Fourth Ward Drainage District 1 v. Rachel L. Bertrand

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

22-525

FOURTH WARD DRAINAGE DISTRICT 1

VERSUS

RACHEL L. BERTRAND

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APPEAL FROM THE
FIFTEENTH JUDICIAL DISTRICT COURT
PARISH OF ACADIA, NO. 201711134
HONORABLE LAURIE HULIN, DISTRICT JUDGE

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WILBUR L. STILES
JUDGE

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Court composed of Van H. Kyzar, Guy E. Bradberry, and Wilbur L. Stiles, Judges.

REVERSED AND RENDERED; REMANDED.

Charles R. Minyard
P.O. Box 3642
Lafayette, Louisiana 70502
(337) 266-2300
COUNSEL FOR PLAINTIFF/APPELLANT:
Fourth Ward Drainage District #1

Jacques P. Soileau
405 West Main Street, Suite 200
Lafayette, Louisiana 70501
(337) 769-3312
COUNSEL FOR DEFENDANT/APPELLEE:
Rachel L. Bertrand

STILES, Judge.

Plaintiff Fourth Ward Drainage District #1 (the District) appeals the trial

court’s judgment denying the District’s demand for access to the Acadia Parish

property of Defendant Rachel L. Bertrand for purposes of inspection and

maintenance of a drainage servitude located thereon. For the following reasons, we

reverse the trial court’s judgment and render judgment in favor of the District. We

remand this matter for determination of costs and attorney fees.

FACTS AND PROCEDURAL HISTORY

This matter arose in 2016 after residents of the Gents Park Subdivision in

Acadia Parish experienced repeated instances of flash flooding in the neighborhood.

The residents suggested to the District’s Board of Commissioners that Ms. Bertrand

had impaired drainage over and across her property which borders the H-11 public

drainage canal located within the District’s jurisdiction.

Ms. Bertrand acknowledged that, after she purchased her eighteen-acre tract

in 2009, she worked to improve the drainage on the property, which she uses for a

horse training business. Ms. Bertrand disputed that her own drainage affects the

Gents Park Subdivision’s drainage. Ms. Bertrand asserted that the flooding was

instead attributable to obstructions within the subdivision as well as an irrigation

pipe crossing the drainage ditch on downstream property owned by a member of the

District’s Board, Carl A. Hetzel, Jr. Ms. Bertrand suggested that the pipe allowed

debris to accumulate and obstruct drainage.

Given her position, Ms. Bertrand resisted the District’s attempts to access her

property for purposes of exercising its servitude of right-of-way of 100 feet over and

1
While the District identifies the canal as “H-1,” the Louisiana Department of
Transportation and Development identifies the canal as “Lateral L-1 W-W (L-53).”

across the bank of the drainage ditch. See La.R.S. 38:113. The District therefore

retained counsel and delivered a September 12, 2017 demand by certified mail

informing Ms. Bertrand:

I represent the Fourth Ward Drainage District #1 of the Parish of
Acadia concerning the Board of Commissioner’s request for access to
the above referenced property owned by you located on Hetzel Road,
Crowley, Louisiana. You attended the special meeting held on
September 11, 2017 wherein you declined the Board’s request for
access to the property during the open portion of the meeting. You are
aware of complaints of flooding of property and streets and the slow
drainage of water by residents of Gents Park Subdivision whose
properties border your property on the north. The Drainage Board finds
it is necessary to request formal access to your property by this letter to
inspect the area along the Drainage Board as H-1. The Board wishes
to inspect the area along the drainage ditch, including the earthen berm
and pipe drop drains, in order to determine the number of pipe drop
drains, their size and the capacity of the drain pipes to serve the needs
of your property as well as the property which is higher in elevation
according to the topographical map available to the Board.

Please be advised the designation of the drainage ditch
referenced above as L-1W-W (L-53) has been certified by the LDOTD
as a public drainage ditch. Pursuant to Louisiana Revised Statute
38:113 …, the Drainage Board has control over public drainage
channels, the out falls and “ . . . a space of 100' on both sides of the
banks of the drainage channel and canal outfalls . . .” This is a formal
request for access to your property described above under the
provisions of Louisiana Revised Statute 38:215.1 . . . to inspect the
drainage right of way, pipe drops, the earthen berm and perform civil
survey work of the ditch designated as L-1W-W (L53) (also H-1).
Formal demand is hereby made upon you for that access under the
statute.

