90 So. 637 | La. | 1922
Pursuant to Act 30 of 1915, authorizing the leasing of state lands, in-
Plaintiif owns lands bordering on one side of Bayou Pierre and lands through whieh Bayou Dolet runs, in sections 14, 15, 22, 23.
Defendants commenced operations for the drilling of a well on the bank of Bayou Pierre, that is, between the ordinary high-water mark and the ordinary low-water mark, and between the upper and lower boundary lines of plaintiff’s land. Thereupon plaintiff, averring that the recording of the contract of lease was a slander of his title to the lands forming the banks and beds of the two bayous within his property lines, brought this suit to cancel the lease and to enjoin defendants from drilling wells on the land. Plaintiff contends that the two bayous are not and never have been navigable streams, and that therefore he owns the bed or bottom of the bayou that crosses Ms land and owns to the thread or middle of the bayou on which his land borders. In any event —that is, even if either bayou should be held to be a navigable stream — he claims the bayou banks, or land between the ordinary high-water márk and the ordinary low-water mark.
Defendants admit that Dolet bayou is not, and never has been, a navigable stream, and that the state therefore had no right to lease the bed or bottom of that bayou, within the boundary lines of plaintiff’s land. Defendants contend that Bayou Pierre was once a navigable stream, and has ceased to be such, and that therefore the state had authority to lease the bed or bottom of that stream, and the banks. or land between what was once the ordinary high-water mark and what was once the ordinary low-water mark. Defendants asserted a reconventional demand for damages alleged to have been caused by plaintiff’s interference with their alleged right of possession of the land once forming the bed of Bayou Pierre, and a demand for a right of passage over plaintiff’s adjacent land to the public road.
There was judgment in favor of plaintiff, recognizing his title to the bed -and banks of Dolet bayou within the boundaries of his adjacent land, and recognizing his title to the bank of Bayou Pierre, being the land between the ordinary high-water mark and the ordinary low-water mark, between the upper and lower boundary lines of plaintiff’s land. Defendants were therefore forbidden to go upon the lands thus recognized as plaintiff's property. The lease to the defendants was recognized as affecting the bed of Bayou Pierre, being the land covered by the waters of the bayou at its ordinary low stage; and they were decreed to have a right of passage over plaintiff’s adjoining land to the public road, reserving to plaintiff the- right to she for such damages as he might suffer by reason of defendants’ right of passage. The demands of both the plaintiff and the defendants for damages were otherwise rejected. '
Defendants have appealed from the judgment, and plaintiff, answering the appeal, prays that the judgment be amended so as to declare him the owner of the bed of Bayou Pierre to the middle or thread of the stream, and to reject defendants’ demand for a right of passage to the public road.
Appellant assigns as error that the district court erred in holding that the bed of Bayou Pierre was the land covered by water at its ordinary low stage, instead of holding that the bed of the bayou was the land between
There is nothing in the opinion in Minor’s Heirs v. City of New Orleans, 115 La. 301, 38 South. 999, contrary to articles 455 and 457 of the Code, or the decisions cited above. It is true, it was said, in Minor’s Heirs v. City of New Orleans:
“In speaking of a river as a boundary, the stream in its ordinary state of high water is intended.”
But that was not intended as a denial that, under article 455 of the Civil Code, the ownership of the banks of navigable streams is vested in the owners- of the adjacent lands, as an inherent right. And the banks of a stream are defined in article 457 as “that which contains it in its ordinary state of high water.”
The expression in Perry v. Board of Commissioners, 132 La. 415, 61 South. 511, “the state owns the land below high-water mark and that constituting the bed of the stream,” must be read and construed with reference to the context. The expression in full was:
“Surveys made under the authority of the United States stop at navigable waters, however, and a title predicated upon such survey, showing the bank of a navigable stream as a boundary, cannot be projected across such stream; the more particularly as, under our law, the state owns the land below high-water mark and that constituting the bed of the stream, subject to the rights of the riparian proprietor with respect to the accretion.”
What was meant was that the United States did not grant, as public lands, the area under navigable streams. There was no occasion for deciding, and the court had no
The land on which defendants had commenced or prepared to drill a well, being the bank of Bayou Pierre — that is, the land between the ordinary high-water mark and the ordinary low-water mark — belongs to plaintiff. The judgment appealed from in that respect is correct.
The judgment appealed from is annulled in so far as it declared that defendants were entitled to a right of passage over plaintiff’s land from the bed of Bayou Pierre to the public road, and defendants’ reconventional demand for a right of passage is dismissed as of nonsuit, .reserving to defendants whatever right of action they may have to sue for a right of passage over plaintiff’s land. In all other respects, the judgment appealed from is affirmed at the cost of defendants, appellants.