Travis Cooper v. Louisiana Deptartment of Public Works

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

03-1074

TRAVIS COOPER, ET AL.

VERSUS

LOUISIANA DEPARTMENT OF PUBLIC WORKS

**********

APPEAL FROM THE
SEVENTH JUDICIAL DISTRICT COURT
PARISH OF CATAHOULA, NUMBER 18,754 “A”
HONORABLE KATHY A. JOHNSON, DISTRICT JUDGE

**********

BILLIE COLOMBARO WOODARD
JUDGE

**********

Court composed of Billie Colombaro Woodard, Elizabeth A. Pickett, and Arthur J.
Planchard,* Judges.

Pickett, J., dissents.

AFFIRMED.

V. Russell Purvis, Jr.
Smith, Taliaferro, Purvis & Boothe
Post Office Box 277
Jonesville, Louisiana 71343
(318) 339-8526
Counsel for Plaintiffs/Appellees:
Travis Cooper, et al.

Julie Mobley Lafargue
Abrams & Lafargue
330 Marshall, Suite 1110
Shreveport, Louisiana 71101
(318) 222-9100
Counsel for Defendant/Appellant:
State of Louisiana, Department of Transportation and Development (formerly
Louisiana Department of Public Works)

*
Judge Arthur J. Planchard, Retired, participated in this decision by appointment
of the Louisiana Supreme Court as Judge Pro Tempore.

WOODARD, Judge.

The State of Louisiana, through the Department of Transportation and
Development (DOTD), formerly the Louisiana Department of Public Works, asserts
that the trial court should have denied the Plaintiffs’ motion for partial summary
judgment because the Plaintiffs do not have a right of action against it for the
permanent flooding of portions of their lands which the construction of a series of
locks and dams, along the Ouachita and Black Rivers, caused. We affirm the trial
court’s grant of a partial summary judgment to Plaintiffs.

*****

In 1960, the United States Congress enacted the River and Harbor Act, which
authorized the construction of the Jonesville Lock and Dam and the Columbia Lock
and Dam. The purpose of this construction project was to promote navigation on the
Ouachita and Black Rivers by creating a navigational channel at least nine (9) feet
deep and one hundred (100) feet wide at all points along these rivers.
On January 15, 1962, the State of Louisiana, through the DOTD, executed an
“Act of Assurances” in conjunction with this construction project, in which it gave
assurances to the United States that it would:

A. Furnish free of cost to the United States all lands, easements,
and right of way[s], including flowage rights in overflow areas, and
suitable spoil-disposal areas necessary for construction of the project and
for its subsequent maintenance, when and as required; [and]

....

C. Hold and save the United States free from damages due to
construction and maintenance of the project.

In 1972, the United States Corps of Engineers (Corps) completed construction.
When the subject locks and dams became operational, a pool formed in the Ouachita
River, commonly referred to as the Jonesville Pool, that extended approximately 107
miles upstream to the Columbia Lock and Dam. Since its creation, the Corps has
maintained the Jonesville Pool at a minimum elevation of thirty-four (34) feet above
mean sea level. Previously, the water level was a minimum elevation of twenty-one

1

and a half (21.5) feet above mean sea level. Rawson Creek flows into the Jonesville
Pool. Gastis Creek and Dry Lake are tributaries of Rawson Creek.
On March 28, 1972 and at all times since this date, when the Jonesville Pool’s
water level rose to an elevation of thirty-four (34) feet, the water level of Rawson
Creek, Gastis Creek, Dry Lake, and all the tributaries of the Ouachita and Black
Rivers rose to a minimum elevation of thirty-four (34) feet above mean sea level.
On June 14, 1994, nineteen individuals, each of whom owns property along
Rawson Creek, Gastis Creek, Dry Lake, Hooter Creek, Big Creek, or Oil Well Creek,
filed suit against the DOTD, seeking damages for the permanent flooding of portions
of their lands which the construction of these locks and dams along the Black and
Ouachita Rivers caused.
Based on their assumption that the Plaintiffs’ lands were within the federal
navigational servitude granted to the federal government by the commerce clause of
the United States Constitution, the DOTD never attempted to acquire this property
before it became inundated. It, also, never offered to pay any compensation of any
type to Plaintiffs as consideration for the taking or damaging of their lands.
In their petition, the Plaintiffs requested that the trial court grant them the
following relief: (1) a declaration that these constructions interfere with their
servitude of drainage; (2) an injunction, directing the DOTD to remove or make
modifications to these constructions that obstruct natural drainage to permit the
natural flow of surface waters from their estates; (3) compensation for the unlawful
taking of their lands by means other than expropriation proceedings and for the
resulting damage to these lands; and (4) alternatively, if it is determined that they are
not entitled to removal or modification of this obstruction, they are due compensation
for the loss of their servitude of drainage. They further contend that this continuous
inundation of their lands is a continuing tort, entitling them to compensation from the
time that these lands initially became inundated in 1972.
On December 15, 1998, Plaintiffs filed an “Amending and Supplemental
Petition,” converting their action to a class action. By stipulation of the parties, the
issues of liability and quantum were bifurcated.
On December 19, 2001, the class, which Plaintiffs represent, moved for a partial
summary judgment, seeking a judgment on liability. They alleged that the DOTD’s
liability for their property loss arose out of its agreement to acquire all lands,

2

servitudes, and right of ways “necessary for construction of the project and for its
subsequent maintenance, when and as required.”
On December 12, 2002, the trial court rendered judgment, granting the
Plaintiffs a partial summary judgment on liability. Specifically, it found that the
DOTD had become the insurer of the United States under the “Act of Assurances”
executed to facilitate this construction project and, as such, according to the provisions
of the Louisiana Direct Action Statute,1 the DOTD is liable for the damage to
Plaintiffs’ lands.
The DOTD appeals, complaining that the trial court erred: (1) when it held that
the Plaintiffs’ claims had not prescribed; (2) in ruling that it interfered with the
Plaintiffs’ servitudes of drainage and that such interference constitutes a continuous
tort that prevents the prescription of Plaintiffs’ claims; (3) in finding that it failed to
meet its burden of proving the limits of the federal navigational servitude; (4) in
holding that the “Act of Assurances” gives Plaintiffs a right of action against it; and
(5) in finding that the DOTD previously stipulated to liability for similar claims and
for concluding that these alleged stipulations are binding in this litigation and, in the
alternative, in not finding that an issue of material fact exists regarding these
stipulations.

