Rodney G. Thornhill v. Cypress Black Bayou Recreation and Water Conservation District

Judgment rendered April 14, 2021.
Application for rehearing may be filed
within the delay allowed by Art. 2166,
La. C.C.P.

No. 53,843-CA

COURT OF APPEAL
SECOND CIRCUIT
STATE OF LOUISIANA

*****

RODNEY G. THORNHILL Plaintiff-Appellant

versus

CYPRESS BLACK BAYOU Defendant-Appellee
RECREATION AND WATER
CONSERVATION DISTRICT

*****

Appealed from the
Twenty-Sixth Judicial District Court for the
Parish of Bossier, Louisiana
Trial Court No. 160181

Honorable Charles A. Smith, Judge

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SHANNON THORNHILL BROWN Counsel for Appellant,
Rodney G. Thornhill

AYRES, SHELTON, WILLIAMS, Counsel for Appellees,
BENSON & PAINE, LLC Cypress Black Bayou
By: Lee H. Ayres Recreation and Water
Alexandra E. Vozzella Conservation District,
Walter Bigby, Jerry
Fowler, Mel Allen,
and Gary Wyche

ANDREW C. JACOBS Counsel for Appellee,
Robert Berry

*****

Before PITMAN, GARRETT, and STONE, JJ.

STONE, J.

The appellant, Rodney G. Thornhill (“Mr. Thornhill”), filed a petition

for declaratory judgment to determine his entitlement to relocate a servitude

that burdens his property in favor of the appellee, Cypress Black Bayou

Recreation and Water Conservation District (“the District”). The District

filed an exception of lack of subject matter jurisdiction claiming sovereign

immunity from a suit to determine a property right. The trial court sustained

the exception. Mr. Thornhill now appeals. For the reasons stated herein, we

reverse and remand for further proceedings.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

In 1966, the District, in collaboration with the United States

Department of Agriculture, Soil Conservation Service and the State of

Louisiana, began the Cypress Black Bayou Watershed Project. This

required the District to acquire all the property described in La. R.S. 38:2602

for the construction of Cypress Lake and Black Bayou Reservoir (“Black

Bayou”). Pursuant to its federal mandate, the District was also required to

obtain a “flowage easement” around the entire periphery of Cypress Lake

and Black Bayou.

The District’s powers and privileges are set forth in La. R.S. 38:26031

and La. R.S. 38:2608. The District is authorized, among other things, to

make rules and regulations to protect and preserve the property owned or

controlled by the District. Pursuant to the District rules and regulations,

1
This statute declares the District to be a political subdivision of the state. Later
in the statute, it also declares the District “shall constitute an agency of the State of
Louisiana,” which for the purposes of sovereign immunity, may be sufficient to find that
it, in effect, stands in the shoes of the State. See Smith v. Board of Comm’rs of La.
Stadium & Exposition District, 372 F. Supp. 3d 431, 439-40 (E.D. La. 2019).

no structure of any nature, type, or kind, either movable or immovable,

permanent or temporary, is allowed to be constructed on any property owned

by the District or subject to the District’s flowage easement without a

written permit issued by the District.

Mr. Thornhill owns immovable property immediately adjacent to

Black Bayou, located at 1015 Linton Road, Benton, Louisiana. Mr.

Thornhill acquired the property subject to the flowage easement in favor of

the District by a deed dated March 27, 1991. On April 2, 1973, the District

purchased, by deed, the flowage easement from the appellant’s predecessor-

in-title. The purpose of the flowage easement is to temporarily detain “any

waters that may be impounded or detained for flood prevention purposes in

connection with the Cypress-Black Bayou Watershed Project.” The

perpetual servitude was granted on the following described land situated in

Benton, Bossier Parish, Louisiana:

All that part of Tract No. 7 of the proposed CYPRESS-BLACK
BAYOU RESERVOIR, SITE #2, as per map recorded in
Conveyance Book 450, page 35, under Register Number
221988, Records of Bossier Parish, Louisiana, lying below the
190.3 M.S.L., easement line and above the 185.0 M.S.L.,
contour line, containing 3.2 acres, and being all that part of the
Northwest Quarter of the Southeast Quarter (NW/4 of SE/4)
lying West of the Vancaville-Linton Road in Section 10,
township 19 North, Range 13 West, Bossier Parish, Louisiana,
lying below the easement line and above the fee line as shown
on said map.

