Ramsey River Road Property Owners Ass'n v. Reeves

387 So. 2d 1194, 1980 La. App. LEXIS 4308
CourtLouisiana Court of Appeal
DecidedJune 9, 1980
Docket13391
StatusPublished
Cited by4 cases

This text of 387 So. 2d 1194 (Ramsey River Road Property Owners Ass'n v. Reeves) 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
Ramsey River Road Property Owners Ass'n v. Reeves, 387 So. 2d 1194, 1980 La. App. LEXIS 4308 (La. Ct. App. 1980).

Opinion

387 So.2d 1194 (1980)

RAMSEY RIVER ROAD PROPERTY OWNERS ASSOCIATION, INC.
v.
Charles E. REEVES et al.

No. 13391.

Court of Appeal of Louisiana, First Circuit.

June 9, 1980.
Rehearing Denied September 4, 1980.

*1195 J. Arthur Smith, III, Frederick W. Ellis, Jr., Baton Rouge, Neville M. Landry, Covington, for plaintiff, appellee.

Perrin C. Butler, New Orleans, Larry J. Green, Covington, for defendants, appellants.

Before COVINGTON, LOTTINGER and COLE, JJ.

COLE, Judge.

This is a suit by a property owners association which seeks to enjoin the construction of a bridge over an allegedly navigable waterway.

The defendants are owners of real estate located in Sections 15, 16, and 44 of Township 6 South, Range 11 East of St. Tammany Parish, Louisiana, some of which is adjacent to the Bogue Falaya River. They propose to build a bridge across that river in the vicinity of their property to facilitate the development of a subdivision.

Plaintiff contends the river is navigable in law because it was, in fact, navigable at the time Louisiana was admitted to the Union in 1812 and is, therefore, a public waterway which cannot be privately bridged. The district court granted the relief sought by the plaintiff and permanently enjoined construction of the span. We conclude the judgment must be affirmed.

The legal considerations pertaining to a determination of the navigability of a body of water have been set out by the courts of this state on many occasions. Upon its admission to statehood, the state of Louisiana became the owner of the beds of the navigable waters within its boundaries. Gulf Oil Corporation v. State Mineral Board, 317 So.2d 576 (La.1975); Smith v. Dixie Oil Co., 156 La. 691, 101 So. 24 (1924). In D'Albora v. Garcia, 144 So.2d 911 (La. App. 4th Cir. 1962), these settled principles are stated:

"A test of the navigability of water bottoms is that those which are navigable in fact must be regarded as navigable in law, and they are navigable in fact when they are so used or are susceptible to such use, or are shown to be capable of commercial use. United States v. Utah, 283 U.S. 64, 51 S.Ct. 438, 75 L.Ed. 844; Packer v. Bird, 137 U.S. 661, 667, 11 S.Ct. 210, 211, 34 L.Ed. 819; The Daniel Ball, 10 Wall. 557, 563, 19 L.Ed. 999, 1001; Olin Gas Transmission Corp. v. Harrison, La. App. 1st Cir. 1961, 132 So.2d 721, 726 (writs refused).
"It was particularly noted in the Packer case that it is the susceptibility of use as highways of commerce which gives sanction to the public right of control to the exclusion of private ownership of either the waters or the soils under them. Thus, it has been emphasized that the capability of use by the public for purposes of transportation and commerce affords the true criterion of navigability rather than the extent and manner of use. Economy Light & Power Co. v. United States, 256 U.S. 113, 122, 123, 41 S.Ct. 409, 412, 65 L.Ed. 847; United States v. The Montello, Etc., 20 Wall. 430, 22 L.Ed. 391. Nor, as was pointed out in United States v. Appalachian Electric Power Co., 311 U.S. 377, 61 S.Ct. 291, 85 L.Ed. 243, does the lack of commercial traffic preclude a conclusion of navigability where personal or private use by boats demonstrates the navigability of the stream for a type of commercial navigation.
"Thus, the general rule is stated in 56 Am.Jur., p. 645, `Waters,' § 179:
`Navigability, in the sense of actual usability for navigation or navigability in fact, as a legal concept embracing both public and private interests, is not susceptible of definition or determination by a precise formula which fits every type of stream or body of water under all circumstances and at all times. A general definition or test *1196 which has frequently been approved is that rivers or other bodies of water are navigable when they are used, or are susceptible of being used, in their ordinary condition, as highways for commerce, over which trade and travel are or may be conducted in the customary modes of trade and travel on water. * * *'
This general rule has been followed and applied in numerous cases by the United States Supreme Court. In addition to the authorities hereinabove cited, reference is made to the following cases: United States v. Oregon, 295 U.S. 1, 55 S.Ct. 610, 79 L.Ed. 1267; United States v. Holt State Bank, 270 U.S. 49, 46 S.Ct. 197, 70 L.Ed. 465; Brewer-Elliott Oil & Gas Co. v. United States, 260 U.S. 77, 43 S.Ct. 60, 67 L.Ed. 140; Donnelly v. United States, 228 U.S. 243, 33 S.Ct. 449, 57 L.Ed. 820. The jurisprudence of the State of Louisiana likewise supports the general rule. State v. Jefferson Island Salt Mining Co., 183 La. 304, 163 So. 145; State v. Sweet Lake Land & Oil Co., 164 La. 240, 113 So. 833; State ex rel. Board of Com'rs of Atchafalaya Basin Levee Dist. v. Capdeville, 146 La. 94, 83 So. 421 [cert. den. 252 U.S. 581, 40 S.Ct. 346, 64 L.Ed. 727].
"It was particularly pointed out in the United States v. Appalachian Electric Power Co. case, supra, that the conditions of exploration and settlement of an area explained the infrequency or limited nature of such use of waters as highways of commerce, and that the lack of commercial traffic does not preclude the conclusion that a body of water is navigable where personal or private use demonstrates the capability of the stream for a type of commercial navigation; the question of the availability of the body for navigation is controlling rather than the extent of commerce conducted thereon. A similar observation was made by the Louisiana Supreme Court in State v. Jefferson Island Salt Mining Co., supra.
"Nor, has it been held that in order for a water body to be navigable it must be such as all times, inasmuch as its navigability is not destroyed because of interruptions by occasional obstructions (Goodwill v. Police Jury of Bossier Parish, 38 La.Ann. 752); * * *"

Our courts have also recognized that a determination of navigability does not necessarily involve an inquiry into whether the body of water is susceptible to modern means of travel, but rather, that methods of transportation used in the era involved in the particular case being considered must be examined. As quoted in Smith v. Dixie Oil Co., supra:

"`It must be remembered that navigation in 1812, and for a number of years thereafter in the South, meant transportation by scows, rafts, dugouts, and canoes.'"

Therefore, if the waterway in question was used for the purposes of trade and commerce in 1812, it is to be considered to have been a navigable body of water although it may no longer serve that purpose.

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Related

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579 So. 2d 1039 (Louisiana Court of Appeal, 1991)
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Ramsey River Road Property Owners Ass'n v. Reeves
396 So. 2d 873 (Supreme Court of Louisiana, 1981)

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