*****

STANDARD OF REVIEW

We review summary judgments de novo.2 Thus, we ask the same questions the
trial court previously asked in determining whether summary judgment is
appropriate.3 This inquiry seeks to determine whether any genuine issues of material
fact exist and whether the movant is entitled to judgment as a matter of law.4 Once
the movant has made a prima facie showing that suggests we should grant the motion
for summary judgment, the burden of production shifts to the nonmoving party to

1
La.R.S. 22:655.
2
Magnon v. Collins, 98-2822 (La. 7/7/99), 739 So.2d 191.
3
Thompson v. McKnight, 01-190 (La.App. 3 Cir. 6/6/01), 787 So.2d 620, writ
denied, 01-2882 (La. 1/25/02), 807 So.2d 249.
4
La.Code Civ.P. art. 966(B).

3

present evidence, demonstrating the existence of issues of material fact which
preclude the granting of a summary judgment.5

PRESCRIPTION

The Plaintiffs brought this action against the DOTD to recover damages and
injunctive relief for the permanent flooding of portions of their lands which the
impingement of their servitude of drainage caused. However, the DOTD asserts that
their claims have prescribed.
Louisiana Civil Code Article 667 provides, in part:

Although a proprietor may do with his estate whatever he pleases,
still he cannot make any work on it, which may deprive his neighbor of
the liberty of enjoying his own, or which may be the cause of any
damage to him. However, if the work he makes on his estate deprives
his neighbor of enjoyment or causes damage to him, he is answerable for
damages only upon a showing that he knew or, in the exercise of
reasonable care, should have known that his works would cause damage,
that the damage could have been prevented by the exercise of reasonable
care, and that he failed to exercise such reasonable care.

“An action for damages for a violation of [La.Civ.Code art.] 667 is most closely
associated with an action for damages based on [La.Civ.Code art.] 2315 et seq.”6 As
such, a violation of Article 667 constitutes fault within the meaning of Article 2315.7
Accordingly, our supreme court in Dean v. Hercules8 held that any interference with
a servitude is a violation of Article 667 which gives rise to a delictual action that
prescribes in one year.9
Louisiana Civil Code Article 3493 provides:

5
Hayes v. Autin, 96-287 (La.App. 3 Cir. 12/26/96), 685 So.2d 691, writ denied,
97-281 (La. 3/14/97), 690 So.2d 41.
6
Dean v. Hercules, Inc., 328 So.2d 69, 72 (La.1976).
7
Id.
8
Id.
9
La.Civ.Code. art. 3492.

4

When damage is caused to immovable property, the one year
prescription commences to run from the day the owner of the immovable
acquired, or should have acquired, knowledge of the damage.

In the instant case, the parties have stipulated that the Plaintiffs were aware of
the inundation of their lands since 1972. Therefore, normally, their delictual action
against the DOTD would have prescribed one year later.

Continuing Tort Theory

Nonetheless, the Plaintiffs assert that their compensation claims have not
prescribed under the continuing tort theory since the cause of their injuries is
continuous and leads to successive damages; thus, prescription will not begin to run
until the wrongful conduct (the inundation of their lands) ceases. The DOTD retorts
that these injuries were not of a continuous nature because the tortious conduct ceased
in 1972 when the Corps completed construction.
To apply the continuing tort theory, the operating cause of the injury must be
a continuous one that results in continuous damages.10 Frank L. Maraist and Thomas
C. Galligan, Jr., in their treatise on Louisiana tort law, clarified this requirement:

Ordinarily, the tortfeasor’s act that causes damage is short-lived
though the damage it causes may continue. In some cases, multiple,
distinct acts by the tortfeasor cause separate and distinct damages; in
those cases, each act gives rise to a separate tort, and prescription begins
to accrue on each tort when the damage is sustained or at some later date,
if the “discovery doctrine” applies. However, if both the tortious
conduct and the damages continue, the tort may be deemed a
“continuing” one and prescription may not begin to run until the
wrongful conduct ceases.11

Therefore, if the operating cause of injury is tortious and continually gives rise to
successive damages, prescription begins to run from the cessation of the particular

10
Crump v. Sabine River Auth., 98-2326 (La. 6/29/99), 737 So.2d 720;
Bustamento v. Tucker, 607 So.2d 532 (La.1992); S. Cent. Bell Tel. Co. v. Texaco, Inc.,
418 So.2d 531 (La.1982).
11
FRANK L. MARAIST & THOMAS C. GALLIGAN, JR., LOUISIANA TORT LAW §
10-4(e) (2001) (citations omitted).
5

wrongful conduct causing the damage.12 “A continuing tort is occasioned by unlawful
acts, not the continuation of the ill effects of an original, wrongful act.”13
In this matter, because each instance of damage (each interference with the
servitudes of drainage) constitutes a tort under Article 667 and given Plaintiffs’ belief
that, both, the damage and interference are continuous, Plaintiffs assert that each of
these torts qualifies as a continuing tort. We agree.
In Crump v. Sabine River Authority,14 the supreme court had to determine
whether the application of the continuing tort theory was appropriate. The plaintiff,
Sarah Crump, objected to the digging of a canal that caused a diversion of the flow of
water away from an oxbow, which, in turn, cut off her access to the Toledo Bend Lake
from her property. She asserted that the defendant’s contacts with her after this
diversion of water took place and its repeated representations that it would resolve the
water flow problem, as well as its unsuccessful attempts to do so, constituted
continuous tortious conduct. The Crump court, however, concluded that it could not
apply the continuing tort theory to the facts of that case because the complained of
actions by the defendant were simply the continued ill effects that arose from a single
tortious act, the digging of the canal. It further reasoned that:

