Hall Ponderosa, LLC v. State of Louisiana, Through Louisiana State Land Office; John Lavin, Director of Louisiana State Land Office

Judgment rendered August 10, 2022.
Application for rehearing may be filed
within the delay allowed by Art. 2166,
La. C.C.P.

No. 54,678-CA

COURT OF APPEAL
SECOND CIRCUIT
STATE OF LOUISIANA

*****
HALL PONDEROSA, LLC Plaintiff-Appellant

versus

STATE OF LOUISIANA, Defendant-Appellees
THROUGH LOUISIANA STATE
LAND OFFICE; JOHN LAVIN,
DIRECTOR OF LOUISIANA
STATE LAND OFFICE
*****
Appealed from the
Thirty-Ninth Judicial District Court for the
Parish of Red River, Louisiana
Trial Court No. 35585

Honorable Dee Hawthorne, Judge (Ad Hoc)
Honorable John Robinson, Judge (Ad Hoc)

*****
BETHARD & BETHARD, L.L.P. Counsel for Appellant
By: Benjamin T. Bethard
Matthew S. Kelley

PETTIETTE, ARMAND, DUNKELMAN,
WOODLEY, BYRD & CROMWELL, L.L.P.
By: Edwin H. Byrd, III

JEFFREY M. LANDRY Counsel for Appellees,
Louisiana Attorney General State of Louisiana,
through Louisiana State
RYAN M. SEIDEMANN Land Office; John Lavin,
CHRISTOPHER J. LENTO Director of the Louisiana
Assistant Attorneys General State Land Office; and
State of Louisiana
Mineral and Energy
Board

DAVIDSON SUMMERS, A.P.L.C. Counsel for Appellee,
By: J. Davis Powell Stephens Sisters, L.L.C.

THE PARKS FIRM, L.L.C. Counsel for Appellees,
By: Santi A. Parks Elizabeth Fisher Lester
Minerals, L.L.C.; and
Elizabeth Fisher Lester
Land, L.L.C.

NICKELSON LAW P.L.L.C. Counsel for Appellee,
By: John C. Nickelson Random Precision, L.L.C.

RANDAZZO, GIGLIO & BAILEY, L.L.C. Counsel for Appellee,
By: Joseph Charles Giglio, III Vine Oil & Gas, L.P.

*****

Before MOORE, COX, and MARCOTTE, JJ.

COX, J.

This suit arises out of the 39th Judicial District Court, Red River

Parish, Louisiana, ad hoc Judges Dee Hawthorne and John Robinson

presiding. Hall Ponderosa, LLC (“Hall”) brought suit against the State of

Louisiana to be declared the owner of certain land and minerals along the

Red River. The trial court found against Hall, and Hall now appeals. For

the following reasons, we reverse the trial court’s judgment regarding expert

fees and remand for a contradictory hearing to determine the amount of

expert fees. We affirm the trial court in all other respects.

FACTS

Hall owns title to property that was adjacent to the Red River prior to

1945 and located in Sections 13 and 14, Township 12 North, Range 10

West, in Red River Parish, Louisiana. The property in dispute is located

west of the current path of the Red River and east of the former river channel

(referred to as “the Island”) and includes a portion of the former river

channel (referred to as “the Oxbow”).

Hall filed a petition for declaratory relief on April 30, 2012, seeking to

prevent the State from claiming lands located above the ordinary low water

line of the Red River adjacent to and within the disputed property. Through

a series of amended petitions, the following parties were named defendants:

the Louisiana State Mineral and Energy Board (“State”), Stephens Sisters,

LLC (“Stephens Sisters”), Elizabeth Fisher Lester Minerals, LLC (“Lester

Minerals”), Elizabeth Fisher Lester Land, LLC (“Lester Land”), Elizabeth

Claire Lester Bausch, Leu Anne Lester Greco, and Random Precision, LLC.

Hall’s amended petitions sought judgment denying any of the defendants’

claims to the property above the ordinary high water line and any alluvion or

accretion.1

Hall’s predecessor in title was W.A. Hall, who acquired property

known as the Stella Plantation in 1926 (“the 1926 property”). Hall’s

position was (and still is) that in 1945, the Red River made an avulsion cut

north of its property, which caused the Red River to meander away from the

1926 property and create a large deposit of alluvion. W.A. Hall then

acquired additional adjacent property from the Town of Coushatta in 1952

(“the 1952 property”). Hall claimed that the Red River slowly migrated

south adding a significant amount of accretion to the southern portion of

Hall’s property. In 1975, the Red River Waterway Commission (“RRWC”)

obtained a servitude from Hall to cut a dredge across the property in order to

redirect the channel of the Red River. A dam was constructed to divert the

flow of the Red River down the new channel. Hall claims that the old

riverbed (the Oxbow) became nonnavigable and W.A. Hall’s ownership then

extended to the middle of the Oxbow. Because of a series of locks and dams

being constructed, the majority of Hall’s claimed property lies underwater.

Hall claimed that this permanent flooding by the locks and dams did

not change the ownership of the riverbank. It asserted that the State was

claiming property lying above the ordinary low water mark of 102 feet. It

also claimed that it owned the accretion because it belongs to the owner of

the riverbank. Hall sought monetary damages for any mineral royalties or

lease bonuses paid to the State on property owned by Hall.

1
Alluvion and accretion are used interchangeably throughout this opinion, as it
was used by the parties.
2

Lester Land and Lester Minerals filed an answer and reconventional

demand denying Hall’s allegations. They claimed that their title included an

undivided interest in part of the property that Hall claimed to own. They

asserted that Dr. Frank Willis’s expert report evidences their title ownership.

They stated that, subject to any acquisitive prescription claim by Stephens

Sisters and the fixing of the State’s property line, their own title and

ownership interest is superior to any other ownership claim.

Stephens Sisters filed an answer, reconventional demand, and

crossclaims alleging that Hall unlawfully entered upon and traversed its

property, resulting in physical damage, mental anguish, and embarrassment.

