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Property I

comm/public/priv, water bodies, navigability, sea/shore, rivers, lakes

QuestionAnswer
Art. 448 states three classifications of things; one classification is the division of common, public and private things
Common things o Defined in Art. 449 as those things that are insusceptible of ownership o Examples: air and high seas
Public things, defined in which article Defined in Art. 450 as those things owned by the state (or a political subdivision)1 in its public capacity
difference between state owning as sovereign/proprietor If it is owned in its public capacity as sovereign, then the thing is public; If it is owned in its private capacity as proprietor, then the thing is private
To determine in what capacity the state owns a thing… all steps 1. Who owns it? State or another entity? 2. If state owns it, is there legislation or does Constitution declare thing public? 3. If no, apply Landry test to determine if thing is adventitiously public
To determine in what capacity the state owns a thing… step one Step one: Who owns it? • If the state owns it, it may be public; if the state does not own it, it is private.
To determine in what capacity the state owns a thing… step two If state owns it, is there legislation or does Constitution declare the thing public? • If yes, thing is necessarily public (450 Ct 3, public bc Constitution or legislation says so; as such, they are inalienable) • If no, may be adventitiously public
To determine in what capacity the state owns a thing… step three If not necessarily public, apply Landry test to see if adventitiously public (held for a public purpose, but not declared so in legisl or Const) o serve a quasi-commercial purpose? o all members/public allowed to use it indiscriminately? o charged a fe
Private things ... defined as Art. 453, things owned by persons – individuals or juridical – or state in private capacity; things susceptible of private ownership; Private things owned by persons: clothes, land, stock; Private things owned by the state: firehouse, schoolhouse
Significance of classification of common, public, and private things ... all ease of disposal; vulnerability of prescription; susceptibility of possession; public use
Significance of classification of common, public, and private things ... ease of disposal Public things are not easily disposed; private things may be disposed by their owner
Significance of classification of common, public, and private things ... vulnerability of prescription Public things are imprescriptible; private things not owned by the state are prescriptible; private things owned by the state only in its private capacity are imprescriptible
Significance of classification of common, public, and private things ... susceptibility of possession Public things may not be possessed by private persons; private things may be possessed by private persons
Significance of classification of common, public, and private things ... public use: public+common Public and common things not subject to all types of public use. Art 452 says “subject to public use in accordance w/applic laws and regulations;” ejusdem generis: manners of use listed in 452, subject to use in accordance with the nature of the thing
Significance of classification of common, public, and private things ... public use: private In Art. 455, private things are subject to public use in accordance with law or by dedication
History of ownership of water bodies LA admitted 1812; in pari materia: Pollard v. Hagan (states own navigable waters, their shores, and lands under them) + Coyle v. Smith (all states, ratifiers or not, = in "power, dignity, authority")
Distinctions for water bodies 1. distinction for all water bodies: navigable & non-navigable, sea & inland, actual water & related lands (bed and bank); then 2A. who owns water body/related land? 2B. what is its public use?
territorial sea first three nautical miles of the Gulf of Mexico (aka sea) and “arms of the sea” (R.S. 49:3); arm of the sea – water passing the “open coast test,” meaning it (1) receives direct overflow from the Gulf and (2) is in the immediate vicinity of the Gulf
seashore the space of land over which the waters of the sea spread in the highest tide during the winter season (Art. 451)
River (or stream) a body of fresh water with a perceptible current flowing between more or less defined banks (doctrine)
river bank land lying between the ordinary high and ordinary low stage of water (Art. 456)
river bed land covered by the water at its ordinary low state (deduced from Art. 456; stated in Wemple v. Eastham)
lake large body of fresh water, usually stagnant, contained within shores (Yiannopoulos doctrine); Placid Oil factors to determine if a lake (all compared to surrounding water): size, depth, banks and channel, current, historical designation
lake bed land covered by the water at its ordinary high state
Alluvion accretion formed successively, imperceptibly, and permanently on the bank of a river (Art. 499, with “permanent” element added by Sapp v. Frazier)
Dereliction accretion formed by water receding imperceptibly & permanently from bank of river (499 w/ “permanent” added by Sapp v. Frazier); success/impercep – passing “morning glory” test, such that formation not instant'ly visible to naked eye (Esso Standard Oil)
