Louisiana's Natural Servitude of Drain

• Author: Carson Haddow
• Position: J.D./D.C.L., 2015, Paul M. Hebert Law Center, Louisiana State University.
• Pages: 1363-1398

Louisiana’s Natural Servitude of Drain INTRODUCTION On March 24, 1699, a group of French explorers guided by native Bayogoula Indians discovered the first over-water route from the Mississippi River to the Gulf of Mexico. The Bayogoula chief led them down a narrow waterway situated between present-day Baton Rouge and New Orleans, now known as Bayou Manchac. 1 As they traveled along the bayou, Pierre Le Moyne, Sieur d’Iberville, who led the expedition, recorded a series of difficulties the party had encountered: This river or creek is no more than 8 or 10 yards wide, being full of uprooted trees which obstruct it. . . . Within these 2 leagues I have made ten portages, some being 10 yards long, others 300 or 400 yards more or less. . . . Those portages have worn us out today. 2 Frustratingly impassible, the bayou would never provide a viable route to the Gulf. D’Iberville’s logbook entry suggests that Manchac was unlike anything the French explorers had ever seen. In fact, although the party would not have realized it at the time, the bayou’s impassibility resulted from a peculiar feature of Louisiana hydrology. 3 Because of the area’s flat topography, the bayou’s sources only feed it water during the months of high spring flooding. 4 For the remainder of the year, its low water levels render it nearly impossible to navigate. 5 Moreover, unlike European water bodies that tend to run continuously in a single direction, Manchac can reverse directions over the course of the year, making it even more difficult to traverse. 6 This anecdote of Copyright 2015, by CARSON HADDOW. 1. MARY ANN STERNBERG, WINDING THROUGH TIME: THE FORGOTTEN HISTORY AND PRESENT-DAY PERIL OF BAYOU MANCHAC 25 (2007). 2. Id. at 26. 3. Id. at 29. 4. Id. at 30. 5. Id. 6. Id. Even though the bayou could not serve as a navigable route to the Gulf, early Louisiana settlers recognized the bayou’s importance. Over its history, Manchac marked the northern boundary of the Isle of Orleans and served as the dividing line between the French, Spanish, and British North American colonies for more than two decades. Id. at 39–40. It was the site of numerous strategic forts and settlements, and because of early hopes that it could provide a viable Gulf outlet, it was even considered as a possible site for the city of New Orleans. Id. The history of Bayou Manchac and other Louisiana water bodies illustrates the centrality of water to all aspects of Louisiana’s culture, geography, and politics. 1364 LOUISIANA LAW REVIEW [Vol. 75 d’Iberville’s encounter with Bayou Manchac introduces one of this Comment’s central themes: the problematic interaction between European expectations and Louisiana hydrology. In both Louisiana and Europe, water has always been a source of legal controversy. 7 Of the twelve laws set out in the Roman Twelve Tables, the earliest example of written law in western culture, at least one dealt exclusively with water use. 8 By the late 17th century, when d’Iberville and his explorers made their expedition to Bayou Manchac, European jurists had developed a handful of sophisticated rules to govern the water-related controversies they experienced on the continent. Among these rules was the servitude d’écoulement , or, in modern Louisiana parlance, the “servitude of drain,” 9 a civilian concept with its origins in Roman law. When French and later Spanish settlers arrived in the new world, they introduced their legal framework and the servitude of drain into Louisiana law. For the first 300 years of its existence in Louisiana law, the servitude of drain remained a relatively arcane cause of action, invoked mostly by rural landowners in disputes over local flooding. 10 Recently, however, a group of creative legal thinkers invoked the servitude on a massive scale in a controversial lawsuit. 11 The servitude offers many practical advantages to plaintiffs affected by flooding and other water-related injuries. Claimants under the servitude may have the option of suing for 7. David J. Mitchell, Lawsuit Filed over Floodgate Pumps , THE ADVOCATE (Mar. 18, 2014), http://theadvocate.com/news/8506014-123/lawsuit-filed-over-floodgate-pumps, archived at http://perma.cc/LFN6-F48F. 8. CORPS DE DROIT CIVIL ROMAIN 22 (photo. reprt. 1979) (Henri Hulot et al. trans., Scientia Verlang Aalen 1811). See discussion infra Part I.A. 9. For an explanation of the servitude’s etymology, see discussion infra Part II.B. See also infra note 158. 10. An exception to this is the first recorded Louisiana case dealing with the servitude, Orleans Navigation Co. v. Mayor of New Orleans , 2 Mart. (o.s.) 214 (Orleans 1812). 