Summary
In Dickson v. Sandefur, 235 So.2d 579 (La.App. 1970), a circuit Court of Appeal held that art. 518 applied only to very sudden avulsive changes.
Summary of this case from Furlong Ent. v. Sun Exploration ProdOpinion
No. 11303.
April 28, 1970. Rehearing Denied May 26, 1970.
APPEAL FROM FIRST JUDICIAL DISTRICT COURT, PARISH OF CADDO, WILLIAM J. FLENIKEN, J.
Ferris Achee, by Roland J. Achee, Shreveport, for appellant Stewart.
Harry S. Stephens, Twain K. Giddens, Jr., Shreveport, for appellees Dickson and others.
Blanchard, Walker, O'Quinn Roberts by Neilson S. Jacobs, Shreveport, for appellees.
Before AYRES, DIXON, and WILLIAMS, JJ.
C. Bickham Dickson, Jr., individually and on behalf of his two minor sons, Michael Augustus Dickson and C. Bickham Dickson III, filed the original suit herein. It was a possessory action and there were 23 defendants named. The evidence at the trial of this possessory action established that for many years the Dicksons and their authors in title, or their ancestors from whom they inherited, owned and were in actual possession of the Sunflower Plantation located on the east, or the left descending bank of Red River. Prior to the year 1945 the Red River, following its serpentine course through the Gulf Coast Plain, caused in its meandering a series of sharp, reverse and irregular curves. Red River enters the state of Louisiana near the northwest corner thereof and, as it flows southeastward, serves as the boundary between the parishes of Caddo and Bossier. As the Red River flows along its long and twisted route approximately 1200 miles toward the Mississippi it carries with it sediment gathered by erosion from the red soils characteristic of this alluvial basin. The density of the sediment carried varies with the fluctuating stages of this river. At times of high water or flood stage the density of this sediment is greatest due to the rapidity of the flow of the river and the soluble qualities of the soil along its shores. At flood stage it becomes a deep, dirty red color. Observing this river at such a stage it is apparent that the name Red River is most appropriate.
A few years before 1945 the Board of Commissioners of Caddo Levee District attempted to straighten the channel of Red River by making cutoffs across two tracts of land located about one mile above Sunflower Plantation, known as the Shreve Island cutoff. There already existed a peninsula tract, a portion of Sunflower Plantation, projecting in a westerly direction. (See Exhibit A). The course of Red
EXHIBIT A
A photograph of Sunflower Plantation and Eagle Bend Plantation in 1944.
River as shown on Exhibit A, after reaching Sunflower Plantation, made a sharp turn to the west, a sharp southern turn, thence southeast, east and northeast. Thereafter the river made another sharp turn to the south around the east tip of Eagle Point Bend or what is part of Eagle Bend Plantation. The Shreve Island cutoff increased erosion of the base of the peninsula portion of Sunflower Plantation. The Dicksons' ancestor in title C. Bickham Dickson, Sr., had previously sought damages from the Board of Commissioners of Caddo Levee District for this increased erosion caused by the alleged artificial current created in the river. Dickson v. Board of Com'rs of Caddo Levee District, 210 La. 122, 26 So.2d 474 (1946). He was indeed correct in his prediction that in due time the caving of the banks along the north portion of Sunflower Plantation would eventually result in a cutoff across this tract. In the Spring of 1945 there occurred a devastating flood on Red River. The water reached a record height and covered the entire peninsula of Sunflower and all of the eastern area of Eagle Bend Plantation. Because of this tremendous volume of water and the constant erosion of the levee system along the west side opposite Sunflower there was a serious threat of inundation to Dixie Gardens, a thickly populated area of Shreveport. A constant watch of this area was maintained by those in charge of the flood protection work. Thus it was quickly observed that on April 1, 1945 the Red River had eroded through the middle portion of the Sunflower Plantation peninsula. Witnesses for all parties concerned agree on this. The avulsive action of Red River in causing this cutoff or breakthrough of Sunflower Plantation resulted in a flow of water around the west portion of the former peninsula and similarly through the cutoff. These waters met in the channel just south of Sunflower Plantation and north of Eagle Bend Plantation.
After the cutoff across Sunflower Plantation the river continued to rise and within several days after April 1, 1945 reached its peak flood stage, remaining at this height for several weeks. By July 1945 the waters had receded to such an extent that its new course across the cutoff at Sunflower Plantation was easily discernible. The effects of the high water and position of the river channel along the north and east front of Eagle Bend Plantation were then evident. (See Exhibit B).
EXHIBIT B
In the foreground is depicted Sunflower Plantation. The circled wooded area was identified as a portion of Sunflower. In the background is depicted Eagle Bend.
