49631 Precedential Processed

Nicholson v. Holloway Planting Co.

Louisiana Supreme Court · Filed December 16, 1969 · 229 So. 2d 679

Also decided on this docket: La., February 24, 1969 218 So. 2d 900

Cited by

Thigpen v. Moss 504 So. 2d 664 La. Ct. App. 3d Cir. 1987
FinanceAmerica Corp. v. Thibodeaux 419 So. 2d 543 La. Ct. App. 3d Cir. 1982
Terrebonne Parish Police Jury v. Matherne 405 So. 2d 314 La. 1981
Parish of East Baton Rouge v. Pourciau 387 So. 2d 645 La. Ct. App. 1st Cir. 1980
David v. Dixie Rice Agricultural Corp. 379 So. 2d 62 La. Ct. App. 3d Cir. 1980
Walters v. Thrasher 381 So. 2d 557 La. Ct. App. 1st Cir. 1980
Succession of Kelly v. Schauff 323 So. 2d 243 La. Ct. App. 1st Cir. 1975
Nicholson v. Holloway Planting Company, Inc. 284 So. 2d 898 La. 1973
Nicholson v. Holloway Planting Co. 268 So. 2d 74 La. Ct. App. 1st Cir. 1972
Poole v. Guste 262 So. 2d 339 La. 1972
Nicholson v. Holloway Planting Co. 262 So. 2d 176 La. Ct. App. 1st Cir. 1972
Lumber Products, Inc. v. Hiriart 255 So. 2d 783 La. Ct. App. 4th Cir. 1971

Opinion text

SANDERS, Justice (dissenting). Article 660 of the Louisiana Civil Code provides: “It is a servitude due by the estate situated below to receive the waters which run naturally from the estate situated above, provided the industry of man has not been used to create that servitude. “The proprietor below is not at liberty to raise any dam, or to make any other *16 work, to prevent this running of the water. “The proprietor above can do nothing whereby the natural servitude due by the estate below may be rendered more burdensome.” As in other civil cases, the burden is upon the plaintiff to prove the existence of the servitude by a preponderance of the evidence. Hence, plaintiff must establish that Kenmore Plantation is located “below” his own land so that waters “run naturally” from it upon the plantation. After reviewing the evidence, the trial court found that the difference in elevation is so slight as to be “hardly discernible” and waters cannot “naturally drain” from plaintiff’s land upon Kenmore Plantation. I concur in this factual finding. Hence I conclude, as did the trial court, that no servitude of drain exists. For the reasons assigned, I respectfully dissent. SANDERS, J., dissents from refusal of a rehearing.