You are further notified that you may request a hearing to be held
before the Drainage Board concerning this notice. After thirty (30)
days of receipt of this letter, the Drainage Board intends to schedule a
date and time to access the property and perform the inspection and
survey work. You will receive due notice of the date and time of same.
In the event you request a public hearing, please mail your request to
Mr. Jerry Thompson, President of the Fourth Ward Drainage District
#1 . . . .

Ms. Bertrand did not invoke the right to a hearing as acknowledged by the

District’s counsel and as provided by La.R.S. 38:215.1. Rather, correspondence

2

between counsel for the District and counsel for Ms. Bertrand reflects that Ms.

Bertrand was willing to permit access for the purposes of a survey if certain

conditions were met. In particular, Ms. Bertrand denied access to the Board’s

President, Jerri Thompson, or its Vice-President, Mr. Hetzel. The latter, Ms.

Bertrand’s counsel suggested, had “a conflict of interest[,]” which counsel stated

would be “dealt with both judicially and ethically.” Ms. Bertrand’s counsel

explained that law enforcement would be notified if the Board members appeared.

By reply letter of October 19, 2017, the District’s counsel characterized Ms.

Bertrand’s conditions and demands as “unduly burdensome, overly restrictive,

unnecessary and unwarranted.” The District disputed Ms. Bertrand’s attempt to

keep the identified Board members from the property, characterizing that condition

as “personal and unrelated to or in furthering any purpose associated with the

Board’s request for access.” The District reiterated that its “request for ingress and

egress to the property for access is to perform inspection and survey work to obtain

facts and information necessary to make determinations by the Board.” The District

expressed its concern that acquiescing in Ms. Bertrand’s demands would set “an

unacceptable precedent” and interfere with the Board members’ duties and

responsibilities. Counsel stated that:

Therefore, on behalf of the Board, I respectfully reiterate their
request for ingress and egress for access to your client’s property to the
100' servitude along the drainage ditch as provided by law, including
all Board members, officers, employees, agents, surveyors and
contractors as may be necessary and convenient at reasonable hours
during the day to perform the inspection, including pipe drops, and the
surveying of your client’s property. The Board will agree to provide
written, telephone and/or electronic notice to you and your client of the
scheduling of any inspection, surveying, work, etc. to be conducted on
the property not less than 24 hours prior to entry. If necessary, the
Board has instructed me to file suit under the provisions of LA R.S.
38:215.1.

3

In response, Ms. Bertrand denied that twenty-four hours offered sufficient

notice and instead demanded “one week notice prior to [the District’s] entry onto the

property giving us a time and date.” Ms. Bertrand and her counsel further demanded

to be present at the “inspection.” By final letter dated November 10, 2017, the

District’s counsel rejected the demand for a week’s notice, finding it again “unduly

burdensome and cumbersome.” Counsel explained:

It is reasonable that access will be required on multiple occasions by
different people at different times for different reasons. The
inconvenience and delay of such a restrictive procedure is unwarranted
and unnecessary and interferes with the performance of the Board’s
function to inspect, access, survey and perform necessary maintenance
work. The demand prohibiting certain Board members from ingress
and egress on the property for Drainage Board purposes is an
unacceptable demand and would set a precedent which would interfere
with the duties and responsibilities of the Drainage Board and interferes
with the Board’s ability to perform its functions and it does not comply
with the right of access afforded by law. Please see La R.S. 38:113 and
La R.S. 38:215.1. Neither statute provides such restrictive conditions
as you have set forth in your letters of October 11th and November 7th.
Therefore, I again reiterate the Board’s finding that the conditions and
restrictions set forth in your letters are unduly burdensome, overly
restrictive, unnecessary and an unwarranted interference with the duties
and responsibilities of the Drainage Board members and would set an
unacceptable precedent for future operations of the Drainage Board
with other landowners.

