Furie Petroleum Company, L.L.C. and Silver Spur Royalty Company, L.L.C. v. SWEPI, LP, Encana Oil & Gas (USA), Inc., Pride Oil and Gas Properties, Inc., Cloyce C. Clark, Jr. and Martha Chamberlain Clark; consolidated with Cloyce C. Clark, Jr., et ux v. Eugene Copeland

Judgment rendered November 20, 2019.
Application for rehearing may be filed
within the delay allowed by Art. 2166,
La. C.C.P.

No. 53,113-CA
No. 53,114-CA
(Consolidated Cases)

COURT OF APPEAL
SECOND CIRCUIT
STATE OF LOUISIANA

*****

No. 53,113-CA No. 53,114-CA

FURIE PETROLEUM, L.L.C. CLOYCE C. CLARK, JR., ET
AND SILVER SPUR UX
ROYALTY COMPANY, L.L.C.
Plaintiffs - Appellees Defendants - Appellants

versus versus

SWEPI, LP, ENCANA OIL & EUGENE COPELAND, ET AL
GAS (USA), INC., PRIDE OIL Defendants - Appellees
AND GAS PROPERTIES, INC.,
CLOYCE C. CLARK, JR. AND
MARTHA CHAMBERLAIN
CLARK
Defendants - Appellants

*****

Appealed from the
Forty-Second Judicial District Court for the
Parish of DeSoto, Louisiana
Trial Court No. 70733

Honorable Charles Blaylock Adams, Judge

*****

LISKOW & LEWIS Counsel for Appellants,
By: Lawrence Paul Simon, Jr. SWEPI, LP and
Brian W. Capell Vine Oil & Gas, LP

CHRISTOPHER LENTO Counsel for Appellant/
RYAN M. SEIDEMANN Intervenor, State of
RICHARD LOUIS TRAINA Louisiana
Assistant Attorneys General

COOK, YANCEY, KING & GALLOWAY Counsel for Appellants,
By: William Drew Burnham Encana Oil & Gas (USA)
John Tucker Kalmbach Inc., GEP Haynesville,
Herschel Erskine Richard, Jr. LLC, Pride Oil & Gas
Properties, Inc.

BETHARD & BETHARD, LLP Counsel for Appellants,
By: James Guenard Bethard Cloyce C. Clark, Jr. and
Martha Chamberlain
Clark

AYRES, SHELTON, WILLIAMS, Counsel for Appellees,
BENSON & PAINE, LLC Furie Petroleum
By: Lee H. Ayres Company, LLC, Silver
Ryan P. Telep Spur Royalty Company,
LLC, Briarwood Finance
D. SCOTT BROWN LAW OFFICE Co., LLC, and Hydrotek
By: Daniel Scott Brown Resources, Inc.

KEVIN SEVERSON Counsel for Appellees/
Intervenors, Annie
Laurie Samuels, Harvey
H. Samuels, Jr., Karen
O. Lanier, Jamma
Energy, LLC,

Counsel for Appellees,
Lanier Samuels
Properties, LLC, and
Succession of Eugene
Copeland

*****

Before STONE, COX, and THOMPSON, JJ.

COX, J., concurs in the results with written reasons.

THOMPSON, J., concurs for the reasons assigned by J. COX.

STONE, J.