avulsion sudden carrying away of land by river waters (Art. 502)
how does the court determine navigability? fact/law If a water body is navigable by fact, it is navigable by law
How do you determine if something is navigable by fact? no test in code, so factors/tests from jurisprudence... 2:00 Bayou: suitable for commerce, size, obstructns present in nat state; Burns v Crescent: suitable for trade and agri, large enough to float a “boat of some size” carry people+goods; Amite Gravel: if US treats as nav, use for commerce, size, impassib'y
How do you determine if something is navigable by fact? various factors/test lead us to believe that ... the main test is whether body of water is suitable for commerce • Note, no case has held that suitability for commerce means the water body must be used presently or formerly for commercial purposes, only that it could be used for commercial purposes
Who owns a navigable water body? Art. 450, nat, nav water bodies and their beds are owned by state in public capacity; Since specifically named as public things in 450, natural, navigable water bodies and their beds are necessarily public, meaning they're public bc legisln declares it so
Who owns a navigable water body? manmade Art. 450: nat, nav water bodies are public things; a contrario it says that manmade, nav water bodies aren't public things; supported by Vermilion Corporation v. Vaughan; policy: built with my $
What public use is a navigable water body subject to? 452 pub things subj to public use in accord w/ app laws & regs + not cause injury to prop/ adjoining owners; 452 ejusdem generis "and the like" - to fish in rivs, land on shore, moor ships - activ's incidental to nature & nav character (Warner v. Clarke)
why do we adopt a “suitable for commerce” test to determine navigability? historical reasons, US govt uses this test for commerce clause interp; CA uses "can you swim in it"; increases amt of land susceptible of private ownership; decreases amt of land necessarily public
What is the sea? LA's state lines continue 3 nautical miles off coast; this part of Gulf of Mexico is called the "territorial sea"
what is an "arm of the gulf" RS 49:3 includes arms of gulf in territorial sea; determined by "open coast" test est'd in Morgan & Buras cases; 2 prongs: must receive direct overflow from Gulf tides + immediate vicinity of Gulf
Who owns the sea? According to Art. 450, the territorial sea (so the first 3 nautical miles of the Gulf and the arms of the Gulf) are public things, owned by the state in its public capacity; Keep in mind, this is just the sea water, not the land associated with the sea
Is the sea subject to public use? Reading Art. 450 in pari materia with Art. 452, yes, the sea is subject to public use as previously defined
What is the seashore? Art. 451 defines seashore as space of land over which waters of sea spread in highest tide during winter season (high tide for Mediterranean); so, 451 + RS 49:3, seashore is land over which waters of sea + arms of sea spread in highest tide during winter
If LA's high tide is not in winter, but in summer/spring, why not update LA code from Justinian? Roy case: LA not switching to actual summer high tide bc interpretatio cessat in claris, no further interpretation when the meaning of the text is clear
who owns the seashore? According to Art. 450, the seashore is a public thing owned by the state in its public capacity
Is the seashore subject to public use? Reading Art. 450 in pari materia with Art. 452, yes, the seashore is subject to public use as previously defined
If the amount of sea is increased via subsidence, who owns the property where the sea now is? Is there public use? The state in its public capacity because that land is now seashore, so Art. 450 now applies; The newly created seashore is subject to public use under Art. 452; beachfront property owner screwed
If the amount of sea is decreased via alluvion or dereliction, who owns the property where the dried out sea/former seashore now is? Is there public use? 499 + 500 in pari materia, no riparian land owner right to newly created land, so state maintains ownership of land (old seashore); now state owns land in private capacity; it no longer meets 451 definition of a seashore; not subjected to public use
Jurisprudence says Lake Ponchartrain is “arm of the sea,” but does it meet open coast test? Prong1: direct overflow from Gulf; P receives overflow thru Lake Borgne; similar to Buras so should be no direct overflow (water flowed bay then bayou before reaching area); Prong2: in imm vicinity of Gulf; P is 8+ mi from Gulf, but in Buras 1mi too far
What is a river? no codal def, but doctrine defines as a body of fresh water with a perceptible current flowing between more or less defined banks
who owns the water of a natural, navigable river? A navigable river is owned by the state in its public capacity under Art. 450 establishing “natural navigable water bodies” to be public things
What is a bank? According to Art. 456, the bank of a river is the land lying between the ordinary high and ordinary low stage of water
what is a bed? There is no definition of a river bed in the Code, but one can be deduced from Art. 456 and from jurisprudence (Wemple v. Eastham); a river bed is the land covered by the water at its ordinary low state