Given the impasse, the District filed the Petition for Access to Property for

Inspection and Maintenance Work instituting this matter against Ms. Bertrand on

November 27, 2017. The District detailed the history of the controversy, and noted

that Ms. Bertrand neither pursued her right to a public hearing nor responded to its

final letter of November 10, 2017. Asserting that Ms. Bertrand’s previously-

communicated conditions prevented reasonable access to the property, the District

cited La.R.S. 38:113 and La.R.S. 38:215.1 in its plea for a court order “authorizing

access to the property during such hours and days as may be reasonable including

notification to [Ms. Bertrand] not less than 24 hours prior to entry onto the property

4

for the purposes of inspection, surveying, cleaning, clearing and excavating on said

property, subject to the provisions of law[.]” The District asked that costs, expenses,

and attorney fees be assessed against Ms. Bertrand. Ms. Bertrand answered the

appeal by general denial of the allegations.

The District filed a motion for summary judgment in August 2018, the hearing

for which was continued after the parties reached an interim agreement allowing for

the District’s limited access for inspection and survey.2 The District’s survey was

2
The resulting January 22, 2019 Consent Judgment provided, in part:

IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the
Plaintiff, Fourth Ward Drainage District #1, shall engage A. Hebert Land Surveying
for the purpose of inspecting and surveying the property belonging to the Defendant,
RACHEL BERTRAND, including inspecting the berm, to perform a topographical
survey locating and inspecting all pipe drops along the berm, to determine the
elevations of the property with respect to the drainage ditch, the berm and the pipe
drops and to establish the data points necessary to show the contours of the property;
and

IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the
survey crew, employees and agents of A. Hebert Land Surveying shall be allowed
free access to the property without interference from any persons to inspect the
property, locate the pipe drops, establish data points and to perform all necessary
work using all necessary equipment, including vehicles, four-wheelers, etc., as
usual and customary in the performance of the work to be performed as professional
surveyors/engineers, including the use of shovels or other tools to locate and inspect
pipe drops and/or to clear weeds, grass and brush; and

IT IS FURTHER ORDERED, ADJUDGED AND DECREED that
Defendant, RACHEL BERTRAND, shall be given no less than 10-days prior notice
by A. Hebert Land Surveying of the date and time the work is scheduled to begin;
and

IT IS FURTHER ORDERED, ADJUDGED AND DECREED that and
there shall be no excavation work by Defendant or its agents to alter the elevation
or topography of the property during the time the survey crews/personnel are
allowed access to the property under this Judgement; and

IT IS FURTHER ORDERED, ADJUDGED AND DECREED that no
members of the Drainage Board shall enter the property during the survey work
being performed by A. Hebert Land Surveying until further orders of the Court;
and

IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the trial
in this matter set for January 22, 2019 be and the same is hereby continued without
date and that either party may petition the Court to reset the trial at a later date[.]

5

thereafter completed and filed into the record. When the trial court heard the motion

for summary judgment in May 2020, counsel for the District re-urged the District’s

request for access and explained that the District sought to “exercise its statutory

jurisdiction to do some work, install some drop pipes, lower the berm in certain areas,

all intended to deal with flash flooding.” Counsel maintained that the work “should

be to the benefit of Ms. Bertrand’s property as well as anybody else.” Counsel

disputed that the District sought access to the entirety of Ms. Bertrand’s property

and asserted that it had “only ever sought access to the ditch, by the shortest and

most reasonable and least detrimental … route to get to that ditch.” In contrast, Ms.

Bertrand’s counsel suggested that the issue of access was moot given the completion

of the survey but that the issue remained whether the District’s proposal to perform

work on the berm and to add a drop pipe was reasonable. After argument, the trial

court denied the District’s motion, finding genuine issues of material fact remained

as to the reasonableness of the work proposed.

In January 2022, the trial court conducted a three-day bench trial on the merits

of the District’s petition. Both parties presented fact witnesses who explained the

District’s history of maintenance of the drainage ditch, the flash flooding event that

led to the complaints from the Gents Park Subdivision residents, and Ms. Bertrand’s

ownership of her property as well as her efforts in resisting the District’s proposed

maintenance. The District presented expert testimony regarding the purported

benefit afforded by its proposal to “reinstall” a third drop pipe3 running from Ms.

