Hall Ponderosa, LLC v. State Through Louisiana State Land Office

345 So.3d 537

HALL PONDEROSA, LLC, Plaintiff-Appellant

v.STATE of Louisiana, THROUGH LOUISIANA STATE LAND OFFICE; John Lavin, Director of Louisiana State Land Office, Defendant-Appellees

No. 54,678-CA

Court of Appeal of Louisiana, Second Circuit.

Judgment rendered August 10, 2022.

Rehearing Denied September 15, 2022

BETHARD & BETHARD, L.L.P., By: Benjamin T. Bethard, Coushatta, Matthew S. Kelley, PETTIETTE, ARMAND, DUNKELMAN, WOODLEY, BYRD & CROMWELL, L.L.P., By: Edwin H. Byrd, III, Shreveport, Counsel for Appellant

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

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

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

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

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

Before MOORE, COX, and MARCOTTE, JJ.

COX, J.

This suit arises out of the 39^th Judicial District Court, Red River Parish, Louisiana, ad hoc Judges Dee Hawthorne and John Robinson presiding. Hall Ponderosa, LLC ("Hall") brought suit against the State of Louisiana to be declared the owner of certain land and minerals along the Red River. The trial court found against Hall, and Hall now appeals. For the following reasons, we reverse the trial court's judgment regarding expert fees and remand for a contradictory hearing to determine the amount of expert fees. We affirm the trial court in all other respects.

FACTS

Hall owns title to property that was adjacent to the Red River prior to 1945 and located in Sections 13 and 14, Township 12 North, Range 10 West, in Red River Parish, Louisiana. The property in dispute is located west of the current path of the Red River and east of the former river channel (referred to as "the Island") and includes a portion of the former river channel (referred to as "the Oxbow").

Hall filed a petition for declaratory relief on April 30, 2012, seeking to prevent the State from claiming lands located above the ordinary low water line of the Red River adjacent to and within the disputed property. Through a series of amended petitions, the following parties were named defendants: the Louisiana State Mineral and Energy Board ("State"), Stephens Sisters, LLC ("Stephens Sisters"), Elizabeth Fisher Lester Minerals, LLC ("Lester Minerals"), Elizabeth Fisher Lester Land, LLC ("Lester Land"), Elizabeth Claire Lester Bausch, Leu Anne Lester Greco, and Random Precision, LLC. Hall's amended petitions sought judgment denying any of the defendants’ claims to the property above the ordinary high water line and any alluvion or accretion.¹

Hall's predecessor in title was W.A. Hall, who acquired property known as the Stella Plantation in 1926 ("the 1926 property"). Hall's position was (and still is) that in 1945, the Red River made an avulsion cut north of its property, which caused the Red River to meander away from the 1926 property and create a large deposit of alluvion. W.A. Hall then acquired additional adjacent property from the Town of Coushatta in 1952 ("the 1952 property"). Hall claimed that the Red River slowly migrated south adding a significant amount of accretion to the southern portion of Hall's property. In 1975, the Red River Waterway Commission ("RRWC") obtained a servitude from Hall to cut a dredge across the property in order to redirect the channel of the Red River. A dam was constructed to divert the flow of the Red River down the new channel. Hall claims that the old riverbed (the Oxbow) became nonnavigable and W.A. Hall's ownership then extended to the middle of the Oxbow. Because of a series of locks and dams being constructed, the majority of Hall's claimed property lies underwater.

Hall claimed that this permanent flooding by the locks and dams did not change the ownership of the riverbank. It asserted that the State was claiming property lying above the ordinary low water mark of 102 feet. It also claimed that it owned the accretion because it belongs to the owner of the riverbank. Hall sought monetary damages for any mineral royalties or lease bonuses paid to the State on property owned by Hall.

Lester Land and Lester Minerals filed an answer and reconventional demand denying Hall's allegations. They claimed that their title included an undivided interest in part of the property that Hall claimed to own. They asserted that Dr. Frank Willis's expert report evidences their title ownership. They stated that, subject to any acquisitive prescription claim by Stephens Sisters and the fixing of the State's property line, their own title and ownership interest is superior to any other ownership claim.

Stephens Sisters filed an answer, reconventional demand, and crossclaims alleging that Hall unlawfully entered upon and traversed its property, resulting in physical damage, mental anguish, and embarrassment. It added the defenses of acquisitive prescription, its title of record, and any interest it may have by way of riparian movement, including accretion, dereliction, avulsion, or alluvial deposits. It asserted that it owned all accretion and alluvial deposits attached to its titled property. It claimed that it has possessed the property at issue in excess of the required ten or thirty years for acquisitive prescription. Stephens Sisters also claimed any land claimed by the State that was above the ordinary high water mark. Stephens Sisters requested all damages to which they may be entitled. Ms. Greco, Random Precision, Lester Minerals, and Lester Land answered individually and claimed any interest they had by way of right of title, riparian movement, and acquisitive prescription.

The State filed its answer, reconventional demand, and crossclaims. The State denied that the Red River meandered away from the 1926 property and created a large alluvion deposit owned by Hall. It alleged that the Red River abandoned its bed and opened a new one. It stated that the property W.A. Hall purchased from the Town of Coushatta was not as large as Hall depicted. The State claimed that the new channel cut via the RRWC servitude was dredged only over a portion of Hall's property and not the large area claimed by Hall. It denied that much of Hall's property lies underwater after the dam was constructed.

The State claimed ownership of the land that is part of the beds and bottoms of the Red River. It therefore asserted that Hall has suffered no monetary damages for which the State is liable. It also claimed that Hall's surveyor improperly extended section lines to fit his conclusions as to the extent of Hall's property. The State argued that once the Red River made its avulsive cut across the peninsula, abandoned its bed, and opened a new bed, the southern extent of the 1926 property was fixed along the former left descending bank of the river. Therefore, according to La. C.C. art. 504, the owner of the land on which the Red River opened its new bed took the abandoned bed, up to the former left descending bank, which bordered the 1926 property. It claimed that after the 1945 avulsion, the 1926 property was no longer riparian. It argued that because the Red River moved, the "stream of the Red River" referred to in the legal description from the Town of Coushatta to W.A. Hall is actually the former stream of the Red River. It claimed this interpretation is necessary given the river's movement and description of the property as a "strip" of land.

The State requested that it be declared owner of the current and former bed and bottom of the Red River (as relating to this litigation) and that Hall's property be limited to the 1926 property, any alluvion prior to the 1945 avulsion, and the property from the Town of Coushatta limited to the boundary of the old riverbed. It also requested Hall be taxed with all costs and it be awarded all relief, including expert fees.

Hall and the State agreed that Hall could not assert any acquisitive prescription claims against the State. Preliminary default judgments were entered against Ms. Bausch and Ms. Greco, and they did not appear at or participate in the trial.

The bench trial was held from February 20 through March 3, 2018. Hall called Thomas Wright, manager of Hall Ponderosa, to testify. Mr. Wright testified that his grandfather, W.A. Hall, purchased the property that is now owned by Hall Ponderosa. He testified regarding the title of the property; hunting on the Island prior to the cutting of the new channel; visiting the property six to ten times per year growing up; oil and gas leases signed by Hall on the property in 1990 and 2008; and a servitude agreement between Hall and RRWC to dredge a channel through the middle of their property. He stated that after the navigation channel was cut, there was no agricultural activity on the Island and he was unsure of any hunting activity. He also testified on cross-examination that from the time the new channel was cut until around 2008, he accessed the Island once in 1993.

Mr. Wright stated that they had the property surveyed by Michael Mayeux and that survey was completed in April 2009. He testified that he met with Mrs. Antionette Stephens McVea, who was part of Stephens Sisters, to discuss the survey and she did not oppose or disagree with the survey at that time. Mr. Wright stated that he continued to access the Island via the Stephens Sisters’ property throughout 2009 with Mrs. McVea's permission and posted "No Trespassing" signs on the Island. He stated that in 2010 or 2011, Mrs. McVea stated he could no longer access the...