This appeal arises from the Forty-Second Judicial District Court,

DeSoto Parish, the Honorable Charles B. Adams presiding. Following a

5-day bench trial on the merits, the trial court granted judgment in favor of

the Servitude Group,1 finding that the Landowner Group2 failed to show by a

preponderance of the evidence that Bayou Dolet was navigable when

Louisiana was admitted to the Union in 1812. For the following reasons, we

affirm.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

This complex litigation explores the intrinsic nature of Louisiana

waterways during the state’s annexation to the Union. The ultimate issue is

whether a certain mineral servitude3 in DeSoto Parish, Louisiana has

prescribed as a result of 10 years of nonuse. The issues of prescription and

navigability are bifurcated for our purposes, and this appeal only concerns

whether Bayou Dolet was navigable in 1812.4

The parties in this case are divided into two groups: the Servitude

Group, which maintains that the servitude still exists, and the Landowner

Group, which argues that the servitude has prescribed. The Landowner

Group argues that Bayou Dolet was formerly navigable, all the way through

the tract at issue, and therefore, the tract is noncontiguous, and the mineral

servitude would be deemed severed into two separate servitudes by virtue of

1
The Servitude Group consists of the following parties: (1) Briarwood Finance Company, LLC;
(2) Furie Petroleum Company, LLC; (3) Silver Spur Royalty Company, LLC; (4) Hydrotek Resources, Inc.,
Annie Laurie Samuels, the Estate of Harvey Samuels; Karen Lanier; and Jamma Energy, LLC.
2
The Landowner Group consists of the following parties: (1) the State of Louisiana; (2) Cloyce C.
Clark, Jr., and Martha Chamberlain Clark (the “Clarks”); (3) the Clarks’ mineral lessees – Vine Oil & Gas
LP, SWEPI LP, GEP Haynesville, LLC, and Encana Oil & Gas USA, Inc.
3
The servitude covers approximately 1,154 acres in Sections 14, 15, 22, and 23 in Township 12
North Range 11 West, DeSoto Parish, Louisiana.
4
While the underlying issue concerning the viability of the mineral servitude remains to be
addressed, the parties stipulated that the issue of navigability should be addressed separately from the
viability of the mineral servitude.

La. R.S. 31:64.5 Conversely, the Servitude group argues that Bayou Dolet

was not formerly navigable, and therefore, the tract at issue remains

contiguous and the mineral servitude remains whole.

A 5-day bench trial commenced on August 20, 2018, before Judge

Charles B. Adams. A total of eight witnesses testified and 12 exhibits were

admitted into evidence. The Landowner Group called two fact witnesses:

Cloyce C. Clark, the owner of the property, and Cheston Hill, a

representative with the State Land Office; and five expert witnesses:

Michael P. Mayeux, Phillip N. Asprodites, Dr. Johannes L. van Beek, Dr.

Gary D. Joiner (“Dr. Joiner”), and Dr. George J. Castille, all of whom spent

considerable time investigating Bayou Dolet.

The Servitude Group called, as its only witness, a hydrologist, Dr.

Charles D. Morris (“Dr. Morris”), who had previously examined the

property. Following the trial, the Court visited the site and examined the

property at issue with all counsel and parties present. At the conclusion of

the site visit, the trial court took the matter under advisement. On November

30, 2018, the trial court’s “Written Reasons for Ruling on Issue of

Navigability” held that the Landowner Group failed to prove by a

preponderance of the evidence that there was, more likely than not, a

navigable body of water through the subject property in 1812. The

Landowner Group filed this timely suspensive appeal asserting the following

as its assignments of error:

(1) The trial court erred, as a matter of law, by requiring
physical evidence of a channel through the Property, including
through Lake Dolet, for Bayou Dolet to be navigable in 1812.

5
La. R.S. 31:46 provides: “an act creating mineral servitudes on noncontiguous tracts of land
creates as many mineral servitudes as there are tracts unless the act provides for more.”
2

(2) The trial court erred, as a matter of law, by requiring that
Bayou Dolet be capable of use in transportation or commerce
through the entire year.

(3) The trial court erred, as a matter of law, by requiring
evidence that Bayou Dolet was actually used for transportation
or commerce.

(4) The trial court erred by precluding the Landowner Group
from presenting rebuttal expert testimony.

(5) The trial court committed manifest error by ignoring ample
historical and physical evidence of Bayou Dolet’s navigability
in 1812.

DISCUSSION

Standard of Review

At the outset of this appeal, we address the applicable standard of

review. The Landowner Group maintains that the trial court committed

legal errors which interdicted the fact-finding process, and thus requires de

novo review by this Court. We disagree.

An appellate court may not set aside a trial court’s finding of fact in

the absence of manifest error or unless it is clearly wrong. Where two

permissible views of the evidence exist, the fact-finder’s choice between

them cannot be manifestly erroneous or clearly wrong. Cole v. State Dept. of

Public Safety & Corr., 2001-2123 (La. 9/4/02), 825 So. 2d 1134; Stobart v.

State through Dept. of Transp. & Dev., 617 So. 2d 880 (La. 1993); Jewitt v.

Alvarez, 50,083 (La. App. 2 Cir. 9/30/15), 179 So. 3d 645. To reverse a

fact-finder’s determination, the appellate court must find from the record

that a reasonable factual basis does not exist for the finding of the trial court

and that the record establishes that the finding is clearly wrong. Stobart,

supra; Jewitt, supra.