3
It is undisputed that two drop pipes drain naturally flowing water from Ms. Bertrand’s
property into the H-1 drainage ditch. The District suggests that the property once contained a third
drop pipe which has since been removed. Ms. Bertrand, however, maintains that only two drop
pipes have existed on the property since she has owned it. In any event, the District seeks to install
an additional drop pipe which would capture the natural flow of water moving in a north-south
direction across Ms. Bertrand’s property and into the drainage canal.

6

Bertrand’s property into the drainage canal as well as its related proposal to lower

the berm height in the area surrounding the drainage pipes. In contrast, Ms.

Bertrand’s expert disputed certain elevation data relied upon by the District and

suggested that the proposed project would offer little benefit given the relatively

slow east/west flow from the drainage ditch itself.

At the close of argument, the trial court questioned whether the District’s

initial, September 10, 2017 letter provided adequate notice of the District’s proposal.

After consideration, the trial court rendered written reasons recognizing that the H-

1 drainage canal is within the District’s jurisdiction and that it is a public drain

channel protecting the interests of the public in general. However, the trial court

found that the District could not prevail on its request as it had not provided the

notice required by La.R.S. 38:215.1. The trial court reasoned, in part:

It is uncontested that the Fourth Ward Drainage Board has the
authority over the H1 drainage canal. In order for the plaintiff to access
the public drainage through the use of the defendant’s property, the
access must be within the normal course of the plaintiff’s duties and
written notice must be given to the landowner at least thirty days prior
to the commencement of any maintenance activities on the property.
On September 12, 2017, counsel for the Fourth Ward Drainage District
#1, Thomas Regan, sent notice to Ms. Bertrand, which stated in part:

This is a formal request for access to your property
described above under the provisions of Louisiana
Revised Statu[t]e 38:215.1 to inspect the drainage right of
way, pipe drops, the earthen berm and perform civil survey
work of the ditch designated as L-1-W-W (L-53) (also H-
1).

Plaintiff refused. After suit was initiated, plaintiff and defendant
entered into a consent judgment on January 29, 2017. The judgment
allowed the plaintiff to enter upon the property for the purpose of
inspection and survey as requested in the notice sent on September 12,
2017. Thereafter, an inspection and survey were completed.

Plaintiff petitions this court for access to the property of Rachel
Bertrand for the purpose of inspection, surveying, cleaning, clearing,
excavating and maintenance work on the property of Rachel Bertrand

7

and maintenance work on the berm located within the 100 foot right of
way. The notice specifically listed inspection and survey. The drainage
board was granted access and completed the inspection and survey.
This court finds that the drainage board failed to provide any written
notice to the landowner at least 30 days prior to the commencement of
any additional maintenance activity on the property as required in
Louisiana Revised Statu[t]e 38:215.1. Therefore, due process notice to
the adjacent property owner was not satisfied. This court finds in favor
of the defendant. As the prevailing party, the defendant is hereby
entitled to an award of court cost[s] and attorney’s fees incurred by the
prevailing party.

The trial court determined the latter-referenced costs and attorney fees following

separate proceedings.

The resulting final judgment of March 4, 2022 reflected the trial court’s

finding in favor of Ms. Bertrand due to the District’s failure to “to carry their burden

of proof.” The trial court awarded Ms. Bertrand costs in the amount of $13,644.12

and attorney fees in the amount of $49,175.00.

After the trial court denied the District’s motion for reconsideration, the

District appealed, assigning the following as error:

1. The Trial Court erred when it “found in favor of the defendant”
based on lack of notice in compliance with La. R.S. § 38:215.1.

2. The Trial Court erred in failing to award judgment in favor of the
Drainage District when the evidence showed that the project at issue
would benefit all parties.