Among defendants in the original possessory action was Norman D. Stewart, owner of Eagle Bend Plantation, who answered the possessory action and filed a reconventional demand in which he claimed the ownership of all the land lying between the present channel of Red River (now existing along the north and east side of Eagle Bend Plantation) and the eastern edge of the channel of Red River as it existed prior to April, 1945. Stewart's demand claimed ownership of land claimed by the Dicksons and also land claimed by others who had entered into an act of partition with the Dicksons in the year 1958. Made defendants were all parties to said partition, namely: Antoinette Wyche Burt, Antoinette Burt Sentell, August L. Sentell, Youree A. McCall and Leslie A. Cowley. In answer to Stewart's reconventional demands the above named parties each claimed to be owners and in possession of those areas received by each in the 1958 partition. The reconventional demand is a petitory form of action. It does not, however, affect the Dicksons' possessory action with reference to the lands there involved and being a portion of Sunflower Plantation.
The trial court rendered judgment in favor of the Dicksons in their possessory action, and for the Dicksons and their co-defendants in reconvention on the reconventional demand of Stewart. The defendants in the possessory action brought by the Dicksons have not taken any appeal from the trial court's judgment in favor of the Dicksons, with the exception of Norman D. Stewart. Therefore, this court is not concerned with the original or possessory action by the Dicksons because:
1. All of the named defendants in the possessory action failed or did not choose to perfect an appeal therefrom except Norman D. Stewart, and therefore the judgment of the District Court is final as to them;
2. Counsel for Norman D. Stewart in his brief states:
"While Mr. Stewart has appealed from the entire judgment, this appeal is concerned primarily with the reconventional demand for ownership of the property on the Bossier Parish side of the river. Briefly stated, Mr. Stewart's position on the possessory action is that if the court holds that he owns the lands in dispute on the Bossier Parish side of the river, then Mr. Dickson is entitled to a judgment on the possessory action."
In addition to the above statement by counsel for Stewart his entire brief is directed to Stewart's reconventional demand. This court does not wish to leave unmentioned the splendid briefs filed by counsel for all parties involved.
The record, though voluminous (7 volumes totaling 1468 pages, 200 exhibits) was extremely interesting and graphically pictured the crisis confronting the area and people affected by the great flood of 1945.
Stewart's reconventional demand is a petitory action and he admits that the defendants in reconvention are in possession of certain lands to which he claims title. Accordingly Stewart must bear the burden of proof, that is, make out his title thereto.
LSA-C.C.P. Art. 3651 The petitory action.
Stewart asserted that during the 1945 flood and as a direct result of the Red River opening a new bed or cutoff through the Sunflower peninsula, that a similar opening of a new bed or cutoff occurred across Eagle Bend Plantation. Stewart alleged that a portion of his land, formerly on the west bank of Red River, was left on the east or left descending bank of Red River as a consequence of the action of the river in opening itself a new bed or channel. Thus, after the passage of some 22 years, Stewart claims that Red River by what is termed an avulsive action, suddenly and perceptibly opened a new bed or channel through his land thereby making a cutoff of a part of Eagle Bend Plantation and placing it on the east or opposite side of the river from its previous location.
Stewart asserts that the right of ownership is vested in him under the provisions of LSA-C.C. Art. 518 which states:
"If a river or stream, whether navigable or not, opens itself a new bed by leaving its former channel, the owners of the soil newly occupied shall take, by way of indemnification, the former bed of the river, every one in proportion to the quantity of land he has lost.
"They shall again take their former property, if the river or stream returns to its former channel."
The rights here claimed by Stewart are an exception to the general rules of alluvion and accretion enunciated by our Louisiana Civil Code in the following articles:
"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 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."
[LSA-C.C. art. 509]
"The same rule applies to derelictions formed by running water retiring imperceptibly from one of its shores and encroaching on the other; the owner of the land, adjoining the shore which is left dry, has a right to the dereliction, nor can the owner of the opposite shore, claim the land which he has lost.
"This right does not take place in case of derelictions of the sea."
[LSA-C.C. art. 510]
For Stewart to be successful in sustaining his claim, it is necessary for him to prove that the action of Red River during the 1945 flood was as asserted by him.
