ESSO STANDARD OIL COMPANY v. Hunter JONES et al.
No. 42986.
Supreme Court of Louisiana
April 1, 1957.
On Rehearing Nov. 12, 1957.
233 La. 915 | 98 So.2d 236
Taylor, Porter, Brooks, Fuller & Phillips, Baton Rouge, Blanchard, Goldstein, Walker & O‘Quin, Shreveport, Dale, Richardson & Dale, Vidalia, for defendants-appellees.
SIMON, Justice.
This is one of two concursus proceedings provoked by the Esso Standard Oil Company, the purchaser of oil from two wells, wherein are cited the State of Louisiana, through the Louisiana State Mineral Board and Registry of the State Land Office as the owner of the bed of the Mississippi River by virtue of its inherent sovereignty, and Hunter Jones, et al., the riparian or littoral owners to assert their respective claims to the funds deposited in the Registry of the Court.
Both suits, presenting a similarity of parties and issues, were consolidated for trial in the district court. From an adverse judgment rendered in each case by the district court the State of Louisiana has appealed; and though said appeals have been consolidated for consideration by us, separate decrees will be rendered.
When these two cases were submitted to us we then entertained serious doubt as to the correctness of the conclusions reached by our learned brother below. After an exhaustive study of the issues presented, and
“In the first numbered and entitled suit above, Esso Standard Oil Company alleges that beginning February 27, 1951, it started purchasing oil produced from a well located as follows:
‘North 75° 31’ East 1250 feet, North 13° 30’ West 660 feet from a point where Sections 9 and 10 intersect Meander Line 1828 in Sections 9 and 10, Township 4 North, Range 9 East, Concordia Parish, Louisiana.’
“The petition further alleges that some 36 named individuals and corporations and the State of Louisiana, State Mineral Board and the Register of the State Land Office are claiming .035719 of the royalty interest in said production; that the said Esso Standard Oil Company has deposited the money representing the net value of that royalty interest in the Registry of this Court and has caused said claimants to be cited to appear and assert in concursus their respective claims to that money.
“In the second numbered and entitled suit above, the petition of the said Esso Standard Oil Company alleges that beginning
‘From meander corner of Sections 9 and 10, Township 4 North, Range 9 East, run thence North 76 degrees 30 minutes East 1328 feet, thence North 13 degrees 30 minutes West 476 feet to location, Concordiа Parish, Louisiana.’
“With few exceptions the same individuals and corporations and the State of Louisiana, State Mineral Board and the Register of the State Land Office are named as claimants of the full one-eighth (1/8) royalty interest in the production of this oil; that the said Esso Standard Oil Company has deposited the amount of money representing the net value of the said royalty interest in the Registry of this Court and has caused all of said claimants to be cited to appear and assert their respective claims to the money.
“The State of Louisiana, State Mineral Board and the Register of the State Land Office appeared and alleged that the well location in each of said actions is on land formerly constituting the bed and bottom of a navigable stream (the Mississippi River); that, therefore, the land belongs to the State of Louisiana by right of sovereignty, and for that reason all the money depоsited in the Registry of this Court in each suit likewise belongs to the State. Also, in each proceeding all private claimants inter-
“There is no dispute amongst any of the private parties as to what is claimed to be the fractional royalty interest of each of them. These private claimants dеny that the State of Louisiana has any interest in this money. Counsel for the State departments stipulated that so far as the State of Louisiana, the State Mineral Board and the Register of the State Land Office are concerned, in event the Court should hold that the property upon which the wells are bottomed is not owned by the State of Louisiana, et als., it is agreed and conceded that it is owned by the other claimants (meaning the private parties interpleaded herein) as amongst themselves. Thus, the question to be resolved by the Court is narrowed down to whether the oil was produced from land which is part of Roseland
“The two cases were consolidated for trial and while the evidence offered is applicable principally to Carter-State Well No. 1 referred to in the second suit, it is understood that because of the close proximity of the wells to each other the testimony will likewise apply to the other well. Preliminary to discussion of the evidence and the law it should be noted that up to 1933 the course of the Mississippi River formed an elongated horseshoe around Glasscock Point in Adams County, Mississippi. Also, that it was about four and a half (4 1/2) miles across Glasscock Point at the mouth of the so-called horseshoe and about sixteen (16) miles along the bend of the river forming what is known as Deer Park Bend. Fronting on the Louisiana side of the lower prong of the bend were sections 5, 6, 7, 8 and 9 of Roseland Plantation in Concordia Parish, Louisiana, (S-2; James et als.-1, et seq.). Beginning in 1933 and by April of that year, as an аid to flood control the Army Engineers cut a high water channel along the four and a