The terms of the flowage easement are as follows:

1. The consideration recited herein shall constitute
payment in full for all damage sustained by the grantor by
reason of the construction of the works of improvement
described above.2

2
Consideration was $112 and other good and valuable consideration.
2

2. This servitude includes the right of egress and ingress
at any time over and upon the above described land of the
grantor and any other land of the grantor adjoining said land.

3. There is reserved to the grantor, his heirs and assigns,
the right and privilege to use the above described land of the
grantor at any time, in any manner and for any purpose not
inconsistent with the full use and enjoyment by the grantee, its
successors and assigns, of the rights and privileges herein
granted.

4. The grantee is responsible for operating and
maintaining the above described works of improvement.

5. The grantee shall have the right to make and enforce
reasonable regulations for the management of the aforesaid
impounded waters for flood prevention purposes.

On April 7, 2017, apparently in response to Mr. Thornhill’s desire to

build a pool, the District sent Mr. Thornhill a letter notifying him that he

could not build or construct any structure that would impinge upon the

District’s flowage easement, without first obtaining a permit from the

District. On July 7, 2017, Mr. Thornhill submitted a full mitigation proposal

prepared by a certified engineer. The proposal suggested relocation of the

flowage easement to another portion of his property, so that Mr. Thornhill

could build a swimming pool. On August, 25, 2017, the District held a

special public meeting to consider Mr. Thornhill’s permit request. Mr.

Thornhill and his counsel were present at the meeting. Following the

purported hearing on the matter, the District denied Mr. Thornhill’s permit

request.

On December 8, 2017, Mr. Thornhill sent a letter requesting that the

District produce the title document that created and governs the “flow

easement” on his property; that the District withdraw its cease and desist

letter; and that the District agree to the relocation he previously requested.

3

The letter also stated that Mr. Thornhill was prepared to proceed with the

necessary legal action to have the flowage easement relocated.

On August 16, 2019, Mr. Thornhill filed a petition for declaratory

judgment pursuant to La. C.C. art. 748.3 Mr. Thornhill requested a

judgment granting him permission to relocate the District’s flowage

easement to another equally convenient location. On September 26, 2019,

the District filed an exception of lack of subject matter jurisdiction, claiming

that it was entitled to sovereign immunity from a suit to determine property

rights by a private litigant. On October 21, 2019, Mr. Thornhill filed an

amended petition, re-urging his request for declaratory judgment and adding

a claim that the District and its individual commissioners intentionally

violated the Open Meetings Law. On November 12, 2019, the District re-

urged its exception of lack of subject matter jurisdiction and filed a motion

to strike, motion for sanctions, peremptory exception of prescription, and

partial peremptory exception of no cause of action in relation to the Open

Meetings Law claim.

On February 27, 2020, after a hearing, the trial court signed a

judgment sustaining the exception of lack of subject matter jurisdiction.4

In its written reasons the trial court stated:

The Louisiana State Constitution only waives sovereign
immunity in suits “in contract or for injury to a person or
property.” La. Const. Art. XII, Sec. 10. Excepting these
circumstances, a waiver of sovereign immunity must be
specifically authorized by the legislature. Id. At the heart of
Plaintiff’s suit for declaratory relief against the Defendant-state
entity is a claim for relocation of a servitude pursuant to

3
Servitudes are categorized by the nature of the advantage or utility stipulated in
the juridical act creating the servitude. Predial servitudes pass with transfers of the
servient estate. Guillotte v. Wells, 485 So. 2d 187, 189 (La. App. 2 Cir. 1986).
4
The trial court also sustained the motion to strike, exception of prescription, and
partial exception of no cause of action. The trial court denied the motion for sanctions.
4

Louisiana Code of Civil Procedure article 748. In Two O’Clock
Bayou Land Co., Inc. v. State, the Louisiana court of Appeal,
Third Circuit affirmed the trial court’s granting of a peremptory
exception based on sovereign immunity. 415 So. 3d 990, 993
(La. 3 Cir. 1982). Rejecting the assertion that sovereign
immunity had been waived, the court reasoned that a petitory
action is not a suit in contract nor for injury to a person or
property, but rather to determine title and ownership of land. Id.
at 992-93.