It added the defenses of acquisitive prescription, its title of record, and any

interest it may have by way of riparian movement, including accretion,

dereliction, avulsion, or alluvial deposits. It asserted that it owned all

accretion and alluvial deposits attached to its titled property. It claimed that

it has possessed the property at issue in excess of the required ten or thirty

years for acquisitive prescription. Stephens Sisters also claimed any land

claimed by the State that was above the ordinary high water mark. Stephens

Sisters requested all damages to which they may be entitled. Ms. Greco,

Random Precision, Lester Minerals, and Lester Land answered individually

and claimed any interest they had by way of right of title, riparian

movement, and acquisitive prescription.

The State filed its answer, reconventional demand, and crossclaims.

The State denied that the Red River meandered away from the 1926 property

and created a large alluvion deposit owned by Hall. It alleged that the Red

River abandoned its bed and opened a new one. It stated that the property

W.A. Hall purchased from the Town of Coushatta was not as large as Hall
3

depicted. The State claimed that the new channel cut via the RRWC

servitude was dredged only over a portion of Hall’s property and not the

large area claimed by Hall. It denied that much of Hall’s property lies

underwater after the dam was constructed.

The State claimed ownership of the land that is part of the beds and

bottoms of the Red River. It therefore asserted that Hall has suffered no

monetary damages for which the State is liable. It also claimed that Hall’s

surveyor improperly extended section lines to fit his conclusions as to the

extent of Hall’s property. The State argued that once the Red River made its

avulsive cut across the peninsula, abandoned its bed, and opened a new bed,

the southern extent of the 1926 property was fixed along the former left

descending bank of the river. Therefore, according to La. C.C. art. 504, the

owner of the land on which the Red River opened its new bed took the

abandoned bed, up to the former left descending bank, which bordered the

1926 property. It claimed that after the 1945 avulsion, the 1926 property

was no longer riparian. It argued that because the Red River moved, the

“stream of the Red River” referred to in the legal description from the Town

of Coushatta to W.A. Hall is actually the former stream of the Red River. It

claimed this interpretation is necessary given the river’s movement and

description of the property as a “strip” of land.

The State requested that it be declared owner of the current and

former bed and bottom of the Red River (as relating to this litigation) and

that Hall’s property be limited to the 1926 property, any alluvion prior to the

1945 avulsion, and the property from the Town of Coushatta limited to the

boundary of the old riverbed. It also requested Hall be taxed with all costs

and it be awarded all relief, including expert fees.
4

Hall and the State agreed that Hall could not assert any acquisitive

prescription claims against the State. Preliminary default judgments were

entered against Ms. Bausch and Ms. Greco, and they did not appear at or

participate in the trial.

The bench trial was held from February 20 through March 3, 2018.

Hall called Thomas Wright, manager of Hall Ponderosa, to testify. Mr.

Wright testified that his grandfather, W.A. Hall, purchased the property that

is now owned by Hall Ponderosa. He testified regarding the title of the

property; hunting on the Island prior to the cutting of the new channel;

visiting the property six to ten times per year growing up; oil and gas leases

signed by Hall on the property in 1990 and 2008; and a servitude agreement

between Hall and RRWC to dredge a channel through the middle of their

property. He stated that after the navigation channel was cut, there was no

agricultural activity on the Island and he was unsure of any hunting activity.

He also testified on cross-examination that from the time the new channel

was cut until around 2008, he accessed the Island once in 1993.

Mr. Wright stated that they had the property surveyed by Michael

Mayeux and that survey was completed in April 2009. He testified that he

met with Mrs. Antionette Stephens McVea, who was part of Stephens

Sisters, to discuss the survey and she did not oppose or disagree with the

survey at that time. Mr. Wright stated that he continued to access the Island

via the Stephens Sisters’ property throughout 2009 with Mrs. McVea’s

permission and posted “No Trespassing” signs on the Island. He stated that

in 2010 or 2011, Mrs. McVea stated he could no longer access the Island

through Stephens Sisters’ property but he continued to access the Island.

5

Hall called its first expert, Michael Mayeux. Mr. Mayeux testified as

an expert in the field of surveying. He testified that when surveying the Hall

property, he reviewed deeds, plats, maps, aerial photos, surveys and reports

regarding the Red River, and previous court cases concerning the movement

of the river. Mr. Mayeux demonstrated the movement of the relevant

portion of the Red River through aerial photos, surveys, and maps. His

testimony revealed that there was some movement of the river prior to 1945,

but it was not significant. However, a photo from 1946 showed the avulsion

that occurred, and in his opinion, that avulsion created alluvion that attached

to the Hall property and continued to grow. Mr. Mayeux testified that he did

not believe two avulsions occurred because his research did not reveal two

channels existed at the same time. He stated this was significant because

when an avulsive act occurs, it reaches across the former channel, so there

are two channels that exist at the same time.

On cross-examination, Mr. Mayeux stated that he drew a unit map for

Petrohawk covering the disputed property. He admitted to using the same

property lines from his survey when he was hired by Hall. Mr. Mayeux also

admitted to some description errors in his report. He testified that if Dr.

Willis is correct that a second avulsion occurred, the results of his survey

would change. He agreed that if the second avulsion occurred, the Town of

Coushatta would not have been able to convey as much property as the

survey shows because the portion of the former riverbed would have been an

indemnification to the landowner of the new riverbed.

Hall’s second expert to testify was Joseph Castille. Dr. Castille was

accepted by the court as an expert geographer. He testified that based on

aerial photos and walking through the area, nothing alerted to a second
6

avulsion. He stated that if there had been a second avulsion, he would

expect to see an island between the two avulsions. Dr. Castille testified that

when he was on the property in 2009, he did not see evidence of anyone

possessing the Island, fences, roads, or deer stands. On cross-examination,

he stated that he was not initially hired to give an opinion regarding the

second avulsion but was later asked his opinion on the subject. He testified

that he relied on Mr. Mayeux’s work. He also admitted that there could

have been a low island between the first avulsion and alleged second

avulsion because the picture he looked at was taken at a time of high water.