Who owns a natural navigable river bed? Art. 450 declares the state owns (in its public capacity) all natural, navigable water bodies and their bottoms, so the state owns a navigable river bed
Is a natural navigable river bed subject to public use? Reading Art. 450 in pari materia with Art. 452, yes, a natural navigable river bed is subject to public use as previously defined
What is a natural, navigable river bank? According to Art. 456, the bank of a navigable river is a private thing, thus it is susceptible to private ownership by the state in its private capacity, or persons, be they individual or juridical
What is a natural, navigable river bed? There is no definition of a river bed in the Code, but one can be deduced from Art. 456 and from jurisprudence (Wemple v. Eastham); a river bed is the land covered by the water at its ordinary low state
Who owns a natural navigable river bed? Art. 450 declares the state owns (in its public capacity) all natural, navigable water bodies and their bottoms, so the state owns a navigable river bed
Is a natural navigable river bed subject to public use? Reading Art. 450 in pari materia with Art. 452, yes, a natural navigable river bed is subject to public use as previously defined
Who owns a navigable river bank? According to Art. 456, the bank of a navigable river is a private thing, thus it is susceptible to private ownership by the state in its private capacity, or persons, be they individual or juridical
What public use is a natural navigable river bank subjected to? 456, banks, thou priv, subj to pub use; 455 priv subj to public use in accord w/laws or by dedicatn; in accord w/"nav character/river" or "incidental to nav" (Warner v. Clarke), but can't impede others' pub use, no perm shelters, just temp (Timothy)
What are the riparian rights to use the river bank (that technically he/she owns)? public use of improvements ... riparian land owner may make improvements (ex: wharf) to his/her bank, and the public may not use that improvement; Art. 456 has been interpreted to only covers natural, unimproved river banks (Pizanie)
What are the riparian rights to use the river bank (that technically he/she owns)? improvements/obstructions ... improvements made by riparian owner can't obstruct/prevent public use of bank (Bunge Corporation) o no defin of “obstructs or prevents” public use o test same in urban or rural area, but urban more restrictive bc even small structures can be obstructive
What are the riparian rights to use the river bank (that technically he/she owns)? permits/licenses ... to build on bank (or bed), riparian owner must get approp permits/licenses from state; leveraging point; person desiring to use improvement can threaten to have improvement torn down at riparian's expense under Art. 458 if didn't get full approval
Is there a public servitude over private land to get to a river bank for the purposes of public use? No. Private land owners do not have a public servitude over their private land to get to a river bank for public use (Pizanie)
Who owns a natural, non-navigable river? A natural, non-navigable river fits into the definition of “running waters,” so under Art. 450, the state in its public capacity owns a natural, non-navigable river
Is a natural, non-navigable river subject to public use? Reading Art. 450 in pari materia with Art. 452, yes, a natural, non-navigable river is subject to public use as previously defined
Who owns a natural, non-navigable river bed? Under Art. 506, in the absence of title or prescription, a non-navigable river bed is owned by the riparian owners along a line drawn in the middle of the land
Is a natural, non-navigable river bed subject to public use? No, it is not subject to public use
Who owns a natural, non-navigable river bank? The Code does not specifically state who owns a natural, non-navigable river bank, but a fortiori (of greater justification) Art. 456 says that natural, non-navigable river bank are private things
Is a natural, non-navigable river bank subject to public use? NO; This means, that while a non-navigable river is subject to public use, it is only subject if you can get there somehow and the river bank is not subject to public use (practically, who is going to stop you, but in theory…)
Who owns natural rivers that were navigable in 1812, but are now non-navigable? The state owned the river in its public capacity when it was navigable under Art. 450’s “natural, navigable waters bodies” clause, and the state continues to own the river under Art. 450, but now under the “running waters” clause
Is a natural river that was navigable in 1812 but is now non-navigable subject to public use? Yes. In both situations, the river is owned by the state in its public capacity under Art. 450, so read in pari materia with Art. 452, the river is subject to public use
who owns river bed of a natural river that was navigable in 1812 but is now non-navigable? state owned "waters & bottoms" in pub cap (450), now water owned priv cap (450, running waters) and bed not mentioned; 506 gives bed to riparian, but no method for transferring ownership, so state continues to own bed but in priv capacity
is their public use of bed of a natural river that was navigable in 1812 but is now non-navigable? Now that the state owns the river bed in its private capacity, there is no public use