This Court agrees with the Third Circuit’s reasoning in Two
O’Clock Bayou in that the legislature does not waive sovereign
immunity in “other suits against the state” or a political
subdivision (as required by La. Const. Art. XII, Sec. 10) where
the action is neither one for which damages arise from liability
in contract or injury to person or property. Though this suit
may involve the consideration of a state contract, the nature of
the action is not one for which damages may have arisen from
the breach of any contract with the State nor for the specific
performance thereof 415 So. 2d at 993. Because Plaintiff, here
seeks declaratory relief against the District as to relocation of a
servitude, this Court lacks the subject matter jurisdiction as the
Louisiana Legislature has not authorized a limited waiver of
sovereign immunity in such property action.

Mr. Thornhill now appeals from the trial court’s judgment granting

the District’s exception of lack of subject matter jurisdiction.5 Mr. Thornhill

makes two assignments of error: (1) the trial court erred in holding that the

District is entitled to sovereign immunity because the Louisiana Constitution

has not waived the District’s sovereign immunity for a suit to determine the

relocation of a servitude; and (2) because the trial court held that sovereign

immunity has not been waived, the trial court erred in failing to consider

5
On May 8, 2020, the District filed an opposition to the motion for devolutive
appeal on the grounds that the ruling did not constitute a “final judgment” and was
therefore not appealable. On October 5, 2020, the trial court signed an order granting Mr.
Thornhill’s motion to dismiss his remaining claims for Open Meetings Law violation.
On December 9, 2020, this Court issued an order directing Mr. Thornhill to show cause
why his appeal should not be dismissed for lack of certification of the February 27, 2020,
judgment as a final and immediately appealable judgment. On January 6, 2021, this
Court was provided a signed, joint order certifying the February 27, 2020, judgment as
final and immediately appealable. As such, the rule to show cause was rescinded.
5

whether the enabling statute granting the District its purported authority is

unconstitutional.

DISCUSSION

Sovereign Immunity

The issue before this Court is whether the trial court was correct in

sustaining the District’s exception of lack of subject matter jurisdiction

based upon sovereign immunity. Mr. Thornhill argues that his suit is subject

to the waiver of sovereign immunity as set forth in La. Const. art. XII, § 10.

“A foundational premise of the federal system is that States, as

sovereigns, are immune from suits for damages, unless they elect to waive

that defense.” Coleman v. Court of Appeals of Maryland, 566 U.S. 30, 132

S. Ct. 1327, 182 L. Ed. 2d 296 (2012). The Louisiana Constitution

expressly waives sovereign immunity for “contracts or for injury to a person

or property.” La. Const. art. XII, § 10, in pertinent part, provides:

(A) No Immunity in Contract and Tort. Neither the state, a
state agency, nor a political subdivision shall be immune
from suit and liability in contract or for injury to person or
property.

(B) Waiver in Other Suits. The legislature may authorize
other suits against the state, a state agency, or a political
subdivision. A measure authorizing suit shall waive
immunity from suit and liability. (Emphasis added).

Subject matter jurisdiction is the legal power and authority of a court

to hear and determine a particular class of actions or proceedings, based

upon the object of the demand, the amount in dispute, or the value of the

right asserted. La. C.C.P. art. 2. A judgment rendered by a court which lacks

subject matter jurisdiction is void. La. C.C.P. art. 3. An issue of subject

matter jurisdiction raises a question of law that is reviewed de novo by the

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appellate court. Hoffoss v. Alex, LLC, 49,649 (La. App. 2 Cir. 3/4/15), 162

So. 3d 661, 664.

Title IV of Book II (Things and the Different Modifications of

Ownership) of the Louisiana Civil Code addresses predial servitudes, which

are defined as a charge on a servient estate for the benefit of a dominant

estate where the two estates belong to different owners. La. C.C. art. 646.