3

Even if an appellate court may believe its own evaluations and inferences

are more reasonable than that of the fact-finder, the reasonable evaluations

of credibility and reasonable inferences of fact should not be disturbed upon

review where conflict exists in the testimony. Cole, supra; Rosell v. ESCO,

549 So. 2d 840 (La. 1989). Moreover, where the fact-finder’s conclusions

are based on determinations regarding credibility of the witnesses, the

manifest error standard demands great deference to the trier of fact because

only the trier of fact can be aware of the variations in demeanor and tone of

voice that bear so heavily on the listener’s understanding and belief in what

is said. Rosell, supra; Jewitt, supra; Jones v. Fin. Indem. Co., 52,421 (La.

App. 2 Cir. 1/16/19), 264 So. 3d 660.

However, where one or more trial court legal errors interdict the fact-

finding process, the manifest error standard is no longer applicable, and, if

the record is otherwise complete, the appellate court should make its own

independent de novo review of the record and determine a preponderance of

the evidence. Ferrell v. Fireman’s Fund Ins. Co., 94-1252 (La. 2/20/95),

650 So. 2d 747. A legal error occurs when a trial court applies incorrect

principles of law and such errors are prejudicial. Lasha v. Olin Corp., 625

So. 2d 1006 (La. 1993). Legal errors are prejudicial when they materially

affect the outcome and deprive a party of substantial rights. Lasha, supra;

Evans v. Lungrin, 97-0541 (La. 2/6/98), 708 So. 2d 731.

In the matter sub judice, the Landowner Group’s arguments for

reversal of the judgment and de novo review are identical, and appear to be a

thinly-veiled attempt to argue the merits of this appeal twice. The

Landowner Group has failed to cite any alleged errors which would

necessitate conducting de novo review. Thus, the central issue before this
4

Court is whether the trial court committed manifest error in finding that the

Landowner Group failed to prove, by a preponderance of the evidence, that

Bayou Dolet was navigable in 1812 when Louisiana was admitted to the

Union.

Applicable Law

Public things are owned by the state or its political subdivisions in their

capacity as public persons. La. C.C. art. 450. Public things that belong to

the state are such as running waters, the waters and bottoms of natural

navigable water bodies, the territorial sea, and the seashore. Id. Louisiana’s

ownership of the beds and waters of the navigable waterways within the

state is by virtue of the Equal Footing Doctrine,6 later codified in La. R.S.

9:1101, which states in pertinent part:

The waters of and in all bayous, rivers, streams, lagoons, lakes
and bays, and the beds thereof, not under the direct ownership
of any person on August 12, 1910, are declared to be the
property of the state. There shall never be any charge assessed
against any person for the use of the waters of the state for
municipal, industrial, agricultural or domestic purposes.

While acknowledging the absolute supremacy of the United
States of America over the navigation on the navigable waters
within the borders of the state, it is hereby declared that the
ownership of the water itself and the beds thereof in the said
navigable waters is vested in the state and that the state has the
right to enter into possession of these waters when not
interfering with the control of navigation exercised thereon by
the United States of America.

This Section shall not affect the acquisition of property by
alluvion or accretion. See also Ramsey River Rd. Prop. Owners
Ass’n, Inc. v. Reeves, 396 So. 2d 873 (La. 1981). A body of
water is navigable in law if it is navigable in fact. State v.
Jefferson Island Salt Mining Co., 183 La. 304, 163 So. 145

6
New states are admitted to the Union on an equal footing with the original thirteen. Pollard v.
Hagan, 44 U.S. 212, 3 How. 212, 11 L. Ed. 565 (1845). When the Revolution occurred, each state became
sovereign and acquired the ownership of navigable waters in the state and the soils under them. Martin v.
Waddell’s Lessee, 41 U.S. 367, 16 Peters 367, 10 L. Ed. 997 (1842).
5

(1935). As the outcome of this matter is fundamentally based
upon the prior condition and characteristics of Bayou Dolet
over two centuries ago, great consideration of all relevant,
historical evidence must be given to aid in determining whether
Bayou Dolet was formerly navigable. The limited
jurisprudence involving Bayou Dolet reveals that as early as
1922, Bayou Dolet was consistently referred to as non-
navigable. See Wemple v. Eastham, 150 La. 247, 90 So. 637
(1922); Miami Corp. v. State, 186 La. 784, 854, 173 So. 315,
338 (1936); Wemple v. Albritton, 154 La. 359, 97 So. 489
(1923).
***