11. Bd. of Comm. of the Se. La. Flood Prot. Auth. – E. v. Tenn. Gas Pipeline Co., No. 13-6911, 19 (La. Dist. Ct. 2013). For news stories covering the lawsuit, see Clancey DuBos, Historic Lawsuit Coming Against Big Oil , GAMBIT (July 24, 2013, 12:38 AM), http://www.bestofneworleans.com/blogofneworleans/archives /2013/07/24/historic-lawsuit-coming-against-big-oil, archived at http://perma .cc/FH8L-8DX7. Occasionally, creative legal thinkers will resurrect outmoded legal theories and apply them to solve new legal issues. Public nuisance law, for example, has been invoked to combat global warming, although without success. See, e.g. , Thomas W. Merrill, Is Public Nuisance a Tort? , 4 J. TORT L. 1, 1 (2011) (discussing the modern application of public nuisance law to global warming issues). 2015] COMMENT 1365 either damages or injunctive relief. 12 Actions for damages are subject to a 10-year prescriptive period, rather than the typical one-year period available for delictual actions under Civil Code articles 3492 and 3493. 13 Moreover, actions for injunctive relief under the servitude are imprescriptible. 14 Thus, when other causes of action under tort or contract law may have prescribed, the cause of action under the servitude will likely remain valid. Additionally, there is no proximity requirement for the two estates, or at least the proximity requirement is loose enough to allow different tracts of land at some distance from each other to fall under the servitude. 15 There is also some precedent for application of the servitude on a large scale—for example, across the entire city of New Orleans. 16 The servitude requires no contractual privity or negligence; it simply imposes on different landowners certain real obligations. 17 Despite its long tenure in Louisiana law, and although close to 300 Louisiana cases cite the code articles establishing the servitude of drain, only a handful of local doctrinal sources consider it in any detail. 18 This lack of critical attention leaves little guidance for a court faced with an unconventional application of the servitude. Moreover, the fact that the servitude developed on the European continent, where hydrological conditions differ significantly from those in Louisiana, creates some difficulty when applying the old-world rules and foreign doctrine in a new, local setting. Louisiana Civil Code articles 655 and 656 establish the servitude of drain, setting out its prerequisites and the duties of estate owners subject to it, respectively: 12. A.N. YIANNOPOULOS, PREDIAL SERVITUDES § 21, in 4 LOUISIANA CIVIL LAW TREATISE 68 (4th ed. 2014) [hereinafter YIANNOPOULOS, PREDIAL SERVITUDES]. 13. Id. 14. Id. An action to enforce a natural servitude is imprescriptible. Gaharan v. State, 579 So. 2d 420, 422 (La. 1991); Moreland v. Acadian Mobile Homes Park, 313 So. 2d 877 (La. Ct. App. 1975). But see, e.g. , AUBRY ET RAU, 3 DROIT CIVIL FRANÇAIS 15 (1938) (stating that a natural servitude may be modified by convention, destination, or 30 years prescription). 15. LA. CIV. CODE art. 648 (2015). See infra note 125. 16. See, e.g. , Orleans Navigation Co. v. Mayor of New Orleans, 2 Mart. (o.s.) 214 (Orleans 1812). 17. YIANNOPOULOS, PREDIAL SERVITUDES, supra note 12, § 18, at 55. 18. Professor A.N. Yiannopoulos, an eminent authority on Louisiana property law, discusses the servitude in his property law treatise. See id. § 21, at 68. Apart from this, however, little Louisiana doctrine considering the servitude exists. 1366 LOUISIANA LAW REVIEW [Vol. 75 Art. 655. Natural drainage An estate situated below is bound to receive the surface waters that flow naturally from an estate situated above unless an act of man has created the flow. Art. 656. Obligations of the owners The owner of the servient estate may not do anything to prevent the flow of the water. The owner of the dominant estate may not do anything to render the servitude more burdensome. 19 The servitude exists between two estates, one “situated above” and one “situated below.” 20 It prohibits the estate owners from altering the flow of water between the estates either by increasing the flow (overburdening the servitude) or blocking the flow. 21 Any Louisiana court that must consider the servitude’s application faces a number of conceptual questions. For example, what kinds of water can be subject to the natural servitude? Also, what does the article require in the “estate situated below” and “estate situated above” language? Finally, if a servitude exists, what limitations does it impose on property ownership, and, specifically, what types of actions “render the servitude more burdensome” under article 656? This Comment attempts to answer these questions through an exegetical analysis of articles 655 and 656 with a comprehensive survey of the available doctrine and jurisprudence to provide a gloss on the rules for each of the servitude’s elements. Part I begins with a history of the drainage servitude and its predecessors, starting in Rome and moving through developments in French and Louisiana law. Part I concludes with an analysis of the servitude’s proper classification and a comparison to developments in other jurisdictions. Next, Part II presents and considers each formal element of the servitude as it currently exists under the Louisiana Civil Code. Part III considers the duties of...