widening of the Yellow Canal for purposes of improving water drainage from the north end of Tangipahoa Parish through the south end of the parish.

In 1985, the District contracted with defendant, Affolter Contracting Company (Affolter), to clean and dredge the Yellow Canal. The District assured the State that it had acquired all necessary rights of way. The Mileys, however, contend that they did not give the State a right of way.

When Affolter's dragline appeared in the Yellow Canal near the Mileys' property, Mrs. Miley observed the machine removing large quantities of earth from her side of the canal bank, contrary to assurances she had been given concerning the scope of the work.

Mrs. Miley contacted the superintendent of the District, Newman Harper (Harper).[1] The Mileys were personally acquainted with Harper and had known him for a long time. Harper assured Mrs. Miley that the District would return and stabilize the canal bank by her property. Based on personal knowledge and past experience in dealing with Harper, Mrs. Miley accepted Harper's assurances.[2]

The District completed work on the portion of the project at or near the Mileys' property in the early months of 1986, but did not return to stabilize the canal bank by the Mileys' property. Mrs. Miley, however, persisted in her attempt to have the District correct the problem. She attended board meetings, spoke to individual commissioners, and presented photographs of the damage to the District.

The Mileys allege that the following damages resulted from the District's excavation of the Yellow Canal: the canal's banks eroded severely; a small ditch on the north side of the Miley's property was left undressed and gullied out enormously; large trees were undermined and toppled; large holes appeared in the canal's bank; and the slab under the Mileys' small rent house cracked and shifted due to the declining water table in the canal bank caused by the deepening of the canal.

Two other property owners, Mark S. Lewis and John G. Teltsch (Lewis and Teltsch), also allegedly sustained significant erosion of their property as a result of the same excavation work on the Yellow Canal. The Lewis and Teltsch property was situated further downstream on the bank of the canal. The District spent approximately $5,000.00 attempting to stabilize the bank of the canal to halt erosion of the Lewis and Teltsch property, but the measures taken failed to correct the problem. When the District refused to take further corrective measures, Lewis and Teltsch filed suit against the District on October 10, 1988.

In the late spring of 1988, the District's engineer, Leey Mapes, inspected the Miley property and assured the District that it was not responsible for the damage. Thereafter, *696 the District refused to take any corrective measures with regard to the Miley property.

On April 24, 1989, the Mileys filed an original petition for damages against the District, the District's insurers, the District's contractors, and the contractors' insurers. The Mileys subsequently filed a first amending and supplemental petition naming as defendants Affolter, Louisiana Insurance Guaranty Association (substituted for the District's insolvent insurer), and the District's prior insurer, Mt. Hawley Insurance Company, in solido. A third amending and supplemental petition named Affolter's insurers and the State of Louisiana, Department of Transportation and Development (DOTD) as defendants, in solido, with the other named defendants.

The Mileys' suit was consolidated for trial with the Lewis and Teltsch suit. All defendants pleaded peremptory exceptions of prescription in the Miley case, but not in the Lewis and Teltsch case. The District pleaded the peremptory exception of prescription in its answer, alleging that prescription appeared on the face of the petition, where it was shown that the cause of action arose more than one year prior to the filing of suit.

The trial court conducted a hearing on the exceptions. By agreement of the parties, for purpose of the hearing on the exceptions only, the evidence consisted solely of the record and depositions of certain witnesses. The trial court maintained the exceptions of prescription and dismissed the Mileys' suit as to all claims and all defendants.[3]

In its written opinion for judgment in the Mileys' action against the District, the trial court found that the Mileys' original petition for damages was not filed until April 24, 1989, some three years after completion of the public works project; that prescription was clear pursuant to the provisions of LSA-R.S. 9:5624; that plaintiffs failed to prove interruption of prescription after the alleged acknowledgment by a District employee in 1986; and that the theory of "continuing tort" was not applicable to this case. In accordance with these findings, the trial court, on December 16, 1992, signed a judgment in favor of the District and against the Mileys.

Subsequently, the trial court issued a second supplemental opinion, finding that prescription had also run on the Mileys' claims against the remaining defendants for the reasons stated in its earlier opinion for judgment in favor of the District. Accordingly, the trial court signed a judgment on February 3, 1993 maintaining defendants' exceptions of prescription and dismissing the Mileys' action against those defendants.

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Bluebook (online)
642 So. 2d 693, 93 La.App. 1 Cir. 1321, 1994 La. App. LEXIS 2533, 1994 WL 541951, Counsel Stack Legal Research, https://law.counselstack.com/opinion/miley-v-consolidated-gravity-drainage-dist-no-1-lactapp-1994.