Article 518 covers within its terms avulsive action of a river that results in a cutoff. In the case of Uhlhorn v. U.S. Gypsum Company, 366 F.2d 211 (8 Cir., 1966) the court set forth the rule of avulsion to be:
"The rule of avulsion is also settled and was articulated by the Supreme Court in State of Nebraska v. State of Iowa, 143 U.S. 359, 361, 12 S.Ct. 396, 397, 36 L.Ed. 186 (1892):
'It is equally well settled, that where a stream, which is a boundary, from any cause suddenly abandons its old and seeks a new bed, such change of channel works no change of boundary; and that the boundary remains as it was, in the center of the old channel, although no water may be flowing therein. This sudden and rapid change of channel is termed, in the law, "avulsion." * * *' " [ 366 F.2d 211, 217]
This avulsion principle has been applied by at least three decisions of our Louisiana Courts in considering LSA-C.C. art. 518. See Stephens v. Drake, 134 So.2d 674 (La.App. 2d Cir. 1961); Fitzsimmons v. Cassity, 172 So. 824 (La.App. 2d Cir. 1937) and Strohecker v. Robinson, 147 La. 652, 85 So. 627 (1920).
The rule of avulsion is an exception to the principle of accretion enunciated in LSA-C.C. art. 509. To the owner of land along the bank of a river the principle of accretion is of utmost importance. This is particularly true where the river, such as the Red, is constantly changing its shore by erosion and deposition. Many Louisiana cases have recognized and applied the doctrine of accretion. Our courts have uniformly followed LSA-C.C. art. 509 in holding that accretion is that which is formed successively and imperceptibly to any soil situated on the shore of a river or other stream, and is called alluvion, and that such alluvion in turn belongs to the owner of the soil situated on the edge of the water, subject to certain obligations for the public use.
Thus we see that under the principle of avulsion there must be a sudden and perceptible change in the course and channel of the river. This is the opposite of the principle of accretion where the soil or alluvion is added to the riparian land gradually and imperceptibly by deposits from the water to which the land is contiguous. The principles set forth in our Civil Code with reference to the rights of the riparian owner of land have a long and uniform history.
In the case of St. Clair County v. Lovingston, 90 U.S. 46, 23 Wall. 46, 23 L.Ed. 59 (1874) the Supreme Court of the United States developed the history of the principles of accretion by citing Roman, French, Spanish, English and American authorities and the court's conclusion is in accord with the decisions of our Louisiana jurisprudence.
Accretion to the land of the riparian landowner changes that owner's boundary line. Avulsion or cutoff does not change the boundary line of the landowner affected thereby. In order for a landowner to cross the river and claim accretion on the opposite side there must be an avulsion or cutoff. Anderson-Tully Company v. Tingle, 166 F.2d 224 (5 Cir., 1948). With the principles of avulsion and accretion above set forth and in the cases cited, this court must now determine their applicability to the facts in this case.
The evidence presented by Stewart was represented by many photographs and maps of Eagles Point Bend and Eagle Bend Plantation, showing position, outline and conformation of the lands prior to and after the 1945 flood.
Stewart produced two witnesses. Leo M. Odom, who was Chief Engineer for the Louisiana Department of Public Works in 1945, stated that based on his knowledge the exhibits indicate that a cutoff occurred across the point of Eagle Bend Plantation. Mr. Odom stated further that he could not say precisely where Red River initially struck Eagle Bend Plantation after the cutoff occurred at Sunflower and that his official report made of the 1945 flood made no mention of a cutoff at Eagle Bend Point but did list the cutoff at Sunflower.
John R. Bowman, a civil engineer, was Stewart's second witness. Bowman testified that on the basis of his examination of the exhibits showing a lack of erosion on the east bank of Red River, it was his opinion that a cutoff took place and that the force of the river did not seem to be against the east or left descending bank but where the cutoff took place across Eagle Bend Point. He expressed his lack of knowledge as to how long a time such a cutoff would have taken.
William A. Grabill, an aerial photographer, and a witness on behalf of Stewart, expressed his lack of knowledge of a cutoff over Eagle Bend Point. He stated that in his opinion the channel of the river changed and started a more westerly cut through the sand. Stewart frankly stated the entire area was under water for many weeks in the spring of 1945 and that "No one knows just what did happen."
The Dickson group presented many photographs, maps, documents of the area and testimony of several lay and expert witnesses.
Austin B. Smith, a potamologist, demonstrated his expertise in this field by giving his opinion of the action of Red River at Eagle Bend Point. Mr. Smith has qualified as an expert in several other cases involving questions of avulsion or accretion. Smith determined from his examination of the exhibits and on the ground inspection of the area that there was no cutoff across Eagle Bend Plantation. He testified that following the "textbook" cutoff at Sunflower that Red River had a heavy load of sand and it created conditions that caused the river to move rapidly out of the channel at Eagle Bend Point and erode away the sand at Eagle Bend Plantation and form accretion along the Bossier Parish side or the left descending bank of Red River. He prepared an exhibit to illustrate the westward migration of Red River out of its channel existing prior to the Spring of 1945 and testified that this channel was sanded over at its upper end with some water remaining at the lower end which he described as a "slough" and now ponded water.
