Discon v. Saray, Inc.

SUMMERS, Justice (dissenting). In order to properly analyze the legal issues involved, it is first necessary to un *1019 derstand the facts which this record supports. It is error, plain on the face of the record, for the Court to consider the canal in controversy as dedicated to the public. The fact that the canal appears on the subdivision plat as a boundary to the subdivision does not make it part of the subdivision in the sense that it is a “dedicated” canal for public use any more than the other streams shown on the plat, placed there to orient the subdivision in relation to known geographical and topographical landmarks. Careful attention to the subdivision plat reveals quite clearly that the survey of the subdivision ends at the south bank of the canal. On the other hand, Carr Drive is part of the subdivision and provides a public way for ingress to and egress from each lot. In fact, the restrictive covenants ■of the subdivision make the private ownership of Faciane Canal unmistakable in these terms: The private canal shown on the map as “Faciane Canal” is declared to be for the use and benefits of the lots in the said subdivision, but neither said lots nor the owners thereof shall ever acquire any rights in said canal, the title of which is, and shall remain in, the name of the North Shore Beach Subdivision, Incorporated and its assigns forever. (Emphasis Added.) I note parenthetically here that North Shore Beach Subdivision, Inc., is the ancestor in title of defendant. The very wording of the preamble to the restrictions affecting this property makes the private character of the canal clear, viz.: A certain subdivision in the Parish of St. Tammany, Louisiana at the place known as North Shore, in a portion of sections 25 and 26, all of section 36 in T 9 S, R 13 E, and portions of sections 30 and 31 in T 9 S, R 14 E, composed of Lots of ground (Lots 1 thru 168) together with a 65 foot road to be known as Carr Drive and a "private” canal to be known as Faciane Canal, all bounded by the Southern Railroad Right of Way, on the East, Lake Pontchatrain portions of sections 31 and 32, on the South, Bayou Buisson on the West and a salt water marsh on the North, all more particularly shown on two plans of subdivision by F. C. Gandolfo, Jr., Surveyor, dated July 28, 1954. (Emphasis added.) Again the restrictive conditions affecting the property of plaintiffs make clear the “private” nature of the canal. Thus: North Shore Beach Subdivision, Incorporated, ozvns other lands in the vicinity of the land described and nothing herein shall be construed to obligate it to place restrictions, reservations or conditions on such other lands. Any of said restrictions or conditions governing the use or disposition of North Shore Beach Subdi *1021 vision property may be modified upon the agreement of the owners of 75% of the land in the Subdivision. These restrictions with changes made as provided herein, shall be binding on all land owners in North Shore Beach Subdivision for a period of twenty years from date of recordation of these restrictions. But no action which will effect the ownership of the mineral rights and servitudes, the private nature of the canals and roadways and the right to build boathouses and structures shall ever be taken. (Emphasis added.) In the area where the 700-foot length of the Faciane Canal is being filled in, defendant owns the bed of the canal and the land on both sides. Private ownership of the Faciane Canal is further evidenced by the declarations of representatives of governmental agencies that they were without authority to regulate defendants’ actions within the canal. These agencies are the Department of the Army, New Orleans District, Corps of Engineers ; The State Stream Control Commission, Louisiana Wildlife and Fisheries Commission; The Louisiana Wildlife and Fisheries Commission; The State of Louisiana, Department of Public Works and the St. Tammany Parish Police Jury. Two of the witnesses testifying for these agencies declared Faciane Canal was a “privately owned waterway” and a “private canal”. Actually, there seems to be n<? real dispute as to the private ownership of the Faciane Canal, the real issue contested in the lower courts was the navigability of the canal as that term is used in Article 97 of the Criminal Code (La.R.S. 14:97) and the applicability of Articles 703 and 777 of the Civil Code. In my view the navigability or nonnavigability of the Faciane Canal is unimportant. What is important insofar as Article 97 of the Criminal Code is concerned is whether the canal is privately owned or whether it is public. If it is privately owned, Article 97 has no application. Article 97 of the Criminal Code provides : Simple obstruction of a highway of commerce is the intentional or criminally negligent placing of anything or performance of any act on any railway, railroad, navigable waterway, road, highway, thoroughfare, or runway of