I am in accord with the view expressed in the majority opinion that the considerable body of water lying in the parishes of Calcasieu and Cameron, and geographically known as Calcasieu Lake, should be regarded as a lake and not as a river. But I am not in accord with the view therein expressed as to the legal principles that follow from a recognition of that fact.
Calcasieu Lake is a widened part of Calcasieu river. There is a continuous current flowing down the river, through the lake, into the Gulf. The velocity of this current varies with the seasons, being considerable in the wet season and inconsiderable in the dry season. The water level in the river, below and above the lake, and in the lake itself, varies according to the direction and velocity of the winds and according to the variation of the tides in the Gulf.
It is not disputed that Calcasieu Lake is a navigable body of water, nor that the land involved, due to the action of natural forces, is covered by the waters of the lake. The land, therefore, is a part of the lake bed. As such, I respectfully maintain, it is insusceptible to private ownership.
At the outset, I think it is pertinent to remark, on no lesser authority than the Supreme Court of the United States, that it is against public policy for the ownership of the soil below the water surface of a navigable body of water to be vested in a private individual. Vide, Barney v. City of Keokuk, 94 U.S. 324,337, 338, 24 L. Ed. 224, 228.
And it is a recognized legal principle in this country that the title to the soil beneath the waters of a navigable lake is in the state, and not in the owner of the abutting soil. *Page 518 Verbo, "Lake," Bouvier's Law Dict. (Rawle's Revision) vol. 2, p. 104.
Imbedded in our own jurisprudence is the principle that the titles to the beds of all navigable waters are vested in the state by virtue of its inherent sovereignty. La. Navigation Co. v. Oyster Commission, 125 La. 740, 51 So. 706; State v. Bayou Johnson Oyster Co., 130 La. 604, 58 So. 405, 407; State v. Capdeville, 146 La. 94, 83 So. 421, 425; State v. Bozeman,156 La. 635, 101 So. 4.
In State v. Bayou Johnson Oyster Co., supra, wherein the title to tide water lands in St. Bernard parish was under consideration, the court reviewed the jurisprudence of the country, showing general approval of the doctrine that title to the soil under the navigable waters of each state is vested in the state by its inherent sovereignty; that "the soil beneath the great lakes and navigable waters, above as well as below the flow of the tide, properly belongs to the states, by their inherent sovereignty."
In State v. Capdevelle, supra, involving Lakes Rond, Fausse Pointe, Dauterive, and Little Lake Long, which are nothing more than widened parts of the Atchafalaya river, the court held that the lake beds belonged to the state by virtue of its inherent sovereignty. In the course of the opinion, the rule was announced that: "Once a body of water is found to be navigable, it follows that the bed or bottom must be held to be the property of the state."
In State v. Bozeman, supra, which is referred to in the majority opinion, the extent of the area of the bed of Cross Lake in 1812 was only incidental to the pivotal question of the navigability, vel non, of the lake at that time. The state's title depended solely upon its ability to establish that Cross Lake was a navigable body of water in 1812, the date of the state's admission into the Union. *Page 519 When this was established, it necessarily followed that the title of the state to the bed of the lake was recognized to the only established ordinary high-water mark.
Article 450 of the Civil Code provides that:
"Things, which are common, are those the ownership of which belongs to nobody in particular, and which all men may freely use, conformably with the use for which nature has intended them; such as air, running water, the sea and its shores."
Article 453 of the Civil Code provides that:
"Public things are those, the property of which is vested in a whole nation, and the use of which is allowed to all the members of the nation: of this kind are navigable rivers, seaports, roadsteads and harbors, highways and the beds of rivers, as long as the same are covered with water."
Hence there can be no such thing in this state as private ownership of the bed of a navigable river, and a fortiori can there be no such thing as private ownership of the bed of a navigable lake. Cf. La. Navigation Co. v. Oyster Commission, supra, at page 754 of 125 La., 51 So. 706.