“Mr. Francis Geddes testified at considerable length and impressed me as being a thoroughly qualified witness on the questions involved by his many years experience along the Mississippi River and mainly because of his personal observations and knowledge of the conditions existing throughout the period under discussion at Deer Park Bend and along the Glasscock Cut-Off. At page 20 of the transcript he testified that the last time he visited the bendway was in May of 1955 just a few months before the trial of this case, and at that time a stream or current was flowing through the bend. Mr. Geddes further explained that from the beginning as the Cut-Off channel expanded there was less flow around the bend but that the flow was continuous through 1939, and at certain stages of the river to the present time (Tr. 19, 20, 22; James, et al.-29); that boats and
“Mr. Heard, who is also a competent engineer, testified that the location of the James-State well, which is the well referred to in suit docket No. 45,708, was drilled as a straight hole; that Carter-State well, the well referred to in suit docket No. 48,714, is 260 feet southeast of the first well (Tr. 104, 105); that the Carter-State well was directionally drilled and while the angle from the surface is toward the river, the well is actually producing 245 feet above the bottom of the well. It was stipulated at the pretrial conference that the bottom hole location at the surface of the Carter-
“Mr. Heard further testified that the surface location over the bottom of that well and the top of the other well are above high bank (Tr. 104) and both these wells are above the mean low water mark of 1951 (Tr. 107). He also refers to a fence which passes near the well locations toward the river which fence is further described by Mr. Davis. Mr. Heard made a survey shown by his map (James, et al.-34), which shows the land locations of the oil production of these wells to be well above the mean low water in 1951 and actually on the high bank. Counsel for the State agreed that he does not dispute Mr. Heard‘s survey (Tr. 112, 132; James, et al-34). As I view the map, that stipulation by Counsel for the State is a complete denial of the State‘s claim.
“Witness Sessions, a civil engineer, also identifies the well locations and testifies that these wells are located on a bar now forming the bank which adjoins and connects from the water of Deer Park Bend
“While Mr. White, another witness for the State, had traversed this bendway personally, I am unable to boil down his somewhat lengthy general statement so as to derive any practical helpful information. I find very little, if any, of his testimony is contrary to the end result of what witnesses Geddes, Heard, Sessions and Davis said. In fact, Witness White corroborated a great deal of the testimony of Geddes.
”
‘Alluvion by accretion defined—Ownership—The accretions, which are formed successively and imperceptibly to any soil situated on the shore of a river or other stream, are called alluvion.
“The alluvion belongs to the owner of the soil situated on the edge of the
water, whether it be a river or a stream, and whether the same be navigable or not, who is bound to leave public that portion of the bank which is required by law for the public use.’
“In this case able counsel for the State offers several exceptions to reliance upon
“In this case counsel for James, et als. have made a translation from French commentators on the effect of man‘s act on the applicability of
” ‘The application of the principle is not without difficulty when the works which bring about the alluvion have been performed by the state whether in the interest of navigation or industry. We do not think that this circumstance alone can modify the principle. The law is not based upon the cause which produces alluvion. It considers only the mode of formation of the accretions. If accretion is successive and imperceptible, there is alluvion, and the alluvion belongs to the riparian owners.
” ‘It would be vain for the state to say that it had produced the alluvion;
that formed upon the bed because of the constructions made it should belong to the owner of the bed—that is the state in the case of a navigable stream. That objection falls before the text, which has no regard for the origin of the alluvion.’3
“Another contention is that whatever alluvion deposit has occurred was not successive and imperceptible as contemplated in
“The preponderance of evidence in this case is clear and convincing that up to 1939, while there had been some deposition in the upper arm of the bendway there had been little change toward the lower end, but thereafter, and while there was continuous flow, deposits commenced to build up the bank at the well sites and that this continued continuously each year. Naturally there was no deposition on the high banks at low water. The only way there can be accretion by alluvion on the bank is by the water at higher stage than the bank level. The build up was gradual by the year (James, et als.—29, 30, 31). If there is any paucity of proof to that effect by the engineers, then the testimony of Mr. Davis who was employed on the adjoining property is sufficient to supply it.