an airport, which will render movement thereon more difficult. (Emphasis added.) The term “highway of commerce” as-used in the foregoing article means a public way. This is the universal meaning attached to the word “highway”: A way open to the public at large, for travel or transportation, without distinction, discrimination, or restriction, except such as is incident to regulations calculated to secure to the general public the largest practicable *1023 benefit therefrom and enjoyment thereof. Ray v. Terry, 32 Ala.App. 582 , 28 So.2d 916 (1947); Dubuque v. Maloney, 9 Iowa 450 (1859); Baltimore v. DePalma, 137 Md. 179 , 112 A. 277 (1920); Commonwealth v. Charleston, 1 Pick. 180 (Mass.1822); Macomber v. Nichols, 34 Mich. 212 (1876); McQuinn v. Missouri P. R. Corp., 122 Neb. 423 , 240 N.W. 515 (1932); Davis v. New York, 14 N.Y. 506 (Court of Appeals 1856); Hildebrand v. Southern Bell Tel. & Tel. Co., 219 N.C. 402 , 14 S.E.2d 252 (1941); Sumner County v. Interurban Transp. Co., 141 Tenn. 493 , 213 S.W. 412 (1918); Nichols v. State, 120 Tex.Crim. 219 , 49 S.W.2d 783 (1932); Prillaman v. Commonwealth, 199 Va. 401 , 100 S.E.2d 4 (1957); State ex rel. Oregon-Washington R. & Nav. Co. v. Walla Walla County, 5 Wash.2d 95 , 104 P.2d 764 (1946); State ex rel. Happel v. Schmidt, 252 Wis. 82 , 30 N.W.2d 220 (1947); 39 Am.Jur.2d, Highways, Streets and Bridges § 1; 39 C.J.S. Highways § 1, p. 909; Webster’s New International Dictionary (3d ed.). When the word highway is combined with others, as in the quoted article, to form the term “highway of commerce”, the imputation that a public way is intended is emphasized. It must be conceded that, as used here, “commerce” implies extensive trade and travel such as one would expect upon a public highway. It connotes a public activity as distinguished from a private one. Add to this the context in which “highway of commerce” is used: the article refers to a railway, railroad, navigable waterway, road, highway, thoroughfare, or runway of an airport, all of which are invariably public. Thus the meaning the article seeks to convey becomes clear. The intention is to define as a crime the obstruction of public ways. Thus a public navigable waterway is intended to be within the scope of the article, not a private canal, built by private enterprise on private property — a waterway the use of which has been granted to others by the owners under restrictions and limitations imposed by contract; a waterway the use of which is regulated by private agreements. Such a waterway is not a public waterway within the intendment of Article 97, despite the fact that it is clearly navigable and is extensively used by those entitled to the right. It is manifestly absurd to say that a person cannot obstruct a private canal on his private property even if it is navigable. Of course, and this is the question I shall address myself to later in this dissent, if the owner of the canal has granted rights to others for the use of the canal, as in this case, obstruction of the canal by the owner will be governed by the contract between the parties, the law pertaining to contracts, servitudes or other civil laws addressed to the particular problem. Article 97 will have no bearing upon the rights of the parties in the private canal. *1025 Only when the canal is a “highway of commerce” and a public way does Article 97 come to bear. This is not the first time the question of the rights of an owner of a private canal has been adjudicated by this Court. In Harvey v. Potter, 19 La.Ann. 264 (1867) the question was: “has the proprietor of a tract of land the right to excavate, entirely within his own boundaries, and exclusively at his own expense, a canal for the purposes of navigation, and to require payment for its use by all who choose to avail themselves of its facilities ? * * * ” The Court answered this question, saying: “It is not easy to perceive how, in such a case, the public becomes seized of the right to the gratuitous use of advantages afforded by individual labor and enterprise.” The matter seems elementary to me, but the transgressions of the majority opinion in the case at bar upon fundamental principles do such violence to the law, and the opinion in Harvey v. Potter is so lucid, logical and well-reasoned that I shall quote further: The right of expropriation, it is true, belongs to the public, and the land and canal so constructed upon it, might, under constitutional and legal provisions, become public property, and be appropriated to public use. But where no public need exists for such conversion, and the property in its entirety is subjected to private ownership, it would seem that the proprietor has the right, in any manner he deems best, to render that property most productive, subject only to the rule "sic utre tuo ut alienum non laedas.” * * * Private property shall not be taken for public uses, without ample remuneration first made to the owner. This is a fundamental principle. So it would seem clearly to follow that private property cannot be used by the public without compensation for that use. Suppose the plaintiffs in this case, should refuse to permit the defendant to use their canal, would an action of damages lie against the owner? If not, it must appear that the defendant is not entitled to require the use of the canal free of charge, as he would have to require the free use of a navigable stream, or a public road. (Emphasis added.) 