Predial servitudes are classified as conventional, when established by

contract. La. C.C. art. 654; Leblanc v. Trappey, 02-1103 (La. App. 3 Cir.

2/5/03), 838 So. 2d 860, 863, writs denied, 03-0651, 03-0684 (La. 5/2/03),

842 So.2d 1107, 1109.6

La. C.C. art. 697 provides the following framework governing the use

and extent of predial servitudes: (1) the extent and uses of the servitude are

governed by the provisions in the title (deed) by which the servitude was

created; and (2) in the absence of governing provisions in the deed, these

matters are governed by La. C.C. arts. 698 through 774. Leblanc v. Trappey,

supra. Thus, La. C.C. art. 748 is merely a “default” or “suppletive” rule.7

Mr. Thornhill’s action sounds in contract and comes within the waiver

of sovereign immunity for contract suits. The flowage easement which

burdens Mr. Thornhill’s property was established by deed, i.e., a contract.

The question of whether Mr. Thornhill is entitled to move the flowage

easement must be determined according to the provisions of that deed. Only

if the deed is silent in that regard does La. C.C. art. 748 become operative; in

6
Servitudes are categorized by the nature of the advantage or utility stipulated in
the juridical act creating the servitude. Predial servitudes pass with transfers of the
servient estate. Guillotte v. Wells, 485 So. 2d 187, 189 (La. App. 2 Cir. 1986).
7
For a thorough explanation of the distinction between default/suppletive rules
and mandatory (or imperative) rules, see E.L. Burns Co., Inc. v. Cascio, 302 So. 2d 297,
300 (La. 1974), and the authorities cited therein.
7

that case, La. C.C. art. 748 in effect becomes a part of the deed. La. C.C. art.

697. Either way, the matter is a contractual dispute and sovereign immunity

does not apply. La. Const. art. XII, § 10(A).

The trial court’s reliance on Two O’Clock Bayou Land Co., Inc. v.

State, 415 So.2d 990 (La. App. 3 Cir. 1982),8 was misplaced. Unlike the

instant case, Two O’Clock Bayou involved a petitory action (a suit to

determine ownership of property), which is classified as an “other suit,”

under La. Const. art. XII, §10(B). Sovereign immunity applies to such

“other suits” unless there is a specifically applicable legislative waiver of

sovereign immunity. Id. The instant case is a suit in contract explicitly

covered by the waiver of sovereign immunity in La. Const. art. XII, § 10(A).

The trial court erred in sustaining the District’s exception of lack of

subject matter jurisdiction. We reverse the trial court’s ruling sustaining the

District’s exception of lack of subject matter jurisdiction and remand the

matter for further proceedings.

Constitutionality of La. R.S. 38:2603

Mr. Thornhill’s final assignment of error asserts that La. R.S. 38:2603

is unconstitutional. The Louisiana Supreme Court explained in Vallo v.

Gayle Oil Co., Inc., 94-1238 (La.11/20/94), 646 So. 2d 859, 864-65, that the

unconstitutionality of a statute must be specially pleaded in the trial court.

The issue of constitutionality was first raised in Mr. Thornhill’s

opposition to the District’s exception of lack of subject matter jurisdiction.

As explained in Vallo v. Gayle Oil Co., Inc., supra, a memorandum is not a

8
Two O’Clock Bayou Land Company, Inc., filed suit against the State seeking a
declaratory judgment to be determined the owner of the bed of the bayou within certain
sections of land patented by the State in 1860 to the plaintiff’s ancestor in title. The State
filed peremptory exceptions of sovereign immunity and no cause of action. Following a
hearing, the trial court sustained the State’s exception of sovereign immunity.
8

pleading recognized under the Code of Civil Procedure and is therefore not a

proper method to challenge the constitutionality of a statute. As such, this

claim was not properly raised in the trial court and is not properly before us.

CONCLUSION

For the reasons set forth above, the trial court’s ruling sustaining the

District’s exception of lack of subject matter jurisdiction is REVERSED

AND REMANDED FOR FURTHER PROCEEDINGS.

The total costs of this appeal is fixed at $1,520.00 and are assessed to

Appellee.

9