Rapides Parish Waterworks District Number 3 v. Broussard

663 So. 2d 475, 95 La.App. 3 Cir. 361, 1995 La. App. LEXIS 2717, 1995 WL 610858
CourtLouisiana Court of Appeal
DecidedOctober 18, 1995
DocketNo. 95-361
StatusPublished
Cited by2 cases

This text of 663 So. 2d 475 (Rapides Parish Waterworks District Number 3 v. Broussard) 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
Rapides Parish Waterworks District Number 3 v. Broussard, 663 So. 2d 475, 95 La.App. 3 Cir. 361, 1995 La. App. LEXIS 2717, 1995 WL 610858 (La. Ct. App. 1995).

Opinion

| THIBODEAUX, Judge.

Plaintiff, Rapides Parish Waterworks District Number 3, appeals a trial court judgment in favor of the defendants, Ronney Broussard, Donnie Sue Broussard and the company Mr. and Mrs. Broussard incorporated, Big Creek Outfitters and Expeditions, Inc., which dissolved the temporary restraining order issued against the defendants, and denied the Waterworks District’s request for a preliminary injunction. The temporary restraining order prohibited the Broussards and Outfitters from ^crossing a weir owned by the Waterworks District. The trial court concluded that the weir was subject to public use regardless of its designation as a public or private thing.

The Broussards and Outfitters answered the appeal and requested an increase in attorney’s fees from $750.00 to $7,500.00 and [477]*477for damages sustained by the issuance of the temporary restraining order.

For the following reasons, we affirm the judgment of the trial court on Waterworks District’s appeal. We increase the attorney’s fees to $1,500.00 and deny the Broussards’ request for damages.

ISSUES

The primary issues for resolution of this dispute are whether the trial court was manifestly erroneous in holding that the Waterworks District’s weir is a public thing subject to public use and whether the District has any right to prohibit the Broussards from crossing the weir. Additionally, we must determine if the attorney’s fees awarded to the Broussards should be increased and whether any damages should have been awarded to them.

FACTS

Big Creek is located in Grant Parish in the town of Pollock, Louisiana. The weir and its supporting rocks are located on Big Creek. From our review of the record, we find that the following facts, as recited in the trial judge’s written reasons for judgment, are logically articulated and hereby incorporate them into this opinion and adopt them as our own.

The trial judge wrote:

“Big Creek is a free-flowing stream which has been used by the public for recreation for years without number ... Likewise, at |3the site involved in this litigation, there has been a weir of one type or another across Big Creek for one hundred years. In its most recent form (a sheet-piling wall, buttressed on its downstream side by rocks or rip-rap and built by plaintiff), it has been used by plaintiff to form a pool from which an intake pipe can draw water which is ultimately processed and supplied to residences, businesses, industries and institutions in Rapides and Grant Parishes
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The land on the right descending bank near the weir is owned by plaintiff and has situated thereon plaintiff’s pumping station and other facilities. The land on the left descending bank belongs to the United States and is under the jurisdiction of the U.S. Forest Service. In November, 1992, the Forest Service and plaintiff entered into a Special Use Permit agreement, ... containing license for use of federally owned land through the year 2012 for ‘Operation and maintenance of a weir, water filtration plant, and a 20" water transmission pipeline (all improvements are owned by the permit holder)’ ...
The evidence showed that defendant corporation was in the business of organizing canoeing parties and renting canoes to them for trips down Big Creek to a rendezvous point not far below the weir where parties and their canoes could be picked up by vehicles that could reach that point traversing a Forest Service road. Customers of the corporation and other members of the public who canoed on Big Creek sometimes got past the weir by getting out of their canoes and onto the top of the weir, then pulling their canoes over the top of the weir and thence pulling them down the rocks or rip-rap on the downstream side for a few yards until they reached water deep enough again to float the canoes and navigate down to the rendezvous point or elsewhere below the weir
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There was evidence that canoers could and sometimes did portage around the weir by taking their canoes out of the water on Forest Service land and carrying or dragging them overland to a point below the weir where they could again launch into a navigable part of Big Creek ... As presently configured, the Forest Service bank and adjacent land is not particularly suitable for an easy portage around the weir.”

In addition to the above facts as found by the trial judge, the record reveals that several people saw canoeists portaging around the weir on the Forest Service bank. The Waterworks District claims that its insurance company advised them to take steps to stop canoeists from crossing the weir or the District would lose its insurance 14coverage. After suit was filed, the Waterworks District constructed a pipe barrier on top of the weir to discourage crossing.

[478]*478A temporary restraining order was obtained by the Waterworks District on June 21, 1994. The hearing on the preliminary injunction was held on June 29, 1994. The TRO, among other things, prohibited the Broussards and Outfitters from crossing the weir. The trial court rendered written reasons for judgment on July 19, 1994, dismissing the TRO, awarding the Broussards and Outfitters $750.00 in attorney’s fees, and denying the preliminary injunction. The trial court did not award the defendants any amount of damages.

LAW AND DISCUSSION

The trial court’s findings of fact may not be set aside on appeal in the absence of manifest error. Stobart v. State, through DOTD, 617 So.2d 880 (La.1993).

The main question for our consideration and decision is whether the weir going across Big Creek is subject to public use. If it is subject to use by the public, then the Waterworks District cannot enjoin canoeists from crossing over it as they canoe down Big Creek.

The trial judge in this case saw photos of the weir and Big Creek. He also heard testimony as to the weir’s structure and purpose. The trial judge further heard testimony as to the Broussards’ and Outfitters’ canoeing activities on Big Creek. In concluding that an injunction should not be granted and that the rights of the Waterworks District do not entitle it to prohibit the Brous-sards and Outfitters from “going onto and crossing petitioner’s weir and supporting rocks at its Big Creek facility,” the trial judge also had to interpret several statutory provisions dealing with the definition of public and private property, namely, La. Civ. Code arts. 450, 452 and 455; the Louisiana Scenic Rivers Act, La.R.S. 56:1840 and 1841; and, the Powers |5of the Waterworks Districts, La.R.S. 33:3815.3. Also part of the trial judge’s conclusion was his interpretation of the Special Use Permit, paragraph G granted to the Waterworks District by the United States Forestry Service.

All of the Waterworks District’s assignments of error deal with the public’s right to cross the weir. The definition of “public things” is found in La.Civ.Code art. 450 which provides in part: “Public things that belong to the state are such as running waters, the waters and bottoms of natural navigable water bodies, the territorial sea, and the seashore.” Political subdivisions of the state may also own things considered public such as streets and public squares. Id.

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Bluebook (online)
663 So. 2d 475, 95 La.App. 3 Cir. 361, 1995 La. App. LEXIS 2717, 1995 WL 610858, Counsel Stack Legal Research, https://law.counselstack.com/opinion/rapides-parish-waterworks-district-number-3-v-broussard-lactapp-1995.