[T]he defendant’s duty to remove the canal would stem from its
obligation under La. Civ. Code article 2315 to repair the damage caused
by its tortious conduct. However, the breach of the duty to right a wrong
and make the plaintiff whole simply cannot be a continuing wrong which
suspends the running of prescription, as that is the purpose of any lawsuit
and the obligation of every tortfeasor.

Unlike Crump, in the instant case, the continuous action that the Plaintiffs’
complain of is the tortious conduct—the constant interference with their servitudes of
drainage, causing the permanent flooding of their lands. Actually, this case is more
analogous to Estate of Patout v. City of New Iberia15 and other cases, in which the
courts held that debris and other objects placed on another’s property constituted a

12
S. Cent. Bell Tel. Co., 418 So.2d 531; Crump, 737 So.2d 720.
13
Crump, 737 So.2d at 728.
14
Id.
15
97-1097 (La.App. 3 Cir. 3/6/98), 708 So.2d 526, writ granted, 98-961 (La.
7/2/98), 721 So.2d 897, affirmed by, 98-961 (La. 7/7/99), 738 So.2d 544.
6

continuing trespass (or a continuing tort) and, accordingly, prescription did not run
until the trespass was abated.16
Likewise, prescription will not run in this case until the flooding of Plaintiffs’
lands is abated. Therefore, we find, through application of the continuing tort theory,
that prescription has not, yet, begun to run on their claims for compensation.

Louisiana Revised Statutes 13:5111

The DOTD argues that the one year prescriptive period for delictual actions is
not applicable under these circumstances. Instead, it suggests that the three year
prescriptive period for takings, which is apparently unaffected by the continuing tort
theory, governs the Plaintiffs’ claims. Specifically, it contends that the taking of
property, by flooding or otherwise without proper exercise of eminent domain, is not
a tort; rather, it is an appropriation by a governmental entity, subject to the three-year
prescriptive period found in La.R.S. 13:5111,which provides, in part:

Actions for compensation for property taken by the state, a parish,
municipality, or other political subdivision or any one of their respective
agencies shall prescribe three years from the date of such taking.

(Emphasis added.)
The court cannot supply the objection of prescription; a party must plead it.17
The party pleading prescription has the burden of proving that the claim had
prescribed.18 We must strictly construe prescriptive statutes against prescription and
in favor of the obligation that a party seeks to have extinguished.19 Therefore, when
there are two possible constructions, we should adopt the construction that favors
maintaining, as opposed to barring, an action.20

16
See Dore v. Jefferson Guar. Bank, 543 So.2d 560 (La.App. 4 Cir. 1989). See
also Terral v. Poole, 484 So.2d 227 (La.App. 3 Cir. 1986).
17
La.Code Civ.P. art. 927; La.Civ.Code art. 3452.
18
Pearson v. Hartford Accident & Indem. Co., 281 So.2d 724 (La.1973).
19
See Unlimited Horizons, LLC v. Parish of E. Baton Rouge, 99-889 (La.App.
1 Cir. 5/12/00), 761 So.2d 753.
20
See Id.
7

A strict reading of La.R.S. 13:5111 leaves one no choice but to conclude that
the three-year prescriptive period should only apply when it is “the state, a parish,
municipality, or other political subdivision or any one of their respective agencies”
taking the property. Even if we had any doubt whether this language encompassed
takings by the United States, we could not alter our conclusion, given the mandate that
we strictly construe ambiguous prescription statutes against prescription and in favor
of the obligation sought to be extinguished.21
In a very similar case, an aggrieved landowner requested our supreme court to
hold the City of Bogalusa, instead of the United States, as the appropriating authority
responsible for the damage to her property.22 The City of Bogalusa asked the United
States to construct a navigable channel 50 to 100 feet wide and 6 to 9 feet deep in the
Pearl River from the Rigolets to Bogalusa. The United States agreed to construct the
proposed improvement to Pearl River with these stipulations:

(a) That local interests shall furnish, free of cost to the United
States, the land required for the dams, locks, canal and appurtenances
and all flowage and dumpage easements needed for initial construction
and subsequent maintenance of the improvement and shall assume full
responsibility for all property damage incident to construction and
maintenance of the canal.

(b) That local interests shall give assurances satisfactory to the
Secretary of War that they will provide, free of cost to the United States,
the ferries and bridges required for land traffic across the lateral and
terminal canals, and construct a terminal canal from Pearl River to and
including a terminal basin at Bogalusa with suitable terminal facilities
open to all on equal terms.[23]

In this resolution, the City of Bogalusa also guaranteed that it would “hold and save
harmless the United States of America, and its agents, from all claims for damages
that may or might result from the construction and maintenance of the improvement
aforesaid.”24

21
See State ex rel. Guste v. Simoni, Heck & Assoc., 331 So.2d 478 (La.1976).
22
Cooper v. City of Bogalusa, 198 So. 510 (La.1940).
23
Id. at 511.
24
Id.
8

The landowner based her right to sue the city on this resolution, contending that
the city assumed full responsibility for all the damages to her property incidental to
the construction of the canal. However, the supreme court found that she had no right
of action against the city because the United States was the appropriating authority.
It reasoned:

[T]he documents annexed to her petition and which necessarily
control the allegations therein contained, show that the United States
government was acting under its own constitutional rights in the exercise
of the power belonging exclusively to it in improving a navigable river
and that the dredging of the canal was incidental thereto.

