FURIE PETROLEUM, L.L.C. AND SILVER SPUR ROYALTY COMPANY, L.L.C. Plaintiffs - Appellees
SWEPI, LP, ENCANA OIL & GAS (USA), INC., PRIDE OIL AND GAS PROPERTIES, INC., CLOYCE C. CLARK, JR. AND MARTHA CHAMBERLAIN CLARK Defendants - Appellants CLOYCE C. CLARK, JR., ET UX Defendants - Appellants
EUGENE COPELAND, ET AL Defendants - Appellees
Appealed from the Forty-Second Judicial District Court for
the Parish of DeSoto, Louisiana Trial Court No. 70733
Honorable Charles Blaylock Adams, Judge.
& LEWIS By: Lawrence Paul Simon, Jr. Brian W. Capell
Counsel for Appellants, SWEPI, LP and Vine Oil & Gas, LP
CHRISTOPHER LENTO RYAN M. SEIDEMANN RICHARD LOUIS TRAINA
Assistant Attorneys General Counsel for Appellant/
Intervenor, State of Louisiana
YANCEY, KING & GALLOWAY By: William Drew Burnham John
Tucker Kalmbach Herschel Erskine Richard, Jr. Counsel for
Appellants, Encana Oil & Gas (USA) Inc., GEP Haynesville,
LLC, Pride Oil & Gas Properties, Inc.
BETHARD & BETHARD, LLP By: James Guenard Bethard Counsel
for Appellants, Cloyce C. Clark, Jr. and Martha Chamberlain
SHELTON, WILLIAMS, BENSON & PAINE, LLC By: Lee H. Ayres
Ryan P. Telep Counsel for Appellees, Furie Petroleum Company,
LLC, Silver Spur Royalty Company, LLC, Briarwood Finance Co.,
LLC, and Hydrotek Resources, Inc.
SCOTT BROWN LAW OFFICE By: Daniel Scott Brown Counsel for
Appellees/ Intervenors, Annie Laurie Samuels, Harvey H.
Samuels, Jr., Karen O. Lanier, Jamma Energy, LLC,
SEVERSON Counsel for Appellees, Lanier Samuels Properties,
LLC, and Succession of Eugene Copeland
STONE, COX, and THOMPSON, JJ.
appeal arises from the Forty-Second Judicial District Court,
DeSoto Parish, the Honorable Charles B. Adams presiding.
Following a 5-day bench trial on the merits, the trial court
granted judgment in favor of the Servitude Group,
finding that the Landowner Group failed to show by a
preponderance of the evidence that Bayou Dolet was navigable
when Louisiana was admitted to the Union in 1812. For the
following reasons, we affirm.
BACKGROUND AND PROCEDURAL HISTORY
complex litigation explores the intrinsic nature of Louisiana
waterways during the state's annexation to the Union. The
ultimate issue is whether a certain mineral
servitude in DeSoto Parish, Louisiana has prescribed
as a result of 10 years of nonuse. The issues of prescription
and navigability are bifurcated for our purposes, and this
appeal only concerns whether Bayou Dolet was navigable in
parties in this case are divided into two groups: the
Servitude Group, which maintains that the servitude still
exists, and the Landowner Group, which argues that the
servitude has prescribed. The Landowner Group argues that
Bayou Dolet was formerly navigable, all the way through the
tract at issue, and therefore, the tract is noncontiguous,
and the mineral servitude would be deemed severed into two
separate servitudes by virtue of La. R.S.
31:64. Conversely, the Servitude group argues
that Bayou Dolet was not formerly navigable, and therefore,
the tract at issue remains contiguous and the mineral
servitude remains whole.
bench trial commenced on August 20, 2018, before Judge
Charles B. Adams. A total of eight witnesses testified and 12
exhibits were admitted into evidence. The Landowner Group
called two fact witnesses: Cloyce C. Clark, the owner of the
property, and Cheston Hill, a representative with the State
Land Office; and five expert witnesses: Michael P. Mayeux,
Phillip N. Asprodites, Dr. Johannes L. van Beek, Dr. Gary D.
Joiner ("Dr. Joiner"), and Dr. George J. Castille,
all of whom spent considerable time investigating Bayou
Servitude Group called, as its only witness, a hydrologist,
Dr. Charles D. Morris ("Dr. Morris"), who had
previously examined the property. Following the trial, the
Court visited the site and examined the property at issue
with all counsel and parties present. At the conclusion of
the site visit, the trial court took the matter under
advisement. On November 30, 2018, the trial court's
"Written Reasons for Ruling on Issue of
Navigability" held that the Landowner Group failed to
prove by a preponderance of the evidence that there was, more
likely than not, a navigable body of water through the
subject property in 1812. The Landowner Group filed this
timely suspensive appeal asserting the following as its
assignments of error:
(1) The trial court erred, as a matter of law, by requiring
physical evidence of a channel through the Property,
including through Lake Dolet, for Bayou Dolet to be navigable
(2) The trial court erred, as a matter of law, by requiring
that Bayou Dolet be capable of use in transportation or
commerce through the entire year.
