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
 
FREE EXCERPT
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. Eve n 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 th e
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, P REDIAL 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 FR ANÇAIS 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.

To continue reading

FREE SIGN UP