Moreover, in reviewing this matter, we find that the trial court closely

and carefully considered all the evidence presented. We have also

thoroughly reviewed the evidence and applicable law, and find that the

record fails to show that the trial court committed manifest error. The

evidence in the record reasonably supports a finding that the Landowner

Group failed to meet its burden. The evidence not only supports the trial

court’s conclusion, but also the trial court’s reasonable evaluations of

credibility and inferences of fact. The trial court rendered a sound, detailed

opinion exploring all reasonable hypotheses, conclusions, and assumptions

in support of the Landowner Group’s argument for navigability. We see no

reason to replicate the trial court’s analysis, and we, therefore, adopt that

portion of the trial court’s written reasons for judgment cited below as our

own:7

The subject property is depicted in Exhibit M003 by the area in
dashed blue and yellow lines. The solid blue line in Exhibit
M003 is the landowner group’s alleged path of Bayou Dolet.
Bayou Dolet is part of the Red River basin that runs from
Shreveport to Natchitoches. The parties stipulated that south of
the subject property, beginning at least at Bayou Garcie’s
intersection with Bayou Dolet, Bayou Dolet was navigable in
1812. The parties did not present an evidence regarding the
navigability of Bayou Dolet from Bayou Garcie north to the

7
We delete any references to exhibit numbers in the quoted reasons for judgment.
6

point where Southern Slough meets western hills. Today, the
Southern Slough is nothing more than a drainage ditch beside
an access road into the subject property. There was no evidence
or argument presented regarding the navigability of the
Southern Slough in 1812.

The evidence presented to the Court completely focused upon
whether there was a navigable body of water from Bayou Pierre
south to the point where the Southern Slough meets the western
hills. The strongest evidence of navigability that the landowner
group presented is the official General Land Office survey for
the United States, referred to as the Boyd survey, conducted in
the 1830’s. The evidence introduced shows that Boyd
meandered, from the south, the western bank of Bayou Dolet in
the subject tract. However, Boyd did not meander the left
descending bank, the eastern bank, of Bayou Dolet, as was
recommended for navigable waterways, until he arrived at
Bayou Garcie.

The landowner group argues that the act of meandering the
western bank shows Boyd believed Bayou Dolet to be
navigable. The servitude group argues that Boyd not
meandering the eastern bank shows that he did not believe
Bayou Dolet was navigable, and that had Boyd believed that
Bayou Dolet was navigable, he would have also meandered the
eastern bank. Whether Boyd believed Bayou Dolet was
navigable or not through the subject property is not known.
The lack of a second meander line suggests that Boyd did not
believe Bayou Dolet was navigable through the subject
property.

All of the expert witnesses agreed on two (2) fundamental facts.
First, the physical characteristics of the subject tract have not
significantly changed over the last two hundred (200) years.
Second, for Bayou Dolet to have been navigable in 1812, there
must have been a channel through the subject tract from Bayou
Pierre in the north to the Southern Slough along the western
hills in 1812. Thus, if there was not a channel, Bayou Dolet
was not navigable in 1812. To determine if there was a channel
through the subject tract in 1812, the Court must answer two (2)
questions. First, is the point labeled by Boyd as the efflux of
Dolet Bayou actually the head waters of Bayou Dolet or the
drain for what has been called Lake Dolet? Second, where did
the channel flow through the high bank on the north side of
Southern Slough, where the Southern Slough meets or met the
western hills? (Emphasis added.)

7

Michael Mayeaux, a registered surveyor, testified that Boyd
designated the point where Bayou Pierre and Bayou Dolet
intersect in the north as the “efflux of Dolet’s Bayou.” The
evidence introduced shows that under ordinary conditions in
1812, Bayou Pierre had higher water levels than are currently
found due to the Great Raft on the Red River. Prior to the
clearing of the Great Raft, Bayou Pierre was the primary
conduit of commerce between Shreveport and Natchitoches.
Due to the higher water levels, when Bayou Pierre would run
over its banks, aka flood, water would fill the area known as
Lake Dolet. Thus, the Court is required to determine whether
the water levels in 1812 were ordinarily high enough to allow
navigation from Bayou Pierre, into Lake Dolet, and through the
subject property. When Boyd surveyed Lake Dolet he noted
two (2) locust trees as reference points located in the middle of
what should have been Lake Dolet. Locust trees will not grow
or survive in damp soil. (Emphasis added.) Thus, Lake Dolet
could not have an ordinary water level sufficient for
navigability while also having the mature locust trees noted by
Boyd.