who owns river bank of a natural river that was navigable in 1812 but is now non-navigable? According to Art. 456, when the river was navigable the banks belonged to the riparian owner, and a fortiori a non-navigable river bank belongs to the riparian owner, so regardless of the alteration, it’s still the riparian owners
is their public use of bank of a natural river that was navigable in 1812 but is now non-navigable? No. When the river was navigable the bank was subject to public use, but it is no longer subject to public use
Natural rivers that were non-navigable in 1812, but are now navigable Once a natural river becomes navigable, the rules of navigable rivers apply; This is not a taking under 5A provided the alterations causing the river to become navigable were natural
Natural, navigable rivers increase in water due to subsidence -- Who owns/public use the new bed? State always owns bed of nav water body (450); always public use of bed of nav water body (452); some of land that was bank (and thus priv owned by riparian but subject to pub use) now is state owned; not a 5A taking bc it's a natural occurrence
Natural, navigable rivers increase in water due to subsidence -- Who owns/public use the new bank? The riparian land owner always owns the river bank (Art. 456) and it is subject to public use (Art. 452, 455, 456)
Natural, navigable rivers decrease due to alluvion/dereliction (land increases) -- Who owns/public use the new bed? State always owns bed of nav water body (450); There is always public use of the bed of a navigable water body (Art. 452); This means that some of the land that was bed (and thus owned by the state in its public capacity) now is privately owned
Natural, navigable rivers decrease due to alluvion/dereliction (land increases) -- Who owns/public use the new bank? riparian owns alluv/derelict formed bank (499); “portion of bank which is req'd” subj to public use (499), usually as much as was prev'ly bank; makes sense bc riparian always owns river bank (456) and it's always subj to public use (452, 455, 456)
Natural, non-navigable rivers increase in water due to subsidence -- who owns/public use the new bed (low water mark to low water mark) Riparian owner always owns the bed of a non-navigable river (Art. 506); There is never public use of the bed of a non-navigable water body
Natural, non-navigable rivers increase in water due to subsidence -- Who owns/public use the new bank (old to high water mark) The riparian land owner owns river bank (Art. 456) and it is not subject to public use
Natural, non-navigable rivers decrease due to alluvion/dereliction (land increases)- Who owns/public use the new bed (low water mark to low water mark) Riparian owner always owns the bed of a non-navigable river (Art. 506); It is not subject to public use
Natural, non-navigable rivers decrease due to alluvion/dereliction (land increases)- Who owns/public use the new bank (old to high water mark) riparian owns a/d formed bank (499); riparian is “bound to leave public portion of bank which is req'd for pub use” 499, but as non-nav river banks arent subj to pub use pre-a/d, remain not subj to publ use, so no part necessy to leave open for public use
avulsion The original riparian owner maintains ownership under 502, but must reclaim it within a year, or if later, before the new riparian owner takes possession of it
Islands and sandbars i&s in nav or non-nav rivers forming from bank belong to riparian (503); i&s that form in nav rivers from bed belong to state in priv capacity (505), bc land no longer part/bed, so 450 doesn't apply, but land was once bed, so state maintains ownership
Navigable river that changes courses new bed created leaving old; new bed still belongs to state in pub capacity (450) regardless of where, but owners who’s land new bed lays on receive equitable portion of old bed (504); if river returns, everyone takes back former lands
Non-navigable river that changes courses If non-nav changes courses, no need to apply rules of 504 bc nonnav beds always owned by riparian owner, so who owns them may have shifted, but the riparian land owner remains the owner of the non-navigable river bed
What is a lake? No def in Code, so doctrine Y: large body of fresh water, usually stagnant, contained within shores; Placid Oil factors: size, depth, banks and channel, current, historical designation; lake bed is the land covered by the water at its ordinary high state
Who owns a natural, navigable lake? state in its public capacity owns the waters of a navigable as a “natural, navigable water body” under Art. 450; note, a manmade lake is privately owned
Is a natural, navigable lake subject to public use? Yes, it is subject to public use under Art. 452
Who owns the bed of a natural, navigable lake? The state in its public capacity owns the lake bed as a “bed of a natural, navigable water body” under Art. 450
Is a natural, navigable lake bed subject to public use? Yes, it is subject to public use under Art. 452
Alluvion/dereliction on a natural, navigable lake? state owns alluvion/dereliction from a natural, navigable lake (reading Art. 500 in pari materia with Art. 499, and reaffirmed by Placid Oil)
Who owns a stagnant, natural, non-navigable lake? Reading Art. 450 a contrario, it is a private thing, so the riparian owner(s)
Is there public use of a stagnant, natural, non-navigable lake? no public use
