Louisiana Law Review

Volume 18 | Number 4
June 1958

Property - Rights of Riparian Owners to Alluvion

Formed as a Result of the Works of Man
Sidney D. Fazio

Repository Citation
Sidney D. Fazio, Property - Rights of Riparian Owners to Alluvion Formed as a Result of the Works of Man, 18 La. L. Rev. (1958)
Available at: https://digitalcommons.law.lsu.edu/lalrev/vol18/iss4/14

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19581 NOTES

the well did constitute good faith user sufficient to interrupt

prescription.

This decision confirms the prior jurisprudence holding that

good faith is required in drilling which interrupts prescription,
and further holds that good faith can be found even if the avoid-
ance of paying excess profits tax is one of the motives for drill-
ing the well. The decision also confirms a prior holding that a
well begun before but completed after prescription has run can
still be a good faith user if it is drilled to a depth at which it
12
would be reasonable to expect production.

Robert F. LeBlanc

PROPERTY - RIGHTS OF RIPARIAN OWNERS TO ALLUVION FORMED

AS A RESULT OF THE WORKS OF MAN

The plaintiff provoked concursus proceedings to determine

ownership of royalties from oil wells draining reservoirs beneath
accretion on the Mississippi River. The accretion formed on a
horseshoe bend of the river when a cut-off channel was dug
across the open end of the bend. The cut-off took most of the
flow, but some water continued to flow around the bend deposit-
ing large amounts of silt. The riparian owners claimed the
accretion as alluvion. 1 The state contended that, because the
works of man were the primary cause of the formation, the ac-
cretion did not constitute alluvion. The district court held that
the accretion was alluvion and thus belonged to the riparian
owners. On appeal and rehearing, the Supreme Court held, af-
firmed. So long as accretion is successive and imperceptible the
laws of alluvion apply, and it makes no difference that the works
of man were the cause. Esso Standard Oil Co. v. Jones, 233 La.
915, 98 So.2d 236 (1957).
2
The beds of navigable bodies of water belong to the state,
but Article 509 of the Civil Code of 1870 provides that the land
built up successively and imperceptibly by deposits of soil along
the bank of a river or stream is called alluvion and belongs to

12. McMurrey v. Gray, 216 La. 904, 45 So.2d 73 (1949).

1. LA. CIVIL CODE art. 509 (1870).
2. Id. art. 453; State v. Bozeman, 156 La. 635, 101 So. 4 (1924) ; State v.
Capdeville, 146 La. 94, 83 So. 432 (1919) ; State v. Richardson, 140 La. 329, 72
So. 984 (1916) ; State v. Bayou Johnson Oyster Co., 130 La. 604, 58 So. 405
(1912).
 LOUISIANA LAW REVIEW [Vol. XVIII

the riparian owners. 3 No mention is made as to whether alluvion

must have resulted ultimately from natural or artificial cause.
While the Louisiana courts have dealt extensively with questions
involving accretion formed by nature, 4 they have examined the
problem of accretion caused by the acts of man in only a few
instances. Two early cases arose under a statute allowing ripar-
ian owners to recover batture5 in excess of that needed by a city
for public purposes.0 In Heirs of Leonard v. Baton Rouge,7 the
Supreme Court held that, since the land in dispute was kept
above water solely by a high embankment built by a railroad
with city authority, this land was not batture formed by accre-
tion within the meaning of the statute. In the second case, St.
Anna's Asylum v. New Orleans,8 the court found that a large
portion of the land claimed by defendant to be batture had
actually been filled in with dirt brought in by the city to speed
up the extension of the landing line and thus could not be con-
sidered batture. In another case9 the Supreme Court said in
dictum that there was no such thing as a right of alluvion on
lands reclaimed by artificial process financed with public money,
citing as authority the two cases mentioned above. Therefore,
until the decision in the instant case, the only cases dealing with
the question of whether the laws of alluvion apply to accretion
formed as a result of the acts of man consisted of two cases
concerning land which was not alluvion at all and one statement
of dictum erroneously citing those two cases. 10

3. "The accretions 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." LA. CIVIL CODE art. 509 (1870).
4. For a review of the Louisiana jurisprudence on this subject see the opinion
in California Co. v. Price, 225 La. 706, 74 So.2d 1 (1954).
5. The term batture is used to mean alluvion. Producers Oil Co. v. Hanszen,
132 La. 691, 61 So. 754 (1913). Cf. Morgan v. Livingstone, 6 Mart.(O.S.) 19
(La. 1819).
6. LA. R.S. 9:1102 (1870) : "Whenever the riparian owner of any property in
incorporated towns or cities is entitled to the right of accretion, and more batture
has been formed in front of his land than is necessary for public use, which the
corporation withholds from him, he shall have the right to institute action against
the corporation for so much of the batture as may not be necessary for public
use. . . . [I]t shall decree that the owner is entitled to the property, and shall
compel the corporation to permit him to enjoy the use and the ownership of such
portion of it."
7. 39 La. Ann. 275, 4 So. 241 (1887).
8. 104 La. 392, 29 So. 117 (1900).
9. Bruning v. New Orleans, 165 La. 511, 526, 115 So. 733, 738 (1928).
10. The cases of Bank of Coushatta v. Yarborough, 139 La. 510, 71 So. 784
(1916) ; Slattery v. Arkansas Natural Gas Co., 138 La. 793, 70 So. 806 (1916) ;
McDade v. Bossier Levee Board, 109 La. 625, 33 So. 628 (1902) are often cited
1958] NOTES

The holding in the instant case is based on a literal inter-

pretation of Article 509. The text of the article makes no refer-
ence to the cause producing the alluvion, but describes only the
manner in which it is to be formed. The court thus reasoned
that to require that the cause be a natural one would add to the
article a new restrictive condition without authority of law. This
rationale is supported by the French commentators Laurent and
Dalloz II and conforms to the historical practice of construing
Article 509 literally.12 The court also indicated a test to be used
in determining when in fact the formation was successive and
imperceptible. 13 Accretion is to be considered formed successive-
ly and imperceptibly if witnesses are unable to observe the proc-
ess while it is actually going on, even though they may have ob-
served from time to time that land was being built up. Applying
this test to the facts of the instant case, the court found that,
14
although the formation occurred over relatively few years,' wit-
nesses standing on the bank could not have actually seen the
formation taking place. The land was therefore alluvion within
the meaning of Article 509.

