Buckskin Hunting Club v. Buddy Bayard

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

03-1428

BUCKSKIN HUNTING CLUB

VERSUS

BUDDY BAYARD, ET AL.

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APPEAL FROM THE
SIXTEENTH JUDICIAL DISTRICT COURT
PARISH OF IBERIA, NO. 94884
HONORABLE EDWARD LEONARD, JR., DISTRICT JUDGE

**********

MARC T. AMY
JUDGE

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Court composed of Sylvia R. Cooks, Marc T. Amy, and Elizabeth A. Pickett, Judges.

AFFIRMED.

Cooks, J., concurs.

James W. Schwing
411 Iberia Street
New Iberia, LA 70560
(337) 365-2445
COUNSEL FOR PLAINTIFF/APPELLEE:
Buckskin Hunting Club

Frank Edward Barber
Post Office Box 9207
New Iberia, LA 70562-9207
(337) 364-3629
COUNSEL FOR DEFENDANTS/APPELLANTS:
Buddy Bayard
Carrol Bayard
Kurt Boudreaux
Oswald Buteaux
Cory Bourque
Ossie Romero
Roger Boughton, Jr.

5405 Leona Drive
New Iberia, LA 70560
COUNSEL FOR APPELLEE:
Roger Boughton, Jr.

AMY, Judge.

The defendants appeal the issuance of a permanent injunction issued which, in

part, ordered them to refrain from hunting on property leased by the plaintiff hunting

club. For the following reasons, we affirm.

Factual and Procedural Background

The plaintiff, Buckskin Hunting Club, holds several hunting leases on

approximately 14,000 acres on various pieces of property in the Atchafalaya Basin.

In December 2000, the plaintiff filed a Petition for Injunction, alleging that the

defendants, Buddy Bayard, Carrol Bayard, Oswald Buteaux, Ossie J. Romero, Jr.,

Roger Boughton, Jr., Kurt Boudreax, and Cory Bourque, had repeatedly entered the

leased property without permission. The petition sought a temporary restraining order

and, ultimately, an injunction prohibiting the defendants from entering the leased

property. The petition alleged that the “defendants, have entered the leased premises

in the past and, despite warnings, have indicated that they intend to continue to do so

in the future.”

The requested temporary restraining order was entered by the trial court,

prohibiting the defendants from entering the leased premises. The defendants

answered the petition, setting forth several affirmative defenses, including an assertion

that “a portion of the land allegedly leased is on navigable streams.” The defendants

filed a reconventional demand, seeking damages associated with the wrongful

issuance of a temporary restraining order or preliminary injunction. Although the trial

court set a hearing on a rule to show cause why a preliminary injunction should not

be ordered on the petition for injunction, the hearing was refixed by agreement of the

parties several times. All orders previously rendered by the trial court were ordered

to remain in effect during this time.

In December 2001, the plaintiff filed a Rule for Contempt of Court, asserting

that the defendants violated the temporary restraining order by trespassing on the

property, in particular, hunting with dogs. A hearing was held on the matter at which

the defendants failed to appear. The trial court found in favor of the plaintiff. The

defendants sought a new trial on the matter. Subsequently, the plaintiff filed an

additional rule for contempt asserting ongoing violations of the temporary restraining

order.

The merits of the original Petition for Injunction, the defendants’ Motion for

New Trial, and the plaintiff’s rule for contempt were heard by the trial court over the

course of several hearing dates. The trial court also considered an exception of no

right of action filed by the defendants, alleging that the plaintiff failed to demonstrate

that it complied with La.R.S. 9:1051. The trial court issued written reasons for ruling

in January 2003. The trial court granted the defendants’ request for a new trial,

finding that the defendants received inadequate notice of the original contempt

hearing. Furthermore, with regard to the remaining contempt issue, the trial court

found in favor of the defendants.1 The exception of no right of action was denied,

1
In denying the request for contempt of court, the trial court reasoned, in part:

The Court in this case cannot find that the Defendants, intentionally,
knowingly and purposefully disobeyed the Temporary Restraining Order by allowing
their dogs to roam or chase deer on the Buckskin lease. The Temporary Restraining
Order did not specifically address the issue of dogs on the leased property. With the
acknowledged tradition of deer dogs roaming free in the Atchafalaya Basin during
hunting season, the Court does [] not find that Defendants continuing with this
tradition constituted a knowing and intentional violation. Moreover, the presence of
one or more of the Defendants in a duck blind which Buckskin claims to be within
its lease and the Defendants claim to be on Segura property, and which neither of the
State employees could give convincing evidence of the location of the duck blind,
does not convince the Court that the Defendants knowingly and intentionally
violated the Restraining Order. Therefore, the Court finds the Defendants not to be
in contempt of court.