Who owns the bed of a stagnant, natural, non-navigable lake? conflicting code comments 506 (c) says non-nav lakes = priv -> riparian owns bed, + (d) says “beds of nonnav water bodies belong to riparian;” but (d) also says no riparian rights to beds of non-nav lakes ((d) is also supported by Aucoin, but that was nav -> non-nav lake)
Is there public use of the bed of a stagnant, natural, non-navigable lake? Regardless of who owns the bed, it is not subject to public use because in both cases it is a private thing; if the state owns the non-navigable lake bed, it owns it in its private capacity because it does not fall under Art. 450
Who owns a non-navigable lake with running waters? two views 1. imposs for non-nav lake to have running waters, so non-nav private (450 a contrario) -> no public use of non-nav lakes; 2. running waters = current, so state owns non-nav lake in public cap by 450 + subj to public use by 452
Who owns the bed of a non-navigable lake with running waters? based on two views 1. non-nav lakes w running waters don't exist; 2. lake is a public thing, but 450 doesn't make beds public; reading 506 a pari, non-nav lake beds owned by riparian
Is the bed of a non-navigable lake with running waters subject to public use? again, based on two views 1. no such thing, so bounce back to previous non-navigable lake bed argument; 2. comparing it to a non-navigable river bed, no, it is not subject to public use
Lakes that were navigable, but are now non-navigable -- who owns the lake? The state in its private capacity if the lake is stagnant; the state in its public capacity if there are running waters and you adopt view two from above
Lakes that were navigable, but are now non-navigable -- Is the lake subject to public use? If it is owned by the state in its private capacity (due to it being stagnant and/or adopting view one), no; If it is owned by the state in its public capacity (meaning you adopted view two), yes, it is subject to public use
Lakes that were navigable, but are now non-navigable -- Who owns the lake bed? The state in its private capacity because under Art. 450, it was owned by the state when it was navigable, and there is no method of transferring ownership now that it is non-navigable
Lakes that were navigable, but are now non-navigable -- Is the lake bed subject to public use? No it is not subject to public use
Lakes that were non-navigable, but are now navigable - Who owns the lake? The state in its public capacity under Art. 450
Lakes that were non-navigable, but are now navigable - Is the lake subject to public use? yes
Lakes that were non-navigable, but are now navigable - who owns the lake bed? The state in its public capacity under Art. 450 (beds of natural, navigable waters)
Lakes that were non-navigable, but are now navigable - Is the lake bed subject to public use? Yes
Natural, navigable lake in which the lake bed has increased due to subsidence - Who owns the lake? The state owns the lake in its public capacity under Art. 450
Natural, navigable lake in which the lake bed has increased due to subsidence - Is the lake subject to public use? Yes (Art. 452)
Natural, navigable lake in which the lake bed has increased due to subsidence - Who owns the new lake bed? The state in its public capacity under Art. 450; confirmed by Miami Corporation, expresses "conceptual consistency" policy + if state didn't own new bed, there'd be a circle of priv land surrounding pub lake
what's the "conceptual consistency" policy expressed in Miami Corporation? Beds of nav waters always public owned by state in pub capacity (450), so for “conceptual consistency” the newly created lake bed owned by state; lots of inconsistency in code, especially w/ public v. private
Natural, navigable lake in which the lake bed has increased due to subsidence - Is the lake bed subject to public use? Yes, under Art. 452
Natural, navigable lake in which the lake bed has decreased due to alluvion/dereliction - Who owns the lake? The state owns the lake in its public capacity under Art. 450
Natural, navigable lake in which the lake bed has decreased due to alluvion/dereliction - Is the lake subject to public use? Yes, 452
Natural, navigable lake in which the lake bed has decreased due to alluvion/dereliction (a/d) - Who owns the newly exposed lake bed? state in priv cap (500 in pari materia 499); a/d must be state owned to protect pub use of lake (like subsid - ring around lake, though this time exposed, that would be a private thing); Counter: make right of public use on a/d
Natural, navigable lake in which the lake bed has decreased due to alluvion/dereliction - Is the newly exposed lake bed subject to public use? No.
Natural, non-navigable lake in which the bed has increased due to subsidence, or in which the bed has decreased due to alluvion/dereliction -- who owns waters? Stagnant w belong to riparian; running w, two views: state under 450 or riparian • If waters belong to riparian, no public use • If waters belong to state under 450, then there is public use under 452
decreased due to alluvion/dereliction -- who owns bed? last line of 506d + Aucoin: state owns bed of non-nav lake and would continue to own new bed by subsid & a/d; 1st line of 506d: non-nav bed belongs to riparian, so new bed by subsid, too
Created by: scottsmith81