61 So. 388 | La. | 1913
Plaintiff brought this suit to have a right of drain recognized through a bayou known by the name of Veret. This bayou begins at or near Point I-Ioumas, in the parish of Ascension, about two miles above plaintiff’s plantation. It flows from northwest to southwest and crosses her plantation at the upper line, and traverses it and the plantation of defendant, and continues in a southerly direction over a number of plantations. Plaintiff complains of a dam across the bayou, erected on the Lauderdale plantation, which stops the natural flow of the water in the natural bayou and injuriously obstructs the drain of her plantation.
It is not denied that the former owner of the last-named plantation (Lauderdale), in the latter part of the year 1902, threw up a dam in the bayou. It also appears that the dam was destroyed several times, but rebuilt.
Plaintiff also claims the sum of $3,474, alleged damage to her crop in 1909, caused by the dam in the natural drain, which forced back the waters and caused them to flow over a large portion of her plantation and destroyed her crop of cane and corn, valued at the amount just above mentioned. She also prayed for a mandatory injunction to issue to compel the owner of the servient estate to remove the dam, and prohibiting him from again putting any obstruction to the drain in the bayou.
The defense took issue with the plaintiff,
The purpose of the defendant and defendant’s authors in title and of other owners of plantations below the dam was to divide the waters, separate them completely, a part to flow through a canal to be built on the upper line of Lauderdale plantation, and the other waters below the dam to be built to flow into Bayou Veret, and those above the dam to be drained into Canal Lapice, just above mentioned, thus, it is alleged, giving relief and exit to the waters of Faustina plantation, owned by plaintiff, by relieving Bayou Veret, which had almost lost its identity, defendant alleges, as a natural drain owing to the neglect of those interested in maintaining the drain, and also to the end of preventing, it is further alleged, the overflow of the bayou during heavy rains.
It is also stated that the owners of plantations along the bayou contributed a stated amount to build Lapice Canal. The owner of Lauderdale contributed the land upon which to build the canal, as well as $500. Plaintiff contributed $250, and others contributed in proportion to their respective interests.
On the 14th day of October, 1899, Burgundy Lapice, vendor to defendant, appeared before a notary and declared in a deed that he donated the land on which the canal was to be built. A plat is annexed to the deed. This deed is not signed by those who contributed the different amounts to defray the expenses of building the canal; it was signed only by Lapice. With these contributions Lapice built the canal. He also constructed the dam in question some time after the drain through the new canal had been opened.
One of the contentions' of the defendant is that those who contributed an amount to build this canal should be made parties to the suit. Defendant alleged that this dam was erected with the knowledge and consent of the plaintiff; that she was interested, and received the benefit of the drainage. This allegation, we may as well state now, is not sustained by sufficient proof. The defendant’s further contention is that the commissioners of the drainage district should be made parties; that their system of drainage was adopted, and that they took part in the plan of drainage to open some of these drains; that, for that reason, they also should be made parties.
The main difference between plaintiff and defendant, rendered evident by the facts, is the dam in question. Defendant’s proposition was that, as Bayou Veret was not sufficient to carry off the waters, it was necessary to build a canal.
There is a plausibility in defendant’s contention. The purpose as stated to this point was to relieve the natural drain.
We recur to this branch of the case again, in order to state that there is a Napoleon Bayou which forms a part of the upper drain.
As above stated, the property below the dam was to flow in. the Veret Bayou, and the property above in the new canal, and from the new canal into Bayou Napoleon to a low swamp at some distance, known by the name of Grand Trou. The work of digging the new canal was commenced in 1901. Afterward a dredge boat was constructed in the canal; unfortunately it was destroyed by fire. The distance between Veret at the place where the dam was built and Bayou Napoleon, to which it was the intention to main
We will state here that that is frequently the course taken among neighbors for an improvement; the preliminaries are not sufficiently guarded by full explanation of details. It is all well until loss and destruction arise.
Prom the evidence before us it seems strange that the plaintiff was never consulted about the dam, in which she had the interest of an owner. There was no reason to let her remain in the dark about this drain, and particularly the dam; it would have been a very simple matter to mention to her why a change was proposed. If a full explanation had been made to her, she would have been concluded. If an exchange of the natural for the artificial was the purpose, it is unexplainable why nothing was said to plaintiff about it. When an important change is proposed, to leave out of consultation a lady proprietor of land is negligence. It was not advisable to begin by making the improvement and afterward let this improvement show its usefulness, and by its effect compel permanent acquiescence and acceptance on the part of all concerned.
The apprehension on the part of the defendant is that, by opening the dam, the waters will overflow the lands below the dam and cause him and others owning lands situated south of the levee in the drain considerable loss. He avers that he bought the place with this dam in the Veret as it is now, and plaintiff has no right to an order compelling him to remove it.
There is inconsistency on the part of defendant in regard to this drain. At one time defendant’s contention is that thez-e is no drain; that the bayou is no longer a drain. At another time the contention is that, if reopened, it will flood defendant’s plantation.
None of those who drew the different maps in evidence before us thought of indicating where the dam was, or referred to a dam affecting the drain.
The decision in Swain v. Webre, 106 La. 161, 30 South. 331, is pertinent.
May v. Boulware, 35 La. Ann. 469, is also an analogous case.
There is another principle laid down in these decisions, to which we will give a passing notice. It is that the servient estate must receive the waters; that is, that its owner cannot stop the natural flow.
In the next place, defendant earnestly urged that it should not be expected of-him to remove the dam.
■ We do not conceive why he should not be the one to remove it. No other person has contended that it should remain as it is. He has attempted to meet the issues presented, and has lost. The dam is on his place. He has maintained it since he became the owner; he is the only party in interest.
We will conclude by stating that plaintiff’s silence, under the circumstances, did not amount to a relinquishment or abandonment of a drain; but it is sufficient to justify us, as we think, in denying an amount for her loss of cane and corn in 1909, for which she only brought suit in 1911, thereby manifesting no fear of a rise of water again that would cause her loss.
For reasons assigned, the judgment is affirmed.