Hall’s third and final expert to testify was George Kemp. Dr. Kemp

testified as an expert in geomorphology and hydrology. He stated that he

was retained to look into the nature of the meandering and avulsion changes

in the relevant portion of the Red River “from a physical process standpoint,

sediment transport.” He testified that it was his opinion that there was one

avulsion and then “a lot of downstream adjustment to the avulsion through

rapid meanders.” Dr. Kemp stated that the two channels never existed at the

same time so there could not have been two avulsions. On cross-

examination, he agreed that an avulsion is fast movement and accretion is

slow movement. He stated that what Dr. Willis calls a second avulsion, he

calls a rapid downstream meander adjustment. He highlighted that it was

rapid, but not as quick as an avulsion.

Next to testify on behalf of Hall was Donald “Luke” Pearson, a land

and right of way manager for the RRWC. He stated his job entails leasing

and other legal issues regarding land and real estate. He stated that the 1972

servitude paperwork provided that W.A. Hall owned the Island, 3,083 feet of

river frontage out of 6,375 feet total, and 94.4 acres. He stated there was no
7

mention of any Lester family ownership in his paperwork. Mr. Pearson

testified that the servitude covered the entire Island until a settlement

agreement was reached with Hall in 2014 to release all of the servitude

except a portion of the riverbank for maintenance. On cross-examination, he

admitted that the RRWC servitude reports do not show property lines

between land owners within the same RRWC designated tract. He stated

Hall was included in what the RRWC called “Tract 5” as owning an

undivided interest.

Kenneth Wright testified that he is W.A. Hall’s grandson and an

attorney. He stated that he frequented the property growing up and his

grandfather farmed the property. He stated that since his grandfather died in

1967, he has been to the property every decade. Gregory Hall testified that

he is also the grandson of W.A. Hall. Gregory is a petroleum engineer in

Oklahoma. He testified that he would hunt, shoot guns, and pick peas on the

property. He stated that after the dredging of the current river channel in the

1970s, he still visited the property but primarily on the east bank of the river.

He stated that when he drove on the Red River bridge in Coushatta, he

would look out at the Island and never saw signs of someone else being on

the Island.

The State called Dr. Frank Willis to testify as an expert in civil

engineering, hydrology, land surveying, aerial photogrammetry, and

geoscience. He stated that if there was no second avulsion, the river would

have had to turn at a 40-degree angle, which is not possible given the size of

the Red River. He also testified that the river would have been flowing

through sand and the sand could not have held the river at that angle. Dr.

Willis stated that the Island looks like accretion at first glance, but once you
8

know the process, you know it cannot be accretion. He stated that the Island

is actually alluvion soil and cottonwood and willow trees will grow and take

over in alluvion soil, which is what happened on the Island. He stated that

the trees follow the flow of the river so just follow the tree line to see where

the river once was. Dr. Willis disagreed with Dr. Kemp’s position that there

was rapid meandering. He stated that rapid meandering is usually normal in

these instances of an avulsion further upstream, but here it could not be rapid

meandering because of the sharp turn the river was required to make.

Dr. Willis pointed out problems and flaws he noticed in Mr. Mayeux’s

report, upon which Dr. Castille relied. He stated that Mr. Mayeux and Dr.

Castille did not follow all required land surveyor rules when investigating

the property. On cross-examination, he was asked about the 1950s Hyam

Survey that did not show two avulsions. He stated that he did not agree with

the survey as far as it concerned the second avulsion, but he pointed out

language on the survey suggesting an old riverbed in the area of the second

avulsion.

Stephens Sisters called Mark Tooke to testify as an expert in

professional land and boundary surveying. He stated that he reviewed the

Mayeux and Willis surveys. He testified that his work did not involve the

1945 avulsions but only the Oxbow, which is west of the Island. He stated

that the lowest points of elevation are good indications of the location of the

deepest channels. He stated that after reviewing the reports, he agreed with

Dr. Willis’s survey regarding the Oxbow as the old river channel.

Paul Lambert testified that he is married to Susan Stephens Lambert,

who is part of Stephens Sisters. He testified that he and the family accessed

the Island via adjacent Stephens Sisters’ property since the current
9

navigation channel was cut. He stated that he and others have been involved

in hunting, planting food plots, fishing, building access roads, and riding

three wheelers and four wheelers about eight to ten times per year and

around the holidays. Mr. Lambert testified that he never saw anyone from

the Hall family on the Island. He stated that he went with his sister-in-law,

Mrs. McVea, to meet with Mr. Mayeux. He testified that he never granted

members of the Hall family any access to the Island.

Mrs. Lambert testified regarding the chain of title to the Stephens

Sisters’ property. She stated that her husband, family, and employees have

accessed the Island since the current river channel was dredged. She

testified that she has not seen anyone from the Hall family on the property,

has never granted property access to anyone in the Hall family, and has

never made a boundary agreement with anyone in the Hall family.

Thomas McVea, Sr. testified that he is married to Antionette Stephens

McVea. His testimony was the same as Mr. Lambert’s testimony regarding

the family activity on the Island and access to the Island. Mrs. McVea

testified and corroborated the testimony of her sister and brother-in-law.

She stated that the only permission she gave to the Hall family was

permission to access their property for a survey, but she thought the survey

would be on the east side of the River, not the Island. She testified that on

multiple occasions their gate locks were cut and the fence was pulled away

from the gate; it was later determined and admitted by Hall that Hall was

responsible for the damage. She stated that she personally saw the “No

Trespassing” signs placed by and on behalf of Hall and was upset over the

signs. On cross-examination, she stated that the Island was never

10

specifically listed in any Stephens Sisters’ mineral leases, but the leases

included accretions, sand bars, etc.

John Contois, Jr. testified that he is a member of the Stephens Sisters

family because his mother is Rebecca Stephens Christian. He stated that he

has fished, trapped, and hunted on the Island. He testified that he visits the

property three to four times per year and has never seen anyone from the

Hall family on the property.