If plaintiff has suffered damage, then the active and only agency
causing the damage is the United States government. The work is solely
under the direction and control of the United States government and title
to the lands to be acquired, whether by purchase or condemnation, shall
vest in the United States. The cost of the construction of the canal,
locks, and dams is being paid by the United States. The supervision,
operation, and maintenance of the finished project vests solely in the
United States. The City of Bogalusa stands only in the position of being
willing to pay whatever expenses or assessment the United States might
incur in connection with the acquisition of the necessary right of way and
such property damage as the owner might recover against the United
States. [25]

For the same reasons, La.R.S. 13:5111 is inapplicable to the facts of this case
since the United States’ appropriation of Plaintiffs’ lands, rather than the State’s
appropriation, led to the filing of this class action. Therefore, we disagree with the
DOTD’s assertion that the three-year prescriptive period for takings bars these claims.
We realize that this finding directly contradicts this court’s holding in
Hawthorne v. Louisiana Department of Public Works.26 Nonetheless, strict application
of La.R.S. 13:5111, together with the supreme court’s reasoning in Cooper v. City of
Bogalusa,27 compels this result. Thus, given our belief that La.R.S. 13:5111 is
inapplicable to the facts of this case, the general one-year prescriptive period for
delictual actions governs Plaintiffs’ claims for reimbursement.

25
Id. at 512.
26
540 So.2d 1261 (La.App. 3 Cir.), writ denied, 544 So.2d 406 (La.1989).
27
198 So. 510.
9

Claims for Injunctive Relief

The Plaintiffs allege, and the DOTD concedes, that the Corps’ construction of
locks and dams along the Black and Ouachita Rivers obstructed the natural drainage
of water from Plaintiffs’ lands.
Louisiana Civil Code Article 655 acknowledges that “an estate situated below
owes a natural servitude of drainage to an estate situated above and, thus, is bound to
receive the surface waters that flow naturally from that estate.28 Comment (a) to
Article 655 provides: “This provision reproduces the substance of the first paragraph
of Article 660 of the Louisiana Civil Code of 1870. It does not change the law.
Louisiana jurisprudence interpreting Article 660 continues to be relevant.” (Emphasis
added.) Our legislature repealed Article 660 in 1977, which specifically referred to
the situation before us: “The proprietor below is not at liberty to raise any dam, or to
make any other work, to prevent this running of the water.” (Emphasis added.)
Thus, the law prohibits the owner of the servient estate from doing anything to
prevent the natural flow of surface water from the dominant estate.29 When the owner
of the servient estate does something to prevent the flow of water, the remedy is a
mandatory injunction, ordering the owner of the servient estate to remove any
obstacles to natural drainage.30 “The prescription of nonuse does not run against
natural servitudes.”31 (Emphasis added.) Therefore, Plaintiffs’ claims for injunctive
relief to enforce their natural servitudes of drainage did not prescribe.32
Even though their claims for injunctive relief cannot prescribe, the DOTD
contends that the trial court can order, only, the owner of the servient estate to remove
obstacles to natural drainage. Thus, the DOTD maintains that trial court cannot order
it to modify or remove the locks and dams that obstruct the Plaintiffs’ servitude of
drainage because the United States owns these structures. Essentially, the DOTD is
alleging that the Plaintiffs’ have no right of action against it.

28
La.Civ.Code art. 655.
29
La.Civ.Code art. 656.
30
Gaharan v. State of La., through the DOTD, 579 So.2d 420 (La.1991).
31
La.Civ.Code art. 758.
32
Gaharan, 579 So.2d 420.
10

NO RIGHT OF ACTION

The DOTD believes the trial court committed reversible error when it found
that the “Act of Assurances” gave Plaintiffs a right of action against it since the
uncontested facts clearly show that the United States owns, constructed, financed, and
continues to manage the subject locks and dams that caused the inundation of their
lands. On the other hand, the Plaintiffs argue that since the State agreed to use its
inherent power of eminent domain to save the United States harmless against all
claims arising out of the construction, maintenance, and operation of these locks and
dams, the DOTD agreed to accept responsibility for their claims; thus, Plaintiffs can
look to the DOTD for just and adequate compensation.
According to the “Act of Assurances,” through the Rivers and Harbors Act, the
United States agreed to build these locks and dams to promote navigation on the
Ouachita and Black Rivers. As a condition to this agreement, Congress mandated
that, first, the State must agree to furnish all lands, servitudes, and right-of-ways
incident to the construction, maintenance, and operation of the project, and, second,
it must indemnify and hold the United States harmless against all claims that might
result from the construction of the channel.
The record clearly shows that the United States was acting under its own
constitutional rights in the exercise of its power, which belongs exclusively to it, to
improve navigable rivers.33 Consequently, the only entity that caused the flooding of
Plaintiffs’ lands is the United States. The project was solely under the direction and
control of the United States and title to the lands acquired, whether by purchase or
condemnation, vested in the United States. It, also, paid all construction costs of the
canal, locks, and dams. Moreover, the supervision, operation, and maintenance of the
finished project are and have always been the sole responsibility of the United States.
The DOTD is, merely, bound to pay any claims for damages, expenses, and
assessments that the United States may have incurred involving the acquisition of
property and servitudes that were necessary for the project.
As such, the United States (the owner of the servient estate through which water
runs) is bound to receive the natural drainage of surface waters that flow from the

33
See Cooper, 198 So. 510.
11

Plaintiffs’ properties (the dominant estate).34 The United States may make use of the
water while it runs over its estate, but it “cannot stop it or give it another direction and
is bound to return it to its ordinary channel where it leaves [the] estate.”35 Thus, the
United States (as owner of the servient estate) cannot make the Plaintiffs’ servitude
more burdensome by obstructing the natural flow of water and, thus, it may be
enjoined from doing so.36
However, since the United States is the operator and title owner of these locks
and dams and given that it owns the land on which these constructions stand, we
cannot enjoin the DOTD when it never had legal authority over these constructions
and when it never owned the servient estate.37 Under these circumstances, the United
States is the only party we could enjoin, but it is not a party to this suit. Therefore, we
must deny the Plaintiffs’ request for injunctive relief, ordering the DOTD to remove
these locks and dams that obstruct their servitude of drainage.
Nevertheless, even though the United States is primarily responsible for the
inundation of Plaintiffs’ lands, the DOTD is liable for any of the Plaintiffs’ claims for
reimbursement since it promised to hold and save the United States harmless for any
loss or damages ensuing from the construction and maintenance of this project.