“The opinion of Mr. Justice Rogers in Amerada Petroleum Corporation v. The State Mineral Board [203 La. 473], 14 So. 2d 61, fortifies my opinion here. I quote the following at page 69 [of 14 So.2d] which is a part of the written opinion of the trial court in that case:
“““On the other hand in all streams containing moving waters, which have the capacity of forming accretions, the lawmakers deemed it wise to pass these accretions to the owner of the property to which they became attached. It would indeed be arbitrary to give to the owners of land on a river the accretions to his land but to deny this right to landowners abutting a stream which is not technically or legally defined as a river, but which possesses all of the characteristics, of a river in the capacity of forming accretions. It, therefore, seems reasonable to me, as it must have to the law-writers, to include other streams in the category of rivers. It seems to me that this inclusion was made to cover such a case as we are here presented with. We are dealing with a stream that possesses all of the characteristics of a river in its ability to remove and deposit dirt. No better evidence of this ability is needed than the fact that it has produced considerable accretions and particularly the accretion in question. Generally, a lake could not have so done because in it there is not sufficient moving water to form silt to the
extent of forming additions to its banks. “““Therefore, I can put no other construction on the inclusion of ‘other streams’ under the cited Article, than the one herein given, for we might very well ask ourselves the question, what streams would the lawmakers have reference to? In my opinion there is but one answer to this question, and it is: All streams whose water have the power to form accretions: and as the stream with which we are herein concerned has the power to form accretions, as it has done, it is then plain to me that it falls within the category of the streams mentioned in the cited article, and therefore, all accretions forming to its shores or banks belonging to the abutting property owners.““”
“See, also, Seibert v. Conservation Commission of Louisiana [181 La. 237], 159 So. 375. The following is quoted from that opinion:
” ‘It is the well-settled jurisprudence of this state that the contiguous riparian proprietor owns the bank of the river attached to his рroperty, and this includes the alluvion or batture, and that the banks of rivers and/or streams is the land between the ordinary high water mark and the ordinary low-water mark. What is the ordinary low-water mark of the Mississippi
River? The levee of the Mississippi River, by statute, is designated as the ordinary high-water mark; State v. Richardson, 140 La. 329, 72 So. 984; Wemple v. Eastham, et al., 150 La. 247, 90 So. 637; Pizanie v. Gauthreaux, 173 La. 737, 138 So. 650; Smith v. Dixie Oil Co., 156 La. 691, 101 So. 24; Boyce Cottonseed Oil Manufacturing Company v. Board of Commissioners, 160 La. 727, 107 So. 506.’
“In the present case at the present time there is not a constant or continuous flow at low water around the bendway every day in every year, but definitely the bendway is not a lake. When it does flow it is not drainage and the bendway gets its water from the main body of the Mississippi River. A stream is not required to flow every minute of the time. In this case the bendway is characterized by definite banks on each side, a definite bed, a natural current always downstream with the main body of the Mississippi River being the source of water supply. The current is capable of carrying alluvion and of deрositing it along the banks. These characteristics fulfill every possible requirement of a stream and prevent the Deer Park Bend channel from being classified as a lake or pond up to this time. That location may change some time in the future becoming a dead lake, but it has not done so at this writing.
“State‘s counsel further contends that there is no showing in this record that the
Accordingly, for the reasons hereinabovе expressed, it is ordered, adjudged and decreed that there be judgment rejecting and dismissing the claim of the State of Louisiana, the Louisiana State Mineral Board and the Register of the State Land Office to the funds.
It is further ordered, adjudged and decreed that the funds deposited into the Registry of the District Court by plaintiffs herein be distributed and paid to the private claimants in the fractional proportion set out in the formal judgment of the district court.
It is further ordered, adjudged and decreed that all court cost be paid out of the funds so deposited.
Judgment affirmed.
HAWTHORNE, J., absent.
On Rehearing
FOURNET, Chief Justice.
We granted a rehearing primarily because of the importance of this case, and also in view of certain expressions in thе Report of the Special Master adopted by the United States Supreme Court in the case of State of Mississippi v. State of Louisiana, the decree in that case appearing at 350 U. S. 5, 76 S.Ct. 29, 100 L.Ed. 6.1 In brief on rehearing counsel for the State concedes that the facts as stated by the trial judge
At issue in this concursus proceeding is the ownership of funds derived from two oil wells. Carter-State No. 1 well is directionally drilled from the bank, with its bottom hole in what was once the main channel of the Mississippi River, but which is now land formed by accretion along the water‘s edge of a trаct known as Roseland Plantation; Orren James No. 1 well is located on the high bank, but was unitized under a forty-acre unit of which eleven acres fall in what was once the bed of the river. Carter-State No. 1 well was probably drilled in late 1951, about a year after completion of the Orren James well, since this proceeding is concerned with funds derived from production beginning, in the case of Carter-State, on January 7, 1952, and in the case of Orren James, on February 27, 1951. Rival claimants for the funds are, on the one hand, the State of Louisiana, State Mineral Board and Register of the State Land Office, based on the State‘s
The Louisiana Civil Code defines alluvion as “The accretions, which are formed successively and imperceptibly to any soil situated on the shore of a river or other stream,” and declares “The alluvion belongs to the owner of the soil situated on the edge of the water, whether it be a river or stream, and whether the same be navigable or not, who is bound to leave public that portion of the bank which is required by law for the public use.”