John Lester, III testified that he has an access agreement with

Stephens Sisters to access the property adjacent to the Island. He testified

that it has been common knowledge since the new channel was dredged that

Stephens Sisters possessed the Island and the Stephens family are the ones

he has seen on the Island. He stated that he had permission from Stephens

Sisters to access the Island and rode horses and ATVs on the Island. He

stated that the only access to the Island by land is on the west side, first

through his property and then through adjacent Stephens Sisters property.

He testified that he did open the Stephens Sisters’ gate for the Hall survey to

be completed but later denied them access.

The parties recalled their experts for rebuttal and submitted post-trial

briefs. On October 6, 2020, the trial court signed its ruling and reasons for

ruling. The trial court highlighted that this is a complex case. The trial court

found the State’s and Stephens Sisters’ arguments, evidence, and experts to

be persuasive. The trial court found the expert testimony to largely resolve

this case. The trial court found that Mr. Mayeux seemed unable to contain

his testimony to his own area of expertise and conflicts of interest were

pointed out, which caused concern. The trial court found it concerning that

Dr. Kemp was willing to change his expert report at the direction of one of
11

the attorneys and did not find his testimony persuasive. The trial court did

not have concerns with Dr. Castille’s testimony but found that it did nothing

to cause the court to question the testimony and opinion of Dr. Willis. The

trial court found that the cumulative effect of Dr. Willis’s multiple areas of

expertise was of greater value than the sum of the discrete areas. It stated

that he spoke frankly and clearly explained his opinions. It found that Dr.

Willis did not hesitate to share or admit to any possible weaknesses in

various positions. The trial court accepted his theories and explanations

because he was drawing upon knowledge from his many areas of expertise.

Regarding the property dispute, the trial court found that the Red

River abandoned its bed in 1945 as a result of two avulsions. Therefore, the

1926 property was no longer riparian and no further growth through

accretion could have occurred. The trial court agreed with the State’s

position that the description of the 1952 property referenced the former

stream of the Red River before the avulsions occurred. Because the 1952

property had not been riparian since 1945, it could not have increased by

accretion.

The trial court also found from the testimony of members of Stephens

Sisters, as well as relatives, and at least one adverse party, it was commonly

known and accepted in the community that Stephens Sisters owned the

Island. The trial court found that Stephens Sisters openly and continuously

possessed the Island as owner and by way of the requisite physical acts of

use, detention, or enjoyment. It stated that Hall began entering the property

without permission after Stephens Sisters’ possession by 30 years

acquisitive prescription had been perfected; therefore, it found Stephens

Sisters had a right to general damages in the amount of $15,000 for trespass.
12

The trial court adopted the opinions of Dr. Willis and Mr. Tooke that

the last remnant channel and low water mark were located on the left

descending bank of the Oxbow, which is below and adjacent to Stephens

Sisters’ land. The trial court found that the State of Louisiana did not own

any land subject to this litigation that is above the ordinary low water line of

the Red River. It found that Lester Land, Lester Minerals, and Random

Precision own any land to which they hold title, less and except the land

adjudicated to Stephens Sisters. All other theories or arguments were either

moot or rejected by the court. Hall was assessed with all costs, but attorney

fees were not awarded. The trial court signed the final judgment on

December 10, 2020.

Hall filed a motion to recuse Judge Hawthorne, which was denied.

Hall then filed a motion for new trial. After rendering final judgment, Judge

Hawthorne relocated and asked to be removed from the case. The State filed

a motion to tax its expert’s fees as costs to Hall. The Supreme Court

appointed Judge John Robinson as ad hoc over the remaining matters. The

trial court then denied Hall’s motion for new trial and granted the State’s

motion to tax costs to Hall in the amount of $46,266.66. Hall now appeals.

DISCUSSION

Accretion or Second Avulsion

Hall argues that the land at issue is accretion and not the result of a

second avulsion. Hall states this Court addressed this avulsion and its effect

on adjacent property in Stephens v. Drake, 134 So. 2d 674 (La. App. 2 Cir.

1962). It asserts that in that case, there was no second avulsion, but an

accretion. It highlights that the Hyams survey, 1950 aerial photograph, and

Louisiana Public Works right-of-way map all support its contention that the
13

property is an avulsion. It argues that the trial court erred in ignoring this

evidence and accepting the opinion of Dr. Willis, who did not produce any

positive evidence that a second avulsion occurred. Hall contends that the

trial court’s finding of a second avulsion should be reversed.

The State argues that this Court should not disturb “such a

complicated analysis” by the trial court. The State notes that its expert, Dr.

Willis, was accepted as an expert in civil engineering, hydrology, land

surveying, aerial photogrammetry, and geoscience. The State highlights Dr.

Willis’s testimony regarding the second avulsion of the Red River. Dr.

Willis used several exhibits to demonstrate how and why the second

avulsion occurred, and his photogrammetric evidence was not refuted by

Hall’s experts. The State argues that the trial court was correct in finding

that Dr. Willis’s conclusion was reasonable.

The central issue involved in this case is the movement of the Red

River in 1945.

Accretion formed successively and imperceptibly on the bank of a

river or stream, whether navigable or not, is called alluvion. The alluvion

belongs to the owner of the bank, who is bound to leave public that portion

of the bank which is required for the public use. La. C.C. art. 499.

Avulsion is not defined in our Civil Code. According to the Romanist

tradition, avulsion is a violent action of the water of a river that detaches an

identifiable part of riparian land and attaches it to other lands on the same or

the opposite bank. 2 La. Civ. L. Treatise, Property § 4:15 (5th ed.). In

Hamel’s Farm, L.L.C. v. Muslow, 43,475 (La. App. 2 Cir. 8/13/2008), 988

So. 2d 882, writ denied, 2008-2431 (La. 1/30/2009), 999 So. 2d 754, an

14

expert defined an avulsion as an “overnight cataclysmic change in the river

course resulting in remnant water and more particularly a change in course.”