2

with the trial court concluding that La.R.S. 9:1051 was inapplicable to the acquisition

of leases by the organization.

With regard to the merits of the case, the trial court found in favor of the

plaintiff, granting the permanent injunction. The trial court considered several issues

inherent in the request for injunction, concluding that banks along navigable rivers

within the leased premises are not subject to public use for all purposes; that man-

made pipeline canals within the leased premises are private property and that the

lessees, through contractual obligation, are required to prevent trespassers from

entering the canal; and finally, that any preliminary injunction issued would apply to

the hunting dogs entering the property without the permission of the plaintiff. Finally,

the trial court found that irreparable injury would result without the issuance of the

permanent injunction.2

The defendants appeal, assigning the following as error:

I. The trial court erred in finding that the plaintiff/appellant,
BUCKSKIN HUNTING CLUB, an unincorporated association,
had the legal capacity to assert the causes of action because of the
limitations provided by La.R.S. 9:1051.

2
The judgment provides, in part:

IT IS FURTHER ORDERED, ADJUDGED AND DECREED that a
permanent injunction be and is hereby issued, prohibiting Defendants, BUDDY
BAYARD, CARROL BAYARD, OSWALD BUTEAUX, OSSIE J. ROMERO, JR.,
ROGER BOUGHTON, JR., KURT BOUDREAUX and CORY BOURQUE from:

(1) hunting in the private man-made canals, or on or along the banks of navigable
rivers, bayous or streams, or in or upon any of the private land situated within the
boundaries of the property leased to the Buckskin Hunting Club, which is more fully
identified in “Exhibit A” hereto, even if such lands are periodically inundated by
water, to include the shooting of deer or other wildlife on such private lands -
including the banks of navigable rivers, bayous, streams and canals - from boats in
the waters of such rivers, bayous, streams and canals; and

(2) allowing dogs owned, used or in any way under the custody and control of said
Defendants or any one of them, to enter upon the leased property of the Buckskin
Hunting Club to hunt or chase deer or other wildlife or for any other purpose.

3

II. The trial court erred in finding that the man-made, navigable
waterways located on private land are owned and exclusively
controlled by the landowner therefore giving the landowner or
other interest holder the right to restrict access to the waterways.

III. The trial court erred in issuing a permanent injunction, prohibiting
the defendants/appellants from going on the banks of navigable
waterways or in the man-made canals at issue.

Discussion

No Right of Action

The defendants filed a no right of action, alleging that the plaintiff lacked

capacity to bring the present action against the defendants. They contend this lack of

capacity is due to the plaintiff’s failure to demonstrate that it was in compliance with

La.R.S. 9:1051. In the event this court finds merit in the exception, the defendants

seek damages for wrongful issuance of a temporary restraining order or preliminary

injunction pursuant to La.Code Civ.P. art. 3608.3

La.R.S. 9:1051, entitled “Unauthorized corporations; unincorporated nonprofit

associations; powers and liabilities,” provides:

A. Corporations unauthorized by law or by an act of the
legislature enjoy no public character, although these corporations may
acquire and possess estates and have common interests as well as other
private societies.

Unless otherwise provided by its constitution, charter, bylaws,
rules, or regulations under which it is organized, governed, and exists,
any unincorporated nonprofit association may alienate or encumber title
to immovable property to any person. For the purposes of this article,
immovable property includes, without limitation, mineral rights, predial
servitudes, and predial leases, and a transaction to alienate or encumber

3
La.Code Civ.P. art. 3608 provides, in part:

The court may allow damages for the wrongful issuance of a temporary
restraining order or preliminary injunction on a motion to dissolve or in a
reconventional demand. Attorney’s fees for the services rendered in connection with
the dissolution of the restraining order or preliminary injunction may be included as
an element of damages whether the restraining order or preliminary injunction is
dissolved on motion or after trial on the merits.