Dr. Johannes van Beek, the landowner group’s expert in the
fields of physical geography and geomorphology, analyzed the
subject tract using Light Detection and Ranging (LIDAR) and
generated several maps of the subject tract. Dr. van Beek
identified the area directly west of the subject tract as high hills
that drained the subject tract. Dr. van Beek testified, based on
LIDAR maps, that water in the subject tract would drain
northward toward Bayou Pierre along the path of the alleged
channel of Bayou Dolet. Dr. van Beek testified that proceeding
south from Bayou Pierre through the efflux of Bayou Dolet the
bed of its channel rises. Thus, any water flowing from Bayou
Pierre into the alleged channel would have to flow uphill.
During the court’s exploration and examination of the subject
tract, the Court walked uphill when it proceeded south from
Bayou Pierre into the area formerly described as Lake Dolet.
Without some force behind it, such as naturally higher water
levels than are currently found or flood conditions, the water in
the area formerly described as Lake Dolet will drain northward
into Bayou Pierre. (Emphasis added.)

Dr. van Beek also took eight (8) soil samples across the subject
tract of what he believed to be the most probable locations of
the alleged channel. Dr. van Beek testified that the soil samples
did not show any evidence of a channel through the subject
tract. Dr. van Beek testified that the soil at his first and second
sample locations showed evidence of a channel, but that area is

8

currently the path water takes when it drains from the subject
tract northward into Bayou Pierre. If there was a channel
through the subject tract, the sixth, seventh, and eighth sample
should have revealed some evidence of the channel. However,
those samples did not reveal any evidence of a channel through
the subject tract. (Emphasis added.)

Dr. van Beek testified that quite some time prior to 1812 the
Red River flowed around Lake Dolet, but over time the Red
River shifted to its current bed. In the wake of the Red River’s
shift, Bayou Pierre remained in the old bed of the Red River.
At no time could Dr. van Beek or any other expert witness
explain how, why, or when Bayou Pierre flowed uphill and
against its current to create the alleged Bayou Dolet channel or
what the ordinary water level of Bayou Dolet was in 1812.
Webster’s New World Dictionary of the American Language,
Second College Edition defines an efflux as “1. A flowing out
out, or emanating 2. A thing that flows out, outflow; emanation
3. An ending; expiration.” Boyd’s description of the area as the
“efflux of Dolet’s Bayou,” comports with the current physical
characteristics of the property, and all of the evidence presented
at trial.

Additionally, for the landowner group’s argument on
navigability to prevail, water had to have flowed, in Bayou
Dolet’s ordinary condition, through the high bank on the north
side of the Southern Slough, where Southern Slough meet or
met the western hills. Dr. van Beek gave a thorough
explanation of how high banks and natural levees are formed.
Stated simply, high banks and natural levees occur along
flowing water bodies due to flooding and depositing of soil. If
the flooding from Bayou Pierre was extensive, water would
spill over the high bank on the north side of the Southern
Slough, where the Southern Slough meets or met the western
hills. Today, when flooding is extensive, water will flow south
in the subject, as testified to by Mr. Clark. However, flood
conditions are not the ordinary conditions required to prove
navigability.

As we noted above, Dr. van Beek did not find any evidence of a
channel through the subject property near the Southern Slough.
During the Court’s exploration and examination of the subject
tract, the Court could not locate any place where a channel
would have flowed through the high banks of the Southern
Slough, nor did any expert find evidence of an ordinary flow
through the high banks. Today there is an access road from the
hills into the flood plain along the former high banks of the

9

Southern Slough. Even today there is no culvert under that
road at any point near where a navigable channel could have
been.

The eastern boundary of this tract is the western bank of Bayou
Pierre. In the 1880’s, Bradford noted a steamboat landing on
that stretch of the western bank of Bayou Pierre. There was no
evidence of any commercial traffic along the alleged channel of
Bayou Dolet. If Bayou Dolet was navigable, why would the
landing be located on Bayou Pierre? The only reasonable
explanation is that Bayou Dolet was not navigable. Therefore,
the Court finds Lake Dolet was nothing more than a flood basin
that released its water back to the north into Bayou Pierre
unless there was significant flooding at which time water would
flow over the north high bank of the Southern Slough and all of
the Red River basin would flow south.

Based on the evidence presented, the landowner group failed
to prove that there was more likely than not a navigable body of
water through the subject property in 1812. The landowner
group did not prove that a channel existed through the subject
tract from Bayou Pierre in the north to the Southern Slough
along the western hills 1812. Because there was a not a channel
through the subject tract in 1812, Bayou Dolet was not
susceptible of being used, in its ordinary condition, as a
highway of commerce over which trade and travel are or may
be conducted in the customary modes of trade and travel on
water in 1812 from Bayou Pierre to the Southern Slough.
***

Exclusion of Landowner Group Rebuttal Testimony

The remaining issue on appeal, not addressed in the above-quoted

portion of the trial court opinion, is whether the trial court committed an

evidentiary error when it excluded the Landowner Group’s rebuttal

testimony at trial.