34
La.Civ.Code art. 655; La.Civ.Code art. 658.
35
La.Civ.Code art. 658.
36
Gravity Drainage Dist. v. Vallee, 512 So.2d 473 (La.App. 3 Cir.), writ denied,
513 So.2d 820 (La.1987); La.Civ.Code art. 655; La.Civ.Code art. 656.
37
See Carbo v. City of Slidell, 01-170 (La.App. 1 Cir. 1/8/03), 844 So.2d 1, writ
denied, 03-392 (La. 4/25/03), 842 So.2d 400; See also Robertson v. Lebermuth, 61 So.
388 (La.1913).
12

Direct Action Statute

The trial court agreed with the Plaintiffs’ assertion that the “Act of Assurances”
and hold harmless agreement, in essence, constituted an insurance contract and that,
under this act of insurance, the Plaintiffs have a right of action against the DOTD, as
the “responsible state agency” and insurer under the act. Its reasoning is based on
language in the Direct Action Statute,38 which gives third parties to an insurance
contract a direct right of action against a tortfeasor’s liability insurance carrier.
Under this statute, an injured third party’s right of action against the liability
insurer vests at the time of injury.39 Therefore, Plaintiffs urge that their right of action
would have vested in 1972 when the Corps completed construction of the project.
In 1972, the Direct Action Statute, which is a part of the Insurance Code,
provided, in part:

The injured person or his or her survivors or heirs hereinabove
referred to, at their option, shall have a right of direct action against the
insurer within the terms and limits of the policy; and such action may be
brought against the insurer alone, or against both the insured and insurer
jointly and in solido, in the parish in which the accident or injury
occurred or in the parish in which an action could be brought against
either the insured or the insurer under the general rules of venue
prescribed by Art. 42, Code of Civil Procedure.

(Emphasis added.) In its written reasons for judgment, the trial court specifically
addressed the Plaintiffs’ contention that the “Act of Assurances” is an insurance
policy which the Direct Action Statute governed:

The “Act of Assurance[s]” executed by the State in favor of the
United States is a simple two page document and under its provisions the
State assures all damages for the construction and maintenance of the
locks and dams constructed. The word indemnity is not used in the
document. It is, however, unclear whether the contract is one of
insurance or indemnity. The agreement merely provides [that the State
will]: “Hold and save the United States free from damages due to
construction and maintenance of the project.” Blacks Law Dictionary
defines “insurance” as:

38
La.R.S. 22:655.
39
King v. King, 217 So.2d 395 (La.1968).
13

A contract whereby, for a stipulated consideration,
one party undertakes to compensate the other for loss on a
specified subject by specified perils. The party agreeing to
make the compensation is usually called the “insurer” or
“underwriter,” the other, the “insured” or “assured;” the
agreed consideration, the “premium;” the written contract,
a “policy;” the events insured against, “risks” or “perils;”
and the subject, right, or interest to be protected, the
“insurable interest.”

Under this definition the “Act of Assurance[s]” executed by the
State would constitute insurance, and as such fall under the Direct Action
Statute.

(Emphasis added.)
In support of its conclusion that the DOTD became the liability insurer of the
United States under the “Act of Assurances,” the trial court quoted Quinlan v. Liberty
Bank & Trust Company:

Unless the parties to the insurance contract have agreed
unambiguously that the contract shall be an indemnity contract only, it
would be inequitable to deny an innocent tort victim the right to bring a
direct action against the insurer, even if he has sustained only loss or
damage to an incorporeal.[40]

Without any such unambiguous declaration in the “Act of Assurances,” expressly
stating that it is an indemnity contract, the trial court reasoned that the DOTD is
obligated to act as the United States’ liability insurer.
In 1972, the definitions section of the Insurance Code, La.R.S. 22:5 contained
the following applicable provisions:

In this Code, unless the context otherwise requires, the following
definitions shall be applicable:

(1) “Insurance” is a contract whereby one undertakes to
indemnify another or pay a specified amount upon determinable
contingencies.

(2) “Insurer” includes every person engaged in the business of
making contracts of insurance, other than a fraternal benefit society. A

40
575 So.2d 336 (La.1990).
14

reciprocal, an inter-insurance exchange, or a Lloyds organization is an
“insurer.”

....

(6) “Person” means any individual, company, insurer, association,
organization, reciprocal or inter-insurance exchange, partnership,
business, trust, or corporation.

