Benjamin Scott, Estate of Agnes Scott Bell, Estate of Ruby Scott Donald, Benjamin Scott Revocable Living Trust, Olivia Scott McMillan, Michel McMillan, Julia M. Carnes, and Leonard Scott, Jr. VS Leroy Chustz, Patricia Connell Chustz and Pointe Coupee Parish Police Jury

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STATE OF LOUISIANA COURT QF APPEAL FditST CIRC IIT fU 2Q13 CA 0 10 BENJAMIN SCOTT ESTATE OF AGNES SCOTT BELL ESTATE OF RUBY SCOTT DONALD AMIN BEN SCOTT REVOCABLE LIVING TRUST OLIVIA SCOTT MCMILLAN MICHEL MCMILLAN JULIA M CARNES AND LEONARD SCOTT R VERSUS LEROY CHUSIZ PATRICIA CONNELL CHUSTZ AND POINTE COUPEE PARISH POLICE JURY G udgment rendered v N o I Y Appealed from the 18 Judicial District Court in and for the Parish of Pointe Coupee Louisiana Trial Court No 40 587 Honorable Alvin Batiste Jr Judge JERRY F PEPPER ATTORNEY FOR BATON ROUGE LA APPELLANTS PLAINTIFFS BENJAMIN SCOTT ET AL JAMES C DEWEY ATTORNEY FOR NEW APPELLEES DEFENDANTS CHUSTZ AND MILEfELLO DEFENDANTS LA ROADS LONNY E GUIDROZ ATTORNEYS FOR NEW ROADS LA AND APPELLEE DEFENDANT POINTE COUPEE PARISH JOHN WAYNE EWELL POLTCE JURY NEW ROADS LA BEFORE PETTIGREW McDONALD AND McCLENDON J7 PETTIGREW appellants Plaintiffs hereinafter collectively referred to as the Scotts appeal from the trial court judgment in favor of d2fendants dismissing their petition for a s appeliees predial servitude of right of passage and writ of mandamus For the reasons that follow we affirm the judgment of the trial court The Scotts are owners of tracts of adjoining immovable agricultural property situated in Sections 58 and 59 of Township 6 South Range 9 East of Pointe Coupee Parish located between Bayou Shallow on their East boundaries and Bayou Maringouin on their West boundaries In their original and subsequent amending petitions the Scotts made various claims in an attempt to obtain a predial servitude across property owned by the Chustr Miletello and Gravois defendants The Scotts initial argument was that they were the owners of an enclosed estate and thus entitled to a servitude to the nearest public road which was claimed by the Scotts to be Gravois Lane The Scotts further claimed that they were entitled to a servitude because a that they claimed existed road along the bank of Bayou Maringouin had become a public road based upon a tacit dedication as a public servitude due to public maintenance under La R 48 S 491 Finally the Scotts asserted that because Bayou Maringouin was a navigable waterway La In an original and first amending petition the plaintiffs were identified as follows Leonard C Scott r Sheryl M Scott and Clara Berrard Scott deceased ulia M Scott Carnes Benjamin Scott as Trustee of the Ruby Donald Trust the Testamentary Executor of the Succession of Agnes Scott Bell and the Trustee of The Scott Family Revocable Living Trust a California Trusk 5uccessor in interest to The Benjamin Scott Revocable Trust Michael G McMillan and Olivia Scott McMillan Moreover Diversified Property Holdings C L intervened into the proceedings aligning itself with the rights and interests of the Succession of Agnes Scott BeIL Z The following defendants were named Leroy J Chus Jr Patricia Connell Chustr Myrtle Brown Chustr Anthony Tony Miletello Sr Lucille Miletello Crousillac Johnny Paul Miletello Anthony Miletello rClaude T Gravois Jr and the Pointe Coupee Parish Police Jury 3 Louisiana Revised Statutes 48 provides in pertinent part as follows 491 B 1 All roads and streets in this state which have been or hereafter are kept a up maintained or worked for a period of three years by the authority of a parish governing authority within its parish or by the authority of a municipal governing authority within its municipality shall be public roads or streets as the case may be if there is actual or constructive knowledge of such work by adjoining landowners exercising reasonable concern over their propeity 2 Civ Code art 665 conferred upon them a riaariar servitude of passage across the Chustr and Miletello properties The matter proceeded to a b triai c pra i2 2012 foll which the trial nch n wing court took the matker under advisemer C J 1 2C the trial c s written k rE 2 urt sued reasons for judgment in favar of th cf cl that the Scotts had failed to isv mda mg fe e establish by a preponderance of the evodence thaz Bayou Maringouin was navigable in fact The trial court further found that the Scotts evidence concerning whether the alleged road along Bayou Maringouin was private or public was not sufficient to establish the road as public through tacit dedication pursuant to La R 48 The trial court S 491 signed a judgment on June 13 2012 in accordance with its findings It is from this judgment