4

shall include, without limitation, transactions to mortgage, hypothecate,
donate, or transfer title to immovable property. Any such transaction
shall be authorized by resolution adopted by a majority of the members
of the association who vote on the resolution at a special meeting called
and held for that purpose. The resolution may designate a person or
persons to act as agent for the purpose of effectuating the transaction.
Notice of the special meeting, including the date, time, and place of the
meeting and the substance of the contemplated resolution, shall be
published, on two separate days at least fifteen days prior to the date of
the meeting, in the official journal of the parish in which a majority of
the members reside or, if none, in a newspaper of general circulation in
the parish. A copy of the resolution and proof of publication as required
herein shall be attached to each act effectuating the transaction.

B. The provisions of this article applicable to transfers of
immovable property by unincorporated nonprofit associations shall not
apply when the transfers are part of an incorporation of the association
in which substantially all of the assets of the unincorporated nonprofit
association are transferred to the new corporation. In such cases, R.S.
12:1207(C) shall govern the transfer.

In ruling on the exception of no right of action, the trial court reviewed La.R.S.

9:1051 and concluded that: “[T]he statute is aimed at the divesting of some form of

title to immovable property rather than acquiring an interest to immovable property

such as leases. The Court finds that this provision is not applicable to the acquisition

by Buckskin of leases of the character sued upon where Buckskin is acting as Lessee

rather than Lessor.”4

4
Also bearing on the issue of whether the plaintiff has a right of action, the trial court found:

By agreement of counsel certain of the Buckskin leases were introduced into
evidence as being representative of all leases involved.
The Court has reviewed the sample leases which were introduced into
evidence as well as the extract of all other leases held by Buckskin Hunting Club.
The language from the sample lease provides:

4. LESSEE is given the exclusive right and privilege to hunt and fish on the
leased premises except that LESSOR reserves the right for LESSOR and
LESSOR’S family to hunt and fish on said premises. LESSEE shall have the
right to permit others to hunt or fish as his guest provided that LESSEE is
present. LESSEE shall post the land in accordance with all applicable state,
parish, and local posting regulations and ordinances, and shall evict all
trespassers from the leased premises.
....
5. As a material consideration of this lease, LESSEE agrees that LESSEE shall
patrol the premises and use LESSEE’S best efforts to keep trespassers

5

Our review of the plain wording of the statute indicates that the trial court

correctly denied the exception of no right of action. La.R.S. 9:1051 specifically

indicates that its requirements are in effect at the point the organization chooses to

“alienate or encumber title to immovable property to any person.” (Emphasis added).

This reference anticipates a divesting of interest rather than the acquisition of an

interest. This assignment lacks merit.

Issuance of Permanent Injunction

therefrom. In the event LESSEE constructs barriers to limit ingress and
egress to the leased premises, LESSEE shall provide LESSOR with any keys
or other instruments necessary to open such barriers. LESSEE shall notify
LESSOR immediately of the existence of any trespassers upon the property.
Another sample lease provides:
. . . Lessor hereby leases and lets unto Lessee for the term hereinafter
mentioned and only for the purpose of recreational deer hunting, and
for no other purpose . . .
....
Lessor, its successors and assigns, does not guarantee Lessee the
possession of the property against trespassers or poachers; nor will
Lessor be bound to undertake any proceedings or actions to maintain
Lessee in possession of said property. It is understood however that
Lessee shall have the right as Lessee, to proceed agains[t] trespassers
and poachers and to eject them by all legal means, and to institute
such action or actions in Lessee’s name as will protect Lessee’s
possession, all such acts or actions, however, to be at the cost and
expense of Lessee.
Yet another lease provides:
2) In addition to the rental above stipulated, Lessee agrees to diligently
patrol the premises and keep the same free of trespassers and
poachers, and to promptly notify Lessor of any such on premises.
3) Lessee will, during the term of this lease, use the property for private
noncommercial hunting purposes only and for no other purposes
whatsoever.
The remaining representative leases contain these exact provisions with regard to the
object of the lease and the duty to keep the property free from trespassers and
poachers.
There is no doubt but that the Lessee, in this case, Buckskin Hunting Club,
has the right to bring an action to stop third parties from interfering with their rights
to use the property for hunting. In addition, all of the leases in question confer upon
Buckskin, the obligation to patrol the property and to keep it free from trespassers
and poachers. To that extent, Buckskin, is entitled to a preliminary injunction if it
proves the requisite trespass and irreparable harm keeping all third parties, such as
the Defendants[], off of the leased property.