3. The Trial Court erred in awarding attorney’s fees to Bertrand,
rather than the Drainage District.

DISCUSSION

Louisiana Revised Statutes 38:215.1

The District first addresses the trial court’s foundational determination that it

failed to satisfy the notice requirements required for its entry onto Ms. Bertrand’s

property. On this point, La.R.S. 38:215.1, entitled “Public drainage; refusal of

access for maintenance purposes; court costs and attorney fees; definitions” provides:

8

A. No landowner shall refuse to grant reasonable surface access
to any existing natural or artificial public drainage by a local governing
authority, drainage district, or other public entity charged with
maintaining the public drainage when such access is within the normal
course of the entity’s duties and written notice has been given to the
landowner at least thirty days prior to the commencement of any
maintenance activities on the property. The landowner shall also be
given an opportunity for a public hearing, held before the municipal
drainage authority, parish drainage district, or public works district for
the city where the landowner’s property is located, subject to the
judicial review rights under the Administrative Procedure Act.

B. In any action in a court of competent jurisdiction where the
court is required to determine the right of access to the public drainage
pursuant to this Section, the prevailing party shall be entitled to an
award of court costs and attorney fees incurred by the prevailing party.

C. For purposes of this Section, “public drainage” means any
existing natural or artificial drainage ditch, drain, culvert, canal, creek,
bayou, or small river.

D. For purposes of this Section, “reasonable surface access”
means the utilization of existing ingress and egress points on a
landowner's property so as not to disrupt the activities of the landowner
or cause damage to the property.

(Emphasis added.)

The trial court resolved the notice inquiry by reference to the District’s

September 12, 2017 certified letter to Ms. Bertrand seeking access to her property

under the provisions of La.R.S. 38:215.1 in order to “inspect the drainage right of

way, pipe drops, the earthen berm and perform civil survey work of the ditch

designated as L-1 W-W (L-53) (also H1).” The trial court noted that the “inspection”

and the “survey” had been conducted pursuant to the consent judgment but that the

District had not otherwise provided notice of “any additional maintenance activity

on the property as required in Louisiana Revised Statu[t]e 38:215.1.” In light of its

determination that the District failed to comply with the statute’s due process

requirement, the trial court concluded that the District failed to sustain its burden of

proof for access to the property.

9

Following review, we conclude that the trial court’s construction of the notice

requirement of La.R.S. 38:215.1 was overly narrow, particularly in light of the

realities of this now five-year old suit. The statute references a drainage district’s

need to access property within the drainage district’s “normal course” of its duties

and its provision of notice prior to the commencement of “maintenance activities[.]”

The focus of the statute is on the fact of access and the temporal element of the notice.

The statute does not require a particularized designation of the type of “maintenance

activities” anticipated and, functionally, the specific “activities” required may not be

discernable until the completion of preliminary activities such, as in this case,

inspection and surveying. To require the District to provide notice for preliminary

activities and return for further maintenance following an additional thirty-day

notice implies a type of piecemeal operation counterproductive to the District’s

duties.

Moreover, in this case, the trial court’s singular focus on the September 2017

certified letter ignores the progression of this case and Ms. Bertrand’s actual notice

of the proposed maintenance. As seen in the correspondence excerpted above, Ms.

Bertrand ultimately became aware of the details of the District’s proposed work on

the drainage canal, attended public meetings in that regard, had particularized notice

of the proposed “maintenance” by the filing of the 2017 lawsuit instituting this

matter on that very topic, and, in fact, litigated the reasonableness of the maintenance.

Ms. Bertrand engaged her own expert engineer to review the District’s proposal and

litigated the matter over the course of three days. To conclude that a five-year-old

notice was procedurally deficient and otherwise fatal to the District’s claim elevates

form over substance under these facts.

10

We do not, however, suggest that the District not inform Ms. Bertrand of the

date and time of its proposed entry onto her property. We merely hold here that

La.R.S. 38:215.1 is not so rigidly drafted as to require the District to have provided

Ms. Bertrand with every detail of the “maintenance activities” for which it sought

entry. In casting the decree below, we order that the District provide Ms. Bertrand

with a week’s notice prior to the commencement of its further maintenance

activities.4

Accordingly, finding that La.R.S. 38:215.1’s notice requirements have been

amply met in this case, we turn to consideration of the merits of the District’s case.

We do so on de novo review of the record. See Kinnett v. Kinnett, 20-1134, p. 7 (La.

12/10/21), 332 So.3d 1149, 1154 (“[W]here one or more legal errors interdict the

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

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

de novo review of the record.”)