Matthews v. McGee, 241 F. Supp. 300 (D.C.Ark. 1965), affirmed in 358 F.2d 516 (8 Cir. 1966); Banks v. Chicago Mill Lumber Company, 92 F. Supp. 232 (D.C.Ark. 1950); Kimble v. Willey, 98 F. Supp. 730 (D.C.Ark. 1951); Mississippi v. Louisiana, 350 U.S. 5, 76 S.Ct. 29, 100 L.Ed. 6 (1955).
Smith further stated that as the current of the river passed through the cutoff at Sunflower it met the current flowing in the channel around Sunflower. The meeting of these currents would produce a vector effect and prevent a direct attack by the currents against the north side of Eagle Bend Plantation. Additional reasons for his conclusions were that he found no evidence of a high point bar existing on the east or left descending bank; that along the bank he found swales and sand ridges as evidence of the forming of the accretion.
Smith positively stated, based on his studies and examination of the materials and exhibits and his personal inspection of the land in dispute, that Red River did not effect a cutoff or avulsion across Eagle Bend Plantation during the flood of 1945.
Jessie C. McLemore, a land surveyor, surveyed the land in 1957, and, from this study and examination of the exhibits, concluded as did Smith that there was no cutoff but only that two currents joining "quickly eroded Eagle Point Bend or the sand bar portion of Eagle Point Bend. * * *" Several lay witnesses stated that to their knowledge they were very familiar with the area in question and had never heard of any such cutoff.
Gordan Van Hoose described Eagle Point Bend as being a sandbar, stating: "Sometimes these sandbars, the minute the water hits them, they take off, just like sugar." Youree McCall testified that when the water receded in 1945 it left "a bunch of slush that was a part of the river. * *"
Finally, Dr. Richard K. Spears, Jr., Associate Professor of Biological Science at Louisiana State University, testified that he had examined the tree growth on the land in dispute and that the oldest tree found was a willow which commenced growth in the summer of 1945. No older vegetation was found by him.
A careful review of the extensive record and of the briefs, together with our study and examination of the exhibits filed herein, convinces us that Stewart has not sustained the burden of proof in establishing that there was an avulsive action of Red River in the spring of 1945 resulting in a cutoff on Eagle Bend Plantation. To the contrary we are convinced that the analysis and conclusions reached by expert and lay witnesses for the defendants in reconvention are consistent with what occurred, that is, the addition to the east or left descending bank of Red River was gradual and imperceptible and therefore accretion, and that such alluvial deposit belongs to the owners of the river banks to which it is attached.
State v. Richardson, 140 La. 330, 72 So. 984 (1916). This case develops the history of the ownership of accretions under LSA-C.C. art. 509. It also defines the terms "river"; "banks of a river"; and "shore".
Stewart has in this court raised the question of his right to the lands in question based on the theory that said lands were only temporarily submerged and when the water receded the property re-emerged and that on the re-emergence of said lands Stewart was entitled to ownership thereof under the holding in the case of Hughes, et al v. Birney's Heirs, et al, 107 La. 664, 32 So. 30 (1902). Such an argument is not convincing. This court holds that the land areas in question were and are accretion and therefore not subject to the doctrine of re-emergence of land after submergence. The eastern portion of Eagle Bend Plantation was continually added to by alluvial deposits prior to 1945. The reversal of the direction of the river currents resulting in erosion of that which had been given must be endured. In St. Clair County v. Lovingston, supra, the United States Supreme Court expressed this in this manner:
"* * * The riparian right to future alluvion is a vested right. It is an inherent and essential attribute of the original property. The title to the increment rests in the law of nature * * * The right is a natural, not a civil one. The maxim 'Qui sentit onus debet sentire commodum' lies at its foundation. The owner takes the chances of injury and of benefit arising from the situation of the property. If there is a gradual loss, he must bear it; if a gradual gain, it is his. * * *" [23 L.Ed. 59, 64]
Appellant has raised a question as the rights of the defendants in a petitory action to be recognized as owners in the judgment. In Dupuy v. Shannon, 136 So.2d 111 (La.App. 3d Cir. 1961) the Court of Appeal stated:
