TERREBONNE PARISH POLICE JURY v. Carroll MATHERNE.
No. 81-C-0531.
Supreme Court of Louisiana.
September 8, 1981.
Rehearing Denied October 9, 1981.
405 So. 2d 314
Michael J. Samanie, Houma, for plaintiff-respondent.
DENNIS, Justice.
The question presented for our decision is whether a parish governing authority may have a landowner enjoined from diverting his property‘s drainage from its natural flow and destination into a parish drainage project because the diversion of the natural drain impairs the efficiency of the public drainage system and contributes to the flooding of homes. The district court granted an injunction and the court of appeal affirmed. We granted certiorari to determine whether the action below constituted a taking or damaging of property for a public purpose without just compensation. We affirm. An injunction preventing a landowner from diverting the natural drain of his property is not a taking or damaging of his property because he has no right to do anything to render the natural servitude of drain more burdensome upon the estates situated below. The parish governing authority was entitled to have the landowner‘s unlawful acts enjoined in order to prevent irreparable injury to its drainage project.
The Terrebonne Parish Police Jury completed in December, 1979 Forced Drainage Project No. 1-1A. This project was designed to drain about 1700 acres and provide flood control for roughly 2200 residents.
On April 12 and 13, 1980, heavy rains of approximately eleven inches drenched the area causing severe flooding. When the drainage system failed to perform satisfactorily, employees of the police jury inspected the drainage channels and found two large ditches on defendant‘s property emptying substantial quantities of water into Canal C. Matherne had cut the ditches only a few weeks before. Since the flow from Matherne‘s new ditches appeared to contribute substantially to the prolonged flooding in the project area, the police jury blocked the ditches on April 16 and 17. After closure of the cuts, standing water in the residential area within Project 1-1A subsided as much as twelve inches in twelve hours. Matherne reopened one of the two ditches, began digging a third ditch, and ordered parish employees from his property when they attempted to close them. The police jury obtained a temporary restraining order enabling it to reclose the new ditches and to prevent further resistance by defendant until a hearing could be held.
After a full hearing, the trial court granted a preliminary injunction. The trial judge in his written reasons found that before Matherne cut the new ditches only 120 of his 800 acres drained into Canal C. By reversing the drain of additional portions of his property, the trial judge found, the defendant had introduced substantially more water into the forced drainage project than it was designed to handle. The trial court concluded that
Matherne appealed and the court of appeal affirmed the preliminary injunction judgment. 394 So.2d 1302 (La.App. 1st Cir. 1981). The court of appeal held that by authority of
We granted certiorari because of our concern that the lower courts’ sweeping interpretation of a local government‘s powers under
1.
Property may not be taken or damaged by the state or its political subdivisions except for public purposes and with just compensation paid to the owner or into court for his benefit.
“The various levee and drainage districts shall have control over all public drainage channels within the limits of their districts and for a space of one hundred feet on each side of the channel, selected by the district and recommended and approved by the Department of Public Works, whether the drainage channels have been improved by the levee or drainage district, or have been adopted without improvement as necessary parts of or extensions to improved drainage channels, and may adopt rules and regulations for preserving the efficiency of the drainage channels.”
The statute does not authorize the taking or damaging of private property without just compensation or without due process of law; nor do we think the legislature could do so constitutionally. Accordingly, we must reject the lower courts’ interpretation of
2.
The injunction preventing Matherne from diverting the natural drain of his property was not a taking or a damaging of his property, however, because he had no right to do anything to render the natural servitude of drain more burdensome on estates situated below. Under the conception of our law, the right to drain water from one‘s property over the lands of others is not a prerogative of ownership but a real right of servitude requiring a dismemberment of the ownership of others or a charge laid on their immovables.
The articles of the code governing the servitude of drain, in pertinent part, provide:
Art. 655. An estate situated below is bound to receive the surface waters that flow naturally from an estate situated above unless an act of man has created the flow. (Acts 1977, No. 514).
Art. 656. The owner of the servient estate may not do anything to prevent the flow of the water. The owner of the dominant estate may not do anything to render the servitude more burdensome. (Acts 1977, No. 514).
Our jurisprudence has established a consistent interpretation of these precepts. The owner of the lower lands of two
Testing the facts of this case by the codal precepts as thus interpreted, we conclude that Matherne‘s efforts to alter the natural drainage of his land exceeded his lawful rights as owner of a dominant estate. By cutting new ditches through the natural ridge bordering Canal C, Matherne diverted the drainage from most of his estate away from its natural flow, prevented it from reaching its natural destination and rendered more burdensome the servitudes due by the lower estates receiving Canal C‘s water by substantially increasing its volume.
3.
Because the record does not establish that the police jury was owner of a servient estate or neighboring property overburdened or damaged by Matherne‘s activities, we initially questioned the governing authority‘s standing to bring this suit. After considering the problem, however, we conclude that the police jury has standing to sue and is entitled to injunctive relief.
A party seeking an injunction must have standing to sue or, more comprehensively, the action must present a justiciable controversy. Stoddard v. City of New Orleans, 246 La. 417, 165 So.2d 9 (1964); Cf. Maraist, Work of Appellate Courts—1974-1975, 36 La.L.Rev. 556; Moore, Federal Practice, § 65.17. To have standing the plaintiff must assert an adequate interest in himself, which the law recognizes, against a defendant having a substantial adverse interest.
The police jury in this case has a right, which the law has recognized, to be immune from damage by Matherne‘s actions in overburdening the natural servitude of drain. The governing body is authorized to adopt rules and regulations for preserving the efficiency of channels within its drainage district.
Under these circumstances, the record sufficiently demonstrates the police jury‘s standing to sue and the potential irreparable damage to its drainage system that will result in the absence of injunctive relief. The language of the trial judge‘s injunction must be modified, however, to conform with a narrower view of the police jury‘s authority. The judgment is amended as follows:
It is decreed that a preliminary injunction issue against Carroll J. Matherne, prohibiting him, his agents, employees, and servants from unblocking the large drainage ditches blocked by the Terrebonne Parish Police Jury, from digging other such ditches in the future, and from diverting waters from his property into “Canal C” a/k/a Bayou Tecon which would not otherwise naturally flow into that canal.
AMENDED AND AFFIRMED.
LEMMON, J., concurs and assigns reasons.
DIXON, C. J., dissents with reasons.
LEMMON, Justice, concurring.
Prior to the drainage project undertaken by the Police Jury, a system of ditches had drained part of Matherne‘s property into Canal C. Matherne contends that a spoil levee placed along the bank of Canal C during the construction of the project blocked that pre-existing drainage and that he merely unblocked the blockage caused by placement of the spoil levee. If these were the complete facts shown by the record, then I would agree with his contention that he had the right to remove the spoil levee constructed without a servitude being expropriated or obtained by contract.
However, the record further establishes that Matherne also cut new ditches across a ridge south of Canal C. Prior to that action only 120 acres drained into Canal C, whereas after that action most of the remainder of the 800-acre tract also drained into the canal. Therefore, that action by Matherne did render the servitude of drainage more burdensome on the servient estate, and the Police Jury properly sought to halt the increased flow resulting from Matherne‘s action.
Nevertheless, Matherne apparently still has an action for damages caused by the unauthorized taking or damaging of his property in the course of constructing the drainage project.
DIXON, Chief Justice (dissenting).
I respectfully dissent.
I do not understand that there is any evidence in this record that Matherne‘s action renders the servitude of natural drain owed by any estate below Matherne‘s more burdensome.