Louisiana Revised Statutes 38:113

It is unquestioned in this case that the District has a legal servitude over the

drainage canal at issue pursuant to La.R.S. 38:113, which provides:

The various levee and drainage districts shall have control over
all public drainage channels or outfall canals within the limits of their
districts which are selected by the district, and for a space of one
hundred feet on both sides of the banks of such channels or outfall
canals, and one hundred feet continuing outward from the mouth of
such channels or outfall canals, whether the drainage channels or outfall
canals have been improved by the levee or drainage district, or have
been adopted without improvement as necessary parts of or extensions
to improved drainage channels or outfall canals, and may adopt rules

4
This schedule is provided in order to facilitate the District’s orderly exercise of its
servitude under the circumstances of this case. See La.Code Civ.P. art. 2164 (“The appellate court
shall render any judgment which is just, legal, and proper under the record on appeal.”).

11

and regulations for preserving the efficiency of the drainage channels
or outfall canals.

Jurisprudence interpreting La.R.S. 38:113 has determined that a drainage district

seeking to exercise its servitude must demonstrate 1) that it had previously improved

the drainage channel or adopted the drainage channel without prior improvement as

a necessary part of or extension to improved drainage channels; and 2) that the

drainage channel is a public channel. See South Fork Holdings, LLC v. Cameron

Par. Gravity Drainage Dist. No. 8, 22-58 (La.App. 3 Cir. 11/23/22) (unpublished

opinion) (quoting Whipp v. Bayou Plaquemine Brule Drainage Bd., 476 So.2d 1042

(La.App. 3 Cir. 1985)). See also Berard v. St. Martin Par. Gov’t, 13-114 (La.App.

3 Cir. 6/5/13), 115 So.3d 761. In Whipp, a panel of this court explained that a court

is not to substitute its judgment as to the necessity of a drainage district’s project

relating to the servitude created by La.R.S. 38:113 absent evidence of an abuse of

discretion.

The record firmly establishes the first element as the District presented

testimony regarding its maintenance of the H-1 canal at its location on Ms.

Bertrand’s southern border and with which Ms. Bertrand cooperated.

The record similarly establishes the second factor, i.e., that the canal is a

public channel which has “been used for the purpose of drainage for many years and

that this drainage protects the interest of the public in general rather than the interest

of particular individuals.” See Whipp, 46 So.2d at 1046. While Ms. Bertrand

objected to the benefit offered by the District’s proposed drainage project, she has

failed to demonstrate that the proposal was an abuse of the discretion afforded the

District to have “control” over the drainage canal and “to adopt rules and regulations

for preserving the efficiency of the drainage channels or outfall canals.” Rather, the

12

proposed maintenance appears to fit firmly within the District’s control, jurisdiction,

and discretion.

Most pointedly, the District presented the testimony of Robert W. Pothier,

accepted by the trial court as an expert in civil engineering with expertise in public

and private drainage. Mr. Pothier explained that the subject portion of the H-1 canal

had once been equipped with three drop pipes facilitating the movement of water

collecting against the northern canal berm into the drainage ditch. However, at the

time the subject project was proposed, only two remained. Therefore, the District

proposed to create an “emergency overflow weir” by reinstalling the third drop pipe

and lowering the height of the berm on each side of the three pipes. Mr. Pothier

explained that the expedited movement of water would benefit both the Gents Park

Subdivision, located north of Ms. Bertrand’s property, and Ms. Bertrand’s property

in the event of flash flooding. Mr. Pothier described the project as minimal in nature

and estimated that it would cost $3000-$4000 at most, take no more than a day to a

day-and-a-half, and would only require the use of a “mini excavator.” He explained

that the project would not interfere with Ms. Bertrand’s property. Mr. Pothier

described the proposed project as reasonable given its potential to alleviate flash

flooding.