"A petitory action is one brought by an alleged owner of real estate who is out of possession against another having possession to determine ownership. The settled jurisprudence of this state is that a plaintiff in a petitory action, in order to recover, must rely on the strength of his own title and not on the weakness of that of his adversary. In order to maintain his suit, he carries the burden of proving title in himself. The title of the defendant is not at issue until plaintiff has proved a valid title in himself. * * "The opinion of the district court dismissing plaintiffs' demands was proper. However, when the judgment was prepared it decreed defendant to be the owner of certain specified real estate. This was in error for the reasons stated above." [ 136 So.2d 111, 115]
For the reasons assigned, the judgment of the district court, dated April 7, 1969, is amended by deleting therefrom the following relating to Tracts "A", "B", "C" and "D" as hereinafter more definitely described:
"IT IS BY REASON THEREOF ORDERED, ADJUDGED AND DECREED that there be judgment herein in favor of C. BICKHAM DICKSON, JR., MICHAEL AUGUSTUS DICKSON, and C. BICKHAM DICKSON, III, defendants in reconvention, and against NORMAN D. STEWART, recognizing the said C. BICKHAM DICKSON, JR., C. BICKHAM DICKSON, III, and MICHAEL AUGUSTUS DICKSON, to be the owners of the following described property, to-wit:
"TRACT "A" — A 240-acre (more or less tract in Sections 23 and 26, Township 17 North, Range 13 West, as shown in red on the Composite Map of John R. Bowman, Civil Engineer, dated January 7, 1967, attached hereto and made a part hereof and being more particularly described as follows: From the center of Section 24, Township 17 North, Range 13 West, run North 89 degrees 50' West 2640 feet; South 520 feet; North 40 degrees West 40.4 feet; North 47 degrees 12' West 793 feet; North 71 degree 57' West 410 feet; North 83 degrees 25' West 390 feet to a point on the old north bank of Red River as per map recorded in Book 275, page 219, Records of Bossier Parish, Louisiana, and point of beginning of tract herein described; thence South 19 degrees 20' West 3188.4 feet; Thence South 36 degrees West 2057 feet to the north edge of Red River; thence Northerly up the east edge of Red River to intersect the 1957 traverse of old high bank of Red River as per map in Book 275, page 219; thence Easterly along said high bank to the point of beginning, also any batture accrued and attached thereto.
"IT IS FURTHER ORDERED, ADJUDGED AND DECREED that there be judgment herein in favor of ANTOINETTE WYCHE BURT and ANTOINETTE BURT SENTELL, defendants, and against the plaintiff, NORMAN D. STEWART, recognizing them to be the owners of the following described property, to-wit:
"TRACT "B" — An 83-acre (more or less) tract in Sections 23 and 26, Township 17 North, Range 13 West, as shown in green on the Composite Map of John R. Bowman, Civil Engineer, dated January 7, 1967, attached hereto and made a part hereof and being more particularly described as follows: From the center of Section 24, Township 17 North, Range 13 West, run North 89 degrees 50' West 2640 feet; thence South 520 feet; thence North 40 degrees West 40.4 feet to the point of beginning of the tract herein described; thence South 41 degrees 42' West 3294.9 feet; thence South 36 degrees West 1992 feet to the north edge of Red River as per map recorded in Book 275, page 219, Records of Bossier Parish, Louisiana; thence North 67 degrees 17' West 282.6 feet; thence North 36 degrees East 2057 feet; thence North 19 degrees 20' East 3188.4 feet to the old high bank of Red River as per map in Book 275, page 219, thence easterly along said high bank South 83 degrees 25' East 390 feet; South 71 degrees 57' East 410 feet, South 47 degrees 12' East 793 feet to the point of beginning, also any batture accrued and attached thereto.
"IT IS FURTHER ORDERED, ADJUDGED AND DECREED that there be judgment herein in favor of the defendant, YOUREE A. McCALL, and against the plaintiff, NORMAN D. STEWART, recognizing him to be the owner of the following described property, to-wit:
"TRACT "C" — A 242-acre (more or Less) tract in Sections 23, 24, 25 and 26, Township 17 North Range 13 West as shown in yellow on the Composite Map of John R. Bowman, Civil Engineer, dated January 7, 1967, attached hereto and made a part hereof and being more particularly described as follows: From the center of Section 24, Township 17 North, Range 13 West, run North 89 degrees 50' West 2640 feet; thence South 520 feet; thence North 40 degrees West 40.4 feet to the point of beginning of the tract herein described; thence run southeasterly along the old north and east bank of Red River as per map recorded in Book 275, page 219, of the Records of Bossier Parish, Louisiana, a distance of 3973.3 feet; thence north 83 degrees 12' west 1455.6 feet; thence South 13 degrees 50' West 1124.5 feet to the North edge of Red River as per map in Book 275, page 219; thence Westerly along Red River 2806.8 feet; thence North 36 degrees East 1992 feet; thence North 41 degrees 42' East 3294.9 feet to the old high bank of Red River and point of beginning, also any batture accrued and attached thereto.