6

The majority of the defendants’ arguments in brief address the merits of the trial

court’s ruling insofar as the court granted the permanent injunction.5 The defendants

do not appear to contend that the plaintiff failed to demonstrate its burden with regard

to the permanent injunction. Rather, the defendants’ arguments focus on the trial

court’s rejection of their affirmative defense of navigability. They assert that the

ruling is in error insofar as it limits their access to the man-made “navigable”

waterways located on the leased property. They contend that these waterways are

subject to the ebb and flow of the tides, a fact in dispute, and should be treated as a

navigable waterway subject to public use. In addressing this issue within their second

assignment of error, the defendants make various arguments, including those related

to whether the property at issue is navigable in law or fact and whether the privately

constructed canals located on the property became subject to public use through the

expenditure of public funds or their alleged diversion of waters from navigable

5
With regard to the issuance of an injunction, La.Code Civ.P. art. 3601 provides:

An injunction shall issue in cases where irreparable injury, loss, or damage
may otherwise result to the applicant, or in other cases specifically provided by law;
provided, however, that no court shall have jurisdiction to issue, or cause to be
issued, any temporary restraining order, preliminary inunction, or permanent
injunction against any state department, board or agency, or any officer,
administrator or head thereof, or any officer of the State of Louisiana in any suit
involving the expenditure of public funds under any statute or law of this state to
compel the expenditure of state funds when the director of such department, board
or agency, or the governor shall certify that the expenditure of such funds would
have the effect of creating a deficit in the funds of said agency or be in violation of
the requirements placed upon the expenditure of such funds by the legislature.
During the pendency of an action for an injunction the court may issue a
temporary restraining order, a preliminary injunction, or both, except in cases where
prohibited, in accordance with the provisions of this Chapter.
Except as otherwise provide by law, an application for injunctive relief shall
be by petition.

The manifest error standard of review is applicable in consideration on appeal of the issuance of a
permanent injunction. See Parish of Jefferson v. Lafreniere Park, 98-146, 98-147 (La.App. 5 Cir.
7/28/98), 716 So.2d 472;

7

waterways.6 Much of the defendants’ argument relates to factual determinations made

by the trial court.

We first turn to the Louisiana Civil Code, which provides a general framework

for consideration of private and public things. For example, the Civil Code provides,

in part:

Art. 449. Common things
Common things may not be owned by anyone. They are such as
the air and the high seas that may be freely used by everyone
comfortably with the use for which nature has intended them.

Art. 450. Public things
Public things are owned by the state or its political subdivisions
in their capacity as public persons.
Public things that belong to the state are such as running waters,
the waters and bottoms of natural navigable water bodies, the territorial
sea, and the seashore.
Public things that may belong to political subdivisions of the state
are such as streets and public squares.

(Emphasis added.)

Art. 452. Public things and common things subject to public use
Public things and common things are subject to public use in
accordance with applicable laws and regulations. Everyone has the right
to fish in the rivers, ports, roadsteads, and harbors, and the right to land
on the seashore, to fish, to shelter himself, to moor ships, to dry nets, and
the like, provided that he does not cause injury to the property of
adjoining owners.
The seashore within the limits of a municipality is subject to its
police power, and the public use is governed by municipal ordinances
and regulations.

Art. 455. Private things subject to public use
Private things may be subject to public use in accordance with law
or by dedication.

6
In Vaughn v. Vermilion Corp, 444 U.S. 206, 100 S.Ct. 399 (1979), the United States
Supreme Court indicated that, given proof, a privately constructed canal that diverts a naturally
occurring navigable waterway may offer a defense under federal law to an attempt to obtain
injunctive relief.

8

Art. 456. Banks of navigable rivers or streams7
The banks of navigable rivers or streams are private things that are
subject to public use.
The bank of a navigable river or stream is the land lying between
the ordinary low and the ordinary high stage of the water. Nevertheless,
when there is a levee in proximity to the water, established according to
law, the levee shall form the bank.