19 La.Ann. 265 . It is an obvious extension of the principles announced in Harvey v. Potter to say that if the owner of the canal can prevent its use by imposing charges or otherwise, he may just as rightly fill in his private canal, subject, of course, to whatever rights the plaintiffs here may have previously acquired by law or by contract from the owner of the canal. In any event, Article 97 dealing as it does with “highways of commerce”, has no relevance to the owner’s use of a private canal on private property constructed by private enterprise. *1027 The other issue, and I submit the only-proper issue presented for the Court’s decision, involves the interpretation of Article 777 of the Civil Code. In my opinion the article was designed specifically to cover such a fact situation as this case presents. It reads as follows : Art. 777. The owner of the estate which owes the servitude can do nothing tending to diminish its use, or to make it more inconvenient. Thus he can not change the condition of the premises, nor transfer the exercise of the servitude to a place different from that on which it was assigned in the first instance. Yet if this primitive assignment has become more burdensome to the owner of the estate which owes the servitude, or if he is thereby prevented from making advantageous repairs on his estate, he may offer to the owner of the other estate a place equally convenient for the exercise of his rights, and the owner of the estate to which the servitude is due can not refuse it. It is evident that the servitude of passage through the canal which defendant’s ancestors in title granted to plaintiffs has become more burdensome to defendant. So much so, in fact, that he is threatened with a disastrous financial loss and a virtual removal of valuable property from commerce if he is unable to fill the canal and obtain access to his property. This fact is supported by the record and is not seriously disputed. The real issue turns on whether the alternate route proposed by defendant is “equally convenient” for the exercise of plaintiffs’ right of passage. The alternate route will be two hundred feet longer than the original route. Aside from some contention that the alternate route will be more inconvenient because of the difficulty of maneuvering vessels through it and because of increased hazards to navigation, there is no other objection to the alternate route. I do not consider as serious the claim that the alternate route will present substantial problems to free movement of vessels. The claim is not supported by substantial evidence. For instance, the example the majority cites has to do with one of plaintiffs’ witnesses who testified on direct examination that under certain wind conditions he cannot get through the canal at all. A review of this witness’ testimony on cross-examination discloses that he was referring to his paddle boat, a small craft on pontoons with a seat, bicycle pedals and a paddle wheel for propulsion. It is easy to see that in all wind conditions such a craft is difficult to maneuver. This would be true regardless of where the attempt was made to navigate. The alternate route has no bearing upon the difficulty experienced in maneuvering this unmaneuverable craft. *1029 The claim that the alternate route is more dangerous is also uncorroborated by any convincing evidence. The fact that a collision occurred on this alternate route in 1969 between vessels navigating its channel does not indicate, even remotely, a conclusion that the alternate route is dangerous. There is an inherent danger in the navigation of watercraft, regardless of the location. Particularly is this true where amateurs are at the helm. In fine, therefore, the additional length is the essence of the complaint that the alternate route is less convenient. It is two hundred feet longer than the original route. In my view this is not such an inconvenience which should deprive defendant of the right to designate the alternate route and put his valuable property to useful purposes. The inconvenience plaintiffs will experience by navigating their boats 900 feet instead of 700 feet through defendant’s property is minimal. It should be kept in mind, also, that plaintiffs’ boats are pleasure craft which are only used occasionally. The central issue before us requires a balancing of the conveniences between the parties. An overview of the entire case requires a reversal of the majority opinion. I respectfully dissent.