Ms. Bertrand presented her own expert witness in opposition. Simon

Alexander Guillory, accepted as an expert in civil engineering with expertise in

hydraulic engineering as well as drainage and/or public works, suggested that the

benefit of the District’s proposal to the Gents Park Subdivision was overrepresented,

although he conceded that it could benefit Ms. Bertrand’s property. Namely, using

different elevation data than that used by the District, Mr. Guillory opined that the

flooding experienced in the area was not caused by insufficient movement of water

13

from the north into the canal, but from the relatively slow downstream conveyance

out of the canal. Mr. Guillory attributed the slow downstream conveyance both to

the narrow width of the H-1 canal and to the relatively level topography of the area.

On questioning by counsel for Ms. Bertrand, Mr. Guillory also recognized that the

irrigation pipe on Mr. Hetzel’s downstream property posed a risk of obstruction due

to its potential to gather debris.

Throughout these proceedings, Ms. Bertrand focused both on the downstream

irrigation pipe on Mr. Hetzel’s downstream property and purported obstructions

within the subdivision itself as potential sources for flooding in the area. Her focus,

however, is misplaced in the analysis attendant to La.R.S. 38:113 and the District’s

ability to exercise its legal servitude. Simply, the inquiry is whether Ms. Bertrand

has presented evidence to indicate that the District’s pursuit of its proposed project

is an abuse of discretion. She has not done so, simply insisting that different projects

could better address the flooding concerns. While Ms. Bertrand points to these other

potential projects, she has not otherwise demonstrated that the District’s

methodology is unreasonable, unreliable, or unfounded. Simply, Ms. Bertrand has

not produced evidence requiring a finding that the District’s plan was an abuse of its

discretion in the management of the drainage servitude. See Whipp, 476 So.2d 1041

(providing for the review of a drainage district’s proposed project by the abuse of

discretion standard).

Moreover, while Ms. Bertrand posits that improvements to the downstream

movement of the canal channel itself will diminish the risk of flooding, her preferred

remedy is not exclusive of that offered by the District. Rather, Ms. Bertrand’s

remedies are simply not the avenue sought by the District at this time, and such

14

authority to manage the servitude is left to the District by virtue of the “control”

conveyed over its use by La.R.S. 38:113.

Accordingly, we below grant judgment in favor of the District under the

statutory authority of La.R.S. 38:113 and La.R.S. 38:215.1, allowing the District to

exercise its legal servitude on the drainage canal at issue.

Costs and Attorney Fees

Our above determination requires a reversal of the trial court’s award of court

costs and attorney fees to Ms. Bertrand under the authority of La.R.S. 38:215.1(B),

which provides that “[i]n any action in a court of competent jurisdiction where the

court is required to determine the right of access to the public drainage pursuant to

this Section, the prevailing party shall be entitled to an award of court costs and

attorney fees incurred by the prevailing party.” As we have found that the District

has a “right of access to the public drainage pursuant to [La.R.S. 38:215.1],” we find

it appropriate to award the District, as the prevailing party, its costs and attorney fees.

Although the record includes certain costs and fees incurred by the District following

earlier proceedings, we find it appropriate to remand the matter to the trial court for

a determination of the costs incurred in the trial court and the attorney fees incurred

in both the trial court and in pursuit of this successful appeal. Below, we award costs

incurred in this court to the District as the prevailing party.

DECREE

For the foregoing reasons, the trial court’s judgment of March 4, 2022 is

reversed. Judgment is hereby entered in favor of Plaintiff/Appellant Fourth Ward

Drainage District No. 1 and against Defendant/Appellee Rachel L. Bertrand.

It is hereby ordered, adjudged and decreed that Plaintiff/Appellant Fourth

Ward Drainage District No. 1 is authorized to access Defendant/Appellee Rachel L.

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Bertrand’s subject property to exercise the public drainage servitude established by

La.R.S. 38:113 and La.R.S. 38:215.1. Plaintiff/Appellant Fourth Ward Drainage

District No. 1 shall provide written notice to Defendant/Appellee Rachel L. Bertrand

with at least seven days prior to the commencement of its maintenance activities on

the property.

This matter is remanded for the trial court’s determination of the costs and

attorney fees awardable to Plaintiff/Appellant Fourth Ward Drainage District No. 1

as the prevailing party under La.R.S. 38:215.1.(B).

Court costs incurred on appeal are assessed against Defendant/Appellee

Rachel L. Bertrand.

REVERSED AND RENDERED; REMANDED.

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