When a navigable river or stream abandons its bed and opens a new

one, the owners of the land on which the new bed is located shall take by

way of indemnification the abandoned bed, each in proportion to the

quantity of land that he lost. La. C.C. art. 504.

The determination of whether the river movement was an avulsion or

accretion is a finding of fact. To reverse a fact-finder’s determination under

the manifest error standard, an appellate court must engage in a two part-

inquiry: (1) the court must find from the record that a reasonable factual

basis does not exist for the finding of the trier of fact, and (2) the court must

further determine that the record establishes a finding that is clearly wrong.

Beals v. New Fellowship Missionary Baptist Church of Delhi, Inc., 51,868

(La. App. 2 Cir. 2/28/2018), 246 So. 3d 701. When there are two

permissible views of the evidence, the trial court’s choice between them

cannot be manifestly erroneous or clearly wrong. Stobart v. State through

DOTD, 617 So. 2d 880 (La. 1993); Hamel’s Farm, L.L.C. v. Muslow, supra.

The rule that questions of credibility are for the trier of fact extends to

the evaluation of expert testimony, unless the reasons stated by the expert

are patently unsound. Lewis on Behalf of Lewis v. Cornerstone Hosp. of

Bossier City, LLC, 53,056 (La. App. 2 Cir. 9/25/2019), 280 So. 3d 1262.

The effect and weight to be given to expert testimony depends on the

underlying facts and rests within the broad discretion of the trial court. After

weighing and evaluating expert and lay testimony in a bench trial, the trial

court may accept or reject the opinion expressed by any expert. Scott v.

15

State Farm Fire & Cas. Co., 47,490 (La. App. 2 Cir. 9/26/2012), 106 So. 3d

607.

Hall called the following three expert witnesses regarding the river’s

movement: Mr. Mayeux, Dr. Kemp, and Dr. Castille. The State called one

expert, Dr. Willis. The trial court stated in written reasons that in large part,

the resolution of the case relied upon the testimony of experts. It is evident

from the transcript and written reasons that the trial court paid close

attention to the experts’ testimonies and exhibits. The trial court relied

heavily on Dr. Willis’s testimony regarding the second avulsion. Faced with

differing expert opinions, the trial court gave well-reasoned explanations for

its preference toward the testimony of Dr. Willis, namely his wide range of

expertise.

Dr. Willis has an extensive educational background and was accepted

as an expert in five areas. In contrast, Hall’s three experts testified in a

combined four areas of expertise. The trial court noted the following

regarding Hall’s experts: Mr. Mayeux’s conflicts of interest were cause for

caution and he did not have the advantage of possessing multiple areas of

expertise; Dr. Kemp’s testimony was not persuasive and there was cause for

concern regarding his willingness to change his expert report at the direction

of one of the attorneys; and, Dr. Castille’s testimony did nothing to cause the

court to question the testimony and opinion of Dr. Willis. Regarding Dr.

Willis, the trial court stated:

The Court finds that the cumulative value of Dr. Willis’s
multiple areas of expertise is greater than the sum of the
discrete areas; thus, a synergistic effect is achieved, which is of
great value to the Court. Dr. Willis testified frankly and was
able to explain clearly his testimony and opinions. He did
not hesitate to share or admit any possible weaknesses he felt
existed in the data or various positions. The Court accepts his
16

theories and explanations, as it was clear that he was drawing
upon knowledge from his many areas of expertise.
Dr. Willis testified that two avulsions occurred; he marked the first

one in blue and the second in red on State’s exhibit 9, a portion of which is

scaled down and shown below:

Dr. Willis testified that prior to 1945, the Red River made a hairpin

bend, which was probably as tight as it could have turned considering the

soil in the area. He stated that during the flood of 1945, the river jumped the

left descending bank, made an avulsive cut across the peninsula, and

“roared” across the peninsula in its new riverbed. He testified that because

of the momentum going through the first new cut, the river would not have

been able to turn after the first avulsion and stay in its existing bank. He

stated that although rapid meandering could occur after the first avulsion, the

river was “past the point of no return.” Dr. Willis testified that if the second

avulsion had not occurred, the river would have had to make a sudden turn

to the northeast to remain in the river bed. He stated that the only way it

17

could have done that is if it hit rock or some type of formation, but there is

no formation there. He therefore concluded that the second avulsion

occurred south of the first avulsion.

The issue of a second avulsion and its effects were not an issue in

Stephens v. Drake, supra. The property in Stephens v. Drake, supra, did not

involve the same property that is disputed in the instant case, although it did

involve nearby property and the 1945 Red River flood. In that case, the

court found that when the Red River changed its course, Stephens did not

lose title to the peninsula by reason of its separation from their adjacent

property. When the river cut a new channel through Stephens’ property,

they gained title to the old river bed. The court also found that “the evidence

fails to disclose the existence of any accretion or alluvion attached to

defendant’s property[.]”

The effect of Stephens v. Drake, supra, on this case is to reinforce the

undisputed fact that an avulsion occurred in 1945 when the Red River

changed its course. It also reinforces La. C.C. art. 504, which provides that

when a river abandons its bed and opens a new one, the owners of the land

on which the new bed is located shall take by way of indemnification the

abandoned bed.

After reviewing the evidence in its entirety, we find that the trial

court’s conclusion was a reasonable one. The trial court clearly found Dr.

Willis to be more persuasive due to his superior credentials and ability to

articulate and explain the complex river movement. The trial court did not

commit manifest error, nor was it clearly wrong in accepting the testimony

of Dr. Willis, rejecting the testimony of Hall’s experts, and determining a

second avulsion occurred. This assignment of error lacks merit.
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Acquisitive Prescription

Hall’s second, third, and fourth assignments of error involve

possession and acquisitive prescription. Because possession is essential to a

claim of acquisitive prescription, we will discuss these assignments of error

together.

Hall argues the trial court erred in failing to find that it acquired title

to the property by way of 10- or 30-year acquisitive prescription and

precariously possessed the entire property through the RRWC servitude.