(3) The trial court erred, as a matter of law, by requiring
evidence that Bayou Dolet was actually used for
transportation or commerce.
(4) The trial court erred by precluding the Landowner Group
from presenting rebuttal expert testimony.
(5) The trial court committed manifest error by ignoring
ample historical and physical evidence of Bayou Dolet's
navigability in 1812.
outset of this appeal, we address the applicable standard of
review. The Landowner Group maintains that the trial court
committed legal errors which interdicted the fact-finding
process, and thus requires de novo review by this Court. We
appellate court may not set aside a trial court's finding
of fact in the absence of manifest error or unless it is
clearly wrong. Where two permissible views of the evidence
exist, the fact-finder's choice between them cannot be
manifestly erroneous or clearly wrong. Cole v. State
Dept. of Public Safety & Corr., 2001-2123 (La.
9/4/02), 825 So.2d 1134; Stobart v. State through Dept.
of Transp. & Dev., 617 So.2d 880 (La. 1993);
Jewitt v. Alvarez, 50, 083 (La.App. 2 Cir. 9/30/15),
179 So.3d 645. To reverse a fact-finder's determination,
the appellate court must find from the record that a
reasonable factual basis does not exist for the finding of
the trial court and that the record establishes that the
finding is clearly wrong. Stobart, supra; Jewitt,
an appellate court may believe its own evaluations and
inferences are more reasonable than that of the fact-finder,
the reasonable evaluations of credibility and reasonable
inferences of fact should not be disturbed upon review where
conflict exists in the testimony. Cole, supra; Rosell v.
ESCO, 549 So.2d 840 (La. 1989). Moreover, where the
fact-finder's conclusions are based on determinations
regarding credibility of the witnesses, the manifest error
standard demands great deference to the trier of fact because
only the trier of fact can be aware of the variations in
demeanor and tone of voice that bear so heavily on the
listener's understanding and belief in what is said.
Rosell, supra; Jewitt, supra; Jones v. Fin. Indem.
Co., 52, 421 (La.App. 2 Cir. 1/16/19), 264 So.3d 660.
where one or more trial court legal errors interdict the
fact-finding process, the manifest error standard is no
longer applicable, and, if the record is otherwise complete,
the appellate court should make its own independent de novo
review of the record and determine a preponderance of the
evidence. Ferrell v. Fireman's Fund Ins. Co.,
94-1252 (La. 2/20/95), 650 So.2d 747. A legal error occurs
when a trial court applies incorrect principles of law and
such errors are prejudicial. Lasha v. Olin Corp.,
625 So.2d 1006 (La. 1993). Legal errors are prejudicial when
they materially affect the outcome and deprive a party of
substantial rights. Lasha, supra; Evans v.
Lungrin, 97-0541 (La. 2/6/98), 708 So.2d 731.
matter sub judice, the Landowner Group's
arguments for reversal of the judgment and de novo review are
identical, and appear to be a thinly-veiled attempt to argue
the merits of this appeal twice. The Landowner Group has
failed to cite any alleged errors which would necessitate
conducting de novo review. Thus, the central issue before
this Court is whether the trial court committed manifest
error in finding that the Landowner Group failed to prove, by
a preponderance of the evidence, that Bayou Dolet was
navigable in 1812 when Louisiana was admitted to the Union.
things are owned by the state or its political subdivisions
in their capacity as public persons. La. C.C. art. 450.
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. Id.
Louisiana's ownership of the beds and waters of the
navigable waterways within the state is by virtue of the
Equal Footing Doctrine,  later codified in La. R.S. 9:1101,
which states in pertinent part:
The waters of and in all bayous, rivers, streams, lagoons,
lakes and bays, and the beds thereof, not under the direct
ownership of any person on August 12, 1910, are declared to
be the property of the state. There shall never be any charge
assessed against any person for the use of the waters of the
state for municipal, industrial, agricultural or domestic
While acknowledging the absolute supremacy of the United
States of America over the navigation on the navigable waters
within the borders of the state, it is hereby declared that
the ownership of the water itself and the beds thereof in the
said navigable waters is vested in the state and that the
state has the right to enter into possession of these waters
when not ...