(Emphasis added.) Clearly, the state and its respective agencies were not designated
as insurers under La.R.S. 22:5(2).41 Therefore, the trial court improperly deemed the
DOTD as an insurer of the United States and, as such, the application of the Direct
Action Statute to this matter is not feasible.
Given the inapplicability of the Direct Action Statute, we must determine if an
alternate theory would allow the Plaintiffs to bring this action directly against the
DOTD. Louisiana Code of Civil Procedure Article 862 mandates that “a final
judgment shall grant the relief to which the party in whose favor it is rendered is
entitled, even if the party has not demanded such relief in his pleadings and the latter
contain no prayer for general and equitable relief.” (Emphasis added.) Because
Louisiana is a fact pleading state, a plaintiff must state the facts of their claim, but they
do not have to set forth every possible theory of recovery.42

Indemnification Agreement v. Suretyship

The Cooper court,43 when faced with a very similar predicament, held that the
plaintiff property owner did not have a right to bring a direct action against the City
of Bogalusa, the local indemnifying authority, for the damages to her property that
resulted from a navigation project solely under the United States’ control.
Specifically, it held that the city’s assurance to hold the United States harmless was
in the nature of an indemnification agreement rather than one of suretyship.

41
Nelson v. Cont’l Cas. Co., 412 So.2d 701 (La.App. 2 Cir.), writ denied, 413
So.2d 507 (La.1982).
42
State ex rel. Ieyoub v. Racetrac Petroleum, Inc., 01-458 (La.App. 3 Cir.
6/20/01), 790 So.2d 673.
43
198 So. 510.
15

Louisiana Civil Code Article 3035 defines suretyship as follows:

Suretyship is an accessory contract by which a person binds
himself to a creditor to fulfill the obligation of another upon the failure
of the latter to do so.

A surety is liable to the creditor for the full performance of the obligation of the
principal obligor, without benefit of division or discussion, even in the absence of an
express agreement of solidarity.44 A promise of suretyship need not contain technical
formalities, but it must contain a clear expression of a party’s intent to be bound as a
surety.45
The plaintiff in Cooper believed the resolutions, to which the City of Bogalusa
had agreed, established for it a suretyship obligation.46 Accordingly, she alleged that
the city was acting as a surety for the United States and, as such, the city was
solidarily liable for the damage to her property which the United States’ construction
of a navigable channel in the Pearl River caused.47 Our supreme court, however,
found that these resolutions were, merely, evidence of an indemnification agreement
between the city and the United States.48 Therefore, it held that the plaintiff did not
have a direct right of action against the city because its agreement to reimburse the
United States for the damages it incurred due to the maintenance and construction of
the channel did not make the City of Bogalusa a solidary obligor.49
Considering that the resolutions in Cooper are almost identical in substance to
the “Act of Assurances” at issue in this matter, we conclude that the DOTD merely
agreed to indemnify the United States in the “Act of Assurances” and, thus, never
agreed to act as its surety.50

44
La.Civ.Code art. 3045.
45
Ball Mktg. Enter. v. Rainbow Tomato Co., 340 So.2d 700 (La.App. 3 Cir.
1976).
46
Cooper, 198 So. 510.
47
Id.
48
Id.
49
Id.
50
See Id.
16

Third Party Beneficiaries

Notwithstanding, this indemnification agreement between the United States and
the DOTD created a stipulation pour autrui in favor of the Plaintiffs who are third
party beneficiaries to the “Act of Assurances.”51
A stipulation made in favor of a third party beneficiary (a stipulation pour
autrui) gives a third party the right to demand performance from the promisor.52 Our
courts have consistently recognized the beneficiary’s right to demand performance
from the promisor, directly.53
Our law favors stipulations made in favor of third persons.54 The supreme court
in Andrepont v. Acadia Drilling Company enumerated factors for us to consider when
deciding whether a contract provides a benefit for a third person:

(1) The existence of a legal relationship between the promisee and
the third person involving an obligation owed by the promisee to the
beneficiary which performance of the promise will discharge;

(2) the existence of a factual relationship between the promisee
and the third person, where (a) there is a possibility of future liability
either personal or real on the part of the promisee to the beneficiary
against which performance of the promisee [sic] will protect the former;
(b) securing an advantage for the third person may beneficially affect the
promisee in a material way; (c) there are ties of kinship or other
circumstances indicating that a benefit by way of gratuity was
intended.[55]

When we apply these factors to the facts of this case, the legal relationship
between the promisee (United States) and the third persons (Plaintiffs) involves an
obligation (to reimburse the Plaintiffs for the permanent flooding of their land caused
by the construction and maintenance of the locks and dams along the Ouachita and
Black Rivers) owed by the promisee (United States) to the beneficiaries (Plaintiffs)

51
See La.Civ.Code art. 1978.
52
La.Civ.Code art. 1981.
53
Comment to La.Civ.Code art. 1981.
54
Andrepont v. Acadia Drilling Co., 231 So.2d 347 (La.1969).
55
Id. at 351 (citing Smith, Third Party Beneficiaries in Louisiana: The
Stipulation Pour Autrui, 11 TUL.L.REV. 18, 58 (1936)).
17

which performance of the promise (to “[f]urnish free of cost to the United States all
lands, easements, and right of way[s], including flowage rights in overflow areas, and
suitable spoil-disposal areas necessary for construction of the project and for its
subsequent maintenance, when and as required” and to “[h]old and save the United
States free from damages due to construction and maintenance of the project”) by the
promisor (DOTD) would discharge.56
In other words, the obligation that the United States imposed as a condition of
the “Act of Assurances” and undertaken by the DOTD (to provide the United States
with all lands and servitudes necessary for the construction and maintenance of the
locks and dams along the Ouachita and Black Rivers) constitutes a stipulation pour
autrui in favor of the Plaintiffs.57 The inference is clear that the United States knew
before it constructed these locks and dams that it needed to acquire multiple pieces of
property and servitudes to carry out this massive construction project. As such, it was
interested in having the DOTD undertake its obligation to compensate the Plaintiffs
if construction resulted in the taking of their lands because, otherwise, the United
States would be responsible for paying their claims for reimbursement.
In addition, the relationship between the United States and the Plaintiffs was
sufficient to support the inference that there was a possibility that the United States
could be liable to the Plaintiffs sometime in the future, but performance of the
DOTD’s promise would protect the United States. This possibility of future liability
(for the damaging or taking of land caused by the construction of these locks and
dams) stems from the very obligation that the United States wanted discharged.
Therefore, this case fits squarely within the guidelines our supreme court set for
determining when claimants should receive third-party beneficiary status.
The fact that the parties did not specifically name the Plaintiffs in the “Act of
Assurances” as third party beneficiaries is of no consequence because our
jurisprudence recognizes that parties to a contract may make a stipulation pour autrui

