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. 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.