"IT IS FURTHER ORDERED, ADJUDGED AND DECREED that there be judgment herein in favor of the defendant, LESLIE A. COWLEY, and against the plaintiff, NORMAN D. STEWART, recognizing LESLIE A. COWLEY to be the owner of the following described property, to-wit:
"TRACT "D" — A 55-acre (more or less) tract in Sections 25 and 26, Township 17 North, Range 13 West as shown in brown on the Composite Map of John R. Bowman, Civil Engineer, dated January 7, 1967, attached hereto and made a part hereof and being more particularly described as follows: From the center of Section 24, Township 17 North, Range 13 West run North 89 degrees 50' West 2640 feet; thence South 520 feet; thence southeasterly along the old North and East bank of Red River as per map recorded in Book 275, page 219 of the Records of Bossier Parish, Louisiana, a distance of 3932.9 feet to the point of beginning of the tract herein described, thence southeasterly along said old east bank 1677.2 feet to the north edge of Red River, as per map in Book 275, page 219, thence Northwesterly along said edge of Red River 2222.6 feet; thence North 13 degrees 50' east 1124.5 feet; thence South 83 degrees 12' East 1455.6 feet to the point of beginning, also any batture accrued and attached thereto."
The judgment of the district court is further amended and reformed to show that the reconventional demand of Norman D. Stewart is rejected and dismissed at his cost.
For the reasons assigned above the judgment of the trial court is amended, and as amended, affirmed. Costs of this appeal are assessed to appellant.
In spite of the volume of evidence in this case, there is very little dispute as to the relevant facts. Prior to the flood of 1945, Sunflower Plantation lay on the left descending bank of Red River, and extended as a finger of land toward the west, forming, with the river, Dixie Bend. The neck of the finger was considerably narrower than its westerly side, which was formed by sandy deposits from the river.
Immediately downstream from Sunflower Point lay Eagle Point Bend. Eagle Point Bend and Eagle Bend Plantation lay on the right descending bank of Red River, extending its point in an easterly direction. The point of this projection also consisted of sandy deposits from the river.
Photographs in evidence show how the land lay with reference to the river before and after the highest waters of the flood. One photograph taken about March of 1945 shows a large portion of Sunflower Point under water. It also shows a portion of the sand bar at Eagle Point Bend under water, and a portion above water.
Other aerial photographs were taken about July of 1945. They demonstrate that what had been Sunflower Point had been scoured by the river, which had cut off the peninsula. Just as clearly, the photograph demonstrates that Red River had formed itself a new channel at Eagle Bend. Its channel now lay across Eagle Point Bend a considerable distance from its old bed. Its old bed is clearly identifiable, and by July of 1945 the northerly end of the old bed of Red River at Eagle Point Bend was dammed up by deposits of sand and silt. The southerly end of the old bed of Red River at Eagle Point Bend (and at Dixie Bend) remained open to the main channel of Red River until some later date, when it was also closed up by the action of the river.
The same photographs which show the old channel at Eagle Point silted up at the upstream end and open at the downstream end show the identical condition at Dixie Bend — the old channel which had flowed around Sunflower was silted up and closed at the upstream end and open at the downstream end.
The change in the course of the river across Eagle Point Bend occurred some time after April 1, 1945 (the date on which the cutoff at Sunflower Point was completed) and at a time when the flood waters of the river completely hid from view an area at Eagle Point Bend which spread from the old bed of the river on its left high bank to the high ground of Eagle Bend Plantation, which formed a high bank on the westerly side after the flood waters declined.
Stewart, as plaintiff in reconvention, has proved his title to all the land involved in the Eagle Point Bend. He claims the bed of Old River at Eagle Point (now a lake) under the provisions of C.C. 518:
"If a river or stream, whether navigable or not, opens itself a new bed by leaving its former channel, the owners of the soil newly occupied shall take, by way of indemnification, the former bed of the river, every one in proportion to the quantity of land he has lost.
"They shall again take their former property, if the river or stream returns to its former channel."
His demands have been rejected, and this court holds that before the provisions of Article 518 can avail him, he must prove that there was a "cutoff" resulting from "avulsive action" of the river.
This is the first case in Louisiana jurisprudence to interpret Article 518 as requiring proof of "avulsion," or of the creation of a "cutoff."
Before us is a situation in which a point was covered by flood water. When the waters receded, the river had opened itself a new channel. The new channel now occupied space formerly occupied by lands of Eagle Bend Plantation, both inside and outside of the levee. The middle of the new river bed was where part of the levee had been. The old bed of the river remained, and was clearly identifiable. Photographs depicting the action of the river were taken in March and July. During most of this period, the river was at a high stage.
The plain words of Article 518 would seem to give the owner of Eagle Bend Plantation the old bed of Red River in exchange for the new bed which now lay across space on earth formerly occupied by Eagle Bend Plantation and the alluvion which lay between Eagle Bend's high bank and the bed of Red River.