While this case is argued to be about many things, the central question is whether the

property at issue is subject to public use under these Civil Code articles. Insofar as

this assignment is concerned, the crucial inquiry is Article 450 and whether,

considering the jurisprudence, the property is a navigable water body of the State. We

are mindful that navigability is not presumed. Rather, it is a burden to be carried by

the party asserting navigability. See Shell Oil Co. v. Pitman, 476 So.2d 1031 (La.App.

3 Cir. 1985). See also Kieff v. Louisiana Land and Exploration Co., 99-2947

(La.App. 4 Cir. 1/24/01), 779 So.2d 85.

At trial, the plaintiff presented evidence to the trial court of their leases, along

with maps it considered illustrative of the lands on which the leases are held and those

of adjoining landowners. The plaintiff, through testimony of various club members,

testified as to various encounters with the defendants and their hunting dogs within

the property they assert is subject to the leases. The trial court also heard from

officials from the Louisiana State Land Office as to the Office’s position as to portions

of the leasehold property it contends are property of the State. While it is important

to note that there are various areas of the property to which the State lays claim,

7
See also La.Civ.Code art. 665, which addresses legal public servitudes and provides:

Servitudes imposed for the public or common utility, relate to the space
which is to be left for the public use by the adjacent proprietors on the shores of
navigable rivers, and for the making and repairing of levees, roads and other public
or common works.

All that relates to this kind of servitude is determined by laws or particular
regulations.

9

neither those contested areas nor the merits of those contests are at issue in this case.

The alleged violations by the defendants have occurred elsewhere on the property.

The defendants also testified, personally, as to their history in the basin, their

knowledge of the changes in water level, and their contentions regarding the

navigability of the various waterways.

In ruling, the trial court recounted the testimony and considered the above Civil

Code dictates, along with related jurisprudence and scholarly writings, explaining:

USE OF PRIVATE LANDS PERIODICALLY
INUNDATED WITH WATER
Courts have held that the banks of navigable river are private
things subject to public use, while swamp lands subject to overflow are
private things. Cf. State v. Barras, 615 So.2d 285 (La.1993). The Court
in Barras stated that the public has the traditional right to fish from boats
in navigable waters of [the] state. Professor Yiannopoulos points out in
his Louisiana Civil Law Treatise on Property that the banks of a
navigable river are private things subject to public use, while swamp
lands subject to overflow are private things. A.N. Yiannopoulos, W.R.
Irby Professor of Law, Tulane University, Louisiana Civil Law Treatise,
Vol. 2, Property, § 69 (3rd ed., West Publishing Company, St. Paul,
Minnesota, 1991). In the Barras case, the Court held that the Defendants
were guilty of trespassing when they refused to leave while crawfishing
in the Atchafalaya Basin on property belonging to Williams, Inc.

In this case, it was acknowledged that the water levels in the Basin
may cover land areas, from time to time, anywhere from six inches to
twelve feet. This does not convert all of the land that becomes covered
with water to “banks” which are subject to public use. See Barras,
supra.

There is no issue in the Court’s mind but that this privately leased
land is not subject to use by the public merely because during some
periods of the year it is flooded swampland. This Court recognizes the
difference between the banks of a navigable river and the flood plains of
a navigable river, in this case, the Atchafalaya River.

As to those banks which are along navigable rivers within the
leased premises, the use of these banks are limited to navigation and not
hunting.

10

USE OF PRIVATE CANALS
The next issue within this discussion is the use of private canals
located within the leased premises. Defendants argues[] that if a man-
made canal system destroyed the navigability of surrounding natural
waterways, this may constitute a defense to trespass by use of the private
canal because the private canal becomes subject to public use. There
was testimony from some of the defendants[] regarding the fact that
previous navigable waterways were silted up for much of the year. They
believed this was due to the construction of man-made canals in the
vicinity; however, they also acknowledge that the Corps of Engineers
began controlling the water level in the Basin. Further, Defendants did
not present any expert testimony or specific factual bases to support this
claim. While it is important that the Basin remain traversable so that
individuals may get to their private land and the public may access State
land, this does not allow the public to use privately owned canals at will
and to hunt from within these privately owned canals.

