State v. Erwin , 173 La. 507 ( 1931 )

On Rehearing. The pertinent facts and questions of law involved in this suit are set forth in full in our original opinion and also in the dissenting opinion of Justice Rogers, and it is unnecessary to restate them here.

The members of the court have from the beginning concurred in the view that the body of water lying in Calcasieu and Cameron parishes, referred to as Calcasieu Lake, should be regarded as a lake and not as a river. But some of the members of the court did not subscribe to the view expressed in the majority opinion that articles 509 and 510 of the Civil Code with reference to accretion and dereliction do not apply to lakes, but only to navigable rivers or bodies of running water. In the majority opinion we said: "Our conclusion is that these articles do not apply to lakes." Three of the justices dissented from that holding; the rehearing was granted, not because of any doubt in the minds of those who subscribed to the majority opinion that such holding is correct, but in order to reconsider the question whether Calcasieu Lake is an arm or part of the sea.

If in fact it is, the lands involved are not susceptible of private ownership; they belong to nobody in particular; they fall into the class of public things, "the property of which is vested in a whole nation, and the use of which is allowed to all the members of the nation." Civ. Code, arts. 450, 453.

We have with care and great interest read the most able and exhaustive briefs submitted by counsel for the state and other appellants. We have read the decisions of our own court and those of other jurisdictions cited in support of the contention made and those cited in support of the contrary view, and, after reading them, are thoroughly convinced that under the facts and conditions shown to exist in this case Calcasieu Lake is not an arm or part of the sea. So convinced, and adhering to our previous holding that articles 509 and 510 of the Code do not apply to lakes, it follows that our former decree must be reinstated.

We said in our former opinion:

"The lake is affected more or less by the tides, especially at the southern end, up to which point they frequently flow. As a whole, its waters are usually fresh, though sometimes they are brackish, and occasionally, due to weather conditions, are quite salt."

Counsel say that, these being the admitted facts, it follows that this lake is an arm or part of the sea. Not so under our holding in the cases of Buras v. Salinovich, 154 La. 495,97 So. 748, 750, and Morgan v. Nagodish, 40 La. Ann. 246, 3 So. 636, 640.

In the Buras Case it was held that the fact that land "is subject to tidal overflow does not characterize the land as ``seashore,' under the provisions of the Code. * * * It has never heretofore been supposed that the definition in article 451 of the Civil Code was intended to include in the term ``that space of land over which the waters of the sea spread in the highest water during the winter season,' any and all land that is subject to tidal overflow, however remote from the ``seashore,' as it is generally understood. The waters of the Gulf of Mexico, or the bays or coves behind plaintiff's land, do not ``spread' upon it, during the ordinary high tides, or in the highwater seasons. The tide waters back up into the coves behind the land, and cause the bayous in the land to rise and spread over most of the area. These expressions inthe Code ``the sea and its shores,' and ``seashore,' have referenceto the Gulf coast, and to the lakes, bays and sounds along thecoast." (Italics ours.)

The court then quoted approvingly the following from Morgan v. Nagodish, supra:

"If the salt water ascertained to be in a bayou, lake, cove, or inlet adjacent to, or connected with, an arm of the Gulf of Mexico, does not result from an overflow that is occasioned by high tides flooding its banks, but, in the first instance, enters an arm of the Gulf, and thence passes into said bayou, lake, etc., and is there combined with fresh water derived from other sources, same cannot be considered as an arm of the sea, nor its banks the seashore.

"All the tract of land over which the greatest water flood extends itself is the seashore.

"``High seas' mean that portion of the sea which washes the opencoast, and do not include the combined salt and fresh waters which, at high tide, flood the banks of an adjacent bay, bayou,or lake." — citing Waring et al. v. Clarke, 5 How. 453,12 L. Ed. 226. (Italics ours.)

In the Morgan v. Nagodish Case, the organ of the court quoted Justinian and our Civil Code, and concluded that: "Whether we take the criterion established by our Code, or that by Justinian, and apply to either the evidence in this case, we must conclude that Bayou Cook is not an arm of the Gulf of Mexico, and that its banks form no part of the seashore. The salt water ascertained to be in Bayou Cook is not supplied by a ``water-flood' from the gulf; nor do ``the waters of the sea (gulf) spread, in the highest water, during the winter season,' over its banks."

As to whether Calcasieu Lake is an arm of the sea, these cases are directly in point and are decisive.

Counsel direct our attention to the case of New Orleans Land Co. v. Board of Levee Commissioners, 171 La. 718, 132 So. 121. That case involved a tract of land bordering on Lake Pontchartrain, which is an arm of the sea (Milne v. Girodeaux,12 La. 324; Zeller v. Yacht Club, 34 La. Ann. 839; and Burns v. Crescent Gun Rod Club, 116 La. 1038, 41 So. 249), so that the ruling in that case is not controlling here.

It is therefore ordered and decreed that our former opinion be reinstated and made the final judgment of the court.

ROGERS, J., dissents, adhering to the views expressed in his dissenting opinion on the original hearing.

BRUNOT and ST. PAUL, JJ., dissent.