Evidence in rebuttal must be confined to new matters raised by the

defense. Robinson v. Healthworks Int'l, L.L.C., 36,802 (La. App. 2 Cir.

1/29/03), 837 So. 2d 714, 720, writ not considered sub nom., 2003-0965 (La.

5/16/03), 843 So. 2d 1120; White v. McCoy, 552 So. 2d 649 (La. App. 2 Cir.

1989). The trial court has great discretion in controlling the conduct of the
10

trial and the presentation of evidence, including the power to admit or refuse

to admit rebuttal evidence. Robinson v. Healthworks Int’l, L.L.C., 36,802

(La. App. 2d Cir.1/29/03), 837 So. 2d 714; White, supra. Rebuttal evidence

is that which is offered to explain, repel, counteract or disprove facts given

in evidence by the adverse party. Bickham, supra; Robinson, supra.

The Landowner Group maintains that by improperly prohibiting

rebuttal expert testimony, the trial court precluded them from addressing

issues raised by the Servitude Group’s sole expert, Dr. Morris. In their

appellate brief, the Landowner Group argues that Dr. Morris made the

following four opinions/factual conclusions during his trial testimony:

1) There was not an open channel through the property because
there were not breaches of the natural levee along Bayou
Pierre and in Lake Dolet.

2) Bayou Dolet flowed north in the early 1800’s from Lake
Dolet into Bayou Pierre, not south as clearly suggested by
Boyd.

3) Bayou Dolet was merely an overflow channel at periods of
high water, not a perennial bayou.

4) Bayou Garcie may have been the source of water for the
perennial flow through lower Bayou Dolet.

The Landowner Group argues that an opportunity for rebuttal would

have allowed them to submit new evidence to show the incorrectness and

insufficiency in Dr. Morris’ expressed opinions. The Landowner Group

maintains that it was deprived of the opportunity to present sufficient

evidence on these crucial points, and the trial court committed error in

denying them an opportunity to present rebuttal testimony. We disagree.

The trial transcript reveals the following exchange between the Court and

counsels of record:
11

THE COURT: Mr. Severson, is there any – have you rested?

MR. AYRES: Yes, sir.

THE COURT: Okay. You’re not- -

MR. AYRES: No, your Honor.

MR. SIMON: Your Honor, we will have a short rebuttal.

THE COURT: I’m sorry?

MR. SIMON: We will have a short rebuttal.

MR. AYRES: We’re gonna [sic] object to that. Rebuttal is only
proper in instances where a new issue is raised, a new defense
or new issue is raised in the defense case in chief, which the
plaintiffs didn’t have any opportunity to address in their case in
chief. We’ve only had one witness and he dealt with exactly the
same issue for which they have put on four, almost five days of
testimony. There’s no way they have a proper rebuttal.

MR. SIMON: That’s, that’s entirely wrong. They went out
there on Sunday- -excuse me. And he came in today and he
offered his interpretation based on Sunday’s visit. And it’s
partially what he’s said before and partially not. And we’d like
the chance to- -

THE COURT: The rebuttal witness would be who?

MR. SIMON: Doctor Van Beek, the hydrologist.

MR. AYRES: Your Honor, and Doctor Van Beek talked ad
nauseam about what he saw in that area. Photographs,
testimony. Doctor Castille talked about it. He talked about it.
There is- - we respectfully object to any questioning- -that area-
-subject matter has been covered extensively in their case in
chief.
THE COURT: What is different at this point, Mr. Simon?

MR. SIMON: What is different in his dependence on a theory
that the water has to flow up—uphill and I want to talk about—
what today in the lake there are- -the depths would allow—if
there was ordinary low water and Bayou Pierre was fourteen
feet higher, you would have water in that lake. And if you had
water in the lake, I have the depths that it would be navigable,
and to rebut- -and maybe add to it what you asked about the

12

stream. To have him go specifically to the stream. But it’s
those, it’s those two or three points is what I’m looking at.

MR. AYRES: And, Your Honor, his theory of why he thought
the stream was perennial and how much water was in it, and
ordinary low and ordinary high, Mr. Simon spent hours
covering that in his case in chief. That is not proper rebuttal.

THE COURT: The objection is sustained. No rebuttal as to that
extent.
***

We find that the trial court did not commit manifest error in

precluding the Landowner Group from offering evidence in rebuttal of Dr.