56
See Id.
57
Id.
18

in favor of undetermined persons.58 Moreover, the law does not require express
acceptance or consent by third party beneficiaries, nor does it require a particular form
of acceptance or consent.59 Comment (b) to La.Civ.Code art. 1978 states that “the
beneficiary’s intention to accept the benefit may be made known in any manner, even
implied.” Thus, by simply filing suit, the Plaintiffs made known their intention to
accept the benefit.60
Consequently, we find that the Plaintiffs have a right to proceed directly against
the DOTD for the damages arising out of the breach of its promise to the United States
to provide it, free of claims, with all lands and servitudes necessary for the
construction and maintenance of the locks and dams along the Ouachita and Black
Rivers.

Recovery in Tort

Under some circumstances, a third party beneficiary can look beyond this
contract theory for recovery.61 Thus, when a party’s damage arises from the breach
of a contractual relationship, he or she may have a remedy both in contract and in
tort.62 Therefore, the same acts or omissions may constitute a breach of both a general
duty owed to all persons (ex delicto) and a breach of a special obligation the obligor
contractually assumed (ex contractu).63 Thomas C. Galligan, Jr. acknowledged:

58
Id.; Hazelwood Farm, Inc. v. Liberty Oil & Gas Corp., 01-345 (La.App. 3 Cir.
6/20/01), 790 So.2d 93, writ denied, 01-2115 (La. 7/26/01), 794 So.2d 834, writ
denied, 01-2303 (La. 8/10/01), 794 So.2d 836; Dartez v. Dixon, 502 So.2d 1063
(La.1987).
59
Hazelwood Farm, Inc., 790 So.2d 93; Andrepont, 231 So.2d 347.
60
See Comment (b) to La.Civ.Code art. 1978. See also Andrepont, 231 So.2d
347.
61
Barrie v. V.P. Exterminators, 625 So.2d 1007 (La.1993).
62
Corbello v. Iowa Prod., 02-826 (La. 2/25/03), 850 So.2d 686; Fed. Ins. Co.
v. Ins. Co. of N. Am., et al., 263 So.2d 871 (La.1972).
63
Fed. Ins. Co., 263 So.2d 871; Davis v. LeBlanc, 149 So.2d 252 (La.App. 3
Cir. 1963); United Gas Pipe Line Co. v. Cargill, Inc., 612 So.2d 783 (La.App. 1 Cir.
1992).
19

One readily sees the relationship between tort recovery in such
cases and third party beneficiary recovery in contract cases or
obligations. However, as we have seen, the third party beneficiary
theory may not be the only available means of recovery; tort causes of
action may be available as well.[64]

Louisiana Civil Code Article 2315 provides, in part: “Every act whatever of
man that causes damage to another obliges him by whose fault it happened to repair
it.” In other words, every action, even if lawful, must be conducted with due regard
for the rights of others.65 A party is at fault when they breach a duty owed to another
under the particular facts and circumstances of a given case.66 Fault encompasses the
exercise of contractual rights in a manner that causes unreasonable property damage.67
As such, the assumption of a contractual duty may create a corollary or incidental tort
duty in favor of third persons.68 Professor Glenn G. Morris explains further:

A tort duty is a duty that society imposes on a person, without his
consent, in order to protect other persons from harm to certain legally
protected interests. If a person causes damage by breaching a tort duty
owed to the plaintiff, then, absent immunity, he is personally liable to the
plaintiff for those damages. The fact that he may have agreed -- in a
contract or otherwise—to commit the tort on behalf of someone else (or,
more realistically, to have agreed to engage in the conduct giving rise to
the risk of injury against which the duty involved is designed to protect)
is a matter that is irrelevant to his own liability. While the person for
whom he was acting may also be held liable under appropriate
circumstances—if, for example, he had the requisite control and
economic relationship—the fact that someone else may be held . . . liable
for the tort does not eliminate the liability of the tortfeasor himself. . . .

....

It is important to understand, however, that even though the duty
involved would be factually related to the contract, it would be legally

64
Thomas C. Galligan Jr., Contortions Along the Boundary Between Contracts
and Torts, 69 TUL. L. REV. 457, 525 (1994).
65
Broussard v. Northcott Exploration Co., 481 So.2d 125 (La.1986).
66
Id.
67
Id.
68
Smith v. State, 620 So.2d 1172 (La.App. 1 Cir. 1992). See Barrie, 625 So.2d
1007. See also Broussard, 481 So.2d 125.
20

distinct from and independent of that contract. Indeed, it really would
not matter whether the situation was created by a contract that was
enforceable as such—as a legal contract—or whether by some other
form of consensual undertaking . . . . Thus, if the contract happened to
be unenforceable . . . the tort duty would arise nevertheless. That would
be so because the source of the duty involved would not be the contract
itself, but rather society’s interests in protecting its members against
uncompensated . . . injury.[69]

Considering the foregoing, we hold that the DOTD’s obligation to reimburse
Plaintiffs arises each time the United States’ interferes with their natural servitudes of
drainage. Since each instance of damage (each interference with Plaintiffs’ servitudes
of drainage) constitutes a new tort under Article 667 and given that, both, the damage
and interference are continuous, each of these torts qualifies as a continuing tort.
Therefore, the Plaintiffs can proceed directly against the DOTD for its failure to
reimburse them for the permanent flooding of their lands which the continuous
interference with their servitudes of drain has caused. This direct action by the
Plaintiffs, the parties who suffered the ultimate loss, “against the party ultimately
responsible for it avoids the multiplicity and circuitry of action otherwise necessary
to achieve the payment of the loss to [those] who suffered it by the one who caused
it.”70 In other words, permitting this direct action against the DOTD, under these
limited circumstances, promotes judicial economy by not requiring the Plaintiffs to,
first, file an action against the Federal Government, which would, in turn, be filed
against the DOTD.