Defendants argue[] that there was an expenditure of public funds
for cleaning up the banks of some of the man-made canals after
Hurricane Andrew. However, the Defendants did not present any
evidence of the express or tacit agreement of the private landowners.
The use of public funds does not convey greater rights than those
contracted for by the parties. To hold otherwise would allow the taking
of private ownership rights without the consent of the owner and without
just compensation in violation of our State and United States
constitutions. Without establishing consent of the private landowners,
the state cannot unilaterally spend money on private waterways thereby
converting them to public use without the agreement of the landowner
and/or some exercise of imminent domain which would necessarily
involve just compensation. See Amigo Enterprises, Inc. v. Gonzales, 581
So.2d 1082, (La.App. 4 Cir. 1991) Defendants established no such
agreements.

Additionally, the fact that the canal is navigable in fact does not
thereby render it public. In National Audubon Society v. White, 302
So.2d 660, 667 (La.App. 3rd Cir. 1974), writ denied, 305 So.2d 542
(La.1975), the court held that a privately owned canal, though navigable
in fact, may not be subject to public use for the same reasons that a
private road, though used by commercial traffic, may not be subject to
public use.

The obligations arising from water being a public thing requires
the owner through whose estate running waters pass to allow water to
leave his estate through its natural channel and not to unduly diminish its
flow; however, this does not mandate that landowner allow public access
to waterway. LSA - C.C. arts. 450, 452, 658. People For Open Waters,
Inc. v. Estate of Gray, 643 So.2d 415 (La.App. 3 Cir. 1994).
Landowners and members of [the] general public have [the] right to use
running water for their needs, if they have access to it, but neither

11

landowners nor members of general public have the right to cross private
lands in order to avail themselves of running water, and such right may
only be established by agreement, destination of owner, or prescription.
No public rights to use of a canal located on private property arises from
the fact that water flows through channel. Cf. People For Open Waters,
Inc., supra.

Defendants also contend that by virtue of the regulations of the
Corps of Engineers, these man-made canals fall within the definition of
navigable waters subject to public use. One of the tests Defendants[]
argue, is whether the manmade canals constructed on private land is
connected to a natural navigable waterway. They argue that in previous
cases, the Court held that the Corps would have jurisdiction over such
canals if they connected to a natural navigable waterway but if they were
landlocked, the Corps would not have jurisdiction over it. The
regulations cited by Defendants merely allow the Corps to seek to
exercise regulatory control should it determine that in fact, the waterway
is within its jurisdiction and regulatory powers. Additionally, this would
be something that would be sought by the Corps, on a canal by canal
basis. There is no such issue involved in this case and the Court will not
venture afield to answer an issue which is not before it. The Defendants
have no basis to assert the right of the Corps of Engineers to control or
regulate the private waterways herein, especially in view of the fact that
the Corps has not seen fit to do so.

In Vaughn v. Vermilion Corporation, 100 S.Ct. 399 ([ ] 1979), the
court held that no general no right of use in the public to a private canal
arises by reason of the authority over navigation conferred upon
Congress by the Commerce Clause of the constitution.

The Court therefore finds that the man-made pipeline canals in
question are privately owned and the Petitioners by virtue of the leases
have not only a right but an obligation to keep trespassers off of the
leased property, which necessarily includes the private canals.

Our review of the record reveals support for the trial court’s appreciation of the

testimony and application of those facts to the relevant law. The testimony is

undisputed that, at various times of the year, the property in question may be

traversable by the defendants and others in various size boats. This fact, however,

does not make those waterways navigable as that term is used in the jurisprudence and

La.Civ.Code art. 450. Reference to the Louisiana Supreme Court’s discussion in State

v. Barras, 615 So.2d 285 (La.1993), a criminal trespass case, is demonstrative of the

12

concept that the presence of water during a portion of the year does not, alone, qualify

an area as a navigable waterway. See also Cenac v. Public Access Water Rights Ass’n,

02-2660, p. 10 (La. 6/27/03), 851 So.2d 1006, 1013, wherein the Louisiana Supreme

Court recently stated: “Although [a] canal is navigable, this fact alone does not render

it public.” Neither do we conclude that the trial court was required to credit the

defendants’ testimony regarding their opinion as to the diversion of natural waterways

through the construction of the privately owned canals. The credibility/weighting

assessments of these lay statements were certainly permissible in light of the

complexities of the geographical features at issue.