Morris’ expressed opinions. The trial transcript clearly shows that the

Landowner Group failed to articulate to the trial court any new arguments

which were not previously advanced in their case in chief to counter the

alleged inaccuracies of Dr. Morris’ testimony. The Landowner Group

offered seven of eight witnesses who testified prior to Dr. Morris.

Moreover, the bench trial spanned over five days, four of which were almost

exclusively occupied by the Landowners’ seven witnesses. Thus, we find

that the trial court was well within its discretion to preclude the Landowner

Group from offering rebuttal evidence, and this assignment of error is

without merit.

CONCLUSION

For the reasons articulated above, we affirm the trial court decision in

favor of the appellees, the Servitude Group, adopt a portion of the trial court

opinion as our own, and incorporate that portion by reference. Costs of this

appeal are assessed to the appellants, the Landowner Group.

AFFIRMED.

13

COX, J., concurs in the results with written reasons.

I concur with the opinion to affirm the trial court’s ruling on the issue

of navigability. However, I write separately as I feel this litigation warrants

further analysis under the manifest error standard of review, as it involves

the entire mineral servitude of over 1,100 acres, and whether Bayou Dolet in

the Southeast Quarter of Section 15, Township 12 North, Range 11 West

was navigable in 1812.

The trial court was presented with two differing arguments as to

whether Bayou Dolet was navigable in 1812. In its role as fact-finder, the

trial court’s choice between the differing arguments cannot be manifestly

erroneous, unless a reasonable factual basis for the finding does not exist.

Based on our review of the record, we find that a reasonable factual basis

does exist for the trial court’s finding that Bayou Dolet was not navigable in

1812.

Dr. Joiner, the Landowner Group’s historian expert, testified he could

not find any historical documentation of ships or boats on Bayou Dolet. Dr.

van Beek, the Landowner Group’s expert in physical geography, stated the

land elevations have not changed significantly since the early 1800s. Dr.

van Beek relied heavily on John Boyd’s 1832 survey in making his findings.

Dr. van Beek’s testimony also revealed that the elevation is generally uphill

from Bayou Pierre to the “dam”/efflux of Bayou Dolet.

Boyd’s 1832 survey includes two locust trees as reference points in

what should have been the middle of Lake Dolet. As revealed at trial and

stated by the trial court in its written reasons for judgment, “Locust trees will

not grow or survive in damp soil. Thus, Lake Dolet could not have an

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ordinary water level sufficient for navigability while also having the mature

locust trees noted by Boyd.”

The Landowner group also called Dr. Castille, an expert in geography

and historical geography, to testify. Dr. Castille testified about the cypress

trees found along Bayou Dolet. He testified that the lack of old growth

cypress trees in certain areas of Dolet indicates there was perennial water, in

which the trees would not have been able to germinate and grow. He said

the lack of old growth trees at the northern end of Bayou Dolet could be the

result of logging activities, but he could not point to any historical evidence

of logging in the area.

The Servitude Group called one witness, Dr. Morris, the only

hydrology expert to testify. Dr. Morris stated that when reviewing the

historical data, the State Engineer’s Report of 1843 was “very important”

because it “has the only factual information in 1812.” The 1843 State

Engineer report states:

In 1805 there was no passage by the way of the present Bayou
Pierre; most of the existing lakes were dry and timbered. The
water commenced running through, forming a channel, after the
raft in the Red River had advanced near Shreveport, but gained
but little until 1815; from this time the increase was slow but
regular until 1828, when it took a new impulse[.]

The flood of 1828 occurred prior to Boyd surveying the area. The

State Report states that the water in the Red River after the 1828 flood

exceeded that of the 1840 flood. The State Report, which is dated January

1843, after water from both floods filled the area, states that the opening of

Bayou Pierre would reclaim a large amount of extremely valuable lands.

Dr. Morris was of the opinion that the area the Landowner Group

called a channel on the west side of the lake was actually caused by drainage

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from the hills west of Dolet, which then flowed north into Bayou Pierre. His

testimony revealed that Bayou Pierre would have only flowed into Dolet

during a flood. During cross-examination, Dr. Morris stated that he only

observed the property and did not take any measurements or data. He

explained that he did this because it was his opinion that Dolet was

intermittent and not a perennial stream.