Hall states that it is uncontroverted that it acquired a portion of the property

in 1926, the remaining property in 1952, and possessed all of the property

until the Army Corps of Engineers dredged through the land to create a new

channel in 1973. It argues that by referencing the property as an Island that

they never accessed, the trial court erred in failing to consider the servitude.

Hall asserts that the servitude did not legally divide the property into

two separate tracts, but it is one tract with a river running through it;

therefore, according to La. CC art. 3426, by possessing a portion of the

property, it possesses all of it. It also asserts that the RRWC has acted as a

precarious possessor on its behalf. It states that it has paid property taxes

and granted mineral leases on the property. For these reasons, it requests the

trial court be reversed on the issues of acquisitive prescription and

precarious possession.

Hall argues the trial court erred in finding that the Stephens Sisters

perfected its claim of 30-year acquisitive prescription. It highlights that the

trial court made no mention of the nature of the possession it found to be

adequate. It asserts that Stephens Sisters could not have possessed the

property for 30 years because it was founded in 2006. It argues that
19

Stephens Sisters cannot tack on a predecessor’s right to possession because

it did not obtain the property through universal title, but through particular

title which does not include a reference to the land at issue.

Stephens Sisters addresses Hall’s 30-year acquisitive prescription

argument only to state that if Hall could prevail in this argument, it does not

impair or otherwise affect the trial court’s determination that the Stephens

family later established ownership through acquisitive prescription. It

argues that a close look at the record reveals that any activity by the Hall

family was limited to title land, rather than the additional land sought in this

lawsuit, i.e. the Island and Oxbow.

Stephens Sisters addresses Hall’s argument regarding its time in

existence and ability to tack possession. It asserts that possession of lands

beyond an owner’s title for 30 years within visible bounds may be

transferred between possessors. It claims that the title and description of

their property, which is adjacent to the disputed property, includes all

accretions, batture, and sand bars attached to and forming part of those

lands. It argues that the trial testimony evidences that the Stephens family,

including the Stephens Sisters’ members, have had activity on the Island

since the time of their father’s ownership.

The party asserting acquisitive prescription bears the burden of

proving all the facts that are essential to support it, including possession for

the requisite years. EOG Res., Inc. v. Hopkins, 48,577 (La. App. 2 Cir.

11/27/2013), 131 So. 3d 72, writs denied, 2013-2861, 2013-3015 (La.

3/14/2014), 134 So. 3d 1196. Whether a party has possessed the disputed

property for 30 years without interruption is a factual issue that will not be

reversed on appeal absent manifest error or a showing of an abuse of
20

discretion. Beals v. New Fellowship Missionary Baptist Church of Delhi,

Inc., supra.

To acquire possession, one must intend to possess as owner and must

take corporeal possession of the thing. La. C.C. art. 3424. Corporeal

possession is the exercise of physical acts of use, detention, or enjoyment

over a thing. La. C.C. art. 3425. One who possesses a part of an immovable

by virtue of a title is deemed to have constructive possession within the

limits of his title. In the absence of title, one has possession only of the area

he actually possesses. La. C.C. art. 3426. Actual possession must be either

inch by inch possession (pedis possessio) or possession within enclosures.

According to well-settled Louisiana jurisprudence, an enclosure is any

natural or artificial boundary. La. C.C. art. 3426, comment (d). The party

who does not hold title to the disputed tract has the burden of proving actual

possession within enclosures sufficient to establish the limits of possession

with certainty, by either natural or artificial marks, giving notice to the world

of the extent of possession exercised. Brunson v. Hemler, 43,347 (La. App.

2 Cir. 8/13/2008), 989 So. 2d 246, writ denied, 2008-2297 (La. 12/12/2008),

996 So. 2d 1119.

Acquisitive prescription is a mode of acquiring ownership or other

real rights by possession for a period of time. La. C.C. art. 3446. The

requisites for the acquisitive prescription of ten years are: possession of ten

years, good faith, just title, and a thing susceptible of acquisition by

prescription. La. C.C. art. 3475. Ownership and other real rights in

immovables may be acquired by the prescription of thirty years without the

need of just title or possession in good faith. La. C.C. art. 3486. For

21

purposes of acquisitive prescription without title, possession extends only to

that which has been actually possessed. La. C.C. art. 3487.

Under La. C.C. art. 794, one may utilize tacking to prescribe beyond

title on adjacent property to the extent of visible boundaries, but under the

general prescriptive articles, La. C.C. arts. 3441 and 3442, tacking may be

utilized to prescribe only to the extent of title. Loutre Land & Timber Co. v.

Roberts, 2010-2327 (La. 5/10/2011), 63 So. 3d 120.

We note that the Island property has water for visible boundaries and

is adjacent to other property owned by Stephens Sisters. As discussed in

detail in Loutre Land & Timber Co. v. Roberts, supra, La. C.C. art. 794

allows Stephens Sisters to tack their possession to that of their ancestors in

title under these circumstances.

In determining possession, the trial court stated that the pertinent time

period was from 1976 to 2010. The trial court did not outline the acts of

possession by the Stephens family but stated there was convincing testimony

from members of Stephens Sisters, friends, relatives, employees, and at least

one adverse party. The trial court found that Stephens Sisters openly and

continuously possessed the Island as owner and by way of the requisite

physical acts of use, detention, or enjoyment in accordance with the nature

of the property. We find no manifest error in this conclusion.

Mr. Lester, manager of Random Precision and an adverse claimant,

testified that he accessed the Island with permission from Stephens Sisters.

He stated that it is common knowledge in the community that Stephens

Sisters owned the Island and the only people he saw on the Island were from

the Stephens family. Mr. and Mrs. Lambert and Mr. and Mrs. McVea had

similar testimony that their family, friends, and employees accessed the
22

Island via their adjacent property. They testified that they used the property

for recreation, hunting, and fishing. Testimony also revealed that they built

access roads and planted food plots.