69
Glenn G. Morris, Developments in the Law: Business Associations, 50
LA.L.REV. 211, 220-21 & 224 (1989) (citations omitted).
70
State ex rel. Guste, 331 So.2d at 484.
21

FEDERAL NAVIGATIONAL SERVITUDE

The DOTD maintains that all of the Plaintiffs’ inundated lands fall within and
are subject to the federal navigational servitude. If this superior navigational servitude
extends to these inundated lands, neither the United States nor the DOTD can be held
liable for any damage this construction project, designed to promote navigation on
Black and Ouachita Rivers, caused.

22

The federal navigational servitude arises by virtue of the Commerce Clause in
navigable waters, but it does not extend to all navigable waters.71 This servitude
recognizes the public’s interest in using waterways as continuous highways for the
purpose of navigation.72 However, this interest is not absolute and the imposition of
this servitude is not automatic.73
The only evidence the DOTD presented at trial to support its contention that the
Plaintiffs’ lands were subject to the federal navigational servitude was the self-serving
testimony of Merlin A. Pistorious, an engineer for the DOTD. According to Mr.
Pistorious, the Corps did not instruct the DOTD to purchase any property or servitudes
in the area of the Jonesville Pool because it assumed that this property was subject to
the federal navigational servitude. Specifically, he stated:

A. The Corps of Engineers provided us with drawings and
maps indicating to us where these right-of-ways would have to be
acquired. In the Jonesville Pool, we were not required or given
any drawings showing that we had to acquire easements or right-
of-ways for flowage.

Q. And why not?

A. Because of the raising of the pool. Well, the explanation
that I was given—and I came onto this project in 1972—and bear
in mind the Jonesville Lock and Dam had already been
constructed when I came into this area, but in conversations with
Corps of Engineers’ right-of-way and real estate employees and
with superiors within my department, I was informed that the
Corps had always maintained that we would not require flowage
easements . . . in the Jonesville Pool because all of the lands that
would be inundated by the permanent pool fell within the
navigation servitude . . . and therefore did not require the taking
of any new rights.

(Emphasis added.)
The DOTD believes Mr. Pistorious’ unrefuted testimony is enough to defeat the
Plaintiffs’ motion for summary judgment. However, the burden of proving

71
Dardar v. Lafourche Realty Co., Inc., 985 F.2d 824 (5th Cir. La. 1993).
72
Id.
73
Dardar v. Lafourche Realty Co., 55 F.3d 1082 (5th Cir. La. 1995).
23

navigability rests upon the party asserting it.74 Therefore, considering the fact that the
permanently flooded portions of Plaintiffs’ lands were along Rawson Creek, Gastis
Creek, Dry Lake, Hooter Creek, Big Creek, and Oil Well Creek and the absence of
evidence regarding their navigability, we must consider these waterways to be non-
navigable for the purposes of the present case.75
In Goose Creek Hunting Club, Inc. v. United States,76 the court explained
further:

[I]f . . . an improvement on a navigable stream raises the water level in
the stream and thereby damages privately owned property situated within
the bed of the stream, the Government is not liable for the ensuing
damages. This is because privately owned property situated within the
bed of a navigable stream is always subject to the Government’s
dominant servitude in the interest of navigation.

....

On the other hand, the navigational servitude of the Government
does not extend beyond the beds of navigable streams; and if an action
taken by the Government to improve the navigability of a navigable
stream raises the water level in the stream and thereby causes it to
overflow or otherwise damage property situated outside the bed of such
stream, the Government is liable for the ensuing damages.

(Emphasis added.)
Accordingly, even if the DOTD’s assertion that the Black and Ouachita Rivers
are navigable streams, subject to the federal navigational servitude, is correct, the
Plaintiffs’ inundated lands are not subject to this servitude because their lands are
situated beyond the beds of those rivers.77 As such, the DOTD’s contention that Mr.
Pistorious’ testimony proves the Plaintiffs’ inundated lands were subject to the federal
navigational servitude is without merit.

74
Goose Creek Hunting Club, Inc. v. United States, 518 F.2d 579, 207 Ct. Cl.
323, U.S. Ct. Cl. (1975).
75
See Id.
76
Id. at 330-31.
77
See Id.
24

PRIOR STIPULATIONS TO LIABILITY

The DOTD asserts that the trial court erroneously concluded that it previously
stipulated to liability for similar claims in prior proceedings. The DOTD, also,
believes the trial court improperly held that those stipulations were binding in this
litigation.
We will not address this assignment of error because these alleged stipulations
were not a factor that affected our findings in any way.
Accordingly, we must conclude that the DOTD is liable for the permanent
flooding of Plaintiffs’ lands which the United States’ construction of locks and dams
along the Black and Ouachita Rivers caused. We, also, find that the Plaintiffs had the
right to bring this action directly against the DOTD to recover damages for the United
States’ appropriation of their lands. Although, given that the DOTD is not the owner
of the servient estate, we cannot grant the Plaintiffs’ request for injunctive relief.

CONCLUSION

We affirm the trial court’s judgment, granting the Plaintiffs a partial summary
judgment on liability. Further, we conclude that they have a direct right of action
against the DOTD to recover damages for the inundation of their lands, but we deny
their request for injunctive relief. We assess all costs of this appeal to the DOTD.

AFFIRMED.

25