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P&G, LLC v. Shingle Point, LLC

Court of Appeals of Louisiana, Fourth Circuit

May 15, 2019

P&G, LLC, MARION GIARDINA, MARSHA JONES AND ANNE LIVADAIS
v.
SHINGLE POINT, LLC, ET AL

          APPEAL FROM 25TH JDC, PARISH OF PLAQUEMINES NO. 62-501, DIVISION "B" Honorable Michael D. Clement

          Thomas J. Barbera BARBERA LAW FIRM Andrew A. Lemmon LEMMON LAW FIRM, LLC COUNSEL FOR PLAINTIFFS/APPELLANTS

          Mark A. Pivach Timothy Thriffiley PIVACH, PIVACH, HUFFT, THRIFFILEY & DUNBAR, L.L.C.Mark A. Pivach Timothy Thriffiley PIVACH, PIVACH, HUFFT, THRIFFILEY & DUNBAR, L.L.C. COUNSEL FOR DEFENDANTS/APPELLEES

          Court composed of Judge Edwin A. Lombard, Judge Rosemary Ledet, Judge Tiffany G. Chase

          Tiffany G. Chase Judge.

         This appeal involves a petitory action over batture. Appellants P&G, LLC; Marsha Jones; and Anne Livaudais (collectively "P&G") seek review of the trial court's judgment denying P&G's demand to name it owner of certain batture and granting Appellees' reconventional demand declaring Shingle Point, LLC and First Equity, Inc. (collectively "Shingle Point") the owners of the batture.[1] Finding no error in the trial court's ruling, we affirm.

         FACTUAL AND PROCEDURAL HISTORY

         The disputed batture is located on land formerly known as the Harlem Plantation, which is situated on the east bank of Plaquemines Parish.

         On June 28, 1946, John and Florian Lopez (hereinafter "the Lopez Brothers") acquired Harlem Plantation from Terrebonne Land Development Corporation. Later that year, the Lopez Brothers commissioned J.C. DeArmas, Jr., to prepare a survey (hereinafter the "DeArmas Survey") subdividing the land into individual lots. Between 1947 and 1951, the Lopez Brothers sold several of these lots and partitioned the remaining lots amongst themselves. On January 14, 1952, Florian Lopez sold his half, on which the lots and batture relevant to the case sub judice are located, to Charles S. Potter (hereinafter "Mr. Potter"). The act of sale between Mr. Potter and Florian Lopez stated that the "tract of land hereby conveyed fronts on the Mississippi River, and this sale covers and includes all battures, accretions, and all riparian rights which appertain or belong to said tract of land."

         Between 1952 and 1958, Mr. Potter sold several individual lots. Some of the acts of sale contained specific language transferring riparian rights and batture, while other acts of sale contained no such language.[2] Through a series of subsequent transactions, Shingle Point ultimately became owner of the lots relevant to this appeal.

         P&G filed the instant petitory action alleging ownership of batture emanating from the 1952 act of sale between Florian Lopez and Mr. Potter. In response, Shingle Point filed a reconventional demand seeking to be adjudged the owner of the batture. At trial, the parties stipulated that the acts of sale described the relevant lots as follows:

Lot is designated by Number 1 on the plan of Harlem Subdivision by John de Armas, 1946, according to which said plan of subdivision, the said lot measures 192 feet, front on Mississippi River.[3]

         P&G argues the DeArmas Survey does not reflect the lots' boundary lines as going to the river and that it separately reflects the batture as bounded on all four sides (hereinafter the "DeArmas Line"). P&G further maintains that, in the absence of express language granting title to the batture, Mr. Potter retained the batture when the lots were sold.[4]

         Following the trial, the trial court ruled in favor of Shingle Point, declaring it owner of the batture and dismissing P&G's claims. While it considered testimony from several lay witnesses who testified regarding the height of the batture at the time of the acts of sale, the trial court ultimately accepted and adopted the conclusion of Mr. Stephen Estopinal (hereinafter "Mr. Estopinal), Shingle Point's expert in land surveying. In its written reasons for judgment, the trial court found Mr. Estopinal's testimony credible, citing his opinion that the use of the phrase "front on the river" evidenced intent to sell all lands up to the Mississippi River. The trial court also cited Mr. Estopinal's testimony regarding the custom of using a meander line stopping at a river road rather than at the river itself. Further, the trial court adopted Mr. ...


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