Thomas Wright testified that after the navigational channel was cut,

the Hall family did not plant on the Island and he was unsure of any hunting

on the Island. He stated that he did walk the Island around 1993. Kenneth

Wright testified that he had been on the property every decade since the

1960s. Gregory Hall testified that since the channel was dredged, he has

visited the property, but primarily on the East bank.

The trial court has great discretion in evaluating witness credibility. It

is in the best position to judge the tone and demeanor of the witnesses. The

trial court found that since the channel was dredged, the Stephens Sisters’

possession was essentially unchallenged. The trial court stated that Thomas

Wright’s testimony was effectively impeached because he first stated he had

not been on the Island since the navigational channel was cut, but stated on

cross-examination that he changed his mind and had been on the Island in

1993.

The testimony at trial supports the trial court’s conclusion that

Stephens Sisters had uninterrupted possession of the Island since 1976. The

trial court was in the best position to judge the credibility of the witnesses.

We do not find error in the trial court’s ruling on acquisitive prescription.

These assignments of error lack merit.

Boundaries within the Oxbow

Hall argues the trial court erred in locating the boundary between its

property and the State’s property in the Oxbow. It claims that its survey

particularly describes the boundary, as required by law. Hall asserts that the
23

State was allowed to introduce “admittedly bad data” that was misleading

and set the boundary further east than its survey. Hall argues that had the

State’s expert extended data further to the west, it would have picked up the

correct remnant channel and placed the boundary in the proper place.

Stephens Sisters argues that the trial record supports the ruling and

judgment regarding the last remnant channel and boundaries within the

Oxbow. It asserts that even if Hall’s expert is credible on the issue, it is

competing testimony with its expert and the State’s expert. It points out that

the trial court relied on the likeminded testimony of the Defendants’ experts.

The State argues that Mr. Mayeux placed the boundary line of Hall’s

supposed property too far west and the line actually lies to the east of where

Mr. Mayeux placed it. The State asserts that Dr. Willis credibly

demonstrated at trial that Mr. Mayeux’s accretion theory was incorrect. It

argues that this Court should not disturb such a complicated analysis by the

trial court.

As stated above in the avulsion discussion, the trial court was faced

with competing expert views regarding the river channels and movement.

This testimony was essential to the determination of the last channel, and

therefore, the boundary within the Oxbow. These factual findings and

weighing of expert opinions are subject to the manifest error standard of

review, which is discussed in detail above.

Hall’s expert, Mr. Mayeux, placed the last remnant channel further to

the west than Dr. Willis opined its location. Stephens Sisters retained Mr.

Tooke as their expert for the limited purpose of comparing Mr. Mayeux’s

and Dr. Willis’s opinions. Mr. Tooke compared the two opinions to aerial

24

photographs and determined that he substantially agreed with Dr. Willis’s

survey and location of the last remnant channel.

The trial court carefully considered the testimony and reports of these

three experts. The trial court heard from three experts on this issue and two

of the three agreed. The trial court found Dr. Willis to be more convincing,

adopted his opinion, and attached his survey as part of its ruling. This is a

finding of fact and choice between two differing opinions, in which the trial

court has vast discretion. As stated above, the trial court gave more

credence to Dr. Willis’s testimony because of his vast credentials and ability

to explain and demonstrate the movement of the river. We cannot say this

was manifest error. As such, this assignment of error lacks merit.

Expert Fees

Hall argues the trial court erred in awarding the State $46,266.66 in

expert witness fees because the State did not have their witness available for

cross-examination about his fees and the bulk of its use of the expert was to

pursue a claim that it had “no business pursuing.”

The State asserts that the trial court properly awarded its expert

witness fees and this Court should not overturn that action. It argues that

based on the factors to determine whether expert fees should be awarded, the

trial court was correct in awarding fees. The State reiterates the complexity

of this case and the necessity of expert testimony to resolve the case.

La. R.S. 13:3666 provides the following, in pertinent part:

B. The court shall determine the amount of the fees of said
expert witnesses which are to be taxed as costs to be paid by the
party cast in judgment either:

(1) From the testimony of the expert relative to his time
rendered and the cost of his services adduced upon the trial of

25

the cause, outside the presence of the jury, the court shall
determine the amount thereof and include same.

(2) By rule to show cause brought by the party in whose favor a
judgment is rendered against the party cast in judgment for the
purpose of determining the amount of the expert fees to be paid
by the party cast in judgment, which rule upon being made
absolute by the trial court shall form a part of the final
judgment in the cause.

If the order applied for by written motion is one to which the mover is

not clearly entitled, or which requires supporting proof, the motion shall be

served on and tried contradictorily with the adverse party. The rule to show

cause is a contradictory motion. La. C.C.P. art. 963. If the rule seeks to

value the total time employed by the expert, for example, time gathering

facts necessary for his testimony, time spent away from regular duties while

waiting to testify, or if the party seeks a fee outside of that normally charged

by similar experts in that field, then the plaintiff in rule must prove by

competent evidence, what service and expertise the expert rendered in

addition to that observed by the trial court. Wampold v. Fisher, 2001-0808

(La. App. 1 Cir. 6/26/2002), 837 So. 2d 638. It has been the law for almost a

century that the assertion of an attorney and the bill of an expert do not

support an award for the total time of an expert. The expert must testify at

the trial of the rule and be subject to cross-examination, unless there is some

stipulation between the parties. Wampold v. Fisher, supra, citing, Northwest

Ins. Co. v. Borg-Warner Corp., 501 So. 2d 1063 (La. App. 2 Cir. 1987).

Final judgment in this case was signed in December 2020 by Judge

Hawthorne, in which all costs were assessed to Hall. The State filed its

motion to tax its expert fees as costs to Hall on January 26, 2021. Judge

Robinson, who was appointed ad hoc after Judge Hawthorne’s retirement,

held a hearing on the State’s motion to tax expert fees. Dr. Willis was not
26

present at the hearing for examination regarding his invoices and fees.

Because the State seeks to have Hall cast with Dr. Willis’s total bill and not

limited to the time spent before the trial court, the jurisprudence of this State

requires Dr. Willis to testify at the rule hearing and be subject to cross-

examination. Therefore, we reverse the amount of the expert fee and

remand to the trial court for a contradictory hearing on the amount of the

expert fee.