In my opinion, the title of the state to the bed of a navigable lake cannot be partly original and partly derivative, as is suggested in the majority opinion. It is always an original title. The right to the ownership of the soil in navigable waters inheres in the state in its sovereign capacity. It is impossible for me to differentiate that portion of the bed of the lake which is due to erosion from that part which is not. When the erosion occurs, the submerged area due thereto becomes incorporated into the bed of the lake, and is the property of the state.
The earliest case in our jurisprudence on this question is Milne v. Girodeau, 12 La. 324. *Page 520 The opinion is very brief, as if its author felt it was unnecessary to discuss the question. The opinion, however, sufficiently shows the facts on which the decision was predicated, namely, that the plaintiff could not recover in a petitory action, when it was shown the property claimed lay below the high-water mark and formed part of the bed of the lake; that land thus situated is not susceptible of private ownership. Counsel for plaintiff state in their brief that they have examined the original record in this court as well as in the district court, where all the data and the testimony are preserved, which set forth in full all the facts. They set out in their brief, no doubt correctly, the facts as they found them in the record, viz.:
"The plaintiff, Milne, through mesne conveyances originating from a French grant in 1764, was the owner of a large piece of property on the shores of Lake Pontchartrain. At the time the grant was made the land extended much further into Lake Pontchartrain than was true at the time this controversy arose.
"In 1831 Milne conceived the idea of laying out a townsite or village upon this property, and for that purpose he had a plat thereof made, with streets and squares shown thereon extending to the water's edge. He, moreover, depicted upon this plat lots and squares in the bed of Lake Pontchartrain, itself, to the point where the original line of the property had extended at the time of its acquisition from the French Government, and he then proceeded to sell lots, and sold quite a good many.
"In 1833, or thereabouts, the defendant erected upon one of these lots, which was out in the water, a house, and after Milne had tried in vain to make him desist, this petitory action was filed. Milne claimed to be the owner of this lot upon which the house *Page 521 was built and asked that the defendant be ousted therefrom and enjoined from further interfering with his possession. The defense was that this property then constituted the bed of Lake Pontchartrain and was therefore incapable of private ownership.
"The judge of the district court held that the lot in dispute constituted part of the bed of the lake, was not susceptible of private ownership even by the proprietor of the lake shore, and rejected plaintiff's demand."
This court affirmed the judgment, saying: "It appears to us that the testimony shows fully, the ground in question, lies much below high water mark, and forms part of the bed of the lake, and is not, therefore, susceptible of private ownership."
The case of Zeller v. Yacht Club, 34 La. Ann. 837, was to the same effect as the decision in Milne v. Girodeau. And both these cases were impliedly, if not expressly, approved by this court in La. Navigation Co. v. Oyster Commission, supra.
The Court of Appeals for the parish of Orleans also seems to have considered the question to be too well settled to require much comment, as will appear from its decision in Roussel v. Grant, 14 Orleans App. pages 57, 59. There, plaintiff sought to recover a tract of land bordering on Lake Pontchartrain, basing his claim on a complete Spanish grant. Defendant claimed under a grant from the Secretary of War, and pleaded that plaintiff sought to recover a part of the waters of the lake. The court, speaking through Judge St. Paul, now one of the Associate Justices of this court, said:
"We fail to see what bearing this can have on the controversy. It is a matter of public knowledge that the waters of Lake Pontchartrain have constantly gained upon the shore at this point, during the last one hundred and fifty years. And doubtless the *Page 522 grant to plaintiff's ancestor contained more land than is found there at present.
"But since land below the low water mark is not susceptible of private ownership, it is purely a moot question, and of no practical importance for us to inquire whether or not plaintiff's lots once extended beyond the present shore line. Plaintiff is clearly entitled to all the land up to the present low water mark; and if the actual measurement now given extends beyond the old low water mark plaintiff takes nothing by this judgment beyond that mark."
The latest expression of this court on the question is to be found in N.O. Land Co. v. Board of Commissioners, 171 La. 718,132 So. 121, decided December 1, 1930, where it was held that the bed of Lake Pontchartrain lying below the ordinary high-water mark was the property of the state, and therefore insusceptible of private ownership.
Our own jurisprudence on the point is in accord with the views of the French legalists and are supported by the decisions of courts of last resort in other states.
The rule in France is stated by Fuzier-Herman in his Code Civil Annote, vol. 1, art. 538, p. 687, n. 193, as follows, viz.:
"The adjacent lands which become definitely invaded by the tides should be considered as shores of the sea and as belonging by virtue of this title to the Domain."
And in Dalloz (Repertoire, vol. 17, p. 359, Domaine Public, No. 32) as follows, viz.:
"If as has been decided, and the decision is but an exact although rigorous application of the principles of the matter, that the land of a private owner bordering on the sea becomes seashore and, therefore, a dependence of the public domain whenever it is invaded in a permanent manner by the high tide of March; in consequence the dispossessed owner *Page 523 no longer retains any right to the natural products of the land."
See, also, to the same effect C. de Douai, 10 Janv., 1842; Fuzier-Herman, Code Civil Annote, vol. 1, p. 687, No. 199.
In Jefferis v. East Omaha Land Co., 134 U.S. 178, 196,10 S. Ct. 518, 33 L. Ed. 872, the Supreme Court of the United States recognized the fact that a water line, which is a shifting line and may gradually and imperceptibly change, is just as fixed a boundary in the eye of the law as a permanent object, such as a street or wall. And the court approved the view that, where a water line is the boundary of a given lot, that line, no matter how it shifts, remains the boundary of the lot.
Hume v. Rogue River Packing Co., 51 Or. 237, 83 P. 391, 92 P. 1065, 96 P. 865, 31 L.R.A. (N.S.) 396, 131 Am. St. Rep. 732, was a case involving a claim of an exclusive right to fish in tide waters at the mouth of a river. Plaintiff urged that he owned the land in dispute under his acquisition from the state of the tide lands bordering on the river as well as all the adjacent uplands. He asserted ownership to the bed of the mouth of the river, because of the shifting of the channel, and it appeared his titles embraced the river's mouth. The court held: "When that part of the shore to which plaintiff claimed title as tide land, by deed from the state, became submerged by the gradual shifting of the river, he lost all title thereto and it became invested in the state."
In Trustees v. Kirk, 84 N.Y. 215, 38 Am. Rep. 505, the court held that a grant of land to a cliff, where a municipality retained a strip between the sea and the cliff, did not carry to the shore line, and, when the sea encroached, the city lost its land entirely. The court said, among other things: "They [the municipality] would be entitled to whatever *Page 524 should be gained from the sea by alluvion or dereliction, and their title was liable to be lost by the advance of high-water mark, so as to bring the strip reserved within the ebb and flow of the tide."
I think the legal principles announced in the foregoing authorities are applicable to the present issue, for, in my opinion, there can be and is no legal distinction between the beds of any navigable bodies of water, whether they be bodies of salt or fresh water.
It appears to be a rule of property in this state that the sovereign is vested with title to the beds of all navigable bodies of water, and that the riparian proprietors hold their titles subject to the rule. State v. Richardson, 140 La. 329,72 So. 984; Wemple v. Eastham, 150 La. 247, 90 So. 637. But, in any event, the fundamental rights of the state as the sovereign to the ownership of the beds of all its navigable waters must be read into the titles of all lands bordering on such waters. When the defendants acquired their lands from the state, they took them burdened with the condition that, whenever any part of the lands became submerged by the gradual erosive action of the elements, they would lose all title thereto, and it would become revested in the state.
Articles 509 and 510 of the Civil Code, referred to in the majority opinion, I respectfully submit were enacted by the state to regulate the private rights of the owners of lands situated opposite each other on the banks of rivers or streams, whether navigable or not. They cannot, in the very nature of things, be construed so as to impliedly divest the state of property which it owns in its sovereign capacity. Moreover, if any statutory authority is required to support the state's ownership of such property, articles 450 and 453 of the Civil Code, hereinabove referred to and quoted, are sufficient for that purpose. *Page 525
Even under the French Civil Code, articles 556 and 557 of which are similar to articles 509 and 510 of our Civil Code, and which contains the additional article 558, the law writers make a distinction between private lakes and public lakes. In the former class under article 558 alluvion does not take place. Thus Demolombe (Code Napoleon, t. 10, Distinction des Biens, liv. 2, p. 23, n. 25) says: "According to the terms of Article 558: Alluvion does not take place in case of lakes or ponds. * * * The reason for this is, on the one hand, that there is no longer question of running water, but of a body of immobile water, enclosed and contained, by its very nature or by its destination within limits invariably fixed."
See to the same effect Dalloz, Nouveau Code Civil, p. 922, n. 1, sub-art. 558: Aubry et Rau, Droit Civil Francaise, t. 2, p. 384, n. 203; Fuzier-Herman, Repertoire du Droit Francaise, t. 25, p. 783, n. 10, sub. Lac; Laurent, Cours de Droit Civil, t. 1, p. 499, n. 543.
The lakes with which the French authorities were dealing in their commentaries were lakes that were dormant and incapable of extending themselves. Necessarily the question of alluvion or reliction could not arise in connection with that particular class of lakes. But the same commentators recognized that different legal principles applied to lakes in which the waters are not immobile. Thus Fuzier-Herman (Repertoire du Droit Francaise, t. 4, p. 57, sub. Alluvion, nos. 47 et 48) states the rule to be:
"This article (article 558) does not cease to be applicable though the lake be traversed by a river or a stream from which it is fed if the captive waters are held bound by the natural condition of the place by dams or other works executed by the hand of man. Ph. Dupin, Encycl. du. dr., sub. Alluvion, n. 20. *Page 526
"But it is different in case of lakes and ponds in which the waters have a certain movement, such as lakes and ponds which communicate with the sea. In these bodies of water which are not immobile, Article 558 is inapplicable and alluvions can be created. * * *"
Larousse in his Dictionnaire Universel classifies among public lakes forming part of the public domain "the lakes Superior, Michigan, Erie and Ontario on the St. Lawrence, which all four have nearly one-seventh the surface of the Mediterranean Sea."
In Dictionnaire Generale du Notariat et du Droit Civil Moderne, t. 4, p. 350, sub. Lac, appears the following comment, viz.:
"* * * Alluvion takes place neither actively nor passively in lakes and ponds; that is to say, they preserve always their limits, and neither give nor remove anything in the case of their owners, as well as in the case of their neighbors by their increase or diminution. L.I, #3, D. ut in flum publ.
"Nevertheless, it is otherwise in the case of public lakes which the authors assimilate to public rivers. Cepola, de servit, proed. rust. Cap. 30, n. 6. Malleville, sur l'art. 538 Civ. Cappeau, ibid."
Certainly Calcasieu Lake is not a dormant body of water of which the boundary is invariably fixed. On the contrary, it is indisputable that it is a body of water in which there is, and always has been, a certain well-defined movement of its waters and a constant and well-marked enlargement of its bed. In this respect Calcasieu Lake cannot be differentiated from, but must be assimilated to, rivers and other running streams.
The cases of Slattery v. Arkansas Natural Gas Co., 138 La. 793,70 So. 806, and Bank of Coushatta v. Yarborough, 139 La. 510,71 So. 784, are referred to in the majority opinion. *Page 527 With all due respect, I suggest that the cases have no application to the issues involved here. In both cases the court was considering the dried lake bottoms in the dried lakes of the northern part of the state. In neither case was there any question involved of a permanent submergence of the soil due to natural causes. These lakes were what might be termed "barrier lakes." Their waters receded when the barrier which caused their formation was removed. This barrier was the great raft which had formed in Red river. The court held that the rule of dereliction set forth in Civ. Code, art. 510, was not applicable only because the recession of the waters was due to the act of man (the removal of the raft and the construction of levees), and not to the action of natural forces.
For these reasons, I respectfully dissent from the majority opinion and decree herein.