In short, our review of the entirety of the record, the applicable law, and each

of the defendants’ various arguments, indicates no manifest error in the trial court’s

determination that the defendants’ affirmative defense of navigability was not

demonstrated. This assignment lacks merit.

Banks of Navigable Waterways

In a somewhat brief assignment of error, the defendants contend in full that:

Because the right to use the public waterways described herein has
been granted to the public, and in this case, the defendants/appellees,
they have the right to use the navigable waterways and to use the banks
of the waterways as provided by Louisiana law. Therefore is [sic] this
court agrees with the defendants/appellants then the injunctive relief
should not have been granted.

While this is the assignment in full, it appears that the defendants are making

argument relating to their prayer for relief, wherein they contend that this court should

“reverse the decision of the trial court which found that the Defendants/appellants had

no right to hunt on the banks of navigable waterways.”

In ruling, the trial court determined that, while the public may enjoy the right

to use the banks of a navigable river, pursuant to the dictates of the Civil Code, those

13

uses are limited to those incidental to navigation.8 We find no error in this

determination. As can be seen from the text of La.Civ.Code art. 456: “The banks of

navigable rivers or streams are private things that are subject to public use.”

However, referencing language from the Louisiana Civil Code of 1870 and

subsequent jurisprudence, the comments to Article 456 support the trial court’s

determination that the public use associated with a bank of a navigable river/stream

is not without limit. Comment (b) provides, in part:

According to well-settled Louisiana jurisprudence, which
continues to be relevant, the servitude of public use under this provision
is not “for the use of the public at large for all purposes” but merely for
purposes that are “incidental” to the navigable character of the steam and
its enjoyment as an avenue of commerce. See State v. Richardson, 140
La. 329, 72 So. 984 (1916); Lyons v. Hinckley, 12 La.Ann. 655 (1856);
Chinn v. Petty, 163 So. 735 (La.App.2d Cir. 1935).

8
With regard to this assignment, the trial court found:

USE OF LAND ADJACENT TO NAVIGABLE WATERWAYS
....
Defendants contend that they could arguably be entitled to use all the land
between the eastern and western guide levees of the Atchafalaya Basin and that they
are entitled to use the banks of navigable rivers or streams pursuant to this statute.
However, the nature of the use of the banks of navigable rivers and streams is not for
use of the public at large for all purposes, but rather for purposes incidental to the
navigable character of the stream and its enjoyment as an avenue of commerce.
Although the banks can be used for temporary mooring, etc., it does not include the
right to hunt banks of rivers. The reason is historic and it goes back to the old days
when the streams and rivers were a major source of commerce up and down the
bayous and the rivers of this State, more so than it was on the highways, which were
largely undeveloped in those days; and that it was necessary that the traffic on the
navigable streams could have access to the banks for various reasons: in case of ship
wreck, to dry nets, to rest from the waters, etc. See State v. Barras, 602 So.2d 301,
304 (La.App. 3 Cir. 1992). In Edmiston v. Wood, 566 So.2d 673 (La.App. 2 Cir.
1990), a case involving similarly situated lands and similar issues, the Defendants[],
owner and lessor of lands which became inundated periodically from backwaters of
the Mississippi, were allowed to post the property against trespassers and to prevent
individuals from traversing their vessels over that property when neighboring
navigable bodies of water overflow their natural bed and bottoms and covered the
Defendants’ land. The Court determined that hunting and fishing the adjacent
overflowed lands are not incidental to the navigable character of the stream and its
enjoyment as an avenue of commerce. The court further determined, as this Court
does, that merely because a bank of a navigable stream overflows does not subject
it to public use in accordance with La.Civil Code Art. 456.

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See also Edmiston v. Wood, 566 So.2d 673 (La.App. 2 Cir. 1990); 2

YIANNOPOULOS CIVIL LAW TREATISE: PROPERTY § 85 (4th ed. 2001). In

light of this support, we find no error in the trial court’s determination to prohibit the

defendants from hunting on the banks of those waterways found to be navigable.

DECREE

For the foregoing reasons, the decision of the trial court is affirmed. All costs

of this proceeding are assessed against the defendants, Buddy Bayard, Carrol Bayard,

Kurt Boudreaux, Oswald Buteaux, Cory Bourque and Ossie Romero.

AFFIRMED.

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