Property Description

Hall argues the trial court erred in granting a final judgment that does

not comply with Louisiana’s requirements to particularly describe the

immovable property and boundaries between landowners. Hall asserts that

third parties will be unable to determine the boundary lines between the

properties because the judgment description is too broad. Hall requests a

new trial be granted on this basis.

Stephens Sisters argues that the trial court’s ruling and judgment are

explicit regarding the extent of the property and references boundaries of the

property. It asserts that even if the judgment’s description could be

considered incomplete, it does not have to serve to nullify the judgment. It

argues that at most, this Court should remand to reform the judgment as to

the description in order to give full effect to the ruling.

All final judgments which affect title to immovable property shall

describe the immovable property affected with particularity. La. C. C. P. art.

1919. The purpose of this article is “to insure that the public in general, and

title examiners, successful litigants, officials charged with executions of

judgments and surveyors in particular, can accurately deal with the

immovable property.” Clark v. Fazekas, 2019-1386 (La. App. 1 Cir.
27

5/11/2020), 303 So. 3d 1066. The judgment must include the legal

description of a property, with reference to landmarks such as roads,

benchmarks, or other monuments which can be located, or a survey

commencing at some established point. Id.

The final judgment in this case includes the description of the 1926

property and the 1952 property. The judgment includes a reference to

plaintiff’s trial exhibit 1, which is a survey that is also filed in Red River

Parish Conveyance Book 327, Page 5. A picture of this survey is also

included on the judgment to show which property is described as the Island

and which property is described as the Oxbow. The trial court describes the

property at issue as:

[T]he area west of the navigational channel (the current path of
the Red River) and east of the former Red River channel (the
“Island”) and a good portion of the former Red River channel
west of the Island. The former Red River channel was referred
to at trial as the “Oxbow.”

Finally, the judgment includes a reference to and incorporates

plaintiff’s trial exhibit 48 regarding the last remnant channel of the Red

River in the Oxbow. The trial court states in the judgment that the center

line of the channel is shown by the yellow line marked with points 126-128

and the low water line of the left descending bank is shown by the blue line

marked with points 100-125. The trial court further ruled that the State

owned no property above the low water line.

The survey, which is plaintiff’s trial exhibit 48 and attached to the

judgment as exhibit A, includes a point of beginning and coordinates of each

point on the yellow and blue lines referenced by the trial court. It also states

the sections, township, and range of the property depicted.

28

Our jurisprudence requires that the judgment include a legal

description or survey. The case before us contains a legal description of the

1926 property and the 1952 property; a survey of the last remnant channel,

which is a property line within the disputed property; and a picture and

description of the Island. We find this legal description to be compliant with

La. C. C. P. art. 1919. The public, litigants, and title examiners can read this

judgment and the attached survey and accurately deal with the immovable

property. This assignment of error lacks merit.

Damages for Trespass

Hall argues the Trial Court erred in assessing damages against it for

trespass. It asserts that the reasons for ruling make no reference to where the

dollar amount came from or how it was calculated. Hall claims that without

any basis for actual damages, the award of $15,000 appears to be nothing

more than punitive.

Stephens Sisters highlights that Hall does not seek to reverse the trial

court’s finding of trespass, only to reverse the damages award. It argues that

one wronged by trespass is entitled to recover general damages, including

damages for mental anguish, and the trial court is afforded much discretion.

Stephens Sisters assert that Hall’s actions in cutting its chains and locks

were a clear act of trespass and subject to damages. It argues that it is clear

from the record that the damages award was fully supported by evidence.

Trespass is defined as an unlawful physical invasion of the property or

possession of another person. Davis v. Culpepper, 34,736 (La. App. 2 Cir.

7/11/2001), 794 So. 2d 68, writ denied, 2001-2573 (La. 12/14/2001), 804

So. 2d 646; Sullivan v. Wallace, 33,387 (La. App. 2 Cir. 8/23/2000), 766 So.

2d 654, writ denied, 2000-2647 (La. 11/17/2000), 774 So. 2d 978. A person
29

damaged by trespass is entitled to full indemnification. Where there is a

legal right to recovery, but the damages cannot be assessed exactly, the court

has reasonable discretion to assess the value based on all of the facts and

circumstances of the case. Davis v. Culpepper, supra. Damages for

dispossession of one’s property are regarded as an award of compensatory

damages for violation of a recognized property right and are not confined to

proof of actual pecuniary loss. Id. One wronged by trespass is entitled to

recover general damages, including damages for mental anguish. Williams

v. City of Baton Rouge, 1998-1981, 1998-2024 (La. 4/13/1999), 731 So. 2d

240; Davis v. Culpepper, supra.

The trier of fact is given much discretion in the assessment of

damages. Upon appellate review, damage awards will be disturbed only

when there has been a clear abuse of that discretion. La. C.C. art. 2324.1;

Williams v. City of Baton Rouge, supra.

The trial court awarded general damages in the amount of $15,000 to

Stephens Sisters for the trespass of Hall on its property. Hall does not

dispute the trespass, only the amount of damages. The trial court is given

much discretion in the assessment of damages. Stephens Sisters suffered

damaged fences and gates as well as mental anguish because of the acts of

trespass. Mrs. McVea testified to the damages as well as her own mental

and emotional anguish caused by the actual trespass, physical damages, and

placement of “No Trespassing” signs. The trial court was in the best

position to determine damage awards after listening to the testimony of the

witnesses. We find the trial court did not abuse its discretion in assessing

damages in the amount of $15,000.

30

CONCLUSION

For the reasons stated above, we reverse the trial court’s judgment

setting the State’s expert fees and remand for further proceedings regarding

the amount of the State’s expert fees. We affirm the remainder of the trial

court’s judgment. Costs assessed with this appeal are cast on Hall.

AFFIRMED IN PART; REVERSED IN PART; AND

REMANDED.

31