Under the constant jurisprudence of this state, the land that lay between the high banks at Eagle Point Bend was subject to private ownership. It was identifiable, stable and permanent enough to appear regularly on maps and photographs. State v. Richardson, 140 La. 329, 72 So. 984 (1916), stands for the proposition that the owner of the bank adjacent to a river owns the soil that lies between the bed of the river (that portion of the river covered by water at its ordinary low level) and the high bank. It was there held that accretion between the high bank and the river bed is not owned by the state, as forming a part of the bed of the river, but belongs to the owner of the land which lies adjacent to the river.
"Construing those various provisions of the law together, and with reference to the doctrine, here propounded on behalf of the state, that all lands between the banks of a river, below mean high-water mark, constitute its bed, it is evident that the law and the doctrine cannot stand together, and equally evident that, in the enactment of the law, the state has not intended that they should stand together, but has established an exception to the doctrine, and such is the well founded and settled jurisprudence of this court, from which it appears that batture and alluvion, lying between the banks of navigable rivers, below the ordinary stages of high water, have been, for a century and more, occupied, leased, mortgaged, sold, and litigated over, as property the title to which was vested in individuals and private corporations; that, in no case, has this court ever held, or intimated, that an alluvion which was shown to appear above the surface of the water, at its ordinary stage, with a reasonable appearance of permanence and identification with the soil of the shore, was part of the bed of the river, or for that, or any, reason was not susceptible of private ownership; or that the question of the existence of such alluvion was controlled by its relation to the ordinary stage of high water; nor has the court ever failed to hold that such existence and the susceptibility of the alluvion to private ownership were sufficiently established when it was shown that it appeared above the surface of the water, at its ordinary stage, and had assumed a permanent character as part of the shore." 72 So. 991.
The cases which have been cited to support the new law that "avulsion" or "cutoff" is necessary before Article 518 applies are: State v. Richardson, supra; Strohecker v. Robinson, 147 La. 652, 85 So. 627 (1920); Fitzsimmons v. Cassity, 172 So. 824 (La.App. 1937); Russ v. Stephens, 90 So.2d 501 (La. 1956); Stephens v. Drake, 134 So.2d 674 (La.App. 1961); Anderson-Tully Co. v. Tingle, 166 F.2d 224 (8 Cir., 1948); Uhlhorn v. U.S. Gypsum Co., 366 F.2d 211 (8 Cir., 1966).
There is absolutely nothing in State v. Richardson about a "cutoff" or "avulsion." This case arose in Red River Parish and involved the ownership of land that lay between the river at low stage and the high bank. There is a sketch of the land involved at 72 So. 984. This was a peninsula known as Gusher Bend, because of the existence of numerous producing oil wells on the property.
The whole case involved a determination of whether the state owned everything between the high banks of a river. The court held that the state owned only the bed of the river, that the adjoining property owners owned the high banks and all the alluvion that lay between the bed and the high bank. The bed of the river was said to be that portion of land which was always covered by water.
On the application for rehearing, there was a reference to a "belated contention of the state" that she was entitled to the "bed of the slough" because it had been river bed in 1830. The court held that the question was not presented by the pleadings, and referred to the provisions of Article 518 almost parenthetically, as if that article would have disposed of the state's contention adversely to the state.
In Strohecker v. Robinson, there was a "sudden meeting of the waters," but the case was not appropriate for the application of C.C. 518. The land involved in the Strohecker case was, to a great extent, what had been the new bed of the river when it broke through the neck of a peninsula. After breaking through, the river gradually migrated, leaving the accretion which was the subject of this litigation.
The court said at 85 So. 629:
"The major part of the area in controversy is space that was occupied by the river when it had acquired a double width by the caving in of the narrow partition between the two beds of the river. That space, however, was not acquired by the plaintiffs by virtue of article 518 of the Code, because the river did not, as an immediate result of the break in the bank, 'open itself a new bed by leaving its former channel.' The former channel was not left vacant, but the two beds of the river came together, occupying as much space as they had occupied before. The double-width river bed east of the levee was thereafter vacated by the water, not by the sudden process described in article 518 of the Code, but by the gradual process described in articles 509 and 510; that is, by the process of accretion, the formation of alluvion, or leaving dereliction, formed by the running water retiring imperceptibly from its newly built west shore and encroaching upon its east shore."
The court in the Strohecker case simply held that the land involved was not the old bed of the river. Article 518 therefore did not apply. It can hardly be said that the Strohecker case stands for the principle that there must be a classic "cutoff" or an "avulsive" action before C.C. 518 will apply.
