Bayou Dolet: A Consistent Source of Controversy

July 22 2021 | Committees

Be it one reason or another, Bayou Dolet has been at the forefront of some of the most significant property law cases in Louisiana. For example, this bayou was the subject of the famed Wemple v. Eastham, where the Louisiana Supreme Court, in relevant part, affirmed the ruling that the state had no right to lease the bed or bottom of the bayou for the production of oil and gas, as the bayou was not and never had been navigable, holding that the bed, bottom and banks belonged to the private riparian landowner.[1]

Bayou Dolet was again a source of controversy in 2019, this time in the Louisiana Second Circuit Court of Appeal. In Furie Petroleum, L.C.C. v. Swepi, LP, the court was tasked with determining whether a certain mineral servitude in Desoto Parish had prescribed due to 10 years of nonuse.[2] Bayou Dolet was of great significance here, as its navigability, or lack thereof, would determine whether the mineral servitude had prescribed.[3] Specifically, if the bayou was formerly navigable, it would be noncontiguous, and the servitude would be deemed severed into two separate servitudes pursuant to La. R.S. 31:64.[4] In the alternative, if the Bayou was not formerly navigable, it would be contiguous and the servitude would remain whole.[5] Thus, the resolution of the issue hinged on whether the bayou was navigable; the possessor of the servitude in this case had used some of the property, so if the bayou was found to be non-navigable and contiguous, the possessor of the servitude would not lose it to non-use since all that was required was some use on any part of a contiguous property.[6]

In affirming the judgment of the trial court and holding that the bayou was non-navigable and never had been, the court of appeal relied on a couple of key points: the limited jurisprudence involving Bayou Dolet reveals that it has consistently been referred to as non-navigable, and secondly, all expert witnesses agreed that for Bayou Dolet to have been navigable in 1812, there must have been a channel running through it.[7] However, no evidence indicated that there was a channel that existed through the subject bayou, and the court stated that “[b]ecause there was not a channel through the subject tract in 1812, Bayou Dolet was not susceptible of being used in its ordinary condition, as a highway of commerce over which trade and travel are or may be conducted…”[8] In sum, since Bayou Dolet was not and had never been navigable, the tract was contiguous and the servitude was whole.[9] Thus, the court of appeal affirmed the judgment and held that the servitude was whole and had not prescribed due to non-use, as the possessor of the servitude had made use of a part of the contiguous property.[10] While this Bayou has led to many significant property law cases, the rulings have largely all followed the notion that the bayou never was and is not navigable. The frequent litigation around Bayou Dolet may not dissipate any time soon, but at least the results have been consistent.

 

Robert P. Thibeaux
Property Law Committee Chair

with Jack T. Aguillard
LSU Law School

Carver, Darden, Koretzky, Tessier, Finn, Blossman & Areaux LLC

 

[1] See Wemple v. Eastham, 90 So. 637 (La. 1922).

[2] Furie Petroleum, L.L.C. v. Swepi, LP, 53,113 (La. App. 2 Cir. 11/20/19); 285 So.3d 91.

[3] Id.

[4] La. R.S. 31:64 states: “An act creating mineral servitudes on noncontiguous tracts of land creates as many mineral servitudes as there are tracts unless the act provides for more.” Thus, two separate servitudes would result in one of the servitudes having prescribed from non-use.

[5] Furie Petroleum, L.L.C., 285 So.3d 91.; La. Civ. Code art. 753 states: “A predial servitude is extinguished by nonuse for ten years.”

[6] Id. at 94.

[7] Id. at 98.

[8] Id. at 100.

[9] Id.

[10] Id. at 101.



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