Under the jurisprudence of France, the same rule has been frequently enunciated. Decisions dealing with the corresponding article of the Code Napoleon held that alluvion which formed in a river as a result of works executed by man or at the expense of the State belonged to the riparian owners in the same manner as that which was formed naturally, providing only that the formation should have taken place suc-
Counsel for the State and its agencies, in support of their primary contention, i. e., that Deer Park Bend is a lake, argues that the bendway ceased to be a part of the Mississippi River and became a cut-off lake “when current ceased to flow in low water stages, and at that point as a matter of law
Briefly, the development of Glasscock Cutoff, following the initial dredging of a pilot channel in 1933 joining the two ends of the horseshoe-shaped portion of the river known as Deer Park Bend, extended over a period of years, during which water flowed through the cutoff only at times; and even after continuous flow was established, considerable additional work was necessary until at least 1939, during which period Deer Park Bend had continued to be the main channel of commerce on the river. In 1940 the cutoff became effective to the extent that it was capable of carrying the flow of the river at low stage; navigation lights were removed from the bendway, but it was still used by commerce, par-
“When this occurs (while at the same time the river itself remains a wide, deep, swiftly flowing stream capable of navigation at all stages), the old channel is no longer a part of the main river, even though water may flow during a part of the year in the old channel during periods of high water. The old channel is then no more a part of the river than the thousands of sloughs and swales found all up and down the Mississippi River which act as channels to carry flood waters from the river during high stages.” Page 10, Report of Special Master.
For purposes of disposing of the State‘s contention that the laws relating to alluvion do not apply because Deer Park Bend was, as a matter of law, a “cut-off lake” and not a stream, under the facts shown by the record in this case we might concede the correctness of what was said in the Special Master‘s Report (quoted in footnote 7), because the test “when current ceased to flow in low water stages in the bend” if applied here shows that, according to uncontradict testimony based on calculations as to rate of deposition, the bendway had closed at mean low water by “about 1946,” though it could have been one year either way; yet at least three years before that date, i. e., in 1942, according to the evidence, a fence between Roseland and Point
But we should not fail to note the inaptness of the observations of the Special Master to the instant case. His purpose, in seeking the boundary between two states, was to determine when the bendway ceased
The State‘s alternative contention—that in any event the Court erred in applying
A supplemental brief has been filed by the State in which it is contended that the year 1941 is the critical date in this suit; that it was during 1941 when flow ceased around the bendway at low water stages; that, from testimony and data in the record, the bottom hole location of Carter-State No. 1 well was below mean low water mark in 1941; and the position of the State is summarized thus: “Up until 1941 the doctrine of accretion applied. According to the [United States] Supreme Court‘s interpretation, when water no longer flowed at the low water level the waters in the old bendway became stagnant as a matter of law and the doctrine of accretion ceased to apply.” We think this has been answered by what is said above, and that further comment is unnecessary.
For the foregoing reasons and those previously assigned, our original opinion and decree are reinstated as the final judgment of this Court.
ESSO STANDARD OIL COMPANY v. STATE of Louisiana et al.
No. 42987.
April 1, 1957.
On Rehearing Nov. 12, 1957.
Jack P. F. Gremillion, Atty. Gen., George M. Ponder, First Asst. Atty. Gen., Edward M. Carmouche, Sp. Asst. Atty. Gen., Marc Dupuy, Jr., Sp. Counsel to Atty. Gen., H. M. Holder, Sp. Asst. to Atty. Gen., for defendants-appellants.
Taylor, Porter, Brooks, Fuller & Phillips, Baton Rouge, Blanchard, Goldstein, Walker & O‘Quin, Shreveport, Dale, Richardson & Dale, Vidalia, for defendants-appellees.
SIMON, Justice.
This is one of the two concursus proceedings provoked by the Esso Standard Oil Company wherein are cited the State of Louisiana, through the Louisiana State Mineral Board and Register of the State Land Office. The issues herein presented are the same as those involved in the case оf Esso Standard Oil Company v. Jones, 233 La. 915, 98 So.2d 236, both cases having been previously consolidated for purposes of trial and appeal.
Notes
“In the light of the authorities, alluvion may be defined as an addition to riparian land, gradually and imperceptible made by the water to which the land is contiguous. It is different from reliction, and is the opposite of avulsion. The test as to what is gradual and imperceptible in the sense of the rule is, that though the witnesses may see from time to time that progress has been made, they could not perceive it while the process was going on. Whether it is the effect of natural or artificial causes makes no difference. The result as to the ownership in either case is the same.”
St. Anna‘s Asylum v. City of New Orleans, 104 La. 392, 29 So. 117; Heirs of Leonard v. City of Baton Rouge, 39 La.Ann. 275, 4 So. 241, on rehearing 39 La.Ann. at page 285, 4 So. at page 246; see, also, Bruning v. City of New Orleans, 165 La. 511, 115 So. 733.