Any other result would have created a rule almost impos-

sible to apply. The Mississippi and Atchafalaya Rivers as well
as all other major rivers in Louisiana are held in check by arti-
ficial banks or levees. Accretion formed along these rivers can
logically be traced directly to the works of man. To hold that
for authority on this problem. But these cases all dealt with lakes which dried up
because of the removal of the log jam on the Red River. Since they were lakes,
the laws of alluvion did not apply, nor were any deposits formed since the lakes
were simply drying up.
11. 38 DALLOZ, REPERTOIRE DE LEGISLATION, DE DOCTRINE ET DR JURISPRU-
DENCE, PROPERIETE, 280, 289 (1885) ; 6 LAURENT, PRINCIPES DE DROIT CIVIL
FRANVAIS 365, § 283 (2d ed. 1876).
12. See Sapp v. Frazier, 51 La. Ann. 1718, 20 So. 378 (1899) ; Zeller v.
Southern Yacht Club, 34 La. Ann. 837 (1882). It should be noted here that Ar-
ticle 509 does not mention lakes, but uses the phrase "river or other stream."
Louisiana courts have interpreted this to mean the laws of alluvion do not apply
to lakes. Doiron v. O'Bryan, 218 La. 1069, 51 So.2d 628 (1951) ; State v. Aucoin,
206 La. 787, 20 So.2d 136 (1944); Amerada Petroleum Corp. v. State Mineral
Board, 203 La. 473, 14 So.2d 61 (1943) ; Slattery v. Arkansas Natural Gas Co.,
138 La. 793, 70 So. 806 (1916); Zeller v. Southern Yacht Club, 34 La. Ann.
837, 839 (1882) (dictum).
13. The court here was apparently relying on the case of County of St. Clair
v. Lovingston, 90 U.S. (23 Wall.) 46, 68 (1874), in which the court said: "The
test as to what is gradual and imperceptible in the sense of the rule is, that though
the witnesses may see from time to time that progress has been made, they could
not perceive it while the process was going on. Whether it is the effect of natural
or artificial causes makes no difference. The result as to the ownership in either
dase is the same."
14. Prior to the digging of the cut-off there was no alluvion being formed. The
cut-off was dug in 1933 and the land in dispute was formed, according to the
evidence of the riparian owners, by 1942.
 LOUISIANA LAW REVIEW [Vol. XVIII

accretion so formed does not belong to the riparian owners

would remove hundreds of acres from private use and owner-
ship to lie idle until the state should see fit to make some use
of them. The criterion announced by the court in the instant
case provides a fair, workable guide for future litigation on this
subject. 15
Sidney D. Fazio

PROPERTY - THIRTY-YEAR PRESCRIPTION IN BOUNDARY ACTION

In accordance with an informal survey defendant's author in
title erected a fence in 1904 between his land and that now be-
longing to the plaintiff. Upon discovering that this fence en-
croached on his land, plaintiff brought suit under Article 823
which provides for judicial determination of boundaries in cer-
tain situations. Defendant contended that the fence line should
be recognized as the boundary under the provisions of Article
852 relative to thirty year boundary prescription.' After re-
versing the trial court on original hearing, the court of appeal
reversed itself on rehearing and affirmed judgment for the
plaintiff, holding that under Article 852 mutual consent was
necessary to establish a boundary. 2 The Supreme Court granted
writs and held, on rehearing, reversed for defendant. Uninter-
rupted possession of land for thirty years beyond title and up to
a visible separation is sufficient under Article 852 to establish a
boundary at the line of the visible separation. Mutual consent to
such a boundary is not necessary. Sessum v. Hemperley, 233 La.
444, 96 So.2d 832 (1957).
At French law 3 any possessor may have his ideal rural
bounds judicially determined at any time, provided there has
been no written agreement between the parties fixing a bound-
15. This case is also noted in 32 TUL. L. REV. 319 (1958).
1. "Whether the titles, exhibited by the parties, whose lands are to be limited,
consist of primitive concessions or other acts by which property may be trans-
ferred, if it be proved that the person whose title is of the latest date, or those
under whom he holds, have enjoyed, in good or bad faith, uninterrupted posses-
sion during thirty years, of any quantity of land beyond that mentioned in his
title, he will be permitted to retain it, and his neighbor, though he have a more
ancient title, will only have a right to the excess; for if one can not prescribe
against his own title, he can prescribe beyond his title or for more than it calls
for, provided it be by thirty years possession."
2. Sessum v. Hemperley, 83 So.2d 546 (La. App. 1955).
3. 1 ENCYCLOPtDiE DALLOZ, DROIT CIVIL, "Bornage" nos 4047 (1951) ; 2
CODE CIVIL ANNOTA art. 646, p. 81, n. 100 (1935). See also AUBRY ET RAU,
COURS DE DROIT CIVIL FRANCAIS, "Dus homage," § 199 (6th ed. 1935) ; 3 PLANIOL
ET RIIPERT, TRAITt PRATIQUE DE DROIT CIVIL FRANQAIS 43142 (2d ed. 1952).