The pictures included in the exhibits show that while standing in the

channel, Bayou Pierre is lower in elevation than Bayou Dolet. Dr. Morris

stated that he followed a drainage channel north from the culvert all the way

to where the drainage channel intersects with Bayou Pierre. He stated that

as the channel got close to Bayou Pierre, it took a sharp right turn, which

was significant because it meant that “when Bayou Pierre is flooding up on

some- -up in this area, then the water- -the storm water coming down would

tend to be turned in the direction the river was flowing, and that had an

impact on the formation of this channel.” He agreed that that a good visual

is an interstate on-ramp—it connects in the same direction traffic is already

flowing.

Cases from the 1900s involving Bayou Dolet contain insight into how

Dolet was viewed 100 years ago. Wemple v. Eastham, 150 La. 247, 90 So.

637 (1922) states, “Defendants admit that Dolet [B]ayou is not, and never

has been, a navigable stream, and that the state therefore had no right to

lease the bed or bottom of that bayou, within the boundary lines of plaintiff’s

land.” The State was not a party to the suit, but was deemed to not be the

mineral owner of certain waterways, including Section 15 (12N-11W).

Previously, when Wemple v. Eastham, 144 La. 957, 81 So. 438 (1919) was

first before the La. Supreme Court, Eastham alleged at the trial court that the
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State’s mineral lease was valid because the streams were formerly navigable,

and that therefore the title to the beds was in the State. It is interesting that

from 1919 to 1922, the defendants changed their argument and agreed that

Dolet was non-navigable.

In Wemple v. Albritton, 154 La. 359, 97 So. 489 (1923) and Smith v.

Albritton, 153 La. 507, 96 So. 49 (1923), the La. Supreme Court stated that

although the land was subject to overflow, it was not selected as part of the

Swamp Grant process. The Wemple v. Albritton Court stated, “[D]efendant

has therefore failed to show title ever passed from the United States to the

state for the land in controversy, and has also failed to show that title to said

land passed to the state as being the bed of a navigable stream at the date of

the admission of the state into the Union... The title to said land never having

vested in the state[.]” Again, the State was not a party in these cases, which

is why this Court allowed this mineral interest dispute to be revived 100

years after the 1900s cases, and over 200 years after the State was admitted

into the Union.

In regards to the requirement of a channel to prove navigability, the

trial court stated in its written reasons for judgment:

All of the expert witnesses agreed on two (2) fundamental facts.
First, the physical characteristics of the subject tract have not
significantly changed over the last two hundred (200) years.
Second, for Bayou Dolet to have been navigable in 1812, there
must have been a channel through the subject tract from Bayou
Pierre in the north to the Southern Slough along the western
hills in 1812. Thus, if there was not a channel, Bayou Dolet
was not navigable in 1812. To determine if there was a channel
through the subject tract in 1812, the Court must answer two (2)
questions. First, is the point labeled by Boyd as the efflux of
Dolet Bayou actually the head waters or Bayou Dolet or the
drain for what has been called Lake Dolet? Second, where did
the channel flow through the high bank on the north side of
Southern Slough, where the Southern Slough meets or met the
western hills?
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The trial court looked to the existence of a channel because the

experts agreed that for Bayou Dolet to have been navigable, there must have

been a channel. Dr. van Beek took eight samples of the soil in areas where

he believed the channel would have run. Dr. van Beek testified that the soil

samples did not show any evidence of a channel through the subject area.

Although the trial court lists the lack of a channel as one of the reasons it

found against navigability, it was not the sole reason. The following, taken

from the trial court’s written reasons for judgment, are some of the reasons

that the trial court found against navigability:

Boyd did not meander the left descending bank, the eastern
bank, of Bayou Dolet, as was recommended for navigable
waterways, until he arrived at Gracie Bayou.

Locust trees will not grow or survive in damp soil.

[T]he water in the subject tract would drain northward into
Bayou Pierre along the path of the alleged channel of Bayou
Dolet.

During the court’s exploration and examination of the subject
tract, the Court walked up hill when it proceeded south from
Bayou Pierre into the area formerly described as Lake Dolet.

Dr. van Beek testified that the soil samples did not show any
evidence of a channel through the subject tract.

The strongest evidence in favor of navigability is John Boyd’s survey,

which did not occur until about 20 years after 1812, and the lack of old

growth cypress trees. Based on the testimony and historical evidence, taken

as a whole, and after the trial court walked the property, the trial court had a

reasonable basis for its decision and was not clearly wrong. This assignment

of error lacks merit, and I agree to affirm the trial court’s decision.

Additionally, the State of Louisiana is part of the Landowner Group,

which has been assessed with costs in the opinion. The State of Louisiana

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owes their deferred costs pursuant to La. R.S. 13:4521. The deferred costs

owed by the State of Louisiana in this matter is $1,997.25.

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