There is nothing in Fitzsimmons v. Cassity about "avulsion." This case involved a duck blind in an "Old River Lake." Red River made a bend to the west. There was a survey in 1839 and 1872. The neck of the peninsula at the time of these surveys measured approximately 2700 feet. In 1873 the raft above the City of Shreveport was removed and the water returned to the river's main stem and increased the velocity of the river current. The court said on page 826 of 172 So:
"Gradually, though surely, the river on the north side of the peninsula moved southerly, absorbing from time to time by erosion the acreage in the bend. * * * "It was evident to all observers that insensibly, though definitely, the elimination of the river around the peninsula as a part of its active channel was in the making * * *."
By 1920 the neck of the peninsula had been reduced to about 286 feet, at which time the levee board dug a cutoff. The river soon occupied the cutoff as its new channel, abandoned the old bed of the river which was silted up so that it impounded water and became a shallow lake. It was the contention of the defendant, who wanted to hunt ducks on Old River Lake, that it was still part of the bed of Red River, and was public property.
The court held that, under the provisions of Article 518, the owner of the land through which the new channel was cut became the owner of the old bed of the river.
Russ v. Stephens involved the same flood which created the difficulty presently before us. The case does not hold that there must be a cataclysmic avulsion before C.C. 518 applies. This was a slander of title suit decided by Judge Ayres. The Loftin Place was owned by the defendants. It formed a peninsula extending into Red River.
"During an unusually devastating flood occurring in April, 1945, Red River cut a new channel or bed through the base of the aforesaid peninsula, taking property of defendants for such new course. The ends of the old channel were sanded over and the old bed formed a lake." (90 So.2d 502).
To support his claim of possession as owner, the plaintiff contended that the Loftin Place peninsula, which had become a virtual island, belonged to the plaintiff by accretion. The court found that the course of the river was changed abruptly during a flood, opening itself a new branch. Since the land claimed by the plaintiff was not formed successively and imperceptibly, it was not accretion, and did not belong to the plaintiff.
If anything, Russ v. Stephens supports the claims of Stewart, who is in a position like Stephens. Dickson's claims are like those of the plaintiff Russ, whose demands were rejected.
In Stephens v. Drake, the only mention of a "sudden irruption" was in connection with an argument the defendant had made with reference to C.C. 511, referring to land carried away and deposited lower down the river.
Stephens v. Drake was a controversy over a half mile wide sand bar that lay between an oxbow lake which had been the old bed of Red River and some other land of the plaintiffs'. The court stated at 134 So.2d 675:
"In 1945 the Red River overflowed its banks in many places and during this overflow cut a new channel across the base of the peninsula and in succeeding years both ends of the old channel silted up completely, sealing it off from the flow of water from the Red River."
It was not the bed of the old channel of the river that was at issue. The court said at 134 So.2d 676:
"It is thus clear that appellant limits his claim to the detached strip of land which had been a peninsula and any alluvion that had become attached to his land."
The land involved was referred to in more than one place in the opinion as a "sand bar one-half mile in length." The court held that Article 518 controlled and since the river had found itself a new channel, the former owners of the sand bar did not lose it merely because the river had placed itself between the sand bar and the balance of the lands of the former proprietor. The case supports the claims of Stewart.
Stephens v. Drake also held that the owner whose land lies on the left descending bank of the river, and who finds himself with land on the bank of an oxbow lake, cannot acquire accretion which forms between the oxbow lake and the stream because "it has long been the law of this state relating to the rights of riparian owners that accretion or alluvion is limited to lands abutting a river or other stream and have no application to lakes." (134 So.2d 677).
Anderson-Tully v. Tingle is a Mississippi lawsuit to decide the ownership of accretion formed at "Brown's Point," which apparently lay at the juncture of the Yazoo River and the Mississippi River. The court applied a "center of the stream" or the "thread of the current" or the "thalweg" theory to determine the boundary and the ownership of the alluvion.
The problems and the principles involved in the Anderson-Tully case are completely foreign to the Dickson case and to the law of the State of Louisiana.
The court does make the statement that "where a river is a boundary, and there is no avulsion, a landowner can never cross the river to claim an accretion on the other side." This case is not exemplary of the law of the State of Louisiana.
Uhlhorn v. U.S. Gypsum is a contest over a towhead in the Mississippi River between Tennessee and Arkansas. The case involved boundaries of states, the "thalweg" theory and an "island rule" argument.
It is hard to understand how any of the matters contained in the Uhlhorn case could be applicable to the case before us. Neither Uhlhorn nor Anderson-Tully should be treated as authority for the determination of a petitory action wholly within our state and wholly provided for by the law of our state.
Since the river here has opened itself a new bed, and has left its former channel, appellant should now own the old bed of the river, and should not have lost the ownership of the land lying between the new and old beds. The Louisiana authorities cited seem to require this conclusion, and the foreign authorities ought not be conclusive.
The judgment of the district court should be reversed.
Rehearing denied.
DIXON, J., dissents from refusal.