that the Scotts have appealed assigning the following specifications of error for our review 1 The Trial Court erred when it found that plaintiffs failed to prove by a preponderance of evidence that Bayou Maringouin was navigable in fact 2 The Trial Court erred when it applied an incorrect evidentiary standard to plaintiffs burden of praof with respect to establishing the navigability in fact of Bayou Maringouira 3 The Trial Court erred when dt concluded thak proof of navigability based on old U surveys is only re9evant to a claim of ownership of the S stream not its navigability 4 The Trial Court erred when it cohcluded that the present depth of Bayou Maringouin 6 at and around the property in question was relevant to the determination of its navigability During the trial on April 12 2012 the trial court heard testimony concerning the navigability of Bayou Maringouin and whether there was ever a public road along the bank of Bayou Maringouin After considering all of the evidence before it the trial court found as argued by the defendants in their post memoranda that the Scotts had trial failed to prove that Bayou Maringouin was avigable in fact and thus a finding of navigability in law was precludea The trial court further concluded that the alleged road 4 Article 665 provides in pertinent part as followws ServitJdes imposed for the public or common utifity relate to the space which is to be 1 for the public use by the adjacent proprietors on the shores of ft navigable rivers and for the making and repairing of levees roads and other public or commcn works along the bank of Bayou Maring af ora ever exi tivas more akin to a headland i t used for agricultural purposes and e a road for s5e py the public In dismissing the t Scotts petition and writ of mandarnus F trial c o the foilowing written reasons e trec uf for judgment The Court hereby finds for reascns stated more specifically in defendants post trial memorandum vhich the Court adopts herein by reference that the Plaintiffs have faifed tc establ6sh by a preponderance of the evidence that Bayou Maringouin is navigable in fact As pointed out in Plaintiffs post trial memorandum in l body of water is ouisiana a navigable in law if it is navigable in fact Navigability is not presumed Rather it is a burden to be carried by the party asserting navigability here the Plaintiffs The factual question turns on whether the evidence shows a body of water to be suitable by its depth width and location for commerce At trial of this matter testimony was heard and evidence was submitted regarding the alleged navigability of Bayou Maringouin near the property in question Although Counsel for Plaintiffs submitted evidence from Mr William Decker regarding the State of Louisiana s historical claim to the water bottom of Bayou Maringouin in the affected area of concem in this litigation as pointed ouk by Defense counsel proof of navigability based on old U surveys is only relevant to a claim of S ownership of the stream not navigabilify in short a claim of ownership does not establish a finding of navigability Furthermore Plaintiffs expert witness Mr George Castifle testimony as to his own s measurements of the depth of the bayou af various points and his self satisfaction that the bayou still carried water and retained its character as a navigable body of water was rebutted by demonstrative as well as testimonial evidence submitted by the Defense in the form of pictures and testimony which established that at and around the property in question Bayou Maringouin sdepth was merely six inches at most Because of Plaintiffs onerous burden regarding proof of navigability and the credible demonstrative and testimonial evidence s in opposition to the bmitted s bayou ability to sustain commerce in its ordinary state specifically where it adjoins the plaintiffs and the property owner defendants the Court hereby finds Bayou Maringouin is aot navigable in fact and thus a finding of navigability in law is precl ded The Plaintiffs also contend that they are entitled to the use of a road running across Defendants pro which road they suggest perty should be characterized as public by virtue of maintenance performed thereon by the Pointe Coupee Parish Police 7uy in years past Plaintiffs reliance is based on La R 48 wnich allows for the dedication of a S 491 road as a public road when is proven tha a municipality or governing it authority has maintained or otherwise kept up the road for a period of three years Whether a road is privake or public is a factual determination for the Court to make As was the case regarding navigability the Plaintiff In 5 Louisiana waterways are navigable n law when they are used or susceptible of being used in their natural and ordinary condition as highways for commerce over which trede and travel are or may be conducted in the customary modes of trade and travel on tne water Simply stated a water course is navigable when by its depth width and location it is rendered availabl for commerce Dunaway v Louisiana Wildlife and Fisheries Com 2008 p S App 1 Cir 2 6 So 228 232 n 1494 La 09 13 3d citations omitted 4 carries the burden of proof by a praf the evidence on this rance pord issue Only the Plaintiffs and M Carte S claimed that a road ever o iith existed Although there v testir l that at some point in the as ic c id rr past a truck or vehlcle rnay hav r av Ftis road oceasionally ra Plaintiffs expest surveyor approximately 100 f2et from Gp ara rrae s r fc c remnan of aravzl es av G an ctl revidence Gf a road s ear the Plaintiffs pro s g by Mrs rousillac 7 Defendants erz c ver rT auny one of the defendants s weli a rh r aU other defendanks nd ad said that there was no road alorig the a arod hat na one had crossed QU their land from the Scott property d the time of owning their aring respective properties Based on th evidenGe and testimony it is the s Court opinion that the alleged road if ever one existed was more akin to a headland used for agricultural purposes and not a road far use by the public Furthermore the evidence at trial as scant at best as to any public body performing the necessary maintenance on the strip of ground sufficient to transform the strip of ground into a public road under the relevant statute Plaintiffs only evidence of maintenance of any type that took place near the property as the testimony of a former employee of the parish police jury who testified that he cut branches in the area Another near the strip of property sometime ir tfne early 1980s employee testified he placed gravel near the area one time However all of the defendants ciaimed no knowledge ofi public maintenance and the Police Jury representatives denied any publ maintenance of any sort ic Even in the light most favarable to the piaintiffs the only evidenee presented was that the Police ury may hav occasionally brushed up the area in question which this Court b is far from sufficienk to lieves establish a consistent pattern of maan envisioned by ki statute enance e and necessary to establish the road as pt thrc tacit dedication biic ugh Finally because this Cour finds the mainte performed on the ance iand in question insu to estabiish dadic cient nas a p road the ablie issue as to prescription of no f the road is rrsoot se The Plaintiffs suik mfssed di along ith he writ of mandamus at Plaintiffs Cost It is well that a reviewing court may aot ist the factual findings of the settled r6 trier of fact in the absence of manifest erro Ros ll SCO 549 So 840 844 La 2d 1989 Arceneaux v Domingue 365 So 1330 1333 Ca 1978j Tn Arceneaux 2d the Louisiana Supreme Court set forth a two test for the appellate review of facts t pa 1 the appellate court must fnd from tne recorci ti there is a reasonable factuaf asis at for the finding of the trial c and 2 the appellate court must further determine that urt the record establishes the finding s nc clear w or manifestly erroraeous t y ong Arceneaux 365 So at 1333 Und the manifest error wrong standard the 2d r cleariy reviewing court does not decide whethec the rfer of fact was right or wrong but 5 whether the fact finder conclusiQn was a re o Stobart v State through s nable sc e Dept of Transp and Development 617 So 8 882 La 1993 2d Q In reviewing this marterr we F the ria ourit very ciosely and carefully d considered all of the evidence present L we have thoruughly reviewed the d okevvise documentary evidence and applicable law and fnd that the record does not demonstrate that the decision of the trial court was manifestly erroneous We conclude that the evidence in the record reasonably supports a finding that the Scotts failed in their burden of proving the navigability of Bayou Maringouin and that the alleged road along the bank of Bayou Maringouin if one ever existed was not a road for use by the public Not only is the evidence overwhelmingly in support of the trial court s conclusion but also the trial court reasonable evaluations of credibility and reasonable s inferences of fact must be afforded great deference The trial court did not err in dismissing the Scotts petition for predlal servitude of right of passage and writ of mandamus The Scotts arguments on appeal to the contrary are without merit The June 13 2012 judgment of the trial court is affirmed appeal are assessed against plaintiffs appeliants AFFIRMED 6 All costs associated with this

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