Here we go
April 20, 2012 at 9:03am
Bear with me fellas. This is going to be long and difficult to read as this website does not have option to bold, quote or underline.
Louisiana Civil Code 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.
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. 453. Private things.
Private things are owned by individuals, other private persons, and by the state or its political subdivisions in their capacity as private persons.
Art. 455. Private things subject to public use.
Private things may be subject to public use in accordance with law or by dedication.
RS 14:1701. Declaration of policy; public trust
The beds and bottoms of all navigable waters and the banks or shores of bays, arms of the sea, the Gulf of Mexico, and navigable lakes belong to the state of Louisiana, and the policy of this state is hereby declared to be that these lands and water bottoms, hereinafter referred to as 'public lands', shall be protected, administered, and conserved to best ensure full public navigation, fishery, recreation, and other interests. Unregulated encroachments upon these properties may result in injury and interference with the public use and enjoyment and may create hazards to the health, safety, and welfare of the citizens of this state. To provide for the orderly protection and management of these state-owned properties and serve the best interests of all citizens, the lands and water bottoms, except those excluded and exempted and as otherwise provided by this Chapter or as otherwise provided by law, shall be under the management of the Department of Natural Resources, hereinafter referred to as the 'department'. The State Land Office, hereinafter referred to as the 'office', shall be responsible for the control, permitting, and leasing of encroachments upon public lands, in accordance with this Chapter and the laws of Louisiana and the United States.
Some case law blurbs:
'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 [Pg 12] running water for their needs, if they have access to it, but neither landowners nor members [**20] 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, [**21] 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, 444 U.S. 206, 100 S. Ct. 399, 62 L. Ed. 2d 365 (1979), the court held that no general 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 [*275] 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 [**22] 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.
Buckskin Hunting Club v. Bayard, 868 So. 2d 266, 274-275 (La.App. 3 Cir. Mar. 3, 2004)
And a 20 year old law review article blurb that might help with our confusion on why this is a difficult issue to grasp:
THE PUBLIC TRUST DOCTRINE IN LOUISIANA
Volume 52 March 1992 Number 4
La Law Rev. 1992
Louisiana's unique geography has led to a great deal of confusion in determining the extent of the state's public trust lands. Louisiana has about 40% of the nation's coastal wetlands, a vast amount of acreage.' Louisiana's wetlands are comprised of low-lying salt, brackish, and fresh marshes, many of them subject to tidal inundation from the daily ebb and flow of the tides, and literally thousands of lakes, bays, coves, rivers, bayous, streams, and tidal passes, a great number of which are also affected by the daily ebb and flow of the tides. Both lands-subject to daily tidal inundation such as shores, tidal flats, etc.-and water bodies-affected by the daily ebb and flow of the tides-ean be said to be tidally influenced (by astronomical tides). Much of the Louisiana coastal region is subject to tidal overflow from wind-driven tides during hurricanes, storms, or high winds. These wind-driven tides can have a greater effect on overflow than the daily ebb and flow in some areas. Large coastal areas were also overflowed by flood waters from the numerous rivers, streams, bayous, etc., especially before the extensive levee building that has occurred in the last century. The boundaries between land and water in Louisiana's coastal wetlands are very often indistinct; this is the nature of wetlands. To complicate matters, Louisiana's coastal wetlands have been fluctuating for thousands of years between periods of expansion and recession, depending on factors such as sea level, subsidence rate, and sediment deposition.' Soon after Europeans and other nonnatives began inhabiting southern Louisiana, they introduced new factors affecting wetlands, such as dredging and filling, levees, and canals.' It is now well established that levees and canals have accelerated natural wetland loss; recent estimates are that thirty square miles of Louisiana coastal wetlands are lost each year.'
The dynamic changes of the Louisiana coast have important implications under the state's property laws and the public trust doctrine. Erosion and subsidence on the shores of the sea and other navigable water bodies have the effect of increasing state ownership as the beds of those water bodies expand.' Consequently, state public trust ownership extends to the new beds up to the mean high water mark for lakes' and to the extent of the highest winter tides for the sea.'
Bottom line is that this issue is intertwined between the laws of public right to use things and private ownership. Of course, we all want the public to be able to use as much of our resources as possible, but how do we also protect the landowner who has rights under the law as well? We can argue until we are blue in the face that we like this aspect of the law or that aspect of it, but this is a very complicated subject not easily addressed by individual biased comments on a message board.
BTW, my analysis above is far from complete and was quite lazy, but should reflect a bit more research than anything else posted here. There